Judgement Appeal from a judgment and decree of the High Court (April 27, 1910) setting aside a decree of the District Judge of Midnapur which affirmed a decree of the Subordinate Judge. Under circumstances which appear from the judgment of their Lordships, the appellant, as zamindar of pargana Nayabasan, instituted a suit against the sons of one Suba Naek, deceased, and the Secretary of State for India in Council (the present respondents), claiming possession of certain jaghir knds within the zamindari which had been held by Suba Naek. By his plaint he alleged that there had been from time immemorial two classes of paiks holding service lands within the zamindari; the first class consisted of Government paiks, commonly called chaukidars, digars, and sardars, and the second class of private paiks, commonly called dal paiks, dal sardars, da I beharas, and bhullokes ; that Suba Naek belonged to the second class and had been dismissed by him. He admitted that the provisions of the kabuliyat under which he held and of Regulation XX. of 1817, s. 21, applied to the first class. He claimed possession and a declaration that he was entitled to appoint and dismiss the second class of holders of service lands. Previously to the suit being instituted Suba Naek had obtained an order of the local magistrate reinstating him in his office and possession of the land, and Suba Naeks sons continued in possession under that order without performing any services. The respondents, the sons of Suba Naek, by their written statement admitted that they and their father were dal paiks, but claimed that they had done nothing for which they could be dismissed. At the trial they unsuccessfully sought to withdraw this defence. The Secretary of State by his written statement relied on the kabuliyat and alleged that all paiks and sardars on the estate were within its provisions, and that in any case Suba Naek was a Government paik. Issues were framed, of which the following alone are material— (4.) Has the plaintiff any right to the land in suit ? Is he entitled to its possession ? (5.) Whether there are in estate Nayabasan two classes of paiks as Stated in the plaint ? If so, is Government bound to recognize the division ? (6.) Are defendants 1 and 2 dal paiks ? Are they mere servants of the estate ? Is he entitled to its possession ? (5.) Whether there are in estate Nayabasan two classes of paiks as Stated in the plaint ? If so, is Government bound to recognize the division ? (6.) Are defendants 1 and 2 dal paiks ? Are they mere servants of the estate ? (7.) Can the plaintiff question an order of the magistrate regarding a paik of the estate ? Is the order ultra vires ? The Subordinate Judge, upon the evidence, determined all the above issues in the plaintiffs favour and made a decree as prayed. The Secretary of State appealed to the District Judge, who delivered judgment on July 10, 1907, dismissing the appeal. After considering the documentary evidence in detail he stated that the oral evidence had been fully dealt with by the Subordinate Judge, and he found (1.) that for many years no service holders but chaukidars and digars had done any police duties beyond those incumbent upon all zamindars and their servants ; (2.) that from 1810 and onwards there had been a distinction between chaukidars and digars, who came within the provisions of the kabuliyat, and the second class of paiks, known as dal paiks, dal sardars, dal beharas, and bhullokes, who did not; and (3.) that Suba Naek was one of the latter class. The Secretary of State appealed to the High Court, raising, for the first time in the case, the contention that the material question was whether the lands in suit were dealt with at the 1801 settlement as ordinary lands of the estate, or as jaghir lands reserved for remunerating paiks for their services, and that this question had not been dealt with. The High Court (Brett and Sharfuddin JJ.) held that the questions which the lower Courts should have decided were whether the lands held by Suba Naek were lands excepted from revenue because appropriated for the maintenance of the police, and whether, if so, the plaintiff could resume them or dismiss Suba Naek, even if he was only employed in zamindari duties. The learned judges referred to the findings of the District Judge above stated, and remarked that findings (1.) and (2.) did not touch the question whether Suba Naeks lands were covered by the kabuliyat, and that finding (3.) was not in law a sufficient finding of fact, as he did not refer to the evidence upon which it was based. The appeal was accordingly remanded for retrial after the determination of the questions above referred to. 1916. May 25. De Gruyther, K.C., and E. 3. Raikes, for the appellant. Both the Subordinate Judge and the District Judge found that Suba Naek was a private servant of the zamindar. There was therefore no right of appeal to the High Court under the Civil Procedure Code, 1882, s. 584 Durga Choudhrain v. Jowahir Singh. (( 1890) L. R. 17 Ind. Ap. 122.) In any case the High Court was wrong in setting aside the decree. The contention that the lands were chaukidari chakaran lands was not raised by the issues, nor in either of the lower Courts. Upon that contention, moreover, the onus was upon the Govern-ment to show that the lands were excluded from the 1801 settlement as chaukidari chakaran lands Secretary of State for India v. Kirtibas Bhujpati Mahapatra. (( 1915) L. R. 42 Ind. Ap. 30.) There was no evidence upon which it could be so held. [Bengal Regulations I. of 1793, XIII. of 