Munshi Lal and another vs Mahanth Ramasis Puri

Dawson Miller, C.J.—This is an appeal under the Letters Patent by Munshi Lal and Parbhu Narain, the principal defendant in the suit, from a decision of Jwala Prasad, J, dated the 17th August 1920.

The plaintiffs, who are proprietors of 8 annas 3 pies share in Mauza Mehdrganj Briwachak, instituted the suit before the Munsif of Patna claiming possession of 11 cattahs of land together with mesne profits against the appellants who claimed it as included in their holding. The plaintiffs also claimed in the alternative assessment of rent.

The case for the appellants was that the land originally formed part of the holding of Gobind Mahto which was mortgaged to them, and that, they obtained a mortgage-decree against Gobind and purchased has holding at a sale in execution of their decree in May 1913, and had been in possession ever since that date.

The case of the respondents on the other hand was that the land in suit never belonged to Gobind but was part of a holding in occupation of Tilak Keori, and that Tilak having disposed of all his holding, except the 11 cattahs in dispute, had abandoned that portion, so that the respondents as landlords were entitled to possession. The respondents have recognised the appellants as tenants of Gobind''s holding and the main issues between the parties were, first, whether the land originally formed part of Gobinds holding or the holding of Tilak, and, in the latter case, whether Tilak had abandoned it so as to entitle the plaintiffs to possession.

The Munsif before whom that trial originally came, found in favour of the plaintiffs and his decision, dated the 5th December 1916, was confirmed on appeal by Mr. Ross District Judge of Patna, on the 20th July 1917.

The defendants appealed to the High Court from the decision of the District Judge. The appeal was heard by Das, J. The learned Judge considered that the lower appellate Court had misdirected itself in finding that there was no evidence on the record, apart from the mortgage decree, that Gobind had ever had any title to the 11 cattahs in dispute and in relying on the Record-of-Rights which was not in evidence in the case. He further considered that the judgment was defective a sit contained no finding that Tilak had ever abandoned the land.

He accordingly was of opinion that the whole case should be re-considered by the lower Appellate Court, with special reference to two rent decrees obtained by the respondents against Gobind in 1883 and 1894, which, in addition to the mortgage proceedings, want to show that Gobind had been in possession of the disputed land. He, therefore, remanded the case to the lower Appellate Court for decision on the 14th May 1919.

The re-hearing came before Mr. Ashutosh Chatterjee, the District Judge of Patna, on the 28th June 1919. He found that Tilak had ceased to have any concern with his holding before the suit was instituted and, if the land belonged to him, he must be taken to have abandoned it. He found, however that the land was not in Tilak''s holding but in that of Gobind and passed by the mortgage sale to the appellants. He further found that the evidence produced by the appellants was sufficient to rebut the presumption arising from the entry in the Record-of-Rights. He accordingly allowed the appeal, set aside the decree of the trial court and dismissed the suit with costs.

From this decision the respondent appealed to the High Court. The appeal was heard by Jwala Prasad, J. The learned Judge found that the decision of Das, J., remanding the whole case for re-hearing was based upon a misapprehension because the rent-decree had in fact been considered by Mr. Ross in his judgment, and secondly, because, although the Record-of-Rights was not on the record in the suit, it was the case of both parties that the land in suit was'' recorded in Tilak''s name.

He accordingly held that the judgment of Das, J., remanding the case was invalid and consequently that the judgment come to by Mr. Ashutosh Chatterjee on remand was also invalid and could not displace the former judgment of the same Court. He then held that Mr. Ross''s judgment not having been legally set aside must be restored. With great respect to the learned Judge, I am unable to accept his view that it was open to him to call in question the earlier judgment remanding the case for a re hearing. The effect of the judgment was to set aside the judgment and decree come to by the lower Appellate Court in the plaintiff''s favour.

It was, in my opinion, open to the plaintiffs to appeal from the judgment of Das, J., u/s 10 of the Letters Patent. They did not avail themselves of the remedy and the decision cannot be called in question in a subsequent appeal against the decree made on remand. The learned Judge whose decision is now under appeal considered that the decision of this Court in Bara Estate Ltd. v. Anup Chandra (1917) 2 P. L. J. 663 = 41 I. C. 337 = 1917 P. H. C. C. 342. applied to facts of the present case.

