1. This is an appeal against the decision of the District Judge, Patna, dated 28th June, 1918, reversing that of the Munsif, dated 5th December, 1916, and dismissing the suit of the plaintiff. The suit was for recovery of possession of 11 cottahs of land with mesne profits. The plaintiffs are proprietors of 8 annas of Mauza Birwachak. Defendants 5 and 6 are the proprietors of the remaining 8 annas. These defendants have not appeared in the case. The land in suit is recorded in the last survey as plot No. 983 in khata No. 1118, in the name of Tilak Koeri, defendant 3. The plaintiff's case is that he obtained a rent decree on 18th February, 1915 (1822 F.S), Ex. 7, against Tilak in respect of his kasht land including the 11 cottahs in dispute, and in execution thereof advertised the land for sale, whereupon Tilak abandoned the holding and defendants 1 and 2 wrong fully took possession of the same. Hence the action by the plaintiff for recovery of possession.

2. Defendants 1 and 2 claim the land on the basis of an auction-purchase per Ex. “O” sale certificate, dated July 1913 in an execution, commenced by them in 1913, of a mortgage decree, Ex. Q, dated 22nd May, 1906, against Gobind Mahto, defendant 4. They allage that the land in suit 11 cottahs was part and parcel of 6 bighas 2 khatas 4 dhurs of the ancestral kasht of Gobind Mahto (vide Exs. H and I dated 1883 and 1884 respectively) which they purchased in execution of their mortgage decree and obtained delivery of possession through Court on 27th July, 1913, per Dakhal Dahani Ex. “C” and that defendant 4, Tilak Mahto, had no concern with the suit land, and that in fact defendant 3 did not abandon the land and was still residing in the village. They also impugned the decree obtained by the plaintiffs against Tilak Mahto and the proceeding in execution, whereby the land in suit was advertised for sale, as being collusive. They deposited the decretal amount and averted the sale. They further say that the plaintiffs obtained a rent decree, Ex. 6, on 13th February, 1914, in respect of the kasht of Govind Mahto and in execution advertised the kasht for sale, par Ex. 5. These defendants objected to the sale and applied for permission to deposit the decretal amount and ultimately the dispute was settled by means of a compromise petition. Ex. B, dated 19th May, 1914, whereby the plaintiffs accepted the decretal amount, released the property from sale and recognized the defendants as tenants in place of Gobind Matho in respect of 6 bighas 2 cottahs 4 dhurs which included the disputed land, and hence the plaintiffs are estopped from questioning the title of defendants 1 and 2. Upon the pleadings of the parties in the trial Court, the following issues were raised:

1. Did the plaintiffs and defendants 5 and 6 recognize defendants 1 and 2 as tenants of the land in suit, if so are the plaintiffs estopped from questioning the title of defendants 1 and 2?

2. Was the land in suit the raiyati kasht of defendant 4?

3. Is the plaintiff entitled to possession?

3. Issues 4 and 5 need not be mentioned.

4. The Munsif by his judgment, dated 5th December, 1916, decided all the issues against the defendants and in favour of plaintiffs. On appeal the District Judge of Patna confirmed the decision of the Munsif by this judgment on 20th July, 1917. He held that the land in suit, plot No. 983, was not part of Gobind's holding and was not included in the purchase of defendants 1 and 2 in execution of their mortgage decree against Gobind, and that it was the kasht of defendant 3 and was so recorded in the Survey Record of Rights and the village papers of the plaintiff. He further held that the defendants were not recognized by the landlords as tenants of the land, per Ex. “B” as is contended for by them inasmuch as that document recognized the defendants as tenants of 6 bighas 2 cottahs 4 dhurs, which was advertised for sale and which did not contain the land in suit. On appeal to this Court by the defendants, the case was remanded to the lower appellate Court for fresh decision.

5. The appeal after remand was heard by Mr. Chatterji, successor of Mr. Ross, who had in the first instance heard the appeal and, agreeing with the Munsif, had decreed the plaintiff's suit. Mr. Chatterji has dismissed the plaintiff's suit. The plaintiffs have therefore appealed to this Court.

