Judgement Appeal from a judgment and decree of the High Court (July 12, 1909) reversing a decree of the Subordinate Judge of Nuddia (June 30, 1906). Law. Rep. 44 Ind. App. 104 ( 1916- 1917) Kumar Basanta Roy V. Secretary of State For India In C ouncil 6 The appellants on September 6, 1904, instituted a suit for a declaration of their title to, and for partition and possession of, certain lands which had been re-formed after diluviation. They claimed that the lands were re-formations of mauzas Durlabhpur, Jirat, and Hatikanda, that a 10-anna share in those mauzas appertained to lot Mahomed Aminpur (mahal No. 3989) and a 6-anna share to lot Gobindpur (mahal No. 100), and that a moiety in Mahomed Aminpur was held by their father, and on his death in 1883 passed to them, being under the management of the Court of Wards until January, 1894. The defendants were the owners of mahal No. 100 (the present respondents Nos. 2 to 8, and hereinafter referred to as the principal respondents), the raiyats in occupation, the Secretary of State for India (who took no part in the appeal), and, as formal defendants, the plaintiffs, co-sharers in Mahomed Aminpur. By their written statement the principal respondents denied the title of the appellants and pleaded that the suit was barred by limitation. The Secretary of State for India pleaded that he was not in possession and that there was no cause of action against him. The facts appear from the judgment of their Lordships. The Subordinate Judge held that the title of the appellants was clearly proved. He rejected the plea of limitation on the ground that, the plaintiffs being minors and under the Court of Wards, Sched. II., art. 120, of the Limitation Act, 1877, applied. He made a decree against the principal respondents and the Secretary of State for India. The principal defendants appealed to the High Court, which reversed the decree. The learned judges (Chitty and Carnduff JJ.) doubted whether it was established that any part of the lands in suit formed part of Mahomed Aminpur; they did not, however, determine that question as they were of opinion that the suit was barred by limitation. After pointing out that art. 120 had no application, they said " A suit for possession of immovable property must fall either within art. 142 or art. 144. After pointing out that art. 120 had no application, they said " A suit for possession of immovable property must fall either within art. 142 or art. 144. Here, as the plaintiffs make no allegation of ever having been in possession, or having been dispossessed, it must be governed by art. 144, which fixes the period of twelve years commencing from the time when the possession of the defendant becomes adverse to the plaintiff. It was first argued for the plaintiffs that from 1888 to 1894 the possession of the Government was the possession of the Court of Wards, and through them the possession of the plaintiffs. We are aware of no authority for the proposition that the Government and the Court of Wards are in any sense identical, or that the Court of Wards can be regarded in any sense as merely a department of Government. The Court of Wards is a statutory body, and in this province, no doubt, the Board of Revenue is the Court of Wards, but that is not enough to make the possession of Government the possession of the plaintiffs by the Court of Wards.....It was next urged that the possession of the Government did not in fact commence until 1894, when the char was first settled for five years. This, however, is contrary to the evidence.....There can be no doubt whatever that from 1889 at least portions of the land were under cultivation by the utbandi tenants of the Government. It is certain that the Government took possession at once on the re-formation, and their possession must be taken as dating at the latest from 1889." After rejecting the contention that the principal defendants possession after 1902 was as co-sharers with the plaintiffs, on the ground that the plaintiffs had not proved that the mauzas were held jointly, they said " it was next urged that the re-formation of the char in suit was gradual, and that portions of it may have appeared above water within twelve years of the suit. If that were so, the burden of proving which portions of the land were of this description would lie upon the plaintiffs—see Koomar Runjit Singh v. Schoene Kilburn & Co, (( 1879) 4 Calc. If that were so, the burden of proving which portions of the land were of this description would lie upon the plaintiffs—see Koomar Runjit Singh v. Schoene Kilburn & Co, (( 1879) 4 Calc. L. R. 390.)