Bachan Singh and others vs Mst. Randhir Kaur and another

Mehar Singh, J.—The vendor, Ajmer Kaur sold 53 Bighas and 19 Biswas of land for a consideration of Rs. 17,000/- on May 23, 1960, to Nahar Singh and five others, vendees. Randhir Kaur plaintiff instituted the suit, out of which this appeal has arisen, to preempt the sale u/s 15(2)(b) of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913), as amended, on the ground that she is a daughter of the female vendor. The vendees resisted the suit denying that she is the daughter of Ajmer Kaur vendor. There were some other matters pleaded by the plaintiff and denied by the vendees, but none of those matters is at this stage material, because the parties have by now accepted the decision already given on those matters.

In the trial Court the plaintiff examined four witnesses apart from giving her own statement in support of her claim. Ajmer Kaur vendor is the mother of the plaintiff, Harchand Singh is her real uncle, Kartar Singh is her maternal uncle, and Manjit Kaur is her step-sister these witnesses are closest possible relations of the plaintiff. They have supported her claim that she is the daughter of Ajmer Kaur vendor, and the basis of their opinion is the conduct of the vendor towards the plaintiff to which they have deposed being members of the family. In fact the vendor gave birth to the plaintiff and she has deposed to this direct fact. In addition to this the plaintiff produced copy of birth certificate, Exhibit P.F., in which it is stated that one daughter was born to Ajaib Singh on Baisakh 4, 1996 Bk. Ajaib Singh was the husband of Ajmer Kaur vendor. He also had another wife named Gurcharan Kaur, who is dead. The plaintiff produced copy of a birth entry showing that on Baifakh 1, 1996 Bk. a daughter was born to Ajaib Singh. There is a difference of three days between those dates, but this the learned trial Judge thought was by some mistake. He found the plaintiff''s witnesses reliable and their testimony supported by those documents. The defence of the vendees was that the plaintiff was not the daughter of Ajmer Kaur but vendor was born to Gurcharan Kaur, from the loins of Ajaib Singh, and in fact the daughter that was born to Ajmer Kaur vendor was Manjit Kaur who has appeared as a witness for the plaintiff and stated otherwise consistent with the case of the plaintiff. The vendees examined two witnesses in support of their case; one is Gurdial Singh, who belongs to a distant village and has no knowledge of the family of the vendor and her husband, and the other is Nahar Singh vendee, who is also a stranger and has no knowledge in regard to the relationship of the plaintiff with the vendor. The learned trial Judge discarded the evidence of those two witnesses. He found that the plaintiff proved herself to be the daughter of Ajmer Kaur vendor. The suit of the plaintiff was decreed.

There was an appeal by the vendees and in that appeal the learned District Judge dismissed the evidence of the plaintiff''s oral witnesses on the ground that they are interested and not independent. He rejected the evidence of the entries from the School register and the births register as unreliable. He referred to the evidence of Gurdial Singh and Nahar Singh vendee, on the side of the vendees, and, while not commenting on the evidence of this vendee, he remarked-"Nothing has been pointed out to me by the learned counsel for the respondent as to why this witness Gurdial Singh may not be believed." Gurdial Singh had deposed that the plaintiff is not the daughter of Ajmer Kaur. In the result the learned District Judge accepted the appeal of the vendees and; finding that the plaintiff has failed to prove that she is the daughter of Ajmer Kaur vendor, dismissed her suit,

The plaintiff came to this Court in second appeal. The learned Single Judge after referring to section 50 of the Evidence Act and Dolg-obinia Dolgobinda Paricha Vs. Nimai Charan Misra and Others, , obviously reached the conclusion that Gurdial Singh has no special means of knowledge in regard to relationship of the plaintiff with the vendor. So he found that the statement of Gurdial Singh in regard to the question of relationship of those two persons is not admissible u/s 50 of the Evidence Act, Having reached this conclusion,, the learned Judge considered the evidence on the record. He was not able to say from the two certificates produced from the school and the two birth entries, as to which relate to the plaintiff and which to Manjit Kaur witness. He discarded that evidence, He also discarded the evidence of Nahar Singh vendee, because: obviously that stands on no better footing than the evidence of Gurdial Singh. The learned Judge has then accepted the evidence of the vendor, the plaintiff, and of the remaining three relations of those two witnesses as the only admissible evidence u/s 50 of the Evidence Act and the best evidence on the question of relationship between the vendor and the plaintiff. Upon this conclusion the learned Judge accepted the second appeal of the plaintiff, reversed the judgment and decree of the Court of first appeal and restored that of the trial Court. It is against the decree in second appeal that the vendees hive come in appeal under clause 10 of the Letters Patent.