1805, and XX. of 1817 were also referred to.] Sir Erie Richards, K.C., and Dunne, for the first respondent. The test which should have been applied was as to the tenure of the land at the decennial settlement of 1801, not the nature of the services rendered by the paik Joykishen Mookerjee v. Collector of East Burdwan. (( 1864) 10 Moo. Ind. Ap. 16.) It was within the discretion of the High Court to remand the appeal for the proper test to be applied. Further, the construction of the kabuliyat was a question of law Fateh Chand v. Kishen Kunwar. (( 1912) L. R. 39 Ind. Ap. 247.) The pleadings covered the question raised by the High Court, since the appellant claimed possession and that the lands were zamindari lands to which the kabuliyat did not apply. De Gruyther, K.C., replied. June 22. The judgment of their Lordships was delivered by LORD PARKER OF WADDINGTON. (( 1912) L. R. 39 Ind. Ap. 247.) The pleadings covered the question raised by the High Court, since the appellant claimed possession and that the lands were zamindari lands to which the kabuliyat did not apply. De Gruyther, K.C., replied. June 22. The judgment of their Lordships was delivered by LORD PARKER OF WADDINGTON. This was an action in which the appellant, as plaintiff, sought to recover possession from the first and second defendants of a jaghir containing about twenty-six bighas of land situate within the territorial limits of the pargana Nayabasan in the district of Midnapur, of which the appellant was the proprietor. The Secretary of State, who alone has appeared as a respondent in this appeal, and is hereafter referred to as the respondent, was added as a third defendant because the Government of India disputed the right which the appellant was asserting in the action. The appellants case was that in 1898 one Suba Naek was in his personal service and held the jaghir on service tenure determinable when his employment ceased ; that he had duly determined the employment of Suba Naek and given him notice to quit his jaghir ; that Suba Naek had refused to deliver up possession of the jaghir, and had obtained from the magistrate an order which precluded the appellant from obtaining possession thereof without civil suit; that Suba Naek had since died, and that the first and second defendants wrongfully claimed to retain possession as Ms heirs. The pargana Nayabasan was settled in 1801 with Rani Sumitra Bhanj (the appellants predecessor in title), who in January of that year executed a kabuliyat in favour of the Government. Under this kabuliyat the proprietor of the pargana was bound to maintain and keep the same " sardars and paiks " who had all along existed in the pargana and to carry out whatever order might be passed by the magistrate on the paiks. He was also precluded from dismissing the sardars or paiks, and bound to depute the paiks to watch and take care of the boundaries of the pargana, and see that no theft or dacoity and no riot occurred anywhere. He was also precluded from dismissing the sardars or paiks, and bound to depute the paiks to watch and take care of the boundaries of the pargana, and see that no theft or dacoity and no riot occurred anywhere. The appellant has throughout contended that the sardars and paiks referred to in this kabuliyat are sardars and paiks employed on police duty, and that the document has no reference to paiks who hold on tenure services personal to himself, and having no connection with the local police. This contention has been upheld, and in their Lordships opinion rightly upheld, by all the Courts below. On the other hand, it had been throughout contended by the respondent that the provisions of the kabuliyat preclude the appellant not only from dismissing paiks whose tenure services include the performance of police duties, but from resuming the jaghir lands, even though he might provide for their remuneration in some other way. The appellant having accepted this contention, their Lordships will assume, as was assumed in all the Courts below, that it is correct. On reference to the written statement of the respondent by way of defence to the action it will be found that, so far as material for the purposes of the present appeal, he relied entirely on the pro visions of the kabuliyat. In order to succeed he had therefore to prove that Suba Naek held by service tenure involving the performance of police duties. Curiously enough, the first two defendants put in a statement, by way of defence, repudiating this. Their case was that they were in possession by hereditary right on a service tenure which did not involve the performance of any police duty, but that the appellant had no right to dismiss them if they were ready and willing, as they in fact were, to perform their proper services. They subsequently applied for leave to withdraw this statement and substitute another. This application was refused, but they appear to have given evidence at the trial in support of the respondents case. The Subordinate Judge found first that there had always been two classes of paiks within the pargana—(1.) paiks who hold their jaghirs in consideration of the performance of police duties, and (2.) paiks whose tenure services were personal to the zamindar. He also found that Suba Naek belonged to the latter class. The Subordinate Judge found first that there had always been two classes of paiks within the pargana—(1.) paiks who hold their jaghirs in consideration of the performance of police duties, and (2.) paiks whose tenure services were personal to the zamindar. He also found