—and hardly any attempt was made on their behalf to distinguish any portions of the char on that ground." They concluded as follows " It is clearly established that the plaintiffs never held possession, actual or constructive, of any portion of the char in dispute since 1888 ; that at least from 1889 the Government was in possession, adversely to the plaintiffs, until 1902, when they released the whole char to the principal defendants, and that from 1902 that adverse possession was continued by the principal defendants. The suit was not instituted until a date more than twelve years after that adverse possession had commenced, nor was it instituted within three years from the date when the youngest plaintiff attained his majority. It was accordingly barred by limitation." Law. Rep. 44 Ind. App. 104 ( 1916- 1917) Kumar Basanta Roy V. Secretary of State For India In C ouncil 7 1916. Nov. 20, 21, 22. Sir R Finlay, K.C., and Kenworthy Brown, for the appellants. The evidence establishes the title of the appellants to the lands in suit. That title was not barred by limitation. The suit is one to which art. 144 and not art. 142 of the Limitation Act, 1877, applies. The onus was consequently upon the principal defendants to prove that they had had con tinuous adverse possession for twelve years before the suit Radha Gobind Roy v. Inglis (( 1880) 7 Calc. L. R. 364.); Secretary of Slate for India v. Chelikani Rama Rao. (( 1916) L. R. 43 Ind. Ap. 192.) The High Court relied on the decision in Koomar Runjit Singh v. Schoene Kilburn & Co. (4 Calc L. R. 390.) That case, however, followed the rule laid down by the Board in Maharajah Koowur Nitrasur Singh v. Nund Loll Singh (( 1860) 8 Moo. Ind. Ap. 199.); but, as is pointed out in Rao Karan Singh v. Bakar Ali Khan (( 1882) L. R. 9 Ind. Ap. 99), the law was altered by the Limitation Act, 1871 ; that Act introduced by art. 145 the principle of adverse possession, the previously existing law depending exclusively upon proof of a dispossession within twelve years. Ind. Ap. 199.); but, as is pointed out in Rao Karan Singh v. Bakar Ali Khan (( 1882) L. R. 9 Ind. Ap. 99), the law was altered by the Limitation Act, 1871 ; that Act introduced by art. 145 the principle of adverse possession, the previously existing law depending exclusively upon proof of a dispossession within twelve years. The last cited case shows that the Government possession was not adverse to the appellants ; further, it could not be so seeing that the Government and the appellants were in the position of guardian and wards Thomas v. Thomas (( 1855) 2 K. & J. 79.); Smiths Leading Cases, 11th ed., vol. 2, p. 661. Moreover, until 1894 the lands were not capable of continuous possession. During the period of seasonal diluviation the constructive possession during a part of each year was in the appellants Secretary of State for India v. Krishnamoni Gupta. (L. R. 29 Ind. Ap. 104.) But in any event the principal defendants, having claimed the lands from Government, did not derive their liability to be sued from or through Government, and were not entitled under the definition of "defendant" in s. 3 of the Limitation Act, 1877, to rely upon any period of adverse possession in the Government. Further, the principal defendants being co-sharers with the appellants could not set up adverse possession against them Trustees and Agency Co. v. Short. (( 1888) 13 App. Cas. 793.) [Reference was also made to Dixon v. Gayfere (( 1853) 17 Beav. 421, 430.), Asher v. Whitlock (( 1865) L. R. 1 Q. B. 1, 4.), Rajcoomar Roy v. Gobind Chunder Roy (( 1891) L. R. 19 Ind. Ap. 140.), Innasimuthu Udayan v. Upakarath Udayan (( 1899) L. R. 26 Ind. Ap. 210.), and Jogendra Nath Rai v. Baladeo Das. (( 1907) I. L. R. 35 Calc. 961.)] De Gruyther, K.C., and OGorman, for the principal respondents (Nos. 2 to 8). The evidence does not establish that the lnds ever formed part of the appellants property. In any case, art. 142 applies, and the onus was consequently upon the appellants to prove that they had been dispossessed within twelve years Muhammad Amanulla Khan v. Badan Singh (( 1889) L. R. 16 Ind. Ap,); Mohima Chunder Mozumdar v. Mohesh Chunder Neogi. (( 1888) L. R. 16 Ind. Ap. 23. In any case, art. 142 applies, and the onus was consequently upon the appellants to prove that they had been dispossessed within twelve years Muhammad Amanulla Khan v. Badan Singh (( 1889) L. R. 16 Ind. Ap,); Mohima Chunder Mozumdar v. Mohesh Chunder Neogi. (( 1888) L. R. 16 Ind. Ap. 23. 148.) There was no evidence of any dispossession within twelve years of the suit. On the con trary, during the diluviation the constructive possession remained in the appellants, but there was a dispossession by the utbandi cultivation from 1891. Further, the Government took possession under Bengal Regulation XI. of 1825 in its own right, and by s. 28 of the Limitation Act, 1877, the claim of the appellants against the Government became extinguished by twelve years adverse possession. These respondents obtained a good title from the Government by the release in 1902. The possession of the Government was adverse to the appellants although the latter were under the Court of Wards; there is a distinction between the Collector acting for the Board of Revenue and the Court of Wards Chowdhry Sheoraj Singh v. Collector of Muradabad. (( 1870) 1 N. W. P. Rep. 379.) 