1. This is an appeal on behalf of the defendants in a suit under Section 37 of Act XI of 1859. The plaintiff purchased the estate at a sale for arrears of revenue under Act XI of 1859, on the 26th September 1808. On the 11th April 1907, he commenced the present action against two defendants to eject them on the allegation that they were not entitled to continue in occupation of the land. The first defendant resisted the claim on the ground that the land in his possession came within the 4th clause of Section 37 of Act XI of 1859, because it was land on which a dwelling-house had been erected and gardens and tanks had been made. The second defendant resisted the claim on the ground that he was a raiyat with a right of occupancy, at a fixed rent or at a rent assessable according to fixed rule under the law in force. The Court of first instance found in favour of the first defendant but against the 2nd defendant ; and the result was that the suit was dismissed, because as the 2nd defendant held under the first, if the entire claim failed against the latter, it was bound to fail against the former as well. The plaintiff then appealed to the Subordinated Judge, who allowed the appeal and decreed the suit. He found that the huts, which were no longer in existence, were not of a permanent nature, and that so far as the tank was concerned, the excavation had ceased to exist. In so far, however, as the garden was concerned, he disposed of the question with the reservation that 'soma fruit trees were planted and that the fruit trees do not make the land a garden within the meaning of the Section 37, exception 4.'
2. The defendants have now appealed to this Court, and on their behalf it has been argued that there has been no proper trial of the case by the Subordinate Judge. In our opinion, this contention is well-founded in so far as the question of the garden is concerned. The Court of first instance, in a careful judgment, made the following observation upon this part of the case: 'From the evidence it will be quite clear that at least 8 or 10 or 20 mango trees, 20 or 24 jack trees, 16 or 20 cocoa-nut trees and various sorts of other trees are still existing on the disputed lands, and that previously the number of trees was more than that also. So the existence of these various trees lead me to think that the jama comprises a garden.' The learned Vakil for the respondent has contended that although the judgment of the Subordinate Judge may be unsatisfactory, he has dealt with a question of fact upon which his decision is conclusive. In our opinion, this contention cannot be supported No doubt, whether there is a garden in the land so as to bring the case within exception 4 of Section 87 is a question of fact, but the Subordinate Judge was bound to give adequate reasons in support of his conclusions He seems to have laid down a general rule that because there were only some fruit trees, they did not make the land a garden. The determination of the question whether there was a gardenor not, was dependent upon several elements, which should have been taken into consideration, namely, first, the number of trees on the land; secondly, their relative situation; thirdly, their number in relation to the area covered by them ; and fourthly, the classes to which they belonged. The Subordinate Judge has not directed his attention to any of these elements. It is conceivable that if there is only a limited number of trees on a very large area, it may be impossible to hold that the trees constitute a garden within the meaning of exception 4 of Section 37 ; but if there is a large number of trees, especially fruit trees, on a limited area, it would be equally impossible to resist the conclusion that the trees do constitute a garden. That a question of this description maybe considered in second appeal, is clear from the decision of this Court in the cases of Gobind Chundra Sen v. Joy Chundra Dass 12 C. 327, Makar Ali v. Shyama Charan 3 C.W.N. 212. We may add that if the Subordinate Judge comes to the conclusion that a portion only of the disputed land is covered by a garden, the proper course to Follow is not to dismiss the suit or decree it in its entirety, but to make a partial decree as was explained by this Court in the case of Nojem-ud-din Moonshi v. Syed Hassan Hyder 9 C.W.N. 852.
3. The result, therefore, is that this appeal must be allowed, the decision of the Subordinate Judge set aside, and the case remanded to him in order that he may decide whether there is a garden on the land or on any portion thereof so as to bring the ease within the 4th exception to Section 37. It has been suggested to us that the ease was not considered from this point of view in either of the Courts below and that consequently a fresh examination of the whole matter may be desirable. We, therefore, direct the Subordinate Judge to appoint a Commissioner to make a map of the locality and to indicate on the map the trees in existence and also to specify the different classes of trees, so as to furnish reliable materials to the Subordinate Judge to enable him to decide whether there is a garden on the land. The costs of this appeal will abide the result.