1. This appeal has been preferred by the plaintiffs against the decision of the learned District Judge of Noakhali reversing the decision of the Additional Munsif of Lakshipur. The plaintiffs brought the suit to recover possession. The point turns on this. First of all, there are various plots of land sought to be recovered. We can dispose of shortly plots Nos. 7 to 24, because the finding of fact is conclusive with regard to them. The difficulty is occasioned by endeavouring to discover what was really determined and what was the finding of fact with reference to plots Nos. 1 to 6. As to those plots, the learned Judge remarks thus: 'As to the other plots,' that is plots Nos. 1 to 6, 'no rent was paid to them,' that is, the plaintiffs, 'from 1288 to 1312 and I cannot believe that they did not know that their title was denied and that rents were being paid to Pana Mia. I believe that they fully knew all this and still they took no steps for over 25 years.' The case of the plaintiffs is--and I am not sure that it is really denied--that they inducted their tenants into possession of these plots Nos. 1 to 6 but that subsequently these tenants went over to Pana Mia, the defendant No. 13, and paid the rents to him which was brought to the knowledge of the plaintiffs. The learned Judge seems to have considered from these facts that the possession would be adverse as against the plaintiffs and that the plaintiffs would be out of possession from the date on which the tenants paid their rent to the defendant No. 13 and when that fact came to the knowledge of the plaintiffs. Obviously, that is not so. The lessees cannot alter the character of their possession, if in fact they were inducted into possession of the property by the plaintiffs, by saying that they are going to pay their rents to the defendant No. 13. If the plaintiffs inducted the tenants into possession, obviously the character of the possession could not be altered without their consent and the findings, as they stand, clearly are not sufficient to cover the whole case. Then the learned Vakil, who appears for the defendant No. 13, says that there has been a forfeiture of the tenancy by reason of an absolute and unqualified denial by the tenants of the plaintiffs' title. That may be so. But that rests on, if the plaintiffs are the landlord, as to whether they are going to accept the forfeiture for the purpose of evicting the tenants or whether they are going to allow the tenants to remain on the land. I think that with regard to plots Nos. 1 to 6, the case must go back to the Court of Appeal below to have the appeal re-heard and a proper conclusion arrived at. Costs will be dealt with by the learned Judge of the lower Appellate Court. As far as I can see, there are no materials on which we can apportion the costs between plots Nos. 1 to 6 and plots Nos. 7 to 24.
2. I agree.