In the case cited it was held that an order, made by the High Court in second appeal, directing the trial of a certain issue without setting aside the decree of the lower Court was not a judgment from which an appeal lay under the Letters Patent, and, therefore, the propriety of the order could be called in question when the case came back again to the High Court for the final determination of the appeal.

With that decision I entirely agree, but where the Appellate Court sets aside the decree appealed from, whether it orders a re-hearing or not, the decision, in my opinion, is a judgment within the meaning of the Letters Patent, whereas an order merely referring an issue for trial by the lower Court before the final determination of the appeal has not been so regarded. It was no doubt this distinction which induced the Legislature to differentiate between rules 23 and 25 of Order XLI of the Civil Procedure Cede.

In the former case where the decree is reversed on appeal, the decision is appeasable under Order XLIII, rule 1, where an appeal would lie from the decree of the appellate Court, in the latter case an appeal is allowed under the Code, as an order under rule 25 is in no way final and can be called in question when the appeal is finally determined after the issue has been decided by the lower Court. I think it was not competent to the learned Judge to question the propriety of the order of remand made by Das, J.

That, however, does not determine the question for consideration in this appeal. The learned Judge held that the finding of the lower Appellate Court on remand, that the land in suit was part of Gobind''s holding, was not based upon legal evidence. It seems to me with respect to the learned judge that in dealing with this part of the case he was in error in failing to distinguish between a document which creates title and a transaction which may be regarded as evidence in support of a title created long ago.

He held that, because the mortgage of a land in suit given by Gobind to the appellants in 1906 did not necessarily give them a title to the 11 cattahs in dispute, it could, therefore, be disregarded as evidence of the fact in issue, namely, whether the land was included in Gobind''s holding. The questions of possession and assertion of title by Gobind some years before the dispute arose were, in my opinion, relevant facts upon the issue and cannot be entirely disregarded.

I agree that the evidence on either side was of a very meagre kind, but it must not be supposed that the learned District Judge was unmindful of the fact that there was oral evidence adduced by the appellants in support of Gobind''s possession, whilst there was similar evidence in support of Tilak''s possession given on behalf of the respondent. Little, if any, value could be attached to the oral evidence, but it was for the Court to say which story was best supported by the admitted circumstances and probabilities.

The case set up by the respondents, that Gobind''s holding was originally less than 6 bighas 2 cattahs 4 dhurs according to the Zamindari measurement, was conclusively proved to be false in face of the rent-decrees of 1883 and 1884, and the learned District Judge rejected the village papers produced by the respondents in support of the part of their case as fabrications, and found that all along, Gobind''s holding consisted of 6 big has 2 cattahs 4 dhurs. This alone, he thought, was not sufficient to establish the appellant''s case, but it was a material factor in determining the probabilities and on which he was entitled to rely and there was a further fact found by the learned Judge, namely, that Tilak made no claim to the 11 dhurs in question.

The learned Judge did not expressly rely upon this as a ground for his decision but it was a fact which he found and which he must have had in mind. He considered, however, that he was entitled to rely upon the mortgage and the fact that the respondents took possession under the mortgage decree in 1913 without opposition from any one was sufficient evidence to enable him to decide in the appellants'' favour.

The question for this Court to determine is not, whether the weight of evidence was in favour of the appellants or the respondents but whether there was any evidence to justify the finding. The appellants title to Gobind''s holding is not in dispute and their recognition as tenants of that holding is admitted. The only question for decision was whether the particular plot in dispute was in Gobind''s holding or in that of Tilak. This was a question of fact upon which evidence of assertion of title and of acts of possession over property was material.

I think the decree appealed from should be set aside and the judgment of the District Judge dated the 28th June 1919 restored. The appellants will have their cost of this appeal and of the appeal to Jwala Prasad, J.

Coutts, J.

I agree.