1. This is a Rule calling on the District Magistrate of Noakhali and the opposite party to show cause why the appellate order of the District Magistrate, dated the 28th August 1916, should not be set aside and the re-trial of the appeal directed on the ground that in the appellate judgment he has fallen into serious error.
2. What was found against the opposite parties in the judgment of the Trial Court was that in assertion of title to an 8-annas share in a certain homestead said to have been bought by one Mokunda Nag in the name of his wife a body of men, who appear to be servants of Mokunda Babu and numbering in all some 20 to 150 persons, entered upon the homestead, pulled down the walls or the complainant's cowshed, cut down trees on the homestead, plucked cocoanuts, removed timbers and plants and damaged the complainant's pots and pans. It was in fact found by the Trial Court that by reason of a prior purchase of the 8-annas share Mokunda Babu or his wife had derived no title, and it was also clearly found that neither Mokunda Babu nor his wife had possession and that the complainant was in full possession of this homestead. When the case came on appeal before the District Magistrate, he disposed of it in what may well be described as a very summary judgment. In this he comes to no findings as to the number of men. He does not discuss the alleged title. He does not discuss, nor does he come to any finding on, the question of possession; and though he says that in fact the accused persons had probably committed mischief and also assaulted the complainant, he finds that the common object alleged in the charge, that is to say, to commit mischief, has not been established. He has also found that the case is extremely discreditable to Mokunda Babu who clearly does not restrain his servants from petty acts of oppression against weaker neighbours. Without any discussion of the question of possession, it is not quite clear how the District Magistrate in his appellate judgment could properly approach the question of mischief; there is no suggestion in his judgment as to what the common object, if any, of the 20 to 150 men infect was; nor has he considered whether on the evidence without prejudice to the accused he could have substituted for the common object set out in the charge some other common object such as would seem to he suggested by his judgment itself.
3. Under these circumstances we cannot say that the appeal before the District Magistrate has been properly tried, and we have, therefore, no alternative but to set aside his appellate order and direct that the appeal be re-tried; and in view of the unsatisfactory nature of that judgment we direct that the re-trial of the appeal shall be before the Sessions Judge.