1. The plaintiffs, the Governor-General in Council and the Rohilkhand and Kumaon Railway through its Agent at Gorakhpur, sued Mt. Kishen Dei, defendant 1, the appellant, and Nawab Ali, defendant 2, and Jumman, defendant 3, for recovery of possession over two small plots of land marked A and B in the map attached to the plaint. It was alleged in the plaint that the plaintiff 1, Governor-General in Council, was the owner of the metre gauge railway known as the Lucknow Bareilly State Railway; that under an agreement dated 8th September 1890, plaintiff 1 leased the working of the aforesaid State Railway to plaintiff 2. It was said that the railway line of the aforesaid railway crossed Canning Street near Mohalla Rakabganj in the city of Lucknow and there was a level crossing at that place. In order to avoid accidents at the railway crossing, plain-tiff 1 acquired certain lands in 1895 and built an over-bridge for road traffic, as shown in the map, and handed over the bridge to plaintiff 2. It was said that the two portions of land marked A and B on two sides of the bridge had been wrongly encroached upon and occupied by defendants 2 and 3 who had built their shops since about 8 years before the filing of the suit without any permission of the plaintiffs. It was also said that it was discovered that defendants 2 and 3 when asked to vacate stated that they had got the land from defendant 1 and that all the defendants were refusing to vacate the land. There was a common defence of all the three defendants that the land did not belong to the plaintiffs at all, that on the contrary it belonged to defendant 1 who had acquired it by a sale deed in 1934. It was claimed that defendant 1 and her predecessors-in-interest had been in possession over the disputed land sinoe the Nawabi times and that the suit was time barred. The learned trial Court came to the conclusion that the land in suit had been acquired in 1895 by the Governor-General in Council and that after the construction of the over-bridge it had been handed over to plaintiff 2. It was found that the defendants had been in possession since about 8 years before the date of suit and that no title by adverse possession had been acquired by defendant 1 as the limitation in the case was 60 years. It was found that the plan, Ex. 2, produced from the office of the railway authorities concerned related to the land acquired. Relying on the report of the Commissioner appointed by the trial Court it held that the disputed plots were acquired by the Governor. General in Council in 1895. The plaintiffs' suit was accordingly decreed with costs. Apparently during the course of trial of the suit, Rohilkhand and Kumaon Railway became Oudh and Tirhut Railway and began to be managed by the Government of India, and accordingly the Governor General in Council through the Agent and General Manager, Oudh & Tirhut Railway, Gorakhpur, was impleaded as plaintiff 2 instead of the Agent, Rohilkhand and Kumaon Railway.

2. Mt. Kishen Dei, defendant 1, alone went up in appeal and impleaded the two plaintiffs and the other two defendants Nawab Ali and Jumman as respondents. Several grounds of appeal were taken, but the only ground that seems to have been urged before the lower appellate Court was that Ex. 2, the plan filed by the plaintiffs, was not proved to be the plan prepared at the time of the acquisition proceedings and that there was no proof that the disputed land was part of the land acquired by the plaintiffs by the land acquisition proceedings in 1895. The learned lower appellate Court held that Ex. 2 was the plan prepared at the time of the acquisition proceedings. It, however, did not accept the report of the Commissioner appointed by the trial Court for the reason that the Commissioner had not been examined in Court and had not explained how he arrived at the conclusion that the land in suit was part of the land acquired in 1895 under the plan Ex. 2. It accordingly appointed another Commissioner, Mr. Fateh Bahadur. This gentleman went to the spot, took the measurements and submitted a report to the effect that the plan Ex. 2 does not tally with the situation on the spot, that the over-bridge in question is situated actually at some distance away from the spot where it ought to be according to the plan Ex. 2, and that in these circumstances it was not proved that the plots A and B in dispute, which were on two sides of the bridge, were part of the land acquired in 1895. The learned Court below considered the evidence of the Commissioner carefully and found that it could not accept the report of the Commissioner as his finding was based upon measurements which he had taken from a point which was admittedly wrong and that in fact certain fixed points existed at the time of the construction with reference to which the Commissioner's report proved that the bridge was situated at the place where it should have been accordingly to ex. 2. In the circumstances the Court below felt satisfied that the disputed land was part of the land acquired in 1895. As no other points were urged before the Court the appeal was dismissed.

3. In this second appeal it was urged that it was not proved the Ex. 2 was in fact the plan prepared at the time of the land acquisition proceedings, that the Court below not having accepted the report of the Commissioner had in fact no evidence before it to come to the conclusion that the disputed land was part of the land acquired in 1895. It was also urged that it was not shown that after the acquisition proceedings the Government at all took possession and it was also said that the defendants had been in possession since a very long time and the plaintiffs' suit ought to have been dismissed on the ground of limitation.

