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Raj Chandra Deb Vs. Gour Chandra Das and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal157,49Ind.Cas.475
AppellantRaj Chandra Deb
RespondentGour Chandra Das and ors.
Excerpt:
civil procedure code (act v of 1908), order xii, rule 25 - appellate court, power of, to decide suit on issue not framed in primary court. - .....from the judgments of the courts below, the plaintiffs also alleged that they had got a title by adverse possession. the defendant's case was that the land belonged to another taluq which came under certain dags in the maghi survey. the first court having appointed a pleader commissioner declined to act upon the report of the commissioner and found in favour of the plaintiffs' title. that court also found that the plaintiffs' suit was riot barred by limitation. on appeal to the lower appellate court, the learned subordinate judge held that, although he might have been inclined to order a farther local investigation if the matters stood alone yet as he came to the conclusion that the plaintiffs had a title to the land by adverse possession, no useful purpose would be served by the case.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendant against the decision of the learned Subordinate Judge of Chittagong, dated the 26th January 1917, affirming the decision of the Officiating Additional Mansif of Patiya. The plaintiffs sued in ejectment to recover possession of the bank of a tank. The case of the plaintiffs was that the bank appertained to a taluq called Sachiram included in the Cadastral Survey Dag No. 6049 and that they had been dispossessed by the defendant in the year 1912. Apparently, so far as we can see from the judgments of the Courts below, the plaintiffs also alleged that they had got a title by adverse possession. The defendant's case was that the land belonged to another taluq which came under certain Dags in the Maghi Survey. The first Court having appointed a Pleader Commissioner declined to act upon the report of the Commissioner and found in favour of the plaintiffs' title. That Court also found that the plaintiffs' suit was riot barred by limitation. On appeal to the lower Appellate Court, the learned Subordinate Judge held that, although he might have been inclined to order a farther local investigation if the matters stood alone yet as he came to the conclusion that the plaintiffs had a title to the land by adverse possession, no useful purpose would be served by the case back to the primary Court for the purpose of having a further local investigation and he affirmed the decree of the first Court. Against that decision, the defendant has appealed to this Court. It seems quite clear on the record that no issue of adverse possession was settled in the Court of the Munsif although apparently the plaintiffs did definitely set up the case that they were entitled to the property by adverse possession. The case clearly could not be decided in the lower Appellate Court where no issue had been framed and apparently, as far as I can gather, no evidence had been adduced on the question of adverse possession. The judgment and decree of the learned Sub-ordinate Judge must, therefore, be set aside and the case remitted to the Court of the Munsif with a direction to try and determine the further issue in the suit, namely, whether the plaintiffs have got a title by adverse possession. Both parties will be at liberty to adduce any further evidence that they may be advised to adduce on the additional issue to be tried by the Munsif Costs will abide the result of the re-hearing by the Munsif.

Walmsley, J.

2. I agree.


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