JUDGMENT : U.N. Sinha, J. This appeal, filed by the plaintiff, has been referred to a Division Bench. It arises out of a suit instituted by him for declaration of title to and fur recovery of possession of a house standing on plot no. 1861, appertaining to khata no. 599 of village Mangraon in the district of Shahabad. The plaintiff had also asked for recovery of Rs.350 as damages for removal of certain materials and for a decree of Rs.40 as damages for unauthorised occupation of the disputed property. He had also asked for a permanent injunction restraining the defendants from opening a new outlet for flow of water from their house bearing plot no. 1860 into plot no. 1861. The suit was decreed in part by the trial court. The plaintiff's title to the disputed property was declared and the defendants were directed to deliver possession and to close the drain which they had dug in the disputed house and they were also injuncted permanently from opening a drain into it. The plaintiff's claim for damages of the two kinds, mentioned above, was refused. On appeal by the defendants, the court of appeal below has reversed the trial court's decree and has dismissed the suit. 2. The relevant facts are stated below: The plaintiff's case was that two brothers, named Kauleshwar Pandey and Ram Swarup Pandey had some properties and they were joint. Their only heir was Motijharia, daughter of Kauleshwar Pandey, but Motijharia was an issueless widow. One Hiranath Mishra was the son of Mosstt. Motijharia's husband's brother, Hiranath and Motijharia had been looking after Kauleshwar and Ram Swarup, both of whom had executed a deed of gift on the 15th December, 1944 in favour of Hiramth in respect of all their properties, including the disputed house standing all plot no, 1861. Biranath had been put in possession as the donee. It was alleged that the defendants got annoyed by this gift and they filed a title suit, numbered as Title Suit No. 179 of 1945/126 of 1947 in the court of a Munsif, through Shrikant Pandey, defendant no.7 alleging that defendant no. 7 had been adopted by Ram Swarup and the latter had got no right to make any gift of an undivided coparcenary property to Hiranath. 7 had been adopted by Ram Swarup and the latter had got no right to make any gift of an undivided coparcenary property to Hiranath. It was alleged that this case of adoption was negatived by all the courts and the suit stood dismissed finally by the JUDGMENT : by this Court passed on the 7th January, 1953. It was further alleged by the plaintiff that in 1957 when Hiranath had gone to his village Nonhar along with Ram Swamp Pandey, the defendants demolished the partition wall standing between their house and the house of Hiranath and took forcible possession of the house. Thereupon, Hiranath instituted a criminal case and on the 1st May, 1958 defendants nos. 1 to 6 of this suit were convicted and ORDER :ed to deliver possession of the house of Hiranath. The appeal by these defendants was dismissed, but the defendants never vacated the house in question. The plaintiff had his residential house adjacent east of plot no. 1861 and Hiranath sold the properties that he had obtained by the deed of gift to the plaintiff by a registered sale deed dated the 5th December, 1959. The plaintiff was given possession of al the other properties except the house. On these allegations the present suit was instituted. 3. The suit was contested by defendants no. 1 to 7 [Defendant no. 8 was a minor and he was represented by a guard and litem appointed by the Court. The contesting defendant's case may be summarised as follow. It was alleged that the family of Ram Swarup and Kauleshwar and the family of these defendants were within three generations from the common ancestor, Sanehi Pandey and neither Kauleshwar nor Ram Swarup had any male issue and they used to pass their time in Bhajan and pilgrimage due to old age. The two families were mixed up with each other and Kauleshwar and Ram Swarup put all their properties and the disputed house in possession of the family of these defendants and defendant no. 7 had been adopted by them. The relations of Ram Swarup and Kauleshwar got a deed of gift executed by these two persons under their influence and defendant no. 7 had to institute an adoption suit which could not succeed. But, in spite of failure in this suit, defendants nos. 7 had been adopted by them. The relations of Ram Swarup and Kauleshwar got a deed of gift executed by these two persons under their influence and defendant no. 7 had to institute an adoption suit which could not succeed. But, in spite of failure in this suit, defendants nos. 1 to 7 were in possession of the properties of Kauleshwar and Ram Swarup openly and adversely. Hence the plaintiff had no title to the disputed property at all. The actual words used in Paragraph 6 of the written statement regarding transfer of possession from Ram Swarup and Kauleshwar to that of the defendants' family were in these terms: "They (these defendants) did not allow even Kauleshwar Pandey and Ram Swarup Pandey to resume possession and they did not allow even the plaintiff to go near the property." The plaintiff's case of the deed of gift was denied. It was alleged that Hiranath had never been in possession of any property of Ram Swarup and Kauleshwar including the disputed house. It was alleged that the criminal case referred to by the plaintiff was false one, but by in luck the defendants had lost the case. It was alleged that the residential house of these defendants and the disputed houses were adjacent to each other and, to quote the words used in Paragraph 13 of the written statement. "During the life time of Ram Swarup Pandey and Kauleshwar Pandey both the houses were amalgamated and food and maintenance were given to them for their convenience. The wall was not demolished after the criminal case or after the appeal in High Court. Rather Kauleshwar Pandey and Ram Swamp themselves demolished the same for their own convenience. It was alleged that the deed, of gift relied upon by the plaintiff had been brought into existence by deception and fraud and Ram Swarup and Kauleshwar had no mental capacity to understand the details of the document. I am omitting further allegations made by these defendants in the written statement as the points which have arisen for decision in this appeal arc covered by what has been stated above. 