6. The first contention raised by Mr. Kulwant Sahay, appearing on behalf of the plaintiffs, is that the remand by this Court was illegal and invalid inasmuch as there was the defect in law or in procedure in the previous decision of the District Judge in favour of the plaintiffs, dated 20th July, 1917, and hence the present decision of the District Judge under appeal, dated 20th June, 1919, is illegal and inoperative. He further says that he is entitled to raise this plea now while appealing from the final decree of the District Judge after remand, inasmuch as the order of remand passed by Das, J., not being under O. 41, R. 23 of the CPC, was not appealable under the Letters Patent. In support of this contention reliance has been placed upon the decision of a Special Bench of this Court in Bara Estate Limited v. Anup Chandra(1). That case would seem to apply to the facts of the present case. The remand in the present case was certainly not under O. 41, Rr. 23 and 25. The former rule does not apply because the case was not disposed of by the lower Court on a preliminary point. R. 25 does not apply because no finding upon any particular issue was called for from the lower Court but the whole case was remanded with direction to try and dispose of the case. The remand was under the inherent power of the Court.

7. It was said that there was no finding of the Court as to whether defendant 3, Tilak Mahto, had abandoned the land in suit or not and the Court below was consequently directed to come to a conclusion on the point. The Munsif dealing with Issue 3 had clearly held that the land was abandoned by Tilak. It does not appear from the judgment of the District Judge dated 20th July, 1917, that the point was raised before him. Be that as it may, the last judgment of the District Judge after remand, dated 28th June, 1919, has come to a definite finding upon the point by holding that the defendant had abandoned the land in question some time before the institution of the suit. This finding is supported by good evidence on the record and as stated by the learned Judge, was not rebutted by the defendant. So far as this issue is concerned, it is immaterial for the plaintiffs-appellants whether the order of remand was valid or not.

8. The question raised by Mr. Kulwant Sahay really applies to the first two issues in the case as to whether the land in suit was included in the holding of Gobind, defendant 4, and as to whether defendants 1 and 2 were recognized by the landlords as tenants thereof.

9. The concurrent findings of the Courts below before remand were in favour of the appellant. The reason for the remand was stated to be that the lower appellate Court did not appear “to have taken into consideration the proceeding of the rent suit in 1883 and 1884” and accordingly the direction was to consider the case with reference to those documents which showed that Gobind was in possession of 6 bighas 2 cottahs 4 dhurs. This was apparently a misapprehension for the documents in question were duly considered by the Court below before remand as is obvious from the following passage of the judgment of that Court:

“Reliance was placed upon rent decrees of the years 1893 and 1884 which show that in these years his holding was 6 bighas 2 cottas 4 dhurs, and it was contended that this plot of 11 cottahs was genuinelymortgaged in 1895.”

10. It is immaterial whether the Court did not accept the aforesaid documents to be correct or as good evidence for the facts stated therein. It is sufficient that the documents were duly considered. Another reason for the remand is said to be that the Record of Bights was not on the record. It was the case of both the parties in their respective pleadings that the land in suit was recorded in the name of Tilak and so was also the finding of the Court below. The parties were not at issue as to the entry in the Record of Bights and its absence from the record was therefore immaterial. The order of remand in the case comes well within the purview of the decision of the Special Bench of this Court referred to above and was invalid, and consequently the decision of the learned District Judge after remand is also invalid, and cannot displace the former judgment of that Court in favour of the plaintiff. In this view we have only to consider whether the judgment of Mr. Ross, dated 20th July, 1917, can be upheld or not. That judgment to my mind, concurrently with that of the Munsif, has recorded a finding of fact which is not open to challenge in second appeal. Mr. Ross distinctly held that the land in dispute was not part of Gobind's holding which the defendants had purchased in execution of their mortgage decree, and that they were not recognized by the plaintiffs as tenants of the same. Mr. Ross's judgment was not legally set aside by Das, J., and must therefore stand as a good and valid judgment and must be restored.