that Suba Naek belonged to the latter class. On these findings of fact he held, and in their Lordships opinion rightly held, that the defence of the respondent failed, and gave judgment in favour of the appellant. The first and second defendants were content with this decision, but the respondent appealed to the District Judge, who came to the same conclusions both of fact and law as had been come to by the Subordinate Judge, and dismissed the appeal with costs. The respondent thereupon presented an appeal to the High Court. By s. 504 of the Civil Procedure Code, 1882, then in force, the High Court as second Court of Appeal was bound by the findings of fact of the District Judge. In their Lordships opinion the High Court was not at liberty to disregard the finding that Suba Naek belonged to the class of paiks having no police duties, on the ground that the District Judge gave no reasons for coming to this finding. The reasons of the District Judge are clear. He had considered the evidence and saw no reason for differing from the conclusions at which the Subordinate Judge had arrived. The High Court therefore could only allow the appeal on grounds of law, and as they agreed with the Court below on the construction of the kabuliyat, it is not obvious what other questions of law arose. The respondent, however, urged upon the High Court that the Courts below had entirely misconceived the issue they had to try. This issue was, he contended, whether the lands comprised in the jaghir in question were chaukidari chakaran lands, that is, lands which at or before the settlement had been appropriated or assigned for the maintenance of the police force and by reason of such appropriation excluded from the zamindari assessment. It is in their Lordships opinion quite clear that no such issue was raised by the pleadings. Had this been the issue raised by the pleadings the question whether Suba Naek was a paik with police duties would have been of little importance if not quite immaterial. It is in their Lordships opinion quite clear that no such issue was raised by the pleadings. Had this been the issue raised by the pleadings the question whether Suba Naek was a paik with police duties would have been of little importance if not quite immaterial. The appellant would be precluded by Regulations L of 1793 and XIII. of 1805 from utilizing chaukidari chakaran lands for remunerating persons who were his personal servants and performed no police duties, but, as appears from the case of Secretary of State for India v. Kirtibas Bhupati Mahapatra (L. R. 42 Ind. Ap. 30.), the onus of proving that the lands in question were so appropriated or assigned would lie on the respondent. The kabuliyat contains no reference whatever to any such lands. It was admitted before their Lordships that this contention was put forward for the first time before the High Court. Such admission could hardly be avoided. The real question upon the pleadings was whether the appellant could rightly terminate Suba Naeks tenancy. The new issue suggested raises the question not whether Suba Naeks tenancy could be determined, but whether it ought not to be determined and the jaghir utilized for maintaining some police officer appointed by the Government. Nevertheless, the High Court held that this was the real issue, and, as it had not been tried, discharged the order of the District Judge and remitted the action for rehearing. It not only did this, but it ordered all the costs already incurred to abide the result of the rehearing. In other words, if the appellant failed on a new case set up for the first time on the second appeal, he would have to pay the whole costs of the issues on which he had succeeded in the two Courts below. In their Lordships opinion, even if it be competent to the High Court to remit a case for rehearing on an issue not raised in the pleadings or even suggested in the Courts below, this ought only to be done in exceptional cases for good cause shown and on payment of all costs thrown away. In the present case the respondent showed no ground whatever for the indulgence he claimed. In the present case the respondent showed no ground whatever for the indulgence he claimed. He did not suggest that he had been in any way taken by surprise or had discovered fresh facts of which he was unaware when the case was before the lower Courts. The possibility of the lands in question being chaukidari chakaran lands, which could not, according to the Regulations, be resumed, must have been present to the minds of his advisers when his statement by way of defence was filed. It had been suggested by the magistrate whose order necessitated the action. The action of the respondents advisers in not raising the point must have been deliberate. With knowledge of it, he elected to fight the action on the question whether Suba Naek could . rightfully be dispossessed of his jaghir rather than on the question whether he ought not to be dispossessed and the jaghir utilized for police purposes. The record contains little or no evidence pointing to there being any chaukidari chakaran lands which could not be resumed within the pargana. On the contrary, the rubokari in Persian, the genuineness of which was accepted by the District Judge, points the other way. The respondent does not suggest that he has any further evidence. Their Lordships are therefore of opinion that this appeal should be allowed with costs here and below, and that the order of the District Judge should be restored, and they will humbly advise His Majesty accordingly.