Baldeo Singh and Others vs Niras Singh and Others

Sinha, J.—These second appeals and civil revisions arise out of the same judgment in a single suit for ejectment of the defendants on the ground that they had encroached upon plaintiffs'' Plot 842, which is situate contiguous to the defendants'' plots 835 and 840, to the extent of 1 katha 14 dhurs of homestead land in village Ramdiri.

There are nine plaintiffs who are related as follows: Plaintiff 1, Khiro, is the father of plaintiffs 2 to 4, plaintiff 2 being Baldeo; plaintiff 5 is a son of Baldeo, and plaintiff 6 is a son of plaintiff 5; plaintiffs 7 and 8 are the sons of plaintiff 3; and plaintiff 9 is a son of plaintiff 4. Of the plaintiffs 6 to 9 are minors under the guardianship of Baldeo, apparently because Baldeo is the karta of the family, though he is not the eldest member thereof. Plaintiffs are, admittedly, members of the joint Hindu Mitakshara family whose karta is Baldeo aforesaid. As the suit related to alleged encroachments on different sides of Plot 842 by the adjoining plots of the defendants, a pleader commissioner was appointed to make measurements. He submitted a report, largely in favour of the plaintiffs. At the time of the commissioner''s local investigation, the defendants are said to have claimed only 1 katha and 8 dhurs out of the disputed lands as their own property. Hence, it may be said that the plaintiffs'' claim in respect of the remaining 6 dhurs was not disputed.

On 23rd May 1944, a petition was filed purporting to be on behalf of the plaintiffs, but signed only by one of them, to the effect that, if the defendant Babu Niras Singh takes special oath by Ganges water, Tulsi and Tamba (copper) in presence of the Court, and states that the disputed property belongs to the defendants, and that the plaintiffs have no concern with the same, the plaintiffs will relinquish their claim, and, if Babu Niras Singh, on going to the land, points out the extent of his land "in the encroached land," after taking special oath in the presence of the Court, the pillars will be fixed accordingly so as to avoid all future trouble. Babu Niras Singh accepted this offer made by the plaintiffs, and stated on special oath as aforesaid as follows:

I have taken in my hand Tulsi, Gangajal and a copper coin. The disputed land has been coming in my possession ever since I attained hash, which I did at the age of 15 (his age as recorded is 45 years). The disputed land belongs to me.

Hence, the first part of the promise was fulfilled. But, on going to the spot, the plain-tiffs required the said Niras Singh to take special oath again, and then to point out the land which he claimed out of the disputed land as his. It was objected on behalf of Niras that he had already taken the special oath, and made his claim. The learned Munsif, being present on the spot, decided this question in favour of the defendants, and held that it was not necessary to take the special oath for the second time. However, Niras pointed out the land, and the land so pointed out was demarcated on 4th June 1944. In this connection the learned Munsif has recorded the following order:

Beached the spot at 8-15 A.M. and moved along the disputed line between the lands of the parties. It was verbally moved before me first that Niras Bai should again be made to take a second special oath here on the spot while he indicated the limits of his claim and possession, and I decided, after hearing the parties, that the special oath taken in Court covers and extends to the indication of the limits of defendant''s claim, and that the plaintiffs requiring him to repeat the special oath is unwarranted.

It should be noted at this stage that it was never contended at the spot by any of the plaintiffs that the offer to abide by the special oath of Niras Singh had been made by only one of the plaintiffs, and not all of them. On the next day, that is, 5th June 1944, the learned Munsif passed an order to the effect that all that had to be done in pursuance of the plaintiffs'' petition, dated 23rd May 1944, relating to the special oath had been done; that the land had been demarcated at the spot in accordance with the statements of Niras; and that nothing further remained to be done in connection with the suit. The suit was, therefore, dismissed with costs.

