1. A preliminary objection has been raised to the hearing of this appeal. It is said that the appeal first came up for admission on the 18th January 1917 and was then summarily dismissed. On an application for review of judgment the learned Judges, who dismissed it, set aside their order and admitted the appeal for hearing without notice to the opposite party. It is contended on the authority of the decision in the case of Abdul Hakim Chowdhury v. Hem Chandra Das 30 Ind. Cas. 165 : 42 C. 433, that the order admitting the review was made without jurisdiction and that the objection can be taken now. I am of opinion that it is not open to any Judge or Judges subsequently to question the order of the learned Judges who admitted the review, whatever may be his or their opinion as to the admission of the review. The view I take was taken in the cases of Haldar Jha v. Syed Shah Mohammad Ashraf Alam 25 Ind. Cas. 880 : 22 C.L.J. 95 and Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 898 : 212 C.L.J. 99 : 43 C. 178 : 19 C.W.N. 1077. I, therefore, hold that the preliminary objection fails.
2. As to the merits, the plaintiffs are the appellants before me. The suit was one for declaration of title and confirmation of possession and for compensation for certain crops which had been destroyed by the defendants. The lands in suit appertained to two Taluks. The plaintiffs alleged that one plot belonged to Taluk No 351 and the other to Taluk No. 353 They had originally formed the holding of one Ghulam AH but they had purchased them from the on and widow of Ghulam Ali and had been in possession ever since. The defendants admitted that one plot appertained to Taluk No. 362, but alleged that the other plot appertained to Taluk No. 361. That allegation has been found by both the Courts below to be false. The learned Munsif was of opinion that as Ghulam Ali had two sons, the plaintiffs only purchased a nine annas share of his interest; but as far as the remaining seven-annas is concerned, he has found that the plaintiffs have established title by adverse possession as the rule of limitation applicable is two years under the Bengal Tenancy Act. As regards compensation for damages to the crops he gave a decree for Rs. 25. When the matter went on appeal, the learned District Judge agreed to the finding of the Munsif that the raiyati title of the plaintiffs was established as to the nine-annas by purchase, but he was of opinion that the learned Munsif was wrong in finding that the plaintiffs had acquired title by adverse possession in respect of the remaining seven annas. He was also of opinion that as the second son of Ghulam Ali had not attained majority within two years of the institution of the suit, the title by adverse possession could not in any case be acquired. I forgot to mention that the defendants claimed that they had purchased the share of the second son of Ghulam Ali, but their purchase was subsequent to the institution of the suit and the learned Munsif found that this was a collusive transaction. This finding was not challenged in the grounds of appeal filed by the defendants before the learned District Judge, nor in the judgment of the learned District Judge is there to be found any reference to a point having been raised against the finding of the Munsif on this question.
3. A somewhat lengthy argument has been addressed to me to show that the learned Judge was right in holding that the plaintiffs should not have been given a decree on the ground of having acquired a title by adverse possession with respect to the seven-annas share of the lands in suit. The position is this. The plaintiffs are the owners of the Taluks within which the property lies. They purchased the raiyati interest and had been in possession for six years previous to the suit. They are still in possession and have asked for a declaration of their title and confirmation of possession. The defendants on the other hand are persons who have no title. Therefore, if appears to me that no effect ought to be given to the argument that the plaintiffs have not succeeded in proving a 16 annas raiyati title, because they are the persona in possession and it is for those who seek to disturb that possession to show that they have a better title than the plaintiffs. To use the words of the Privy Council in the case of Chandrika Bakhsh Singh v. Raja Indar Bikram Singh 35 Ind. Cas. 958 : 24 C.L.J. 291 : 20 C.W.N. 1149 : 20 M.L.T. 164 : (1916) 2 M.W.N. 120 : 4 L.W. 288 : 31 M.L.J. 505 : 14 A.L.J. 1024 : 18 Bom. L.R. 846 : 38 A. 440 : 19 P.C. 141 : 4 O.L.J. 4 (P.C), the defendants were mere impertinent interveners in an other person's affairs.
4. There is also another obvious mistake in the learned District Judge's decision Because he found that the plaintiffs proved their title to a nine-annas raiyati interest only he reduced the compensation awarded by the Munsif by seven-sixteenths, apparently entirely forgetting the fact that it was the plaintiffs who had grown the crops.
5. I ought to add something with regard to what the learned District Judge has said as to the age of the second son of Ghulam AH. The learned Judge pointed oat that this man who was examined as a witness gave his age as 24 years, but because the Munsif made a note on his deposition that his age appeared to be 18 or 19 years, he appears to have accepted that note as proof of the fact that the witness was only of the age which the learned Munsif estimated. The learned Judge has really come to a finding of fact on material which is not evidence in the case.
5. The appeal must consequently be allowed, the decree of the lower Appellate Court must be set aside and that of the Munsif restored. The appellants will have costs both in this Court and in the lower Appellate Court.