SONAJI AND ANOTHER Vs. DATTU

JUDGEMENT

(1.) TWO points are raised in this appeal: (1) that the portion alleged by plaintiff to be his was not proved to be his, but was the defendant's property, and (2) that at any rate it had become his by prescriptive title under Section 28, Lim. Act, long before the plaintiff took back forcible possession thereof from defendant-appellant on 5th July 1924.

(2.) AS regards the first point: I do not think the decision of the lower appellate Court is open to challenge in second appeal. It is based on evidence proper for consideration, namely, the Record-of-Rights entries of 1912 and the other documentary evidence, as also oral evidence on record. I, therefore, decline to reconsider that finding.

(3.) THE lower appellate Court has treated the question of possession as irrelevant. But this appears to me to be wrong if the facts are as alleged by the defendant. The defendant is entitled to a finding on the pleadings raised by him. As this point is material for the right determination of the suit, the case must go back for a fresh decision so far as this point is concerned Had the point been regarded as relevant and considered, and even decided adversely to the defendant, the matter would have been different. But that is not what the Court did. Hence the necessity for remand.