On 6th June 1944, two petitions were moved in which it was alleged on behalf of the plaintiffs that Baldeo Singh, plaintiff 2, had filed the petition to abide by the special oath of Niras Singh without the knowledge and consent of the other plaintiffs, and that they had not authorised Baldeo Singh to file such a petition in Court. They, therefore, prayed that the case be tried in the ordinary course, and the said petition dated 23rd May 1944, be ignored, as the same had not been filed on behalf of all the plaintiffs. On the margins of the petitions, the Court had noted that there was no indication on the spot that the other plaintiffs were not associating with plaintiff 2 in the matter of the special oath, and that none of the plaintiffs gave any indication on the spot that Baldeo Singh had been acting without the authority of the other plaintiffs. As to the prayer of the plaintiffs that this unauthorised act of plaintiff 2 should not be acted upon by the Court as an imprudent act of the Tcarta of the family, the Court observed that the case had already been disposed of. In effect, the learned Munsif held that the petitions moved on 6th June 1944, were an afterthought, as on the spot none of the plaintiffs challenged the authority of plaintiff 2.

From the decree so passed by the learned Munsif dismissing the suit, two appeals were filed. Title Appeal No. 92 of 1944 was filed on behalf of all the plaintiffs except Baldeo, and Title Appeal No. 93 on behalf of Baldeo, alone. Both the appeals were heard by the learned Subordinate Judge of Monghyr, and disposed of by the same judgment. Before him, it was argued that the learned Munsif was wrong in dismissing the suit in the absence of a second special oath by Niras on the spot; that the judgment of the learned Munsif has not been pronounced in open Court; and that the other plaintiffs were not bound by the petition of 23rd May 1944, by which it was agreed that the suit be decided, on the basis of the special oath of Niras Singh.

On the first point, the learned Subordinate Judge took the view that a second special oath on the spot at the time of demarcation was also necessary in terms of the petition filed on behalf of the plaintiffs. The Court also held that, in order to finally adjudicate upon the rights of the parties, it was necessary that the second special oath should be taken by Niras. The lower appellate Court, therefore, directed that the case be remanded to the learned Munsif so that, if Niras offered to take the second special oath at the spot within a fortnight from the date of the receipt of the record by the learned Munsif, the suit will be disposed of accordingly after demarcating the land; on the other hand, if Niras refused to take the second special oath at the spot, the learned Munsif will have to hear the case in the ordinary course in accordance with law.

On the second point, the lower appellate Court held that, even though the judgment may not have been delivered in open Court, there was no prejudice to either party, and the judgment was, therefore, not altogether void.

On the third point, the learned Subordinate Judge held that Baldeo was the karta of the plaintiffs'' joint family, and was the next friend of the minor plaintiffs. He also pointed out that the vakalatnama filed in the case had been given by Baldeo on behalf of all the plaintiffs. The Court, therefore, held that Baldeo was acting on behalf of all the plaintiffs in the suit, he having filed haziris on thirteen occasions and two affidavits on behalf of all of them. The Court below, therefore, overruled the contention raised on behalf of the plaintiffs that Baldeo was not acting in his representative capacity when he made the offer of special oath to Niras Singh. The learned Subordinate Judge also pointed out that it was not the plaintiffs'' case that Baldeo Singh, in acting as he did on 23rd May 1944, did so in collusion with the defendants. The petition of 23rd May 1944, had been signed by the pleaders who held authority from all the plaintiffs. He also pointed out that, at the time of the local inspection by the Court and the parties, none of the plaintiffs came forward to repudiate the authority of Baldeo in offering to abide by the special oath of Niras. He, therefore, came to the conclusion that the plaintiffs had approved of the action of Baldeo in filing the petition of 23rd May 1944, and that the petition was apparently for the benefit of all the parties. To the objection of the plaintiffs that the pleaders had no authority under the vakalatnama to file a petition binding the plaintiffs by the special oath of Niras Singh, the learned Subordinate Judge has observed that the pleaders did not act on their own initiative, but on the instruction of Baldeo who was present in Court.

In the result, he held that all the plaintiffs were bound by the terms of the petition aforesaid. The learned Subordinate Judge allowed the appeal, and remanded the suit as already indicated. Prom this judgment in the two appeals, two second appeals have been filed, and two applications in revision have also been filed in the alternative.

