1. This is an appeal against a decree of the District Judge of the 24-Pergannahs reversing a decision of a Subordinate Judge and dismissing a suit for the recovery of possession of some 600 bighas of land in the Sundarbans. The plaintiff's vendor, Shama Charn Das, obtained from the landlord, the third defendant, on the 22nd June 1909, a permanent lease for the reclamation of a chak in the lot known as Jeha Khal; and the first defendant obtained a similar lease on the 12th August following, of two adjoining chaks, one to the north and the other to the east, of the chak, of Shama Churn Das. The plaintiff charged that the defendant had, by erecting an embankment south of the Bhardut Khal, which was fixed by the leases as the northern boundary of the former's chak and the southern boundary of the first of the latter's chaks, encroached upon, and wrongfully taken possession of, the land in suit. The first Court gave the plaintiff a decree subject to the payment to the defendant of the ex-penses actually incurred by the latter in reclaiming the lands; but on the defendants' appeal, the suit was dismissed in toto, and the plaintiff has now preferred this second appeal.
2. The learned District Judge has found that there was in the lease (by which he must have meant each of the leases) a clause providing that there should be a consultation and arrangement between the parties regarding the precise division of the lands covered by the two; that, in pursuance of this understanding, it was agreed between Shama Churn Das and the defendant that the embankment complained of should be erected on the boundary and that the embankment was erected accordingly. These are undoubtedly findings of fact, and it has been strongly pressed upon us by Dr. Ghosh that, as such, they are conclusive and cannot be questioned on second appeal, Prima facie, certainly, it would seem to be so; and we are fully alive to the limitations imposed on us by Section 100 of the Code of Civil Procedure of 1908 and the rulings of the Judicial Committee in such cases as Durga Chowdhrani v. Jawahir Singh Chowdhri 171 A. 122 : 18 C. 23 and Ramratan Sukal v. Nandu 19 I.A. 1 : 19 C. 249. But in this instance, the first of the learned District Judge's findings involves a construction of title-deeds which is not above criticism. And the second is based mainly upon evidence which is explicitly referred to and avowedly re-produced in the judgment, but is not to be found anywhere in the record. The latter circumstance, at least, must, in our opinion, be held to vitiate the decision and render it contrary to law.' Shamachandra's son swears,' so runs the judgment, that there was such a consultation' (that is to say, a consultation between Shamacharan Das and the defendant as to the demarcation of the boundary between the lands leased), 'and that Shamacharan agreed to the division that was proposed; Shamacharan's son swears that he went and pointed out to Peary Mohan's people where the bundh was to be built,' and 'Ram Das, Shamacharan's son, swears that he went and saw this bundh when it had been built, and approved of it.' Now, we have read the whole of the evidence with care, and we find that, as has been submitted by the learned Vakil for the appellant before us, there is no trace of any statements such as those quoted. The only 'consultation' of any sort, to which Ram Das alludes, was one between himself and the plaintiff when they together called upon a Pleader in connection with the contemplated conveyance to the latter; and nowhere does Ram Das say that he agreed to the division proposed by the defendant, or that he saw the embankment complained of after it had been erected and approved of it. And Kartik, who was Shamacharan's peon and is the only witness answering that description, far from asserting that he pointed out to the defendant's people where the embankment was to be made, strenuously declares that he opposed its erection and desisted only because he was threatened with death by Peary Mohan's emissaries. Now, here the learned District Judge has committed himself to a much graver mistake than the mere misunderstanding of the effect of a witness's deposition: he has referred to evidence which does not exist at all, and has based his decision principally, if not entirely, upon it. The case is really very similar to that of Bibee Ameerun v. Shaikh Cherag Ali 24 W.R. 343, in which Ghosh and Mitter, JJ., observing that when the main ground which a Judge below takes has no existence, the Appellate Court cannot be satisfied that his estimate of the evidence was a proper one, remanded the appeal for a re-consideration of the evidence as it really stood, and not as it had been supposed to have stood. We feel that we ought to pursue the same course here, discharge the decree of the learned District Judge, and direct that the appeal be re-heard. The casts will abide the result.