1. This appeal arises out of a suit for declaration of the plaintiffs' title to and for confirmation of their possession in four parcels of land.
2. The case of the plaintiffs was that the four parcels of land in suit appertain to a jote belonging to one Mainuddi and they date their cause of action from the final publication of the Record of Rights, in which the principal defendants are recorded as owners of the said lands, and plaintiff No. 2 is recorded as a bargait or produce rent paying tenant under defendant No. 1. The defendants' contention on the other hand was that from the original owners of the jote, the aforesaid Mainuddi and his brother, the four parcels of land had been purchased by Shomsheruddin, the husband of defendant No. 1 Nasi Bibi. They further alleged that Shomsheruddin had been placed in possession in pursuance of that conveyance which bears date some time in 1304, and that he and after him his representative in-interest had continued in possession first through bargaits other than the plaintiffs up to the year 13 5 and then through plaintiffs Nos. 1 to 4 as their bargaits from 1315 onwards.
3. The conveyance by which the lands in suit were sold to Shomsheruddin is not registered, though the value of the property transferred exceeds Rs. 100. It was, therefore, held in the Court of first instance that the conveyance was inadmissible in evidence. The kobala not being admitted in evidence, the Court of first instance then came to the conclusion that the defendants had failed to prove their possession or that the plaintiffs were their bargaits and accordingly decreed the plaintiffs' suit.
4. On appeal the learned Additional Subordinate Judge of Dacca held that the kobala should have been admitted in evidence, or rather that the defendants should have been given an opportunity of proving their conveyance and that after proof the conveyance would be admissible in evidence. He further held that on the pleadings a distinct issue should have been framed on the question of limitation, that is to day, on the question whether at any time within 12 years preceding the suit the plaintiffs had been in possession of these lands as owners of the jote of Mainuddi. On these grounds he set aside the decree of the first Court and directed a re-trial of the suit, further directing that in this re-trial an opportunity should be given to the defendants to prove their kobala or conveyance and further that in the said re trial a clear issue on this question of limitation should also be framed. On both the points it was to be open to the parties to adduce fresh evidence. Against this order seating aside the decision of the first Court and directing a re trial, the plaintiffs have appealed.
5. In support of their appeal it is contended before us that though no distinct issue on this question was framed, yet evidence was taken on the question of limitation and on that evidence the Subordinate Judge in appeal should have heard and determined that question. It is also urged that the learned Munsif was right and the Subordinate Judge has erred in holding that the conveyance, if proved, was admissible in evidence. It is lastly urged that the remand, if at all necessary, should have been made in accordance with the provisions of Order XLI, Rule 25, Civil Procedure code, and not in the manner provided in Order XLI, Rule 23.
6. As regards the admissibility of the kobala the case of the defendants being that they were put into possession in pursuance of that kobala, they being in possession from the year 1304, we are of opinion that on the principles laid down in the case of Syam Kishore De v. Umesh Chandra Bhattacharjee 55 Ind. Cas. 154 : 24 C.W.N. 463 : 31 C.L.J. 75 the kobala though unregistered was, if proved, admissible in evidence in support of the defendants' possession. On the question of limitation it is true that there was evidence but as the remand in order to the proof of the kobala or conveyance is necessary, we think there is no reason why we should disturb the order of the Subordinate Judge on this question of limitation either. No doubt it would have been more appropriate if the remand were made not under Order XLI, Rule 23, but; under Order XLI, Rule 25. We do not think it necessary at this stage to interfere with the discretion which the Subordinate Judge has exercised in that matter.
7. For these reasons this appeal is dismissed with costs. The costs of this hearing will be costs in the case. We assess the hearing-fee at two gold mohurs.