1. This is an appeal by the plaintiff and arises out of a suit for khas possession after declaration of the plaintiff's title to the land in suit. The plaintiff's case is that the land in suit consists of two plots with an intermediate plot which belonged to defendant No. 1, that the land in suit together with other lands originally belonged to one Dwarik Patari which he held under a registered kabuliyat executed by him in the year 1296 B.S. at a, jama of Rs. 38 odd, that Dwarik Patari made a gift of the jama lands to the plaintiff in 1318 and that the plaintiff let out the land in suit to one Sidhan Patari who was dispossessed by defendant No. 1 in 1319. The present suit was brought against defendant No. 1 and one Chehiroo as defendant No. 2 to whom the defendant No. 1 let out the lands in 1319. Chehiroo filed a written statement alleging that be held the land originally under Dwarik and that in 1319 he was induced by defendant No. 1 to execute a kabuliyat in his favour, but the land, he said, really belonged to the plaintiff. Defendant No. 1 denied plaintiff's title and the dispossession alleged by him. Defendant No. 1 further alleged that the two plots in dispute together with the intermediate plots really formed one plot and formed part of the jama held by him under the zemindar.
2. The Munsif raised a number of issues; but the main issues were two, and they were:
(1) Is the plaintiff's claim barred by limitation? and
(2) Has the plaintiff any title to the land in suit as alleged in the plaint?
3. The learned Munsiff in an elaborate and careful judgment discussed the question of the plaintiff's title and the title of the defendants and found in favour of the plaintiff. He decided the question of limitation also in favour of the plaintiff. Although the learned Munsiff found these issues in favour of the plaintiff, he gave him a decree only for declaration of title but refused to give khas possession on the ground that the tenancy of the tenant Sadhan with whom the plaintiff settled the land in 1318 was still subsisting and, therefore, the plaintiff was not entitled to khas possession of the land. Both parties appealed separately before the Subordinate Judge.
4. The Subordinate Judge without deciding the question of title which was also in appeal before him by defendant No. 1, decided the case on the question of limitation and dismissed the suit holding that the plaintiff's suit was barred by limitation. Plaintiff has brought this appeal against that decree and it was contended on his behalf by the learned Vakil who appeared for him that the judgment of the learned Subordinate Judge was erroneous, because first the questions of title and limitation were so intimately connected that the learned Subordinate Judge's judgment on the question of limitation alone was not based on the whole of the evidence and was, therefore, wrong; secondly, that the findings of the learned Subordinate Judge were based upon a misapprehension of law and facts and were not sufficient for the disposal of the question of limitation; thirdly, it was contended that the learned Munsiff in discussing the question of title had referred to an exhibit which was a kobala in favour of the defendant by one Chitra Dasi in which there was a clear admission in the year 1910 that the plaintiff's predecessor Dwarik was the owner of the land in suit which was stated as one of the boundaries of the plots conveyed by the kobala in favour of the defendant. The land in suit was described as Dwarik's land and Patit. The learned Subordinate Judge, it was argued, was in error in not referring at all to that document and thereby excluded very material evidence from his consideration in the determination of the appeal. The learned Vakil who appeared for the respondent, although he frankly admitted that the judgment of the Subordinate Judge was not very satisfactory, still contended that there was a finding which shows that the suit was barred by limitation. After hearing the learned Vakils for the parties and after a very careful consideration of the judgment of the learned Subordinate Judge I am of opinion that there has not been a proper trial of the case by the Subordinate Judge. I think that the omission of the learned Subordinate Judge to consider the question of title and the evidence adduced by both the parties on that point has very seriously prejudiced the trial in this case. The Judicial Committee of the Privy Council and this Court also have repeatedly pointed out the desirability in appealable cases, of the Court's pronouncing their opinion on all important points in order to enable the appellate Courts to dispose of the cases finally and thus avoid delay and expenses of a remand. In this connection it should also be borne in mind that Order 41, Rule 31 of the Code of Civil Procedure provides that the judgment of the appellate Court should state the points raised in appeal, and the decision upon those points and the reasons for the decision. There is no reason why this important rule should be ordinarily departed from. In the present case the question of limitation was intimately mixed up with the question of title. The evidence is directed against both the points. The judgment of the learned Subordinate Judge gives no indication that he had considered the very important and largo body of evidence both oral and documentary which were on the record in support of the cases of the respective parties. If the Appellate Court had considered the evidence and accepted the evidence on behalf of the plaintiff so far as title is concerned, it might well be that he would have taken the same view of the question of possession on behalf of the plaintiff as the learned Munsiff did. In discussing the question of title the learned Munsiff points out that defendant No. 1 admitted the title of Dwarik in the kobala which I have already mentioned and also that defendant No. 1 became a witness to the will of Dwarik by which he disposed of the land in suit, as his own property. Defendant No. 1 tried to explain away his conduct with reference to this document, but the learned Munsiff refused to accept his explanation and held that defendant No. 1 admitted the title of Dwarik. The learned Subordinate Judge has not referred to this important evidence. It is clear to my mind that the judgment of the Subordinate Judge is not based upon the whole of the evidence in the case.
5. Then the judgment of the learned Subordinate Judge on the question of limitation is also clearly defective. All that the judgment amounts to is that the plaintiff has failed to prove that he was in possession by receipt of rent within 12 years of the suit. The learned Subordinate Judge does not even say that the defendant was in possession or when his possession really began. The First Court found that the title was with the plaintiff. The learned Subordinate Judge, therefore, when considering the question of limitation should have assumed that the title was with the plaintiff. In considering the question of possession of land like the land in suit, various matters should be considered. According to the plaint, Dwarik, except for the short period that the land was khas, possessed those lands through tenants of whom Chehiroo was one. The defendant also claimed Chehiroo as his tenant. If Chehiroo was Dwarik's tenant, the more non-payment of rent by a tenant or non-receipt of rent by the landlord would show that the plaintiff the rightful owner was not in possession. It was essential to consider who was tenant in possession of the land, and also when, if at all, such tenancy was terminated. Then again the land in suit appears to be what is called Bastu land and such lands unfenced as they are in the villages, usually remain vacant and the only act of possession as is usual and as was suggested in the present case, was occasional cultivation by broadcasting of pulses. It was necessary to enquire who was in occupation and on whose behalf. The occasional user by a trespasser of land cannot extinguish the title of the rightful owner, unlets the possession of the trespasser is open, is adequate in extent and continuity and so forth.
6. In this connection see the case of Basanta Kumar Roy v. Secretary of State A.I.R. 1917 P.C. 18. Here the land was described as patit in the Schedule of the plaint and was also described as patit in the conveyance of defendant No. 1 and the plaintiff expressly drew the attention of the Court to this fact by a petition. No notice of this fact was taken by the Subordinate Judge in discussing the question of the plaintiff's possession. It is unnecessary for me to discuss what patit really means in the present case. Possibly it means that when the lands were not in the actual occupation of a tenant no particular use was made of the land by anybody. On these grounds I think that the judgment of the Subordinate Judge on the question of limitation in the circumstances of the present case is not sufficient or satisfactory. The result is that the judgment and decree of the Subordinate Judge are set aside and the case is sent back to the lower Appellate Court for a retrial of the appeal according to law. If the plaintiff is found entitled to succeed, in these circumstances of the ease, he should get khas possession. The plaintiff is entitled to the costs of this appeal and the other costs will abide the result.