JUDGMENT Sinha, J. - This is an appeal by an unsuccessful Defendant against whom a suit for possession was decided in part by the learned Additional Munsif. This decree was affirmed, with a substantial modification In favour of the Plaintiff, by the learned Second Civil Judge of Meerut. 2. The Plaintiff is a school, Shri Sanatan Dharma School, Ghaziabad and brought the present suit through one Lala Banwari Lal. The story with which it came to Court was briefly this: Plot No. 805-B in area 14 biswas, corresponding to old plots Nos. 11402, measuring 11 biswas and 6 biswasis(sic) , and 1141/3, measuring 3 biswas, belonged to the school and the school-boys had been playing over it and it had been used for other purposes of that school. The Defendant, who had no concern with the plot, had, in August 1941, made a kotha and a courtyard, marked ABCD in the sketch map, a wall, marked X, and a latrine, marked Y, on a portion of the plot, without any right. 3. The defence, in the main, was that the Defendant's kachoha house existed on the site of the constructions in suit, marked ABCD, from the time of his ancestors. This house fell down six years before the municipal survey, which took place in 1935, but its walls stood up to a height of two to three feet and he had built the constructions in suit on the site of that house. The latrine was also an old construction, dating from the time of his forefather. The land, the defence proceeded, was a grave or takia and the old kothas appertained to it. He denied the Plaintiffs stay that the school boys ever played on the site of the constructions ABCD the latrine. Ha denied the Plaintiff's possession of the property and claimed himself along with his ancestors, to have been in possession continuously from time immemorial. The bar of estoppel was also pleaded. 4. It appears that two men, Dr. Bishambhar Sahai and Dwarka Prasad, made a gift, on November 4, 1925, of plots Nos. 1140/2 and 1141/3, with the exception of land eight yards wide, east to west, and ten yards long, north to south, lying towards the north, in favour of the school. The bar of estoppel was also pleaded. 4. It appears that two men, Dr. Bishambhar Sahai and Dwarka Prasad, made a gift, on November 4, 1925, of plots Nos. 1140/2 and 1141/3, with the exception of land eight yards wide, east to west, and ten yards long, north to south, lying towards the north, in favour of the school. It also appears that there had been a previous litigation between Bishambhar Sahai and one Kallan Shah for the removal of certain constructions, made by the latter, on plot No. 1140/2. The former's suit was decreed, on April 19, 1915. The area excluded from the gift, as also the fate of previous litigation, will have a material bearing upon the fate of the present case. 5. A commissioner was appointed and his report formed largely the basis of the judgments of the Courts below. The Plaintiff's counsel admitted before the learned Additional Munsif that the constraction marked X did not exist on the spot. The learned Additional Munsif, in a judgment which bears marks of care and industry, found that the Plaintiff was the owner of the plot in dispute and the constructions ABCD and the latrine Y stood on plot No. 1140/2, which was a part of 805-B He, however, found that the latrine was an old construction and the constructions marked ABCD existed on the site for over twelve years and had been made on the old constructions. The oral evidence of the parties did not appear to him worthy of credit. He found that old graves existed on a part of the plot in dispute. In this view of the case, he decreed the Plaintiff's suit but rejected the prayer for the demolition of the constructions ABCD and the latrine. He held further that the sites of these construction would revert to the Plaintiff in case the Defendant or his heirs abandoned the house or the latrine or gave up their use. 6. To this decree the Defendant submitted. The Plaintiff, however, went in appeal and the learned Second Civil Judge, in a judgment which reads more like special pleading and does not inspire confidence, decreed the suit for the demolition of the entire construction ABCD and also of the latrine. He held that the electments of estoppel had not been made out. 7. The Defendant has come before me in second appeal. 8. He held that the electments of estoppel had not been made out. 7. The Defendant has come before me in second appeal. 8. The learned Counsel for the Appellant has strenuously contended that the case depended, almost entirely--if not entirely--upon oral evidence and it was not proper for the learned Second Civil Judge to have disagreed with the learned Additional Munsif. This criticism is not without force, but it is impossible for me, sitting in second appeal, to reverse the findings of fact. I, ho however, feel the lower appellate Court has obviously gone astray with regard to two of the matters in controversy. 