4. A preliminary objection was taken that the present appeal abates as a whole. It was said that Nawab Mia respondent died some time before April 1944 and within the time allowed by law his legal representatives were not brought on the record and when this matter was brought to the notice of the appellant's counsel he prayed to the Court that the name be struck off. It was also said that Jumman, respondent 4, also died and his legal representatives were not brought on the record within the time allowed by law and that later on Jumman was discharged from the array of respondent. There can be no abatement of this appeal notwithstanding that Nawab Ali and Jumman, defendants 2 and 3 are no longer parties to the appeal. These two persons derived their interest in the property that is possession through defendant 1 and all the three defendants contested the claim of the plaintiffs on one common ground, namely, that the plaintiffs had no title. Clearly the provisions of O. 41, R. 4 of the CPC, apply and defendant 1 alone is competent to appeal from the whole decree. The preliminary objection is therefore dismissed.

5. As to the appear itself, it has no substance and it must be dismissed. The question whether the plan Ex. 2 is the plan prepared at the time of the land acquisition proceedings in I the case is a question of fact. Both the lower Courts have given concurrent finding that it is the plan prepared at the time of the proceedings. In the circumstances the point cannot be raised again in second appeal.

6. As to the finding of the learned lower appellate Court that the land in dispute was part of the land acquired in 1895, that also is a finding of fact. It has been challenged only on the ground that when the lower appellate Court did not accept the report of the Commissioner appointed by it had no material before it to come to the conclusion that the disputed land was a part of the land acquired by the acquisition proceedings. This contention is not correct. What the learned lower appellate Court did not accept was the finding of the Commissioner. The learned lower Court pointed out that the Commissioner went wrong in trying to take measurements from a certain milestone which, according to the findings of the Commissioner himself, was not placed at the right place. The learned Judge also pointed out that the Commissioner had himself pointed out certain fixed points close to the over-bridge in question which established satisfactorily that the over-bridge had been built at the very place indicated by the plan Ex. 2. The material was therefore before the learned Judge and his finding is not based on surmises. It is a finding of fact by the learned lower appellate Court that the two plots now in dispute formed part of the land that was acquired by the Government in 1895. This finding cannot be challenged in second appeal.

7. The appellant contends that it was not shown that after the acquisition proceedings the plaintiffs obtained possession of the land and so no title could vest in the Crown under the Land Acquisition Act. This was a question of fact and there was no specific issue on this point in the trial Court. This point was not raised even before the lower appellate Court. It cannot be entertained at this stage.

8. It was also contended that the defendant appellant's documents of title showed that she and her predecessors-in-interest had been in possession since very many years and so the suit was barred by limitation. This question of limitation was specifically raised in the trial Court and was decided against the appellant.

9. In the lower appellate Court one of the grounds of appeal was that the plots in suit have been in possession of the appellant and her predecessors-in-interest since the Nawabi times and that “the learned lower Court has erred in holding otherwise”; but this ground was not pressed at all even though the appeal came up twice before the lower appellate Court for hearing. The plea, however, has no force because the period of limitation as against the Crown is sixty years. The land was acquired by plaintiff 1 in 1895 and plaintiff 2 the Railway Company, was holding and managing the land on behalf of the Crown. Section (Article) 149 of the Limitation Act was clearly applicable, as was rightly held by the trial Court, and so on merits this ground of appeal has no force.

10. It was also urged that, even if the land in suit was acquired by plaintiff 1, the proceedings are not binding on the appellant as her predecessors-in-interest were not made parties. This ground was not urged in lower appellate Court. On merits it has no substance when it has been proved in this case that the Collector made an award and compensation was actually paid to some persons interested. Under Section 12 of the Land Acquisition Act such an award when filed in the Collector's office shall, except as provided in the Act itself, be final and conclusive evidence as between the Collector and the persons interested whether they have respectively appeared before the Collector or not, of the true area and the value of the land and the apportionment of the compensation among the persons interested. Section 18 of the Act provides the manner in which the award of a Collector may be challenged by any person interested, who has not accepted the award. Apparently the predecessors-in-interest of the defendant never challenged the award. The award cannot be challenged in this proceeding. The result is that there is no substance in this appeal and it is hereby dismissed with costs. The stay order dated 7-12-43/28-8-44 passed in civil Miscellaneous Application No. 1257 of 1943 is hereby vacated.

D.R.R

11. Appeal dismissed.