1. This case arose out of a proceeding under Section 530 of the Code of Criminal Procedure. Under that proceeding the present plaintiffs were, as they allege, turned out of possession, and they have brought this suit to recover possession, alleging the following title: They say that the property originally-belonged to one Gopal Pershad Thakur, who granted a miras lease of it to his daughter, Fulkumari. In the plaint the date of this lease is not given, but from subsequent proceedings it appears that the date is Aghran 1244, corresponding with December 1837. They then say that Fulkumari was in possession of this property under this lease, and that, on the 7th Jeyst 1276, corresponding with 17th May 1869, she sol (sic) to the plaintiffs' father, who obtained possession, and that the plaintiff a succeeded him in possession, and remained in possession until they were (sic) by the proceedings under Section 530 of the Code of Criminal Procedure.
2. The Subordinate Judge was of opinion that the miras title had not been established, but he thought that, as the plaintiffs had been for a long time in, possession, they ought to recover in this suit; and he further expressed an opinion that the plaintiffs are in the position of bond fide purchasers for valuable consideration.
3. Now, with reference to the finding of the Subordinate Judge that the plaintiffs had been in possession for a long time, we think that a judicial officer of the standing of Baboo Gunga Charan Sirear ought to be well aware, that this indefinite language and the indefinite form in which the fifth issue was framed are wholly inadequate for a judicial decision upon a question of title. In consequence of this indefinite language and of the inexact form of the fifth issue, a considerable amount of unprofitable discussion has arisen in this Court upon a point which is sufficiently simple.
4. The District Judge, on appeal, was also of opinion, that the miras title had not been established. For this finding he has given a number of reasons, in all of which we are not prepared to concur. It is not, however, necessary for us to enter specifically into these reasons, because we think that there are some of them upon which his finding in respect of the miras patta as a finding of fact can properly be supported.
5. The District Judge then proceeded to consider the question of title by twelve years' possession, and he was of opinion, upon certain authorities which Arenas quoted, that the plaintiff's ought not to be allowed to succeed upon a title by twelve years' adverse possession, because this title had not been set out with sufficient distinctness in their plaint.
6. Now the question here raised is one upon which there are numerous decisions of this Court, which, unless carefully examined, may appear to be conflicting; but what these decisions really come to appears to us to be this, that where a specific title has been alleged but not proved, and the plaintiff endeavours to succeed in the first Court or second Court of Appeal upon a title by twelve years' adverse possession, he must be prepared to show, that this other title by twelve years' adverse possession was raised in the Court of first instance with sufficient clearness, to enable his adversary to understand that he claimed to succeed as well by twelve years' adverse possession as by the specific title alleged. Now, if he apply this principle to the present appeal, it appears to us that there is little to distinguish this case from that of Shiro Kumari Debi v. Gobind Show Tanti (I. L. R. 2 Calc, 418). Mr. Justice Markby there says:---'It is quite clear that when a plaintiff claims a title upon twelve years' possession, he must draw the attention of the defendant to the fact that he is going to claim a declaration upon that title, in order that the defendant may give his own evidence and scrutinize the evidence of the plaintiff upon that point, and see-whether possession for twelve years is proved, and whether he can contradict it during any portion of that period.' And then, referring to the particular facts of that case, he says in a further portion of his judgment:---'The plaintiff says, that he has not been himself in possession for much more than eleven years, and though he is, no doubt, entitled to join the possession of his vendor to his own possession, yet he has not given the date when his vendor came into possession, nor does he even make the general allegation that the possession of his vendor, coupled with his own possession, would amount to a period of twelve years.' In the case before us the date of the original miras patta has not been given, and there is no general allegation that the possession of Fulkumari under the miras patta, if added to the possession of the plaintiffs and their father under the kobala, would altogether make up a period of twelve years' adverse possession, which would constitute a good title. Under these circumstances, we are of opinion that, so far as regards this second title of twelve years' adverse possession, we ought not to interfere with the judgment of the District Judge.
7. The District Judge did not distinctly deal with the question as to whether the plaintiffs were bond fide purchasers for valuable consideration. He says in the ninth paragraph of his judgment, that a certain decision of the Privy Council, in the case of Bam Coomar Koondoo v. McQueen (18 W. R., 166), has been quoted in support of the contention raised before him, and 'no doubt it is a sound one; ' but when he reversed the decision of the Subordinate Judge upon four grounds which he has set out at considerable length, he did not proceed to show on what grounds the plaintiffs, if bond fide purchasers for valuable consideration, ought to fail in this case, the miras patta not having been proved.
8. Then, as to the title under the miras patta, it is contended before us, and we think with reason, that the plaintiffs were entitled to an order in their favor upon the application made by them to the Subordinate Judge to have the original miras patta sent for, this patta being on the Collectorate record. It appears that this patta was mentioned in the list of documents annexed to the plaint; that an application was made on the 4th June to have the original patta sent for from the Collectorate; and that the Subordinate Judge refused this application, because the examination of witnesses had already commenced.
9. The Dif riot Judge observes that the examination of the witnesses was concluded of the following day,---that is, the 5th June. Now it is quite possible that, if the Subordinate Judge had, on the 4th June, complied with this request and sent for the patta from the Collectorate, it would have been produced in Court before him before the trial was terminated or the plaintiffs had closed their case.
10. We think that, as a general rule, in all cases in which parties apply for a summons to compel the attendance of witnesses, or a summons to produce documents, or apply to have a document sent for under Section 137* of the Code of Civil Procedure, the Court ought not to refuse such application, merely because, in its opinion, the witnesses cannot be present, or the documents cannot be produced, before the termination of the trial. In this case there was very grave negligence on the part of the plaintiffs in not applying to have this document sent for at an earlier stage; and the Subordinate Judge would have been perfectly justified in saying that in consequence of this negligence, he would refuse to grant an adjournment of the case in order to enable the plaintiffs to do that which they ought to have done at an earlier stage. But we think that the Court was not justified in refusing to send for the document, and so denying to the plaintiffs an opportunity which might perhaps have been fruitful and favorable to them. For these reasons we think that the case ought to be remanded, and that the Subordinate Judge ought now to send for the original patta. When that patta is produced before him, it will be necessary to decide whether the miras title alleged by the plaintiffs has been established by the patta. He must then proceed to consider whether this miras interest is transferable, and must reconsider his decision on this point. When these findings of fact are sent by the Subordinate Judge to the Lower Appellate Court, that Court will pronounce its own decision thereupon, and will further proceed to dispose of the question whether the plaintiffs are in the position of bond fide purchasers for valuable consideration, and, as such, entitled to hold this property, even if the miras patta is not proved, and even if the miras interest should not be I found to be transferable. If Fulkumari was allowed by the defendants to hold herself out to the world as the owner of a transferable interest in the property, and so to mislead the plaintiffs, it will be necessary to consider whether the defendants are now estopped by their conduct from saying that she had no such interest. We think that, having regard to the culpable delay made by the plaintiffs in applying to the Court to have the miras patta sent for, no costs of this appeal ought to be allowed. As to the costs of the lower Courts, they will abide the final result of the case.