4. The main issues framed by the trial court were issues nos. I am omitting further allegations made by these defendants in the written statement as the points which have arisen for decision in this appeal arc covered by what has been stated above. 4. The main issues framed by the trial court were issues nos. 2, 3 and 4, which were to the following effect; Issue No.2 "Does limitation bar the suit ?" Issue No. 3 "Is the suit barred by adverse possession ?" Issue No.4 "Is the deed of gift valid and does it convey any title on the house ?" Before I mantion the conclusions of the learned Munsif, who tried the suit, the chief controversy which arose in the trial court may be mentioned here. The plaintiff had produced a copy of the deed of gift dated the 1st December, 1944, marked as Exhibit 7, showing that amongst other properties plot no, 1861 had also been included in the gift. The defendants had also produced a certified copy of this deed of gift, marked as Exhibit A, which showed that amongst other properties, plot no. 1661 had been included and not plot no. 1861. On this question, the learned Munsif carne to the conclusion that plot no. 1661 had wrongly been mentioned in the deed of gift for plot no. 1861. On a consideration of the materials on record, he then, came to the conclusion that Hiranath had come in possession of the disputed house by virtue of the deed of gift and that the defence of the defendants that they were in possession of it for a large number of years was wrong. Hence it was held that the plaintiff was entitled ... to recover possession of the disputed house. 5. On appeal, the learned Subordinate Judge who had decided it, has stated that, the only point that arose for consideration in the appeal was whether the plaintiff had got subsisting title to the disputed house or whether the defendants had acquired right, title and interest in it by adverse possession. The learned Subordinate Judge has come to the conclusion that the plaintiff's case to the effect that plot no. 1861 had been included in the deed of gift was not acceptable. The learned Judge is of the opinion that as Exhibit A showed that plot no. 1661 was included in it, the learned Munsif had erroneously held that plot no. The learned Subordinate Judge has come to the conclusion that the plaintiff's case to the effect that plot no. 1861 had been included in the deed of gift was not acceptable. The learned Judge is of the opinion that as Exhibit A showed that plot no. 1661 was included in it, the learned Munsif had erroneously held that plot no. 1861 had been included in the gift. Then, the learned Subordinate Judge has stated that even if it be assumed that the disputed house had been included in the gift, Hiranath Mishra was never in possession of the disputed house at any time. The learned Judge has held, further, that the defendants have acquired right, title and interest in the disputed house by adverse possession, although the learned Judge has stated at one place that in view of his conclusion on the plaintiff's case, it was really not necessary to examine whether the defendants had acquired title to the house or not. Thus, the plaintiff's suit has failed. 6. The first point which has been argued by learned counsel for the appellant is that upon the question as to whether the gift dated the 1st December, 1944 had conveyed title to plot no. 1861, along with the house standing on it, to Hiranath Mishra, had been correctly decided by the learned Munsif in favour of the plaintiff and that learned Subordinate Judge has misinterpreted the plaintiff's document of title, while coming to contrary conclusions. It is contended that on a comparison of the deed of gift with the Khatian of khata no. 599 (Exhibit 15), it can be clearly proved that the plaintiff's case is true and Kauleshwar and Ram Swarup had given plot no. 1861 of khata no. 599, along with their other properties to Hiranath Mishra and by mistake plot no. 1861 was mentioned as plot no. 1661 in the deed of gift. It is argued by learned counsel for the appellant that the court of appeal below has decided the question as to whether plot no. 1861 had been conveyed by the gift or not on the wrong approach of finding out whether plot no. 1861 had been mentioned in the deed of gift or not. According to the learned counsel, the actual evidence adduced by the plaintiff to the effect that plot no. 1861 had been conveyed by the gift or not on the wrong approach of finding out whether plot no. 1861 had been mentioned in the deed of gift or not. According to the learned counsel, the actual evidence adduced by the plaintiff to the effect that plot no. 1861 had been conveyed by the gift had not been considered by the court of appeal below, as the trial court had done and, therefore, this Court should reconsider the question of the plaintiff's title by interpreting the deed of gift, along with other relevant evidence. In my opinion, the arguments of the learned counsel for the appellant are valid and as a question of title has arisen between the parties, this Court will be justified in interpreting the deed of gift. The confusion that has been created in