The central legal point established in the judgment is the interpretation of the original contract between the parties and the determination of the case falling outside the jurisdiction of a civil court.

Hallifax—The learned Judge of the lower appellate Court has correctly stated the only point for decision in this case, which is this. When the defendants' grandfather first took the land from the malguzar more than fifty years ago, did the malguzar say to him:

I give you that land for rent, but instead of paying money you must serve me as a barber, or did he say:

I engage you as a barber for wages, but instead of paying you money I allow you to hold that land rent-free?

2. The learned Judge goes on to hold that the burden of proving that what the malguzar said was the first of these two things lay on the defendants and there is no evidence at all to support that proposition and it must therefore, be, held not proved.

3. There is, however, a good deal of evidence on the point, some of which is mentioned in the judgment of the lower, appellate Court, though the learned Judge regards it as having no bearing op it is of course futile to expect evidence of the actual making of the original contract, but it would be strange if there were none of what its terms must have been in what has happened during the long time it has been in force. The finding of the lower Court on this point is not a legal finding, but it is still a finding of fact and under S. 103 of the Civil Procedure Code this Court can give a finding of fact only when none has been given in the lower appellate Court; where one has been given, but is found to be illegal, the only course open to this Court under that section is to remand the case for a fresh decision. The parties have however agreed that a. finding shall be given on that point by this Court and it has been fully argued.

4. Before discussing the evidence it is necessary to mention an item in it that was wrongly excluded in the first Court. The defendants pleaded that the suit was barred by the decision of an exactly similar suit filed in 1909. The plaintiff denied that there ever was such a suit. The defendants filed the summons that was served on them in it and all the oral evidence on both sides was to the effect that it had been filed about that time.

5. The further evidence offered is mentioned in the finding of the Court, which is as follows:

The defendants filed a copy of plaint. It was not a certified copy. It was not a public document, even though, it had been a certified copy. It ought to have been proved like any other private document. The defendants adduced no evidence to prove it; nor did they care to send for the record. Moreover they have not filed any copy of judgment passed in that suit. Accordingly I find that there was no such suit as alleged by the defendants and the question of rest judicata therefore does not arise.

6. There is little in this that is correct except the statement that a plaint is not a public document and must be proved in the ordinary way. The rejected documents, two in number, were apparently returned to the defendants, who have produced them in this Court and they have been marked Ex. A. 1 and Ex. A. 2. They are a duly certified copy of the plaint and another of all the entries in the Order Sheet, the last of which is the judgment in the case as it was dismissed by reason of the absence of both parties. The learned pleader for the plaintiff-respondent persisted in a somewhat futile refusal to admit these documents without formal proof. The certified copy of the Order Sheet of course ''proves itself,'' and the copy of the plaint is proved by the production of the original, as the whole record of the suit happens to be here.

7. The present suit is exempted by R. 4 of O. 9 from being barred by the dismissal of the suit of 1909, but the plaint in that suit and the result of it are valuable evidence, just as the incidents of the suit of 1904 are. The first item of the evidence is the entry in the Settlement jamabandi of 1907-08, the only one produced though it is not suggested that the entry has ever varied. Therein the defendants are described as muafi khairati, with a hy