Mr. L.K. Jha, appearing on behalf of the appellants-petitioners, has vehemently argued, in the first instance, that the special oath offered to Niras made it necessary that it should have been taken not only in Court while he gave his statement in Court, but should have also been repeated at the time he pointed out the lands at the spot, and that, the offer not having been acted upon in full, it was at an end. The second contention is that the offer, not having been made by all the plaintiffs, but only by Baldeo, is not binding on the whole family. Thirdly, it has been argued that, no express leave having been obtained by the guardian ad litem of the minor plaintiffs, the agreement to be bound by the special oath of Niras is wholly void. Fourthly, it was contended that the judgment of the Munsif had not been deli, vered in open Court, and it was, therefore, wholly ineffective.

Before I deal with these contentions, I should notice the preliminary objection raised on behalf of the respondents-opposite party. Mr. Mahabir Prasad, on their behalf, has contended that no second special appeal lies, inasmuch as the remand order by the Court below was under its inherent jurisdiction, and not under Rule 23 of Order 41, Civil P.C. To this contention, it is argued on behalf of the appellants that an appeal lies, because the judgment passed by the lower appellate Court comes within the purview of Rule 23 of Order 41 of the Code, inasmuch as, it is argued, this suit had not been disposed of by the trial Court on merits, but on a preliminary point, namely, the special oath of Niras. In my opinion, the preliminary objection is well-founded in law. When a suit is disposed of on a particular evidence which has the effect of conclusive proof of the facts in controversy between the parties, it cannot be said that the suit has been disposed of on a preliminary ground. It may be that elaborate evidence may not be given at such a trial; but, all the same, the suit is disposed of on merits.

The judgment of the lower appellate Court has not conclusively determined the rights of the parties. Hence, it is appealable neither as an order of remand nor as a decree. u/s 11, Oaths Act (10 [X] of 1873) the evidence given on special oath shall be "conclusive proof" of the matter stated as against the person who had offered to be bound by that oath. Hence, a suit may be disposed of in its entirety on statements made by a person on special oath, if those statements cover the entire controversy between the parties. It may also not cover the entire controversy, and the matters remaining to be dealt with by the Court may have to be decided on other evidence to be adduced by the parties. At this point it is also convenient to point out the nature of the proceedings which ended in the decree in the trial Court. By offering to be bound by the said oath of Niras, the plaintiffs cannot be said to have submitted their dispute to his arbitration. The decision to be given is that of the Court, though based upon evidence which carries with it the effect of conclusive proof. Hence, the decisions in Krishnan Chetti v. Muthu Palandi Vaeha Makali Tevar (99) 22 Mad. 172, relating to a decree based upon an award, or in Narayanaswami Aiyar v. Venkatarama Aiyar AIR 1926 Mad. 808, holding that a decision on estoppel is a decision on a preliminary ground, do not render any assistance to the appellants'' contention that the judgment of the Courts below was based on a preliminary ground. On the same considerations, it must also be held that there is no substance in the contention that the minors are not bound by Baldeo''s application on the ground that the express leave of the Court had not been obtained by the guardian ad litem to enter into the agreement. Reliance was placed upon Rule 7 of Order 32, Civil P.C., in this connection. But that rule has reference to agreements in the nature of settlements of disputes by a compromise; but, as already pointed out an offer to be bound by the special oath of a party to the litigation or of a witness appearing in the case is not such an agreement as is contemplated by Rule 7 of Order 32 of the Code. Hence, the decisions of the Division Bench of this Court in Kedar Nath v. Basant Lal AIR 1939 Pat. 278 or in Umar v. Mahabir Lal Sahu AIR 1940 Pat. 59 have no bearing on the present case.