this case is as follows:- The original deed of gift has not come on the record. In this context, the following was elicited from the plaintiff (P.W. 22), in cross-examination:- "I had asked for the original deed of gift from Hiranath at the time of taking registration receipt, but he told me that he will give it to me after his father comes as it was with his father. He did not give me any receipt of any type or the Khatian. Even after that I went on again on one occasion and on that occasion he told me that his father is dead and he does not know as to where he had kept that. This time I went after the finding of this case when I had asked him to depose." In consequence, the plaintiff had produced a certified copy of this deed of gift, which was marked as Exhibit 7. The defendants produced another certified copy of the same document, which was marked as Exhibit A. As stated earlier Exhibit 7 showed that plot no. 1861 had been included in the document, whereas Exhibit-A showed that plot no. 1661 was mentioned therein instead of plot no. 1861. On these discrepancies, the controversy arose in the courts below, as to whether plot no. 1861 of khata no 599 had been given to Hiranath Mishra or not. The trial court held that it had been so given, whereas the court of appeal below has held to the contrary. 1661 was mentioned therein instead of plot no. 1861. On these discrepancies, the controversy arose in the courts below, as to whether plot no. 1861 of khata no 599 had been given to Hiranath Mishra or not. The trial court held that it had been so given, whereas the court of appeal below has held to the contrary. The learned Subordinate Judge has made much of the fact that the plaintiff had not made out a case in his pleading or in his evidence that plot no. 1861 had wrongly been mentioned as plot no. 1661 in the deed of gift. But, this aspect is not of importance, in view of the respective cases of the parties which, had to be decided on the evidence on record. The learned Subordinate Judge has himself mentioned that in Paragraph 2 of the plaint the plaintiff had pleaded that Kauleshwar and Ram Swarup had made a gift in respect of their properties, by a document dated the 1st December 1944, in favour of Hiranath Mishra and since then the donee had remanded in possession and occupation of the land and the house conveyed by the gift. It seems that at the time of filing of pleadings the parties, the confusion created mentioning the homestead plot as plot no. 1661, in the deed of gift, had not assumed the importance that it did later on, For instance, in reply to the plaintiff's case made out in the plaint, to the effect that the subject matter of dispute was plot no. 1861, the contesting defendants case was mentioned in Paragraph 12 of their written statement as follows:- "The deed of gift executed by Kauleshwar Pandey and Ram Swarup Pandey in respect of plot no. 1861 is not valid." From the trend of the written statement, it appears that the main contention of the defendants was that the disputed plot no. 1861 could not have been given to Hiranath Mishra, as the two donors had already given all their properties to the family of the defendants. The deed of ... gift relied upon by the plaintiff was also challenged as having been brought into existence by committing fraud and deception on the two donors. It is clear that only when the discrepancy in the plot numbers was found from the two certified copies of document that the controversy took a different turn. The deed of ... gift relied upon by the plaintiff was also challenged as having been brought into existence by committing fraud and deception on the two donors. It is clear that only when the discrepancy in the plot numbers was found from the two certified copies of document that the controversy took a different turn. I shall now proceed on the footing that in the original deed of gift, the homestead plot in khata no. 599 had been mentioned as plot no. 1661 and not 1861, and the learned counsel for the appellant has also proceeded on that footing. That is to say, Exhibit A may be taken to be correct certified copy of the deed of gift. This document shows that khata no. 599 had only one homestead plot, having an area of .06 acre. All the four boundaries have been mentioned in this document. Towards the east is shown the plaintiff and towards west the names of defendant no. 1 and others have been mentioned. The Khatian of khata no. 599 (Exhibit 15) does not show that there was any plot numbered as 1661 in it. In Exhibit 15, the house has been described as plot no. 1861, with Sahan Kita 10. The area has been given as .06 acre and the land has been described as Belagan. In Exhibit A, the house mentioned as plot no. 1661 has been described as including Sahan Kita 10 and as Belagan. There is no evidence on the record that the donors had any plot of land in this village numbered as plot no. 1661. I shall now mention how the learned Munsif dealt with this aspect of the case under issue no. 4. After assuming that plot no. 1661 had been mentioned in the deed of gift, he has compared the details of this plot with those to be found in the Khatian and thereafter he held thus:- "The witnesses for the plaintiff have stated that boundary of the disputed land to be the same as mentioned in the deed of gift for plot no. 1661 had been mentioned in the deed of gift, he has compared the details of this plot with those to be found in the Khatian and thereafter he held thus:- "The witnesses for the plaintiff have stated that boundary of the disputed land to be the same as mentioned in the deed of gift for plot no. 1661, the witnesses for the defendants have given different boundaries of the disputed house and it differs from witness to witness, which shows that either they