1917. Feb. 1. The judgment of their Lordships was delivered by LORD SUMNER. This suit was brought by members of a family called the Kumars of Dighapatia against certain persons, called collectively the Kundu Babus of Mahiari, to recover khas possession, jointly with their co-sharer maliks, of a 10-anna share in portions of mauzas Durlabhpur, Jirat, and Hatikanda. Wasilat was also claimed. Some years ago the Ganges overflowed these lands. They have now re-formed in situ. Law. Rep. 44 Ind. App. 104 ( 1916- 1917) Kumar Basanta Roy V. Secretary of State For India In C ouncil 8 The plaintiffs held one moiety of the zamindari lot Mahomed Aminpur, the other moiety being held by various persons, who were joined as subordinate defendants. To this mahal, bearing taujih No. 3989 of the Hooghly Collectorate, this 10-anna share was said to have belonged for at least a century. The 6-anna share was the property of the principal defendants in right of their zamin dari, namely, lot Gobindpur hearing taujih No. 100. The trial judge found for the plaintiffs title. To this mahal, bearing taujih No. 3989 of the Hooghly Collectorate, this 10-anna share was said to have belonged for at least a century. The 6-anna share was the property of the principal defendants in right of their zamin dari, namely, lot Gobindpur hearing taujih No. 100. The trial judge found for the plaintiffs title. The High Court criticized this decision as having been arrived at " without any real discussion or consideration of the documentary evidence," but did not expressly dissent from it. They allowed the appeal on another ground. Having examined the documentary evidence in question with some care, their Lordships conclude that the decision of the trial judge in this regard was right. The plaintiffs put in an extract from the quinquennial register of pargana Mahomed Aminpur for A.D. 1816, which showed that a 10-anna share in each of the three mauzas then belonged to taluq Mahomed Aminpur. An extract from the mahalwari register, apparently for A.D. 1880, showed these mauzas still belonging to Mahomed Aminpur, though not under the same taujih number, and stated the maliks, as recorded in the general register, to be certain persons of whom one was Purna Chandra Roy, the plaintiffs predecessor in title. It further remarked that part or all of the land of these mauzas was ijmali, without naming either the co-sharers or the proportions of the shares. No doubt these entries are in some respects inconclusive. For several years, from 1888 onwards until 1894, when the guardianship of the Court ended, the plaintiffs were minors, whose property was in the charge of the Court of Wards, and they produced documents showing that year after year each of these mauzas was administered on their behalf, and that rents and profits collected in respect of them were credited to the account of the plaintiffs. Amdanis of money on account of rent, taujih accounts, and extracts from the jamma-wasil-baki accounts and karcha accounts were forthcoming in regular sequence, in which the plaintiffs were stated to be proprietors and their share to be a 10-anna share in taujih No. 3989. To these proofs of enjoyment no real answer was made, and their Lordships see no reason to question the finding of the trial judge in favour of the plaintiffs title. To these proofs of enjoyment no real answer was made, and their Lordships see no reason to question the finding of the trial judge in favour of the plaintiffs title. The identity of the lands in suit held by the principal defendants with those originally washed away, to which the plaintiffs made title, was accepted by the trial judge, doubted but not decided by the High Court, and strenuously contested before their Lordships. Before the trial an ameen was appointed to survey the locus in quo and set it out on a map. The limits of the ground in dispute were agreed and shown on this map. Portions of each of the three mauzas fell beyond them. At the instance of the principal defendants the ameen also prepared a map purporting to show the natural features " as contained in the release map of 1886." In his report he stated that the latter features depended on the position of a palm tree, which was taken as the datum because it was said to be the only thing that had survived from 1886, and to be identical with a palm tree shown on a copy map produced by the defendants and alleged to be a map of things as they were in that year. No proof of the identity of this palm tree was forthcoming; no thak map was produced ; no release of 1886 or any evidence of it was put in. It is plain that the ameen thought that this map of the supposed features of 1886 was not worth much, and their Lordships think so too. The respondents argument rested on three points first, that since 1886 they had been, as they said, in possession of certain portions of a char known as char Raninuggur No. 1, that by superimposing the ameens 1886 map on his survey of 1906 it would be seen that part of the area disputed in this action, though claimed as part of char Raninuggur No. 2, really fell within char Raninuggur No. 1, and that there had been a confusion of mauza Jirat, which lay in the north of the disputed area, with an area called char Jirat, which lay outside of it and to the south, some miles away. Their Lordships Board has had occasion before now (Rajcoomar Roys Case (L. R. 19 Ind. Ap. Their Lordships Board has had occasion before now (Rajcoomar Roys Case (L. R. 