11. If however, the remand order of this Court validly vacated the judgment of Mr. Ross, we have to consider whether the judgment of Mr. Chatterji, dated 28th June, is sustainable on merits. He examined in detail the documents of title produced by the defendants and came practically to the same conclusion that the Munsif and Mr. Ross had previously come to, namely, that they do not necessarily show that the land in dispute was necessarily part of Gobind's holding, or that the plaintiffs in recognizing them as purchasers of Gobind's holding had necessarily recognized them as tenants of the same. He held that Gobind's holding, no doubt, consisted of 6 bighas 2 cottahs 4 dhurs as is evident from the decrees of 1883–1884, but that “this alone however does not show the suit land was part of that holding.” After recording the above finding the learned District Judge concluded his judgment in the following words:

“Some more definite evidence is necessary for this purpose and this evidence comes in the shape of evidence of possession which is to the effect that in 1885 Govind mortgaged the entire holding including the suit land; that a decree was made on the mortgage in 1906, sale took place in execution of that decree in 1913 and appellants got delivery of possession in July 1913, and since then remained in possesion unopposed by anyone. This evidence to my mind is sufficient to show that the suit land was included in Gobind's holding and the appellants have been recognized as tenants in respect to the same. I accordingly decide this point in favour of the appellants.”

12. The finding of possession contained in the above passage is based entirely upon the mortgage bond of 1895 executed by Gobind in favour of the defendant. But this bond has not been produced which as Mr. Boss says is the foundation of the plaintiff's title. It was not a usufructuary mortgage and cannot be any evidence of possession in favour of the defendant who for the first time got delivery of possession in July 1913. Even if the disputed land was included in the defendants' delivery of possession in 1913 that would not give them a statutory claim to resist the suit of the plaintiff filed in 1916 to recover possession of the property. Assuming that the land in suit was included in the mortgage of the defendants, that would not give them any title unless the title of their mortgagor Gobind was proved independently of the mortgage. Apart from the mortgage, the other documents relied upon were distinctly held by the Court below to have failed to establish that the land in suit was part of Gobind's holding. The learned Judge has not referred to any evidence upon which he based his conclusions in the passage quoted above. As to the recognition by petition Ex. B he had definitely held that

“as the suit land was not included in the sale proclamation (Ex. 5) issued at the instance of the plaintiffs it cannot be said the plaintiffs recognized the appellants (defendants) as tenants in respect of this plot though it was included in their purchase unless they show that the suit land was part of Gobind's holding.”

13. Yet, in conclusion, be refers to the defendants' mortgage and their purchase as “sufficient evidence” to show that the suit land was included in Gobind's holding. The findings of the Court below upon issues 1 and 2 are not based upon legal evidence and the conclusions drawn by him from the mortgage and purchase of defendants 1 and 2 for holding that the disputed land was included in Gobind's holding and that the defendants were recognized as tenants in respect of the same are illegal. The learned Judge has simply begged the whole question which he had to decide. The decision in the concluding portion of the judgment of the learned Judge is therefore illegal. If I construe his judgment aright, the earlier finding of his is against the defendants that they failed to establish that the suit land was part and parcel of Gobind's holding and this I accept to be the finding of the Court below. The previous judgment of Mr. Ross is based upon legal evidence arrived at by full appreciation of all the evidence produced in the case. He affirmed the decision of the Munsif, who again has supported his finding upon competent boundary witnesses on behalf of the plaintiff and the finally published Record of Rights, the defendants having examined no competent and reliable witness. The learned District Judge has not referred to that evidence, nor to the finding of the Munsif. The Munsif's finding upon the possession of Tilak and of there being no possession of Gobind as a part of his holding remained intact. Therefore as between the judgments of the Munsif and of Mr. Chatterji after remand the latter must be vacated in favour of the former. I have already held that the order of remand was invalid and so the judgment of the lower appellate Court under appeal. I have also shown that even if the judgment under appeal is not affected by the invalidity of the remand order it is unsustainable on merits. Therefore the result is that the judgment of the Munsif dated 5th December, 1916, under appeal as upheld by Mr. Ross is restored and the suit is decreed with costs throughout.

14. The learned vakil for the respondents however urged that the plaintiff being part proprietor cannot get a decree for khas possession of the land in suit, without the cosharers having been joined as plaintiffs. Reference was made to the case of Hossein Mahomed v. Fakir Mahomed(2), but that case far from helping the defendants goes directly against them. It is now settled that a co-proprietor under such circumstances is entitled to get possession jointly with the other cosharers, and the prayer in relief (1) of the plaint seeks only joint possession with cosharers defendants 5 and 6 and the decree of the Munsif also was in those terms. That decree was maintained by this Court. The contention of the learned vakil was apparently due to an oversight of the ruling claimed.

15. The appeal is decreed with costs.

V.S/R.K

16. Appeal decreed.