Jairam Mahaton and Others vs Lokenath Mahton

Rowland, J.—This appeal arises out of a title suit. The Land was claimed by the plaintiff as his ancestral khandi jamai land. It was claimed by the defendant alleging that he had purchased it from one Sanatan. The Munsif decreed the suit; the Subordinate Judge, on appeal dismissed it.

In second appeal it is contended that the judgment of the lower appellate Court is vitiated by an error of record and the Subordinate Judge having misdirected himself as to what the evidence was. The error of record consists in the Subordinate Judge saying in his judgment that there was a proceeding u/s 145 (Criminal P.C?) regarding this land between the plaintiff and the defendant and that in his cross-examination, when he was asked about it, ha ignored the fact completely.

The Subordinate Judge has used this to discredit the witness; but in fact there never was a proceeding u/s 145 regarding this land between the plaintiff and the defendant. There had been such a proceeding between the defendant and Sanatan and when this was put to the plaintiff, ha admitted it. He did not admit having deposed in it though Ex. C indicates that he did so depose.

The misdirection consists in the Subordinate Judge having said in his judgment that the decision, Ex. 3, of a previous title suit brought by the defendant against other persons had no evidentiary value so far as the merits of the case are concerned; and that the pleadings of the said suit were no evidence in the present suit. The proceedings in the previous suit were undoubtedly relevant u/s 19, Evidence Act, and the pleadings of the defendant were admissible as admissions of the defendant; and were relevant u/s 21, Evidence Act.

For the respondent it is contended that the above defects have not prejudiced the case or affected its result. It is always difficult to say whether the result must have been the same if a case had been regarded from a different point of view.

If the Subordinate Judge had studied the pleadings of the previous suit, he would have found that Lokanath''s case was that the land covered by the sale deed he got from Sanatati was situate east of the land shown in the commissioner''s map as Shibattar; whereas it was the case of the other side in that suit, just as it is the case of the plaintiff in this suit, that the land covered by Lokenath''s kabala was situate further west than the Shibattar land.

I am of opinion therefore that the whole appeal should be examined, afresh by the lower appellate Court. This appeal is allowed and a remand ordered. Costs of this appeal will be in the discretion of the lower appellate Court.