19 Ind. Ap. 140, 146.)) to deprecate the practice of " propounding riddles of this kind/ and to point out how rarely they succeed. It may be doubted if such efforts are worth the labour they involve. After the best consideration that they could Law. Rep. 44 Ind. App. 104 ( 1916- 1917) Kumar Basanta Roy V. Secretary of State For India In C ouncil 9 give, their Lordships are clear on one point only, namely, that this case was not made at all at the trial, and is not made out now. The trial judge records that " it is admitted on both sides that the lands in suit are reformations on their old sites of diluviated lands of mauzas Durlabhpur, Jirat, and Hatikanda." On that admission he proceeded, and by that admission, in their Lordships opinion, the respondents must be bound. In the result the plaintiffs have made out their case alike as to title and parcels. There remains the question on which alone the High Court proceeded, the question of limitation. This involves some account of the history of the re-formed land. At the date of the Government survey of 1869 and 1870 the three mauzas lay to the west of the Bhaghirathi. Shortly after that date the river began to traverse bodily to the south-west, in a direction at right angles to the axis of its course at that part of the stream, and steadily moved for some miles across country till in 1906 only portions of Jirat and Hatikanda and no part of the Durlabhpur were any longer to the west of the river. The total area submerged no doubt extended far beyond the bounds of these mauzas. As the river passed on chars began to form. Char Raninuggur No. 1 was the first; char Raninuggur No. 2, somewhere within which the present re-formations fall, began to appear as an island char in 1888, The plaint in the present suit was filed on September 6, 1904. It is common ground that the period of limitation applicable is twelve years, the contest being whether art. 142 of Sched. II. of Act XV. of 1877 is the article applicable or art. 144. The critical time is the time prior to September 6, 1892. It is common ground that the period of limitation applicable is twelve years, the contest being whether art. 142 of Sched. II. of Act XV. of 1877 is the article applicable or art. 144. The critical time is the time prior to September 6, 1892. A great body of evidence was called, of which the trial judge says that the witnesses " have sworn hard without any regard to truth." Neither side has ever thought it worth while to quote what they said to their Lordships. If the appellants are right, the question is whether the respondents had adverse possession before September, 1892 ; if the respondents are right, the question is whether before that time the appellants had not been dispossessed. A good deal has been said about the burden of proof in either case, but, as their Lordships find the evidence sufficient to establish a clear conclusion of fact, it cannot matter now by which party it was given. Their Lordships accordingly pass by the question who would have suffered if the facts had turned out otherwise or had not been proved at all, and proceed to examine them. The best evidence of the history of the char lands in question is to be found in the Collectorate reports of the settlements of 1894, 1899, and 1902. An island char in or about this spot was thrown up in 1888, but was unfit for assessment, and apparently for cultivation, till 1890. At first the surrounding water was unfordable on all sides, but further accretions soon attached it on the north to char Raninuggur No. 1. In 1889 it was first treated as an accretion to char Raninuggur No. 1 and Jirat, which had been released to Suksagar zamindars as re-formations in situ of their mauzas, and then shortly afterwards came to be considered as an accretion to the part of char Raninuggur No. 1 which was a Government estate. It was not regularly surveyed till 1894, but, beginning in the year 1891- 1892, it was under direct management on the utbandi system on yearly settlements. The area then producing a rent was about 350 bighas; in the following year it was slightly more. On the survey in 1894 the area of this char was found to be 2060 bighas, of which 583 were by this time under cultivation. The area then producing a rent was about 350 bighas; in the following year it was slightly more. On the survey in 1894 the area of this char was found to be 2060 bighas, of which 583 were by this time under cultivation. The residue was uncultivated jungle, ad the whole of it was every year completely under water from the beginning of June to the end of October. Naturally the land was then very poor, and there was no resident raiyat in the mahal. The char had so far increased by 1894 that a raiyatwari settlement was then made with the utbandi raiyats for a term of five years. On the expiration of this term it was again surveyed, and its area was found to have increased to over 3000 bighas, and 86 ½ acres of it were released to the proprietor of estate No. 399, as being land which was a re-formation in situ of his mauza Sardanga. It would seem that a further portion of it had been previously released to the owner of