1. The second appeal is on behalf of the defendant and arises out of a suit for possession of land, decreed by the District Judge of Murshidabad on the 19th April 1922.
2. The facts shortly stated are these: the plaintiff sued the defendants as trespassers with reference to the lands which admittedly comprised the holding of a tenant, Khetranath Pal, under the plaintiff and the defendants are in possession of those lands as purchasers of the holding which was not transferable by custom. The defence mainly was that the entire holding had not been sold and therefore the plaintiff could not treat the holding as abandoned.
3. The learned Munsiff decreed the suit but his judgment was reversed on appeal by Mr. Boss, the additional District Judge and the suit was dismissed on the 25th November 1921.
4. The plaintiff filed an application for review of that judgment and a notice was issued by the learned Judge who had dismissed the suit.
5. Mr. Nelson, the successor in office of Mr. Ross, heard the parties and admitted the application for review and reheard the appeal and set aside the decree of his predecessor, and in the result the plaintiff's suit was again decreed with costs.
6. The present second appeal' is against this judgment.
7. The first point raised by the learned vakil for the appellant was, that the learned District Judge was in error in admitting a review of the judgment of his predecessor because the grounds for the review did not come within the purview of Order 47, R. I, Clause (2).
8. The learned vakil for the respondent submitted that there was no appeal to this Court on the ground that the review was not in accordance with the provision of Order 47, R. I (1). He submitted further that the appeal was limited to the grounds set out in Order 47, Rule 7 and it was further argued that this review was admitted on the ground of 'for other sufficient reason' and that a review granted on such a ground was not open to correction by appeal.
9. We do not think that the objection raised by the learned vakil for the respondent is sound. Order 47, Rule 7 expressly provides that when an application for review is granted the party dissatisfied with the order may appeal against that order or may take the same objection in an appeal filed against the final decree.
10. Rule 7 read with Rules 1 and 4 shows that it is open to the appellate Court to examine the ground upon which the review was admitted, and if the ground for the review does not come within the words of Rule 1 then the appellate Court is competent to hold that the review was improperly admitted, and should have been rejected under Rule 4(i). This is clear from the case of Chhajuram v. Niki A.I.R. 1922 P.C. 112 and this was the ground which was pointed by their Lordships for their interference in that case when they say that there could be no rehearing for the purpose of seeing whether a different conclusion on the merits should be adopted.
11. In this view we think the review was really granted for re-consideration of the evidence in the case and in fact the learned District Judge has reversed the findings of fact by his predecessor.
12. Although the judgment of the District Judge which was set aside in review is not quite satisfactory still we think that, as the review was not permissible on the grounds on which it was admitted, we should not allow the last judgment to stand. If the previous judgment was not open to review it must stand. The result is that the judgement and decree of the District Judge dated 19th April, 1922 is set aside and that of the District Judge dated 25th November 1921 is restored. In the circumstances we allow only the costs of this appeal. The parties must bear their costs in the Courts below.
13. I agree.