do not know the disputed house or they are attempting not to tell the correct boundary and probably it is the latter." Thereafter, he continued thus; "The defendant D.W. 8 was asked about it and he has stated that he does not know plot no. 1661 and he does not know it whose name it has been recorded in the survey." In my opinion, this was an understandable approach by a court of fact and although it was open to the court of appeal below to re-consider the relevant matters and reverse the conclusions of the trial court, it has not done so at all. The learned Subordinate Judge has, in my opinion, approached the matter quite erroneously in all its aspects. The learned Judge has stated in Paragraph 21 of his JUDGMENT : that the interpolation in Exhibit 7 showed that Hiranath Mishra or the plaintiff had not acquired any title to plot no. 1861. This conclusion cannot be supported by law, unless the JUDGMENT : of the learned Subordinate Judge shows that he has confirmed his surmises on legal evidence. The learned Subordinate Judge has stated thus in Paragraph 22 of his JUDGMENT :: "It is not the case or evidence of the plaintiff, that the house standing over survey plot no. 1861 was mentioned in the deed of gift, but by mistake survey plot no. 1661 was mentioned. All that has been pleaded in Para no. 2 of the plaint is that Kauleshwar Pandey and Ramswarup Pandey executed a deed of gift in respect of their property on 1.12.44 in favonr of Hiranath Mishra. So, this part of the case of the plaintiff does not show that the house standing over survey plot no. 1861 was mentioned in the deed of gift, it was nobody's case that there was such mistake. So, this part of the case of the plaintiff does not show that the house standing over survey plot no. 1861 was mentioned in the deed of gift, it was nobody's case that there was such mistake. In absence of any such case in the pleadings, I am not prepared to agree with the finding of the learned Munsif that the house standing over survey plot no. 1861 was given in the deed of gift though by mistake survey plot no. 1661 was mentioned." In my opinion, this approach by a Court whose finding of fact will be conclusive is erroneous. After evidence had been adduced by both the parties it was a case of conclusion on the evidence on record and I have already indicated what the plaintiff had alleged and what the defendants had alleged in their respective pleadings. In Paragraph 23 of his JUDGMENT : the learned Subordinate Judge has stated as follows:- "The details and description of the disputed house have not been mentioned in the plaint as well. It is true that in Para nos. 6 and 7 of the plaint, it has been mentioned that Hiranath Mishra had negotiated with the plaintiff for the sale of the disputed house standing over survey plot no. 1861 under khata no. 599 having an area of 6 dec. with Makan Kita 10 and to the east of which there was the house of the plaintiff, but there is no such case in the plaint that the disputed house with all these details was mentioned in the deed of gift. It is also true that khata no. and Makan Kita 10 with a particular boundary have been mentioned in the deed of gift (Ext. A or Ext. 7). In the survey record of rights (Ext. 15) survey plot no. 1861 has been described as Makan Mai Sehan Kita 10 area 6 dec. Belagan under khata no. 599. But the boundary has not been mentioned as it is homestead Belagan land. It was not disclosed in the plaint by the plaintiff that the house with these details and the boundary was mentioned in the deed of gift (Ext. 7). 1861 has been described as Makan Mai Sehan Kita 10 area 6 dec. Belagan under khata no. 599. But the boundary has not been mentioned as it is homestead Belagan land. It was not disclosed in the plaint by the plaintiff that the house with these details and the boundary was mentioned in the deed of gift (Ext. 7). In absence of any such case, the defendants could not have denied all these in their written statement and they rightly did not deny that the house with all these descriptions was not mentioned in the deed of gift." In my opinion, this approach was also erroneous, for the ultimate conclusion, without any reference to the actual evidence on record. In the same paragraph the learned Subordinate Judge has stated that according to the learned Munsif, Kauleshwar and Ram Swamp had executed a deed of gift in favour of Hiranath and had put him in possession of all their lands and the disputed house, and to quote the learned Subordinate Judge, the learned Munsif had made "the initial mistake as it is not the case in the plaint that the disputed house was given in gift or mentioned in the deed of gift". It is difficult to appreciate this observation of the learned Subordinate Judge in this context. There is no doubt at all that in the plaint the plaintiff had made out case that the disputed house had been given to Hiranath Mishra by the two donors and the only part that was not mentioned in the plaint, as indicated earlier, was that by mistake, plot no. 1861 had been mentioned in the deed of gift as plot no. 1661. In the same paragraph the learned Subordinate Judge has stated that there is not an iota of evidence on the record to show that the disputed house with all its descriptions was mentioned in the deed of gift and, therefore, he was "not prepared to accept the finding of the learned Munsif that there was mistake in mentioning the plot number, though the disputed home was mentioned in the deed of gift." The conclusion of the learned Subordinate Judge is difficult to follow. I have already quoted above the relevant observations of the learned Munsif where he has stated that the plaintiff's witnesses had given the boundaries of the disputed land as those mentioned in the deed of gift for plot no. 1661. Apparently the learned Subordinate Judge was carried away by his conclusion that plot no. 1661 was mentioned in the deed of gift and the plaintiff had not alleged in the plaint that this was a mistake for plot no. 1861. In my opinion, for the reasons given by the learned Munsif, it must be held that the disputed house standing on plot no. 1861 had been given by the donors 10 Hiranath Mishra in 1944. 