mauza Baliadunga. The cultivable lands were then settled again for an undefined term. Law. Rep. 44 Ind. App. 104 ( 1916- 1917) Kumar Basanta Roy V. Secretary of State For India In C ouncil 10 In 1902 the principal defendants petitioned the Collector of Nuddia for the release to them of the lands in question, alleging that they were re-formations in situ of lands belonging to their estate, lot Gobindpur, taujih No. 100, and ten months later the officiating Collector granted the petition. In his judgment the petitioners had proved their title and the identity of the re-formed lands, and the Government could not legitimately resist their claim. Accordingly possession was delivered in due form, by planting a Ramboo on the estate, by proclamation, and by beat of drum. The report of 1899 in terms speaks of these re-formed lands as being the " property " of the Government resumed in 1888, which at most means that in time the Governments actual possession, such as it was, might be expected to ripen into ownership. The report of 1902 speaks of possession, direct management, and settle- ment. The report of 1899 in terms speaks of these re-formed lands as being the " property " of the Government resumed in 1888, which at most means that in time the Governments actual possession, such as it was, might be expected to ripen into ownership. The report of 1902 speaks of possession, direct management, and settle- ment. The order of 1903, while avoiding the term " property," because it recognized the property of the petitioners, recited that the Government took possession of char Raninuggur No. 2 in 1888, the year in which it came into existence as a char. These documents, however, were reciting what had happened some years before, and presumably after some change of Collectors in the meantime, and it is very noticeable that in the khasras of the char the column headed " Name of proprietor and landlord " appears to have been left blank until 1899, when it is filled in for the first time with the name of the Empress of India. The Limitation Act of 1877 does not define the term " dispossession," but its meaning is well settled. A man may cease to use his land because he cannot use it, since it is under water. He does not thereby discontinue his possession constructively it continues, until he is dispossessed ; and, upon the cessation of the dispossession before the lapse of the statutory period, constructively it revives. " There can be no discontinuance by absence of use and enjoyment, where the land is not capable of use and enjoyment" per Cotton L. J. in Leigh v. Jack. (( 1879) 5 Ex. D. 264, 274.) It seems to follow that there can be no continuance of adverse possession, when the land is not capable of use and enjoyment, so long as such adverse possession must rest on de facto use and occupation. When sufficient time has elapsed to extinguish the old title and start a new one the new owners possession of course continues until there is fresh dispossession, and revives as it ceases. In the case of Secretary of State for India v. Krishnamoni Gupta (L. R. 29 Ind. Ap. When sufficient time has elapsed to extinguish the old title and start a new one the new owners possession of course continues until there is fresh dispossession, and revives as it ceases. In the case of Secretary of State for India v. Krishnamoni Gupta (L. R. 29 Ind. Ap. 104.) their Lordships Board applied this view to a case where a river shifting its course first in one direction and then in the opposite direction first exposed certain submerged lands, of which the Government took possession, and then after a few years flooded them again. No rational distinction can be drawn between that case and the present one, where the re-flooding was seasonal and occurred for several months in each year. It was held that when the land was re-submerged the possession of the Government determined, and that, while it remained submerged, no possession could be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner. Again, to apply the test suggested by Bramwell L. J. in Leigh v. Jack (5 Ex. D. 273.), "to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it," and therefore it is necessary to look at the position in which the former owner stands towards the land as well as to the acts done by the alleged dispossessor. " It is impossible," says Lord Halsbury in Marshall v. Taylor ([ 1895] 1 Ch. 641, 645.), " to speak with exact precision about the degree of possession or dispossession that will do, unless you have regard, as Cotton L.J. said in Leigh v. Jack (5 Ex. D. 274.), to the nature of the pro perty." An exclusive adverse possession for a sufficient period may be made out, in spite of occasional acts done by the former owner on the ground for a specific purpose from time to time. Conversely acts which prima facie are acts of dispossession may under particular circumstances fall short of evidencing any kind of ouster. They may be susceptible of another explanation, bear some other character, or have some other object. In the present case beyond the Law. Rep. 44 Ind. App. Conversely acts which prima facie are acts of dispossession may