The contention on behalf of the appellants that the other plaintiffs are not bound by the act of Baldeo in having agreed to abide by the special oath of Niras, on the findings recorded by the Courts below, has no legs to stand upon. The lower appellate Court has recorded a clear finding that Baldeo though not the eldest member in the plaintiffs'' family, his father, plaintiff 1, being still alive, was not only the karta of the family, but had actually been looking after the whole suit on behalf of the family. As pointed out by the Courts below, at all material times it was Baldeo who had been taking steps in the suit. Neither on 4th June 1944, when the statement of Niras on special oath was recorded by the Court, nor on the next day, when in the presence of the Court Niras pointed out the portion claimed by him out of the disputed land, was any objection taken by any of the plaintiffs that the Court should not proceed to determine the matter on the special oath to Niras. In my opinion, the Courts below are perfectly justified in their conclusion, that the other members of Baldeo''s family, finding that their suit was going to be dismissed, or had been dismissed by the Court on the basis of the statements made by Niras on special oath, thought of this argument at the last hour.

In such circumstances, the plaintiffs cannot be allowed to resile from the position taken by them on 28rd May 1944, especially when Niras had accepted the offer, and at least in part, had performed his part. In Mahammad Mahmud Choudhry and Others Vs. Behary Lal Saha and Others, decided by a Division Bench of the Calcutta High Court, the facts were that in the suit there were two adult defendants and two minor defendants, and the petition signed by a pleader, representing the two adult defendants, as also by the guardian ad litem of the minors agreeing to be bound by the special oath of one of the plaintiffs was filed in Court, and the suit was disposed of according to the deposition of the plaintiff on such oath. It also appears that one only of the adult defendants was present in Court when the petition in question was filed. It was held by the Court that, in the absence of fraud or gross negligence on the part of the guardian, the minors were bound by the consent of their guardian, although given without leave of the Court. Their Lordships relied upon the decision in Sheo Nath Saran v. Sukh Lal Singh (1900) 27 Cal. 229 . It was also held by the Court that a pleader as agent on behalf of his client cannot bring a suit to a close by offering to be bound by the oath of the opposite party in a particular form, but it was quite open to the Court to make an inference from the particular circumstances of the case as regards the fact that there was authority on the part of the pleader because of the presence of one of the adult defendants who evidently had been put forward by the others to take all necessary steps in connexion with the suit. That decision of their Lordships of the Calcutta High Court appears to be on all fours with the facts and circumstances of the present case. The decision of a Division Bench of the Allahabad High Court in Deoraj Misra Vs. Mt. Abhai Raji is also in point. It must, therefore, be held that the plaintiffs other than Baldeo, including the minors, are equally bound by the offer made to abide by the special oath of Niras.

It was further contended on behalf of the appellants-petitioners that, assuming that the offer had been made on behalf of the entire family by Baldeo, the offer had not been fully accepted, inasmuch as Niras, while making his statement on special oath in Court, stopped short at claiming title and possession in respect of the disputed land for the defendants, but did not further say, as required by the plaintiffs, that the plaintiffs had no concern with the disputed land, and, secondly, because he did not take the special oath at the spot while pointing out the land to be demarcated. So far as the first part of the contention goes, there is no substance in it. When Niras stated that the land was his, and that he had been in possession for more than thirty years, it amounted to saying that the plaintiffs had no concern with the same. It was open to the plaintiffs'' lawyer to put the further question to Niras, if he thought that the statement already made by him did not cover the entire ground. When the case goes back to the learned Munsif, as directed by the lower appellate Court, it will still be open to the plaintiffs to put further questions to Niras. As regards the second part of the contention, there was no absolute refusal by Niras to take the second oath. The parties were at variance as to whether the plaintiffs in their offer intended to put Niras upon his special oath twice over. That matter was adjudicated by the Court at the spot against the plaintiffs. It cannot be said that the decision of the learned Munsif was entirely without substance.

