1. This is an appeal from the judgment and o decree of the High Court of Judicature at Fort William in Bengal dated August 4, 1924, which reversed the decree of December 9, 1921, and restored the decree of the Subordinate Judge of Murshidabad dated March 28,1919.
2. The questions for determination in the suit out of which the present appeal arises were (1) whether the appellants are raiyats or tenure holders of a certain holding in Chur Narainpur consisting of about 800 Bighas, (2) whether the suit comes within the purview of Section 104H or the proviso to section 111a of the bengal tenancy act, and (3) whether the suit is within time having regard to the law of limitation under section 104h of the same act.
3. The Subordinate Judge held that the appellants have not proved that the entry in the record of rights finally published on April 2, 1915, to the effect that the appellants are tenure holders is incorrect and they further held that the plaintiffs' suit is not maintainable under the provisions of Section Ill A and that the same is barred under Section 104H as it was not brought within six months from the date of the certificate of the final publication of the record of rights,
4. From the decision of the Subordinate Judge there was an appeal to the District Judge of Murshidabad, who held that the appellants were occupancy raiyats and not tenure holders, and he further held that the suit was maintainable under Section 111A and was not barred by limitation,
5. From this decision there was a second appeal to the High Court and that Court held that there was no reliable evidence to justify the District Judge's conclusion that the original purpose for which the tenancy was created was for cultivation.
6. The High Court further held that the onus of showing that the entry in the. record of rights is not correct was upon the appellants and that there was no evidence to justify the finding that they have discharged the onus. The High Court did not decide any other points involved in the case.
7. Their Lordships have to observe at the outset that no second appeal lies on the ground that the District Judge came to an erroneous finding of fact. The only question which the High Court could consider was whether the District Judge had before him any evidence proper for his consideration in support of his finding. Section 100 of the Code of Civil Procedure, being Act No. V of 1908, corresponds with Section 584 of the Civil Procedure Code of 1882. The construction of Section 584 of the Civil Procedure Code of 1882 has often been considered by the Board. In Durga Choudhrain v. Jawahir Singh Choudhri (1890) L.R. 17 I.A. 122, the Board said (p. 127):-
It is enough in the present case to say that an erroneous finding of fact is a different thing from an error or defect in procedure and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Where there is no error or defect in the procedure, the finding of the first Appellate Court upon a question of fact is final, if that Court had before it evidence proper for its consideration in support of the finding.
8. In Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani (1887) L.R. 14 I.A. 107, the Board laid down the law to the same effect (p.110):-
It was in the opinion of their Lordships within their jurisdiction (that is to say within the jurisdiction of the Judges on a second appeal) to dismiss the case, if they were satisfied that there was, as an English lawyer would ex. press it, no evidence to go to the jury, because that would not raise a question of fact such as arises upon the issue itself, but a question of law for the consideration of the Judge.
9. [After referring to the other aspect of the case, the judgment proceeded :] It is not necessary to go into further detail as regards the evidence, but their Lordships are satisfied after a careful examination of the record, that there was evidence before the learned District Judge proper for his finding. The learned District Judge did not discuss in detail the various settlement records and other evidence, oral and documentary, to which their Lordships' attention has been drawn, but their Lordships have no reason to doubt that the learned District Judge fully considered them.
10. Having regard to the practice of the High Court in second appeals it seems probable that the full record of the case which was laid before their Lordships was not placed before the learned Judges of the High Court....
11. For the reasons aforesaid, their Lordships are of opinion that the appeal should be allowed, the decree of the High Court set aside, and the decree of the District Court restored, with costs in all the Courts, and they will humbly advise His Majesty accordingly.
12. The respondent will pay the costs of this appeal.