under particular circumstances fall short of evidencing any kind of ouster. They may be susceptible of another explanation, bear some other character, or have some other object. In the present case beyond the Law. Rep. 44 Ind. App. 104 ( 1916- 1917) Kumar Basanta Roy V. Secretary of State For India In C ouncil 11 temporary utbandi cultivation itself there is nothing down to 1892 to show an exclusion of the plaintiffs by the Revenue authorities. Their Lordships are of opinion that, whatever may have been the case later on, there had not been down to September, 1892, any dispossession of the plaintiffs within the meaning of art. 142. The evidence of possession by the Government consists in the direct management under which bandobastdars cultivated at annual rents. Two Collectors orders, dated in 1889, are referred to, but not exhibited, under which the land was first of all " treated " as an accretion to one property and almost immediately afterwards " considered " as an accretion to another ; but, beyond the utbandi cultivation, nothing was done. Whether the land cultivated was the same each year or not does not appear; at any rate, it was annually submerged, and there are no circumstances to link together various portions of ground so as to make the possession of a part, as it emerged, amount constructively to possession of the whole Mohini Mohan Roy v. Promoda Nath Roy. (I. L. R. 24 Calc. 256, 259.) The lands in question in this suit form only a part of char Raninuggur No. 2. It cannot be shown that they formed part of the land cultivated, or of the char which had emerged up to 1892. It is quite possible that most if not all, of the land cultivated between 1891 and 1893 may have belonged to the land which was shortly afterwards released to the Baliadunga and Sardanga zamindars. It is clear that in those early years there was considerable uncertainty as to the course the re-formation was taking, and the fact must have been well known that the char might turn out to be a re-formation in situ of the land, which had only diluviated within the previous twenty years. If, as their Lordships think, no dispossession occurred, except possibly within twelve years before the commencement of this suit, art. If, as their Lordships think, no dispossession occurred, except possibly within twelve years before the commencement of this suit, art. 144 is the article applicable, and not art. 142. It is not easy to see in the circumstances of a case such as this how conduct insufficient to evidence dispossession of the plaintiffs can be used to evidence adverse possession available to the defendants; but, be that as it may, in their Lordships opinion the defendants con tention resting on art. 144 fails on another ground. The period of time requisite to bring the defendants under the protection of art. 144 cannot be made out, unless to the period during which the defendants have been in possession there is tacked, out of the prior period when it is contended that the Revenue authorities had possession, a number of years going back to 1892. The definition section, s. 3, shows that in the present case this cannot- be done. The defendants do not derive their liability to be sued " from or through " the Revenue authorities in any sense of the words. They advanced a claim of their own adversely to the Revenue authorities which was rested on prior title and possession, and sought to put an end to conduct on the part of those authorities which, they asserted, was inconsistent with and an invasion of their own superior title. On investigation the Revenue authorities recognized and submitted to this adverse claim and withdrew from any enjoyment or occupation. If the defendants could make good now the claim which they made then, well and good; but they would succeed not by reason of, but independently of, the Limitation Act. Upon this ground they fail as far as art. 144 is concerned. In this view of the case it is not necessary to decide two points much discussed before their Lordships first, that the defendants possession could not, as such, be deemed to be adverse to their co-sharers or available to deprive the plaintiffs of their rights ; and, second, that the possession of the Revenue authorities could not be availed of against the plaintiffs by reason of their being at the time minors under the guardianship of the Court of Wards. In differing from the High Court upon the determination of the appeal their Lordships do not wish to be taken as expressing any opinion adverse to their view on this second point. In the result their Lordships will humbly advise His Majesty that the appeal should be allowed with costs, the judgment of the High Court should be set aside with costs, and the decision of the Subordinate Judge should be restored. As the first defendant on the record, the Secretary of State for Law. Rep. 44 Ind. App. 104 ( 1916- 1917) Kumar Basanta Roy V. Secretary of State For India In C ouncil 12 India in Council, lodged no case and did not appear before their Lordships to support or resist the appeal, their Lordships do not advise that the terms of any order as to costs should affect him.