1. In this second appeal, defendants Nos. 1 to 9 and 11 are the appellants before me. Among the prayers of the plaint are the following : (a.) to declare the title of the plaintiff to the 5 cottahs of land out of the 15 cottahs comprised within the boundaries given, (b) to give the plaintiff a decree for possession of the said 5 cottahs of land. The suit, therefore, is a suit for declaration of title and consequential relief in the way of possession.
2. The defendants who are potters plead a right in the nature of an easement to take earth from time to time from any 10 cottahs of land within a larger area said to comprise 7 bighas including the 5 cottahs in dispute, and to belong to the plaintiff. The case for the defence is thus stated in paragraph 6 of the written statement: 'The claim of the plaintiff is barred by limitation inasmuch as these defendants have for upwards of 12 years held adverse possession of any 10 cottahs of land within the boundaries given below, as well as of the land in suit, since the time of their ancestors and since the time of those of the plaintiff and pro forma defendant.' The plaintiff, on the other hand, alleges that earth was dug first from the 5 cottalis in dispute in Pous 1311.
3. In the Court of first instance, the suit was decided in favour of the defendants. The learned Subordinate Judge reversed the Munsif's decree and decided in favour of the plaintiff. Hence this appeal.
4. It is urged by the learned Pleader for the appellants that the learned Subordinate Judge has taken an erroneous view of the evidence in the case; and he has submitted that an erroneous view of the evidence involves in every case an error of law. I do not think that the authorities to which he refers are sufficient to support this proposition in the form in which it is stated. In the case of Lachmeswar Singh v. Manowar Hossein 19 C. 253 : 19 I.A. 48 decided by the Privy Council, their Lordships of the Judicial Committee made the following observations. 'It is true that the Subordinate Judge finds that the defendant's possession for twenty years was adverse to the plaintiffs. The question whether possession is adverse or not is often one of simple fact, but it may also be a conclusion of law, or a mixed question. Their Lordships have no wish to restrict the range of a rule which is designed to lessen the expense of litigation in cases of small value commenced in the Munsif's Court. But in this case the Subordinate Judge himself appears, quite rightly as their Lordships think, to have treated the question of adverse possession apart from his findings on simple fact, and as the proper legal conclusion to be drawn from those findings.' In these circumstances, their Lordships held that the High Court was at liberty in second appeal to come to a conclusion different from that of the Subordinate Judge on the question of adverse possession. In the second case cited, namely, the case of Iswar Chunder Santra v. Satish Chunder Giri 30 C. 207 the following observations were made by two learned Judges of this Court: 'The depositions of the plaintiff's two nephews amount to a great deal more than a disclaimer of interest in the land subsequent to the institution of the suit. They are evidence bearing upon the question whether the plaintiff is or is not the person alone entitled to the lands and to the crops in dispute. As the lower appellate Court in coming to a finding on that point has taken a clearly erroneous view of the evidence, and that erroneous view involves an error of law, in other words, as the learned Subordinate Judge in the Court of Appeal below has omitted to consider an important portion of the evidence bearing upon the question of the plaintiff's title, his decision upon this point must be set aside and the case remanded for a fresh decision upon the evidence taken as a whole.' Now, these observations were made with reference to the circumstances of the case which the learned Judges had before them. But, in my opinion, the language used being taken as it stands, the learned Judges were far from laying down the principle that an erroneous view of the evidence in every case involves an error of law sufficient to support a second appeal to this Court. The mistake made in the case before them appears to have been a total omission to consider an important part of the evidence, an omission which went to the root of the question which the Subordinate Judge in that case had to decide. In the present case, I do not think that the learned Pleader for the appellants has. made out either that there has been any legal conclusion wrongly drawn from simple findings of fact or that there has been any omission in the Court below to consider any part or any material of the evidence given in the case. If the learned Pleader has succeeded in establishing anything at all, it is that the learned Subordinate Judge has failed to put a right interpretation upon the evidence of two of the witnesses examined in the case-an interpretation which does not appear to me to amount to a legal inference from the facts found or to be anything more itself than a simple finding of fact. As I have indicated it is not every wrong inference from the evidence which justifies a second appeal. In support of that view I have been referred by the learned Pleader for the respondent to the case of Himmut Ali Khadim v. Nyamutoollah Khadim 23 W.R. 250 in which Couch, C.J. made the following remarks. The first of these grounds appears, on the face of it, not to be a ground of special appeal. The wording of it shows that the objection that the lower appellate Court has not taken the view of the evidence which the appellant thinks it ought to have taken. It is altogether improper to say that the construction of the depositions of witnesses is a question of law. The construction of the deposition of a witness is what the Court thinks is proved by it. It is a misapplication of the term to speak of it as a construction so as to make it a question of law.' Now, the two witnesses, whose evidence in the present case is said to have been misinterpreted are Hori Proshad, witness No. 5 for the defence, and the plaintiff's witness No. 2. Of the former the learned Subordinate Judge speaks as follows:-' Witness , No. 5 Hori Proshad says that he knows the disputed land and that he sees the defendants take earth from it since he came to age of discretion, but that ho does not know the boundaries. It is not the case of the defendants that they take earth from the disputed land from long.' All that the learned Subordinate Judge appears to me to have done is to refer to Hori Proshad as a witness who has not sufficient knowledge of the exact locality of the land, in respect of which he purported to give evidence. No question of law appears to me to be involved in that expression ,of opinion. Then, as to the; plaintiff's witness No. 2 the learned Subordinate Judge says: 'It appears that the lower Court has, not paid much, attention, to the evidence on . the defendant's side, but has based its judgment mainly on the statement of plaintiff's witness No. 2 who has said that the defendants, take earth from land within the boundaries given by the defendants in their written statement. But the plaintiff himself has said that the said boundaries are not strictly correct and that though they might indicate his own land, but in fact no land answering the description exists. The defendants have not proved the correctness of the boundaries given and there is nothing to show that the entire land extending up to the land of Horish Mandal and Gour Das on the south belongs to plaintiff. Therefore, I do not think that the plaintiff's witness No. 2 has in any way established the case of the defendants.' Here, again, I am unable to see that the learned Subordinate Judge has drawn any inference which can be classed as an inference of law or legal conclusion from the facts found. His opinion of the deposition of this witness is much the same as his opinion of the deposition of the defendant's witness No. 5. The witness did not sufficiently locate the land of which he was speaking and I think a reference to this evidence of that witness will show that there is no reason to differ from the view taken by the learned Subordinate Judge. In his examination-in-chief the witness appears to be speaking of the plot of 5 cottahs in respect of which the suit has been brought and he says that he does not know of potters taking earth from any land of the plaintiff for the last 2 or 3 years, and then he adds that formerly the potters used to take earth from a low piece of land which is now lying unused. Then in cross-examination he says that the low land from where the potters formerly used to take earth fell within the boundaries of the larger plot referred to in the written statement. The learned Subordinate Judge says that there is nothing to show that the low land is identical with the land in dispute or to prove that the whole of the larger plot of land described the written statement belongs to the plaintiff.
5. The result is that the appeal is dismissed with costs.