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Halodhar Malo and ors. Vs. Kali Prosonno Basu Roy Choudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.18
AppellantHalodhar Malo and ors.
RespondentKali Prosonno Basu Roy Choudhury and ors.
Excerpt:
appeal, second issue not rained in lower courts, whether can be raised in second appeal. - .....a gradual accession to the land on the north bank of the river. the defendants said that it was an island that had sprung up in the river ands therefore, did not belong to the plaintiffs. the plaintiffs' case about the re-formation in situ has now been found to be untrue. the only question is whether in this case the learned judge, having found that the chur was, in fact, an island which formed in this river bahar khal, ought to have proceeded to enquire whether the river was or was not fordable at any season of the year. this point was not raised in the issues settled between the parties nor was it mentioned in the statements of the pleaders as to what were the respective cases of the parties on which they invited the court to decide. it is no use coming up in second appeal and raising.....
Judgment:

Fletcher, J

1. This is an appeal by the plaintiffs Nos. 10 and 11 against a decision of the learned Subirdinate Judge of Dacca, dated the 10th July 1914, affirming the decision of the Munsif at Munshigunge. The suit was brought with reference to a chur which had formed in what is known as the Bahar Khal. The plaintiffs are the tenants of the owners of the land on the north bank of the river and they claimed the land as being a gradual accession to the land on the north bank of the river. The defendants said that it was an island that had sprung up in the river ands therefore, did not belong to the plaintiffs. The plaintiffs' case about the re-formation in situ has now been found to be untrue. The only question is whether in this case the learned Judge, having found that the chur was, in fact, an island which formed in this river Bahar Khal, ought to have proceeded to enquire whether the river was or was not fordable at any season of the year. This point was not raised in the issues settled between the parties nor was it mentioned in the statements of the Pleaders as to what were the respective cases of the parties on which they invited the Court to decide. It is no use coming up in second appeal and raising this question as to whether the learned Judge of the lower Appellate Court ought to have decided whether this dova, which was a piece of water lying between the island sprung up in the mid-stream and the main land, was or was not fordable, if the parties agreed that the case must be decided on whether the Court believed this case of gradual accession to the main land as set up by the plaintiffs or whether the Court believed the case of the defendants that it was an island sprung up in the mid stream and the subsequent action of the river deposited silt in the channel between the island and the mainland and rendered the channel not fordable. It is quite clear on the statement made by the learned Judge in his judgment that it was agreed or, as the learned Judge stated, that it was conceded on. the plaintiffs' side that, if it was found that the chur was formed in the midstream leaving a dova to the north in 1314 as contended by the defendants, then the plaintiffs were out of Court. It is quite clear that the plaintiffs recognized that they had got to stand or fall on whether they were able to prove or not this case of gradual accession to the mainland which they set up in their plaint, and attempted to prove at the trial. The plaintiffs' advisers before the learned Judge conceded--and I have no doubt rightly conceded--that, if that statement was disbelieved and the defendants' statement is to the island having sprung up in the mid stream was accepted, then the question as to whether the channel was or was not fordable at any season of the year was a matter which it was not necessary to enter into in this trial. It is no use saying that the plaintiffs' legal advisers should not have conceded that, it would not be a material fact in the event of the learned Judge disbelieving their evidence and. that this Court ought to direct a re-trial on this matter, although there is the express consent of the plaintiffs' advisers. I think that the judgment of the learned Subordinate Judge was correct on the facts on which his opinion was invited by the parties and that the learned Judge, in view of the statements of the parties, was not bound to go outside the points pressed before him and decide a point that was not raised in the issues and which the parties considered was not necessary for the learned Judge to decide. In my opinion, the present appeal fails and must be dismissed with costs.

Newbould, J.

2. I agree

3. These appeals will he governed by the judgment just delivered in Second Appeal No. 3035 of 1914. They are also dismissed with costs.


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