9. The learned second Civil Judge dill not disagree with the finding of the learned Additional Munsif that the latrine was an old construction, more than twelve years old. But he held that it was a flimsy con struction and disagree with him in his conclusion. In so doing he purported to found himself on Ram Chandra v. Asa Ram 1937 A W R 391. I might mention that this judgment was affirmed in appeal on Letters Patent in Asa Ram v. Ram Chander 1939 A W R (H C) 11. I am, however, of opinion that this case differs in one very important particular from that case. The foundation of the rule of law followed in all such cases was laid in the well known case of Framji Cursetji v. Gokuldas Madhowji (1889) 16 Bom. 338. The principle laid down by the learned Judges is summed up in these words: A bit of land is of no present use to its owners, and happens to be of use for various temporary purposes to an adjoining land holder, and he accordingly so uses it 10. The important words are "of no present use to its owner". The constructions there were a privy and sheds for cows, goats, etc., and a hut for a ghariwallah--all, however, structures of a flimsy and purely temporary character. In the case of Asa Ram v. Ram Chander the act of the wrong doer consisted of mere tethering of cattle and storing of logs and the constructions of foundations of a house, but not visible on the surface on a piece of waste land. 11. In the case of Asa Ram v. Ram Chander the act of the wrong doer consisted of mere tethering of cattle and storing of logs and the constructions of foundations of a house, but not visible on the surface on a piece of waste land. 11. A Bench of this Court held that such user did not amount to possession adequate in continuity, in publicity and in extent to show that it is possession adverse to die competitor. 12. The Secretary of State for India in Council v. Debendralal Khan (1934) 61 Cal. 262. 13. Can it be said that the circumstances of the present case have anything in common with those cases? In the first place, the land in dispute is not land "of no use to the owner". Indeed, it is the Plaintiff's definite case that the land is used by school-boys as a play ground and also for analogous purposes. There is nothing to suggest that the construction is of a flimsy character, or of a character indicative of an intention on the part of the occupier to use it only temporarily and not permanently. I am, therefore, of opinion that the claim with regard to the latrine must fail. 14. The question of graves presents considerable difficulty and I am constrained to remark that the judgment of the learned second Civil Judge on this question leaves a great deal to be desired. It must be borne in mind that a portion of the land, measuring ten yards, towards the north, had been excluded from the gift in favour of the Plaintiff. Banwari Lal, through whom the suit bad been brought, admitted that "old graves lie in the southeastern portion of plot No. 805-B.," but qualified his statement by saying that this poition does not form part of the property gifted to the Plaintiff. 15. This was obviously wrong, inasmuch as the portion of the land excluded lay, as said above, in the north and not towards the south-east. The witness was either definitely lying or prevaricating and the learned Additional Munsif not unnaturally, drew a conclusion adverse to the piaintilf and held that the graves were old and existed in the portion of the plot in dispute. The learned Second Civil Judge, however, set aside the finding of the learned Additional Munsif, but based himself almost entirely upon surmises. The learned Second Civil Judge, however, set aside the finding of the learned Additional Munsif, but based himself almost entirely upon surmises. To qoute him: By the Dakhalnama, Ex 7, Dr. Bishambhar Sahai and Dwarka Prasad had obtained possession too over the said plot against Kallan Shah etc. So, it is very probable, that the 8 yards by 10 yards land excluded from the Plaintiff's gift was that over which contained graves as mentioned in the decree the judgment Exs. 5 and 6. The Defendant docs not claim to have made the constructions in suit on the land covered over by those graves, nor would he have done so and therefore the land covered over by the construction in suit is other than too one containing the graves, and the latter only was excluded from the Plaintiff's gift. 16. There was no room for any surmise. The land excluded lay towards the north. If Banwari Lal, the Plaintiff's principal witnesses, or its counsel admitted that the graves lay in the south-east portion of plot No. 805-B, they could not lie in the excluded portion, for that would cut across the recitals in the gift, which is the foundation of the Plaintiff's title. If these graves are old, the Plaintiff's claim with regard to them must fail. I, however, feel that I must, in fairness to the Plaintiff, send down an issue to the Court below in order to arrive at a clear finding as to whether the graves lie in the portion excluded from the gift or otherwise. It is also necessary to know their ages. I, therefore, send down the following issues: What exactly is the situation of the graves in disputed 2. How old are they? 17. The learned District Judge of Meerut is requested to send the case to soma Civil Judge other than Mr. Suraj Prasad Dube The finding should be returned within two months from this date. On receipt of the finding the usual ten days will be allowed for objections. 18. Parties will be entitled to adduce fresh evidence.