1. This appeal was remanded for certain findings by the lower Appellate Court.
2. The findings have now been returned and the appeal has been partly argued before us. The learned Pleader for the respondents now takes an objection to the hearing of the appeal, on the ground that no second appeal lies having regard to the provisions of Section 153 of the Bengal Tenancy Act.
3. There is no doubt that a question of title was raised in the case, but the pro forma defendants, whose title the principal defendants Set up, were no parties to the appeal before the lower Appellate Court against whose decree the present second appeal was preferred. It is true that they were parties in the Court of first instance, but in that Court, the suit was decreed. The principal defendants appealed and the pro forma defendants were left out in that appeal.
4. In these circumstances, the decree of the lower Appellate Court cannot be said to have decided a question of title to land, or some interest in land, as between parties haying conflicting claims thereto, the principal defendants not having raised any title of their own to the land except as tenants under the pro forma defendants whose title was set up by them.
5. The appeal must, therefore, be dismissed on that ground.
6. It is to be regretted that this objection was not raised before Woodroffe and Huda, JJ., before the case was remanded. In these circumstances the appellant ought to pay the costs of the bearing of the appeal on the first occasion, and the respondents, who did net raise the objection until now, should pay the costs of the other side for the proceedings taken in the lower Appellate Court on remand and for the present hearing. There will be separate costs for the first hearing and the present hearing.
7. This judgment will govern the other two appeals (Nos. 2860 and 2881 of 1915), one set of costs being allowed for all the three appeals.
8. I agree.