1. This is an appeal by the defendant in a suit for possession of certain lands on declaration of title. The appeal is against an order of remand made or purporting to be made under Order XLI, Rule 23, of the Code of Civil Procedure. The learned Subordinate Judge in the Court of Appeal below has made the order Complained of on the ground that the parties to the proceedings had misunderstood the proper issue in the suit and that such proper issue had not been framed.
2. The plaintiffs rested their case on two kabuliyats alleged to have been executed by them in favour of the landlords in the years 1302 and 1304 and accepted by the said landlords. The ease of the defendants was that the lands in suit were originally or had become part of their holding under the same landlords held by them at a juma of Rs. 22. Thus the essential questions that arose for consideration of the Courts below were whether the documents of title relied on by the plaintiffs, that is to say, the two kabuliyats had been in fact executed by the plaintiffs and accepted by the landlords, whether those documents covered or included the lands in suit and if so, whether they conferred title upon the plaintiffs, that is to say, whether the lands were lands of which the landlords had a right to dispose. The second essential question was one of limitation.
3. Having carefully read the judgment of the Original Court, we can find no reason sufficient for the Subordinate Judge's conclusion that the parties in the first Court or the first Court itself, had misunderstood these essential issues. On the contrary we find that the additional issures, which the Subordinate Judge considered it necessary to frame, were all covered by the 4th issue raised in the first Court and that the questions raised in those issues have all been discussed and some of them decided in the course of the judgment on the 1st and 4th issues. Both parties had full opportunities of adducing evidence and if, as seems to be the opinion of the learned Subordinate Judge, a local enquiry to determine the nature of the land in dispute and to as certain a certain boundary line was necessary or desirable, it was open to the plaintiffs, if they thought it necessary, to apply for that investigation. But in the exercise of their own judgment or relying on the advice of the learned Pleader who assisted them in the first Court, they refrained from doing so. That is no reason for giving them a second opportunity of establishing the case which they tried to make out as against the present defendant-appellant. We look upon this order of remand as not merely not justified by the provisions of the law as contained in Order XLI, Rule 23, Civil Procedure Code, but as wholly unnecessary; and indeed we may go so far as to say vexatious.
4. For these reasons we set aside the order of remand and return the appeal to the Court of the Subordinate Judge to be heard and determined by him in accordance with law. The costs of this hearing will abide the result. We assess the hearing fee at one gold mohur.