1. Two questions are raised in this appeal. The first is whether the plaintiffs have made out any title and the second is whether assuming that title had been so made out, the defendants are entitled to remain on the land and are protected from ejectment by reason of the fact that they are, as they allege, raiyats with rights of occupancy. Upon the question of title the judgment of this Court is impugned on the ground that the learned Judge, whilst holding that certain documents were inadmissible, has yet thought that the judgment of the lower Appellate Court might be affirmed on the ground that besides such documents there was sufficient evidence on the record to justify the conclusions at which the lower Appellate Court had arrived.
2. As regards this Mr. Justice Greaves has assumed for the purposes of his judgment that Exhibit H was inadmissible. It does not appear, therefore, whether he was of opinion that the document was admissible or inadmissible. But he has assumed that it was inadmissible in favour of the appellants now before us. As regards the decree it is not quite clear whether or not he considered that document to be inadmissible. There are words in the judgment which seem to support that conclusion, for he says: there is no evidence on the record to show that the land in that suit was held under the same title as the land in the present suit.'
3. It has, however, been urged that if these documents were inadmissible or were assumed to be such for the purposes of the judgment, this Court which does not deal with fasts could not say what the Subordinate Judge's decision would have been, had he been concerned with the dakhilas alone. I am not prepared to uphold the decision of the Subordinate Judge upon the grounds upon which Mr. Justice Greaves has rested his decision in this respect. I refer to his decision on the question of title. I think, however, that the appeal fails on this issue of title and on the ground, namely, that no objection was taken to the reception of the documents, the admissibility of which is now called in question.
4. The case made out as regards their admissibility by the respondents is this. They say that the previous transaction evidenced by Exhibit H and the decree to which I have referred, related no doubt to lands other than those in suit, but that nevertheless those documents were relevant on the ground that the lands to which they refer and the lands in suit were held on the same title. The documents were assertions, therefore, of the title which the plaintiffs made in the present suit. I am not prepared to hold that, in second appeal, this contention of the respondents could be made good, because the question whether or not the lands referred to in those documents and the lands in suit were, as alleged, held under a common title is one which involves an enquiry into facts. I, therefore, base my judgment as regards this question of title on the ground that these documents were admitted without objection. An objection was in this case all the more necessary, because the objection which is raised was that the document had no relevancy, having no connection with the matters in issue in the suit. Had that point been taken, it might have been open to the defendants-respondents to show that they were relevant in the manner which has been alleged before us here. I am of opinion, therefore, that the grounds upon which the decision of the learned Judge as to title is impugned fail.
5. There remains, however, the consideration of the second question, namely, whether the defendants were raiyats or under- raiyats. If they are, as alleged, raiyats with a right of occupancy, they cannot be ejected. This is a question which depends upon whether the plaintiffs are tenure-holders or raiyats and which requires a careful consideration of the evidence. I may refer in this connection to the decision (amongst others) in the case of Rajani Kanta Ghose v. Secretary of State for India 51 Ind. Cas. 226 : 46 C. 90 : 23 C.W.N. 649 : 45 I.A. 190 (P.C.) and to the decision in the case of Debendra Nath Das v. Bibudhendra Mansingh Bhramarbar Roy 45 Ind. Cas. 411 : 45 C. 805 : 5 P.L.W. 1 : 27 C.L.J. 543 : 22 C.W.N. 674 : 16 A.L.J. 522 : 23 M.L.T. 384 : (1918) M.W.N. 379 : 20 Bom.L.R 743 : 35 M.L.J. 214 : 45 I.A. 67 (P.C.).
6. Now, the first Court which went into this matter dealt with the evidence, stated its reasons and came to the conclusion that the defendants were raiyats with rights of occupancy. On appeal that decision is reversed in the following terms:
Considering the evidence in the record I find that the plaintiff's interest is that of a raiyat at fixed rate. It is never a tenure as alleged by the defendants. The defendants' father was then an under-raiyat. The interest of an under- raiyat is not heritable, so the defendants are merely trespassers in the land. The fact that they are in possession for a very long time would not help their position a bit. Under Section 49 of the Bengal Tenancy Act, an under-raiyat can be ejected after service of notice. The defendants are not entitled to such notice, still they are served with one. I, therefore, find they are liable to be ejected from the land.' Though the learned Subordinate Judge reverses the decision of the first Court upon this issue, he has given no reasons for the conclusions at which he has come. We should have known the grounds upon which the decision of the Subordinate Judge in this matter was bleed so as to see whether the conclusions had been legally drawn. I think, therefore, that, on this point the case should be re heard in appeal by a Judge other than the Judge who previously heard the appeal, and in arriving at a conclusion as to the status of the defendants the reasons for. that conclusion should be stated.
7. The result, therefore, is that we set aside the judgment and decree of the Subordinate Judge in so far as it is thereby held that the defendants are mere trespassers and, therefore, liable to be ejected. The finding and decree on the question of title will stand. The appeal, therefore, will be re-heard upon the question only whether the defendants are, as they allege, raiyats with rights of occupancy on the land which is in suit and, therefore, protected from ejectment which the plaintiffs seek in this suit.
8. As regards costs, the order we make is this. In so far as the appellants have partly succeeded and partly failed, each party will bear his own costs of the appeal in this Court, but all the other costs in this litigation will abide the result of the re-hearing of the appeal in the lower Appellate Court, which we hereby direct.