Muhammad Ehia vs Ganga Dayal Ojha and Others <BR> Lala Vakil Chand and Others Vs Nepal Ojha and Others

Atkinson, J.—These second appeals come before us from a decision of Mr. Rowland, sitting as District Judge of Shahabad, reversing the decision of the Munsif of Buxar, granting a decree in favour of the plaintiffs in these two appeals. The second appeals are Nos. 1362 and 1363 of 1916.

It appears that the villages of Kazipura and Dubouli adjoin. Dubouli and Narayanpur originally constituted one mahal and Kazipura another; and the main question for decision in this litigation is, what is the boundary existing between these two estates. A map has been produced and shown to us by the appellant. According to that map the appellant''s contention is, that the northern boundary, as indicated upon the map, is the true boundary of Mauza Kazipura. For the respondents it is alleged that the southern boundary demarcated is the true boundary of Kazipura; and that, therefore the lands in suit falling outside the southern boundary form part of the holdings belonging to the respondents; and that they do not form part of the holdings claimed by the appellants. The appellants seek to recover in the case of Second Appeal No. 1362 of 1916 the plot marked upon the map Nos. 361, which appears to be a continuation of plot No. 34, which admittedly falls within Mauza Kazipura, and in Second Appeal No. 1363 of 1916 the plaintiff on behalf of himself and the other members of the joint family seeks to recover plots Nos. 357 to 360 and these plots apparently form the continuation of plots No. 3 which is admittedly within Mauza Kazipura. The plaintiffs say that they have been dispossessed by the defendants wrongfully from these plots that these plot in dispute form part of their original holdings in Mauza Kazipura, and that they are not within the boundary nor do they form part of the village known as Dunouli.

The issue in this case was a simple one for decision. In support of the plaintiff''s case certain judgments were referred to which were the result of the litigation which had taken place between certain tenants on the one hand, and some proprietors upon the other, or between the tenants and tenants on these estates relative to what was the boundary of these two villages. These judgments supported the view that the northern boundary was the true boundary of Mauza Kazipura. These judgments were sought to be relied upon by the plaintiffs in support of their contention that the boundary they alleged was the true boundary of the village of Kazipura; and that these plots in suit fell within that boundary and consequently were a part of their property.

The learned Judge held, as I gather from his decision, that these judgments were not admissible in evidence and were not binding upon the defendants inasmuch as the defendants were not parties to the previous proceedings in which these judgments had been pronounced. We think that the learned Judge was wrong in so ruling; because, in our opinion, these judgments were admissible in evidence under the provisions of Section 13 of the Evidence Act, inasmuch as they were pronounced by a Court of competent jurisdiction and contained a declaration that the same right as is now in dispute had been asserted and recognized in a Court of Law, and that, therefore, as between the plaintiffs in these suits and the defendants, they were evidence under the provisions of Section 13. Authority for this proposition is contained in the ruling cited as Raja Ranjit Sinha Bahadur v. Basunta Kumar Ghose 12 C.W.N. 739 at p. 743 : 9 C.L.J. 597. Their Lordships of the Calcutta High Court in that case clearly recognised and laid down the law on facts very similar to the facts of the present appeals. Therefore in that view of the case it appears to us that the lower Appellate Court was wrong in point of law in excluding these judgments from its consideration as part of the evidence proper for the Court to consider.

Another matter which also leads us to the conclusion that the judgment of the lower Appellate Court was unsatisfactory, is that the learned Munsif very carefully considered the documents of title which had been produced by the defendants and given in evidence for the purpose of showing that the southern boundary demarcated on the map was not the true boundary of Mauza Kazipura. The learned Munsif in a very exhaustive and careful judgment showed, that these documents of title, relied upon by the defendants, did not refer to the lands in dispute. The learned Judge on appeal in every summary and unsatisfactory way disregarded the careful finding arrived at by the learned Munsif, without giving any intelligent reason for doing so. He simply says: "I do not agree with the lower Court that the documents relied upon by the defendants do not refer to the lands to which they are said to refer". Well the learned Judge should have expressly found whether the deeds in question did or did not refer to the lands in suit; to find that they merely did not refer is ambiguous, uncertain and unsatisfactory and not such a judgment as the law required that an Appellate Court should pronounce after due consideration of the whole evidence. It is true that the learned Judge says in his judgment that he can find no evidence on the record sufficient to enable him to hold that the entry in the Record of Rights has been rebutted. The Record of Rights does record the southern boundary indicated upon the map as the true boundary between these two estates but the learned Judge has arrived at that finding disregarding the evidence of the judgments which I have already referred to If he Had carefully considered these judgments and weighed them, he Might have found that there was sufficient evidence before him to enable him to hold that the Record of Rights was riot conclusive and binding between the parties. Therefore We consider that the judgment of the lower Appellate Court is so unsatisfactory that in the interests of all parties it is desirable that these appeals should be allowed, that the decree of the lower Appellate Court should be set aside and that we should remand the case for re-hearing by the District Judge. The appellants who have appeared before us have succeeded. Consequently they will be entitled to their costs of these appeals. The respondents Nos. 6 and 7 in Second Appeal No. 1362 of 1916 and Nos. 16 and 17 in Second Appeal No. 1363 of 1916 appear, As against them the learned Judge in the lower Appellate Court has dismissed the action; and it is very hard to know why they came here at all. But inasmuch as it maybe possible on ''this remand that they will be found to be liable jointly with the other defendants, we direct that their costs of these appeals will abide the result.

Chapman, J.

I agree.