7. Learned counsel for the appellant has then contended that if it be held that plot no. 1861 had been given to Hiranath Mishra, then the finding of the court of appeal below the effect that Hiranath Mishra was never in possession of the disputed home at any time will be an erroneous finding, because the conclusions are inter-connected. It is urged that in any event, the findings given by the court of appeal below on the question of possession are vitiated by errors of law and this Court should give its own finding on the case of possession set up by the respective parties, taking recourse to Section 103 of the Code of Civil Procedure. In my opinion, the arguments of learned counsel for the appellant are valid and I shall presently indicate how the conclusions of the learned Subordinate Judge on the question of possession of Hiranath or of the defendants are vitiated by errors of law. At this stage, I would like to point out a matter which happened in this Court. In the paper book prepared by the appellant, the evidence of some of the plaintiff's and defendant's witnesses was included including that of Ramjanam Mishra (D.W. 4) and the learned counsel for the appellant drew our attention to parts of the JUDGMENT : of the learned Subordinate Judge in general and to Paragraph 35 in special, where the evidence of this witness has been dealt with. In this connection, the learned Judge has stated thus:- "It is true that D.W.4 stated in Para no. 6 of his evidence that he had seen Hiranath Mishra at his village in the house of Kauleshwar and Ramswarup Pandey. In this connection, the learned Judge has stated thus:- "It is true that D.W.4 stated in Para no. 6 of his evidence that he had seen Hiranath Mishra at his village in the house of Kauleshwar and Ramswarup Pandey. Admittedly this Hiranath Mishra is the relation of Kauleshwar Pandey and Ramswarup Pandey. It is not clear from this statement that he had seen Hiranath Mishra in the disputed house after the deed of gift was executed in his favour". Learned counsel for the appellant placed before us the evidenced this witness, recorded in Paragraph 6 of his deposition, where he had stated thus:- "I had seen Hiranath Misser at my village in the house of Kauleshwar and Ramswarup. Hiranath is not going to my village for the last 4 to 5 years". On this evidence the learned counsel argued that only the first sentence in this paragraph has been considered by the learned Subordinate Judge, without appreciating the significance of the second sentence, thus concluding that it was not clear that the witness had seen Hiranath in the disputed house after 1944, when the deed of gift had been executed. It was urged that this matter and several other considerations attracted Section 103 of the Code of Civil Procedure and therefore, this Court should give its own finding on the case of possession set up by the contesting parties. At the stage Sri R.S. Chatterji, appearing for the respondents agreed that this Court may take recourse to Section 103 of the Code and consider the oral evidence led by the parties, for its conclusions upon issues no. 2 and 4, with respect to possession of parties Sri R.S. Chatterji even insisted that all the oral evidence should be incorporated in a separate paper book, even including the evidence of formal witnesses if any. Thus, a fresh paper book was prepared by the appellant incorporating the oral evidence of the witnesses which had not been included in the original paper book. Thereafter, learned counsel for the appellant referred to the oral evidence of the parties that he thought necessary for the purpose of a finding as to possession and Sri R.S. Chatterji also referred to the evidence of the witnesses that he considered relevant. Thereafter, learned counsel for the appellant referred to the oral evidence of the parties that he thought necessary for the purpose of a finding as to possession and Sri R.S. Chatterji also referred to the evidence of the witnesses that he considered relevant. Then at a late stage of argument, Sri R.S. Chatterji took up a different attitude by urging that the findings given by the court of appeal below are findings of fact and this Court has no jurisdiction to interfere. In my opinion, it was too late for Mr. Chatterji to take up the attitude that he took later on. But in any view of the matter, I shall now proceed to give reasons why this Court should take recourse to Section 103 of the Code of Civil Procedure, irrespective of the initial agreement of the two learned counsel. In my opinion, the learned subordinate Judge has committed error of law in dealing with the JUDGMENT :s given in the title suit filed by the present defendant no. 7 and the JUDGMENT : of the criminal court in the case instituted by Hiranath in 1957. Upto Paragraph 23 of the JUDGMENT : the learned Judge has dealt with the question of gift of plot no. 1861 to Hiranath, and then in Paragraph 24 the learned Judge has dealt with the title suit instituted by the present defendant no. 7 against Kauleshwar, Ram Swamp, Hiranath and others in 1945. The learned Judge has stated that the JUDGMENT :s of this title suit [which are Exhibits 12 (b), 12 (a) and 12 (c) of the years 1948, 1949 and 1953 respectively] were not relevant and admissible in evidence against the other defendants, nor are they evidence of the fact that the deed of gift had been