Chhaganmal Marwari and Others vs Indra Keot

Manohar Lall, J.—This is an appeal by the plaintiffs against the judgment and decree of the learned District Judge of Puruliai affirming the decision of the Munsif by which the suit of the plaintiffs for ejectment of the respondent was dismissed. The plaintiffs appear to be the recent purchasers of the plot in dispute which is a very small area in the town of Purulia.

The real contention between the parties was, after titled of the plaintiffs had been fully established, whether the defendant was not liable to be ejected inasmuch as he alleged that he had acquired a permanent right to reriiain on the land. The learned Munsif has written an elaborate judgment and has also noticed several possible pieces of evidence, oral and documentary, in this case and he sums up his finding under seven headings. He came to the conclusion, on a consideration of the facts which he had found and on applying the law thereto, that the defendant was not liable to be ejected.

The learned District Judge in a very summary judgment has dismissed the appeal and I am not satisfied from a perusal of the judgment of the learned District Judge that he has clearly applied his mind to the evidence in the case. The evidence is of somewhat complicated character and extends over a large number of years. I get no indication from the judgment whether he has taken the trouble to peruse the various documents some of which were said to be registered, nor does the judgment show that he has considered the effect of various documents which are being freely referred to as documents of transfer.

For instance Exs. E to G have been stated by the trial Court to be in favour of the pldntiff "on the point referred to above." Ex. B is of the year 1924 and is a kistibandi bond executed by the wife of the defendant in favour of one Akshay Kumar Keot and apparently refers to the suit house. But a mere execution of a kistibandi bond in respect of the house will prove nothing beyond the fact that the person in possession took a loan on executing the simple bond. To the same effect are the documents Exs. C and D which only show that the mortgagee transferred his rights as a mortgagee to Akshay Kumar. The most important documents in the case would be those which show that there have been series of transfers involving transfers of possession but not those which relate to transfers by way of security.

The trial Court next found that the rents have been uniform from the year 1317 or 1910 A.D. He no doubt relied on the oral evidence that the rent was uniform from much earlier than 1910 but the learned Appellate Court has not come to an independent finding on this point. The learned Munsif himself took the trouble of going to the spot, held a local inspection and gave his own views as to what nature the structure of the house possessed. The learned Judge in appeal simply reiterates on the very first page of the judgment the findings of the trial Court. He has not even referred to the evidence of the witnesses by names or whether he comes to the same conclusion from the oral or the documentary evidence.

The question to decide whether a certain tenancy is permanent or not, when it depends entirely upon the oral and documentary evidence evidencing series of transactions in the absence of a document of title is always a question of difficulty and in such cases the lower Appellate Court being the final Court of fact should be careful to give his reasonings in his judgment so that the superior Court may be able to see that the evidence both oral and documentary in the case has been properly weighed. I regret I do not think it is possible for me to uphold this judgment as a proper judgment. I do not wish to make any remarks which may at all interfere with the conclusion which the learned District Judge will come to when he re-hears the appeal. It may be that he comes to the same identical conclusion as already arrived at by the trial Court.

With these remarks the appeal is allowed and the case is remanded to the learned District Judge for re-hearing and disposal in accordance with law. The appellants will pay to the respondent the costs of this appeal in the High Court. Costs in the other Courts will abide the result.