Iswar Chandra Bistu vs Hariram Bistu and Others

Dhavle, J.—In this case there must obviously be a remand as prayed for by the learned advocate for the appellant for the purpose of a re hearing of the appeal by the lower appellate Court. The suit was for declaration of title to the eastern half of plot 1579 and the northern 5 feet of a certain wall falling partly inside that plot. The Record of Rights was against the plaintiff, but on a detailed consideration of the evidence adduced on both sides the trial Court came to the conclusion that notwithstanding the Record of Rights plaintiff''s title to the eastern half of the plot was made out together with his title to the southern 2 feet out of the length of 5 feet of the wall referred to. The learned Subordinate Judge who heard the appeal differed from the trial Court both as regards the plot and as regards the wall.

He was entitled to do so on a consideration of the entire evidence, not excluding a series of important considerations set out in the painstaking judgment of the trial Court. The learned Subordinate Judge, however, has not thought fit to do anything of the kind. He gives reasons for disbelieving two out of three witnesses that he names at first (P. Ws. 4 to 6). He then comes to two other prosecution witnesses and says that they had no personal knowledge about the partition of plot 1579. This criticism is singularly beside the point, for the trial Court had referred to them in connexion with the plaintiff''s story that the contesting defendant was at one time willing to buy from him the disputed land, which if true would be a material circumstance (unless explained away) in arriving at a decision as regards the title to the property.

The learned Subordinate Judge has entirely overlooked this circumstance, and has further made no reference whatsoever to the Commissioner''s report which was dealt with in detail in the judgment of the trial Court. Nor has he referred to such considerations as that in a partition among four brothers made by the mother it was not likely that one of the brothers would be left without any share in the homestead at all without getting something for it somewhere else--another important consideration which was rightly laid stress upon by the learned Munsif. There is yet another circumstance to which I might refer: the heaps of earth found by the pleader Commissioner, regarding which the learned Munsif observed that there was no satisfactory explanation forthcoming from the side of the defendants in view of the evidence of his own witness (D.W. 5).

The learned advocate for the plaintiff-appellant has in these circumstances asked for a remand on the authority of two decisions: Dilan Singh v. Choa Singh (1917) 42 IC 397 and Lachmi Singh and Others Vs. Emperor, . In the former of these decisions it was laid down that in second appeal the High Court would be bound by a finding of fact if it has been arrived at after a fair, honest and full consideration of the evidence before the lower Court, but it would interfere if the decision has not been arrived at after a fair and reasonable consideration of the evidence before it, and the Commissioner''s report has been entirely disregarded. In the decision from Lachmi Singh and Others Vