Dena Nath Banerjee and Others vs Hari Dasi

Mitter, J.—The principal question in this case is, whether the kobala set up by the defendant, and said to have been executed by one of the plaintiffs, Dena Nath, in 1862, is genuine or not?

It is true that this is a question of fact, and the Subordinate Judge, on appeal, came to the conclusion that the document in question was not genuine; but if in second appeal it is found that certain material facts which have an important bearing upon the question at issue have been omitted to be considered, this Court has always interfered with the decision of the lower Appellate Court, even if it be on a question of fact.

In this case the learned Judge of the Court, in his judgment, has pointed out certain facts which have a material bearing upon the question, whether the kobala is genuine or not; he has also pointed out that these facts have not been considered by the Subordinate Judge. That being so, we think that the case was properly remanded; but, under the circumstances, we think it right to add that the appeal will be remanded to the District Judge. This appeal will be dismissed with costs.