On a reading of the petition of 23rd May 1944, either view is possible. The Munsif took the view that a special oath was necessary to be taken only once in Court, and not at the spot. The learned Subordinate Judge has taken the other view, namely, that the oath had to be taken i on both the occasions. As I have held that no appeal lies to this Court, I cannot interfere with the findings of the learned, Subordinate Judge, right or wrong. I cannot, in the exercise of the revisional jurisdiction of this Court, overrule the conclusions of the learned Subordinate Judge. But it was argued on behalf of the appellants-petitioners that, assuming that the second appeals did not lie, the applications in revision are competent, and that the lower appellate Court had no jurisdiction to remand the case for fresh hearing on a fresh opportunity being given to Niras to fully carry out his acceptance of taking the special oath offered by the plaintiffs. It is argued that Niras did not carry out his part of the agreement in full, and, therefore, u/s 89, Contract Act, the agreement was it an end, and the plaintiffs were, therefore, entitled to withdraw the offer. In this connexion, reliance was placed by Counsel or the petitioners on the cases in Sooltan Chand v. Sehiller (79) 4 Cal. 252 , AIR 1943 34 (Privy Council) , Sultan Ahmad v. Syed Maksad Husain AIR 1944 Pat. 3 and Secy. of State v. Rajendrs Parsad AIR 1937 Pat. 391. All these cases are authority for the proposition that, where an offer has not been accepted in full, it is open to the offer or to regard the agreement as at an end, and to claim damages for non-performance of the offeree''s part in full. But can it be said in this case that the offer has not been accepted by Niras? In my opinion, as soon as Niras accepted to take the special oath, the plaintiffs were bound by their offer to abide by his special oath. He did take that oath in Court. As regards the second oath, the parties were at variance as regards the content of the offer. The Court of first instance decided in favour of the defendants. The lower appellate Court has decided in favour of the plaintiffs, and directed that the learned Munsif after remand will give a fresh opportunity to Niras to comply fully with the terms of his acceptance of the offer.

In this connexion, reference may be made to the cases in Ram Narain Singh v. Babu Singh (96) 18 All. 46, Abaji v. Bala (98) 22 Bom. 281, Thoyi Ammal v. Subbaraya Mudali (99) 22 Mad. 234 and Shek Khan Mahmud Vs. Shek Syedali and Others, . These cases are authority for the proposition that an offer to be bound by the special oath of a particular person once accepted by the person concerned being a party to the suit cannot be withdrawn except on very cogent grounds which, in the opinion of the Court, justifies it in exercising its discretion not to allow the special oath being administered. But it is not open to the party to make such an offer, and then to withdraw it on frivolous grounds after it has been accepted by the other party. Such an offer may be withdrawn so long as it has not been accepted by the other party and acted upon. It must, therefore, be held that the plaintiffs were not entitled to withdraw the offer in the circumstances of the present ease.

As regards the contention that judgment was not delivered by the learned Munsif in open Court after notice to the parties, it is enough to point out that that judgment is no more in existence, having been set aside by the lower appellate Court. The last contention raised on behalf of the petitioners was that the suit should not have, been dismissed in its entirety when the defendants did not at any stage claim six dhurs out of the disputed lands for themselves, and, therefore, the defendants should be taken to have admitted the plaintiffs'' claim in respect thereof. Mr. Mahabir Prasad on behalf of the respondents pointed out that Niras had deposed that the disputed land was his; but apparently by the "disputed land" he meant the land claimed by the defendants. Hence, the suit should not have been dismissed in respect of the remaining six dhurs. As the case is to be decided afresh after remand, this aspect will have to be considered by the learned Munsif.

As a result of these considerations, it must be held that all the plaintiffs are bound by the offer to abide by the special oath of Niras, and that there is no error of law or of jurisdiction in the judgment of the learned Subordinate Judge remanding the case for a fresh opportunity being given to Niras to fulfil his part of the agreement by taking the additional oath on the spot, while pointing out the limits of the land claimed by him out of the disputed land.

The second appeals are, therefore, dismissed as incompetent, and the applications in revision are also dismissed on the ground that there is no error of jurisdiction in the judgment of the lower appellate Court. The respondents-opposite party are entitled to their costs: hearing fee three gold mohurs in all the cases.