acted upon, so far as it related to plot no. 1861. This approach of the learned Subordinate Judge is wrong in law. There is no doubt that the JUDGMENT :s can be looked into for ascertaining as to what were the respective cases of the parties in ORDER :to find out whether the present case is acceptable or not. 1861. This approach of the learned Subordinate Judge is wrong in law. There is no doubt that the JUDGMENT :s can be looked into for ascertaining as to what were the respective cases of the parties in ORDER :to find out whether the present case is acceptable or not. It will appear from the JUDGMENT :s of that case that the case of the plaintiff of that suit was that he had been adopted by Ram Swarup Pandey in 1942 as his son, but he had been driven cut in 1944 because of some quarrel between Ram Swarup and the natural father of the plaintiff, over some property. The present case of the defendants including that of the plaintiff of the earlier suit, is that the disputed house was in the possession of the defendants family all along, as the original owner gave it to the defendants' family. The other defendants claim to be co-share:" of the house and, therefore, what the present defendant no. 7 had set up as his case in the title suit is admissible for testing whether the present case of these defendants is acceptable or not. In any case, it is certainly admissible to test the present defence of defendant no. 7. The facts about the criminal case have been dealt with by the learned Subordinate Judge in Paragraph 25 of his JUDGMENT :. Referring to certain statements made in Paragraph 16 of the JUDGMENT : of the trial court of that case, dated the 1st May, 1958 (Exhibit 12) the learned Judge has stated that the quotation made by the trial court in that case a bout the case of the accused persons cannot be taken as admission of the present defendants. This approach of the learned Subordinate Judge is also erroneous in law. In Exhibit 12 the trial court stated thus, with respect to the case of the accused persons (present defendants no. This approach of the learned Subordinate Judge is also erroneous in law. In Exhibit 12 the trial court stated thus, with respect to the case of the accused persons (present defendants no. 1 to 6):- "They further say that they had no title over the house of Ramswarup but nevertheless they are in possession over the same and as to how they have come in possession over the same, the W.S. filed on behalf of all the accused persons has said in paras 4 and 6 which runs as follows:- "That the accused have been living in the house for the last 9 years with the consent of the complainant who gave the house after decision of the High Court as the accused requested him and he accepted the request. That Ram Kailash wants to purchase the house and hence this false case has been filed at the instance of Ram Kailash who cultivates the land of the complainant on shikmi', (vide W.S. Paras 4 and 6)". Learned counsel for the appellant has contended that this case of the accused persons, which finds place in Exhibit 12, is admissible in evidence for testing the present case of the defendants, in view of the principle laid down by their Lordships of the Privy Council, in the case of (1) Kumar Gopika Raman Roy V. Atal Singh and others, reported in A.I.R 1929 Privy Council 99, This contention is also valid. The learned Subordinate Judge has mentioned in Paragraph 25 of his JUDGMENT : that the admissions of the defendants would have been clear from the written statement filed by them in the criminal case and the learned Munsif was in error in quoting some recitals made by the trial court in Exhibit 12 and "accepting those quotation as the admission of the defendants". In my opinion, the learned Subordinate Judge has erred in holding that the learned Munsif had taken any statement from Exhibit 12 as the admission of the present defendants what the learned Munsif had held was that the statements as to the case of the accused persons mentioned in Exhibit 12, disprove the theory of possession set up by the defendants now, over the agricultural land covered by the deed of gift. This approach of the learned Munsif was a correct one and he could disbelieve the present case of the defendants, who were the accused persons, regarding possession of any property covered by the deed of gift, by the case that was set up by them in the criminal court. In my opinion, the JUDGMENT : of the learned Subordinate Judge over the question of possession of the parties is vitiated by such illegalities that it is open to this Court to take recourse to Section 103 of the Code of Civil Procedure for coming to its own conclusion. Furthermore, even the treatment of the evidence of the plaintiff's witnesses was not correct in law, for a final court of fact. I shall deal with a few aspects of the matter arising from Paragraph 27 of the JUDGMENT : of the learned Subordinate Judge. Although Hiranath had been summoned on behalf of the plaintiff to come and give evidence in the case, he did not turn up and the learned Judge has commented upon this fact by stating that the plaintiff has not given any explanation as to why Hiranath was withheld, and in his absence, that oral evidence adduced on behalf of the plaintiff to show that Hiranath was in possession between 19 Hand 1957 cannot be believed. This was an erroneous approach. The plaintiff had done what he could by summoning Hiranath and there is no evidence to conclude that he had been withheld by or on behalf of the plaintiff. Then, the learned Judge states that P.Ws 6, 7, 8, 10 and 22 (Plaintiff) have come to say that defendants are in possession of the disputed house for the last 5 to 6 years and before that, Hiranath was in possession, and according to the learned Judge, these