and William Burkitt, J.
1. In the suit out of which this appeal has arisen the plaintiff asked for a declaration that a sale-deed, dated the 18th of October 1901, of property specified in the plaint, was void and claimed possession of the property detailed in that deed. He put in an alternative claim, that if the plaintiff was not entitled to possession of the buildings upon the land, a decree for possession of the land itself might be passed in his favour and the defendants ordered to remove the materials of the buildings and that the plaintiff might be put into possession of the land. He also asked for any other relief to which he might "in the ends of justice" be entitled.
2. It appears that some time between the years 1860 and 1866 the predecessor in title of the plaintiff leased at least a portion of the land in dispute to Mr. Frederic Wilson, the father and predecessor in title of the defendant Charles Wilson. Upon this land buildings were erected and an extensive timber business was carried on therein. It is said that the buildings alone covered an area of about 18 bighas. Mr. Charles Wilson, the son of Mr. Frederic Wilson, succeeded his father in the ownership of the demised premises and sold to the defendant Babu Jyotis Swarupa his interest therein.
3. A number of issues were framed, but some of them were not tried under the following circumstances. The plaintiff in his examination under section 117 of the code stated his inability to define the lands which were included in the lease. In consequence of this the learned Subordinate Judge passed an order on the 18th of September 1903 directing the plaintiff to amend his plaint by giving the boundaries of the land in excess of the 12 kachha bighas, which the plaintiff alleged was all that had been demised to Frederic Wilson, or by otherwise indicating sufficiently the excess land. The plaintiff stated his inability to do so, and the defendants also admitted the impossibility of giving the boundaries, but they did not admit that the extent of the area of the lease was only 12 bighas. The Court under these circumstances considered that it would be impossible to grant the alternative relief claimed by the plaintiff in his oral evidence under Section 158, Civil Procedure Code, and ordered the suit to proceed on the other issues, and he adds as follows:
"The plaint so far as it claims this alternative relief in the general terms of paragraph 11(d) will be held to be rejected under
Section 54, Code of Civil Procedure."
Both Courts below found that the land which was demised to Mr. Frederic Wilson was demised to him on a permanent lease for building purposes and that he had erected permanent buildings on the laud, and that he and his successors in title had continued to hold the land under the lease up to the present time.
4. The plaintiff appellant has appealed to this Court and raised a number of grounds of appeal, one being that the Court below was not justified under the provisions of section 54 in rejecting portion of the claim of the plaintiff's. That section only provides for the rejection of a plaint in the event of any of the matters specified in that section not being complied with. It does not justify the rejection of any particular portion of a plaint, as was the case here. The Court ought to have tried the issues which were framed, and if the plaintiff failed in his proofs to establish his claim then reject the claim. We think the plaintiff should have had an opportunity at the trial of establishing his case. We cannot therefore dispose of this appeal without having a determination of two of the issues which were framed by the Court of first instance. These issues are Nos. 1 and 4, and are as follows:
1. What were the boundaries and what was the extent of the land given by the plaintiff's predecessor to the father of defendant (2)?
4. Did the defendant (2) sell to defendant (1) any excess area of land over and above that area which had been given by the zamindar to his father, and what are the boundaries and area of such excess?
5. We remand these issues to the Court of first instance through the learned District Judge under the provisions of Section 566 of the Code and direct that Court to take such relevant evidence as may be adduced by either side. On return of the findings the parties will have the usual ten days for filing objections.