Apparently there is only one argument open to the vendees in this appeal and that is the only argument to which the learned counsel on their behalf as confined himself. The finding whether or not the plaintiff is the daughter of the vendor is one of fact. In second appeal this Court has no jurisdiction to interfere in such a finding of fact. But to that rule there are exceptions and one of the settled and recognized exception is that where the Court of first appeal has arrived at its conclusion considering inadmissible evidence or omitted considering admissible evidence, its finding of fact is open to consideration in second appeal by this Court. The reason is immediately clear, for it is never possible to say how the mind of the Court of first appeal would have ultimately reached in the matter of the decision of the disputed question had the inadmissible evidence, taken into consideration, been excluded or the omitted evidence had been taken into consideration. The present case squarely falls within this exception, for the Court of first appeal proceeded to a decision of this question of fact on the evidence, apart from discarding the evidence of the plaintiff, of Gurdial Singh witness, whose statement is not admissible in evidence u/s 50 of the Evidence Act. So that if the statement of Gurdial Singh was excluded, it cannot be predicated in what manner the decision of the learned Judge in the Court of first appeal would have proceeded. On this consideration, once the learned Single Judge came to the conclusion that the decision of this fact was based by the first appellate Court on inadmissible evidence, the only course left to the learned Judge was to ignore the inadmissible evidence and to proceed to appraise admissible evidence and then reach the conclusion in the case. This the learned Single Judge has done and he has found, agreeing with the approach of the learned trial Judge, that there is nothing to discredit the oral evidence of the plaintiff and the vendor and their three relations. Faced with this situation, the learned counsel for the vendees has advanced, as stated, only one argument, that the Court of first appeal having disbelieved and rejected the whole of the oral evidence of the plaintiff, even if the learned Single Judge found the statement of Gurdial Singh inadmissible in evidence and so also of Nahar Singh vendee, which latter''s statement has also otherwise been found not to be reliable, it was not open to him to re-appraise the plaintiff''s evidence, believe it, and on the credibility of that evidence proceed to reverse the decree of the Court of first appeal consequent upon a finding of fact of relationship between the vendor and the plaintiff. The learned counsel has pressed that the matter of appraisal of evidence has been finally left by the Legislature to the Court of first appeal and the learned Single Judge could not have appraised the evidence on the side of the plaintiff. In the circumstances, according to the learned counsel, the only course open for the learned Single Judge was to accept the position that the evidence on the side of the plaintiff was discredited and to discard the evidence of the vendees as inadmissible and then reach the conclusion that there was no evidence for the plaintiff, with the result that he should have proceeded to dismiss the appeal of the plaintiff. The argument is obviously fallacious for the jurisdiction of this Court is barred from interfering with a finding of fact based on evidence, but when, under an exception to that rule this Court has to interfere with such a finding, then it can only interfere with in after consideration of the evidence on the record. It does that, as in a case like the present, after leaving aside the inadmissible part of the evidence, and them considering and weighing the remaining admissible part of the evidence. The approach of the learned counsel for the vendees is not correct that in such a situation this Court is not to go into the evidence and see whether the finding of fact is on evidence Correct or not. It was otherwise, as has been contended by the learned counsel, that would mean that a ground for interference by this Court with a finding of fact of the first appellate Court exists, but, in spite of that, this Court still cannot Interfere even when the Justice of the case demands it means that in substance the exception is inoperative, for, even if it is operative, this Court cannot interfere in the conclusion of the case. This is not the law. Once in second appeal the conclusion is reached, as in this case, that there can be interference on a finding of fact because the Court of first appeal has proceeded to its decision, on the basis of in admissible evidence, then it is the duty of this Court in second appeal, after excluding the inadmissible evidence, to proceed to consider the admissible evidence on the record and to do justice to the parties. This is exactly what the learned Single Judge has done. It has not been argued, but if it was necessary, we agree with the conclusion of the learned Single Judge on the evidence.

In consequence, this appeal fails and is dismissed with costs.

R.P. Khoala, J.

I agree.