1. This appeal arises out of a suit brought by the plaintiffs for recovery of Khas possession of certain land and for ejectment of the defendants therefrom. The case of the plaintiffs was that the holding or tenure, in question was not transferable and that the defendants, who were transferees from two tenants, Kheraj and Jeraddi, were trespassers. The case of the defendants was that their vendors had a mourasi mokarari interest in the land and this case they based upon a patta said to have been granted by the plaintiff No. 1 to the father of one of the vendors, namely, Kheraj, on 27th Baisakh 1269, corresponding with May 1862 With regard to this patta the plaintiff's contention was that it was not genuine. In the Court of first instance the decision was in (sic) of the plaintiffs. In the Court of first appeal it has been held that the patta of 1269 is genuine and that, by the express terms of this patta, the interest, of the lessees is transferable.
2. In the appeal before us the plaintiffs who are the appellants contend that the decision of the learned District Judge is wrong and they assail it on three grounds. It is first pointed out that this patta, which bears a stamp of 4-annas, should, in accord, (SIC) with the law then in force--Act XXXVI of 1860--have borne a stamp of Re. 1-80. It is then said that, by reason of the provisions of Section 12 of that Act, the document is not admissible in evidence in civil proceedings, but, just as in the Act now in force, under Section 13 of that Act there are provisions by which the Courts may receive in evidence such deeds or instruments on payment to the Court of the proper Amount of the stamp duty. Section 36 of the present Stamp Act, II of 1899, appears to us to be as applicable to documents of the years when Act XXXVI of 1860, was in force as it is to insufficiently stamped documents under the present Act.
3. It is next said that the District Judge should have held that in May 1862 the plaintiff No. 1, Nilratan, was a minor and could not, therefore, possibly have executed this patta of 1862. Incoming to the conclusion that the plaintiff was not a minor in May 1862 the learned District Judge, it bas been contended, has not given sufficient weight to the decrees of the years 1862, 1865, 1866 and 1867. These decrees appear to be decrees on contest and they show that in the suits which led to those decrees the plaintiff Nilratan was represented to be a minor, and that in those suits his mother appeared on his behalf as his guardian. The learned District Judge has, however, considered these decrees and has also, at the same time, considered along with the decrees other evidence on the record with regard to the plaintiff's age. Unless, therefore, it should be said that the statements contained in those decrees were binding on the present defendants we cannot say that, with regard to the estimate of the value of those decree, the learned District Judge has fallen into an error. The present defendants or their predecessors were no parties to the litigation, and it cannot, there-fore, be said that the statements of the plaintiff's age in those decrees are conclusive and binding as against the defendants.
4. Lastly, it is said that Nilratan's younger brother, Bhnban, was a minor in May 1862 and that the learned District Judge should have held that, as against him at least, the patta could not be taken to have a permanent and transferable interest. This is a point which does not appear to have been taken in either of the Courts below and if it had been taken it would have been open to the defendants to show that there were circumstances in the case rendering this patta operatives as against Nilratan's brother, Bhuban, as well as against him. It is not a pure question of law, and the point not having been taken in either of the Courts below cannot be taken now.
5. The appeal is, therefore, dismissed with costs.