witnesses have given evidence which is not consistent with the documentary evidence discussed by him. I do not find discussion of any documentary evidence which goes to show the evidence of these witnesses for the plaintiff is inconsistent, and on the contrary, the evidence of D.W. 4, quoted above, shows that it is in line with the evidence adduced on behalf of the plaintiff-vide the evidence of Ramgahan Upadbya (P.W. 15) recorded 10 Paragraph 5 of his deposition (in cross-examination), which is to the following effect:- "Hiranath remained in possession for about 12 to 13 years. I do not know whether he has got any concern in this village now. I met him 5 to 7 years ago for the last time". Then, in the same paragraph of the JUDGMENT :, the learned Subordinate Judge has stated in connection with the evidence of the plaintiff's witness thus ;- "They all appear to be highly interested in success of the plaintiff. Moreover, there is clear indication in their cross• examination that it was the two donors who were living in the disputed house so long they were alive and Hiranath Mishra never lived in the disputed house." This finding is clearly against the evidence adduced on behalf of the plaintiff, vide the deposition of Parmeshwar Pandey (P.W. 12) in Paragraph 9 (in cross-examination), which is to the following effect ;- "Hiranath had his plough etc. in the house and the lands used to be ploughed. Kauleshwar and Ramswarup and Hiranath used to use their produce. Bansropan Ahir of my village was the plough man of Hiranath. He is alive. Ganeshi is the name of his father. It may be mentioned here that the learned Judge has erroneously stated that P.W. 12 was a formal witness. After deposing about the deed of gift, to which he was a witness, he has stated thus:- "Hiranath came in possession of the house and lands of Kauleshwar and Ramswarup. The plaintiff came in possession of the lands purchased by him from Hiranath Missir". As indicated earlier, he was elaborately cross-examined on the question of possession also. The learned Judge has dealt with the evidence of P.W. 7 in Paragraph 28 of his JUDGMENT : and has stated that this witness has admitted that Kauleshwar and Ham Swarup had lived in the disputed house till their death and, therefore, it was clear that Hiranath had never come in possession of the disputed house as donee. The finding of the learned Judge is based on error of record. No doubt the witness has stated that Kauleshwar and Ramswarup had lived in their house till their death, but he has also stated that Hiranath had come in possession of the disputed house along with Kauleshwar and Ramswarup. In view of these conclusions, I am of the opinion that this Court should give its own finding regarding possession of the contesting parties to end this ancient controversy. 8. In view of these conclusions, I am of the opinion that this Court should give its own finding regarding possession of the contesting parties to end this ancient controversy. 8. Learned counsel for the appellant has placed before us the evidence of plaintiff's witnesses, especially that of the plaintiff himself (P.W. 22) and learned counsel for the respondents has not been able to show why this evidence should be disbelieved. According to his evidence, he had redeemed the mortgages which had been executed by Hiranath. This matter was dealt with by the learned Munsif in Paragraph 17 of his JUDGMENT : and it is clear to me that the learned Munsif has rightly taken this circumstance in favour of the plaintiff's case. While dealing with the evidence of the plaintiff I may dispose of one of the arguments advanced by learned counsel for the respondents, challenging the deed of gift as invalid for absence of proper attestation. It was contended that the plaintiff was bound to prove attestation of the deed of gift as required by law and this he had not done. There is no validity in this argument in view of the facts elicited in the plaintiff's cross-examination in Paragraph 12 of his deposition. The witness stated that the executants had signed and put his left thumb impression on the deed of gift and then witnesses had signed as witnesses. Apart from the fact, that this objection had not been raised by the defendants at any stage, there is no substance in the argument either, after the defendants had elicited this statement from the plaintiff himself in cross-examination. In support of the evidence given by the plaintiff, the learned counsel for the appellant drew our attention to the last paragraph of Exhibit 12, by which the trial court ORDER :ed that Hiranath must be restored to possession of the house from which he had been dispossessed by show of force. Thereafter, our attention was drawn to Exhibit 8 dated the 12th November, 1959 which was a notice issued by the Magistrate to the convicted persons, ORDER :ing them to deliver possession to Hiranath of plot no. 1861 of khata no. 599. Thereafter, our attention was drawn to Exhibit 8 dated the 12th November, 1959 which was a notice issued by the Magistrate to the convicted persons, ORDER :ing them to deliver possession to Hiranath of plot no. 1861 of khata no. 599. This supports the evidence of the plaintiff (P.W. 22) recorded in Paragraph 5 of his deposition to the effect that Hiranath had filed a petition before the trial court for restoration of the house and the accused persons had been given notice of that application. Sri Chatterji was unable to show as to why the evidence of the large number of plaintiff's witnesses, mentioned by the learned Subordinate Judge, in Paragraph 27 of the JUDGMENT :, should be rejected. I may now refer to the evidence of some of the witnesses examined on behalf of the defendants mentioned in Paragraph 35 of the JUDGMENT : of the learned Subordinate Judge. The criticism of the manner in which the learned Judge has dealt with the evidence of Ramjanam Mishra (D.W. 4) has already been considered by me above. Apart from that, all that the learned Judge has said about the evidence of the defendants' witnesses is that D.Ws. 3 to 6 and D.W. 9 have stated on oath that the defendants are coming in possession of the disputed house for the last 20 or 25 years and defendant no. 1 (D.W. 8) has corroborated their statements and all of them have been cross-examined at length, but nothing material has been obtained to discredit them. Merely on such a finding the learned Subordinate Judge has held that the defendants have acquired right, title and interest over the disputed house by adverse possession. In my opinion, the manner in which the learned Subordinate Judge has dealt with the evidence of the defendants' witnesses is not in accordance with law. Therefore, learned counsel for the appellants has placed before us the relevant evidence for consideration. D.Ws. 3, 4, 5 and 6 have deposed with parrot-like repetition that the defendants were in possession for about 20 to 25 years. Defendant no. 1 (D.W. 8) has tried to support their evidence, while repeating the same fact that he was in possession of all the properties of Kauleshwar and Ramswarup for the last 20 to 22 years. If the evidence of defendant no. Defendant no. 1 (D.W. 8) has tried to support their evidence, while repeating the same fact that he was in possession of all the properties of Kauleshwar and Ramswarup for the last 20 to 22 years. If the evidence of defendant no. 1 (D.W. 8) cannot be accepted, then the evidence of the other witnesses for the defendants must fall to the ground. D.W. 8 has stated in his examination-in-chief that he did not know whether Kauleshwar and Ramswarup bad executed any deed of gift and he came to know of it after their death, in the year 1955 or 1956. Immediately after deposing thus, D.W. 8 has stated that he had known all about this deed of gift at about the time of its execution. According to D.W. 5, he had been told by defendant no. 1 (D.W. 8) that the deed of gift had been registered and that he would file a suit for setting it aside. In cross-examination D.W. 8 has stated that Kauleshwar and Ramswarup had given him their property in 1944 or 1945. Later on, he has stated in cross-examination that they had given him the property even before the adoption of Shrikant (defendant no. 7). But this adoption had taken place in 1942 and, therefore, what D.W. 8 had stated in cross-examination about the gift to him is most unreliable. Therefore, apart from the case that was set up by the accused persons in the criminal case ending in their conviction (Exhibit 12), the evidence of defendant no. 1 (D.W. 8), who was one of the convicted persons, is quite unacceptable. In the result, it is clear that the learned Munsif's conclusions were right both on the questions of gift plot no. 1861 to Hiranath and his possession until he was dispossessed in 1957. D.W. 3 has spoken about possession of defendant no. 3, but he admits that he did not even know Hiranath. In rejecting the evidence of the plaintiff's witnesses, the learned Subordinate Judge has stated that they are "highly interested in success of the plaintiff". The learned Judge has failed to notice the statement of D.W. 9 that defendant no. 1 is his priest. It is evident that the oral evidence of defendant no. 1 (D.W. 8) and the supporting evidence of his witnesses must be rejected as untrustworthy, on the question of defendants' possession. 9. The learned Judge has failed to notice the statement of D.W. 9 that defendant no. 1 is his priest. It is evident that the oral evidence of defendant no. 1 (D.W. 8) and the supporting evidence of his witnesses must be rejected as untrustworthy, on the question of defendants' possession. 9. I shall now touch upon one or two contentions raised by the learned counsel for the parties in support of their respective cases, other than the question of title and possession dealt with above. Learned counsel for the appellant has contended that the Magistrate had passed an ORDER :under Section 522 of the Code of Criminal Procedure in Exhibit 12, for restoration of Hiranath's possession and this suit by the plaintiff must be considered to be one for enforcing that ORDER :. According to the learned counsel, no difference in the situation has happened by the fact that Hiranath is not the plaintiff. I do not think that this contention is of much force and in any case, it is not necessary to decide the matter in view of the other conclusions given above. In meeting the arguments advanced by learned counsel for the appellant, learned counsel for the respondents has urged, that, as the original deed of gift had not been brought on the record, there is no proof that the donee had accepted the gift and, therefore, Hiranath had no title to the house. I do not think that this contention is valid and moreover there was no dispute between the parties in the courts below about Hiranath's possession of the other properties covered by the deed of gift, apart from the disputed house. Even according to the learned Subordinate Judge, many documents had been filed to show that the deed of gift had been acted upon, as for instance, Exhibits 1 series and 2 series. But the learned Judge has stated in Paragraph 26 of his JUDGMENT :, that, these documents are not relevant for the decision of the present controversy as they did not relate to the possession of Hiranath over the disputed house. 10. In the result, the JUDGMENT : and decree passed by the learned Subordinate Judge are set aside and the decree of the learned Munsif is restored. The plaintiff-appellant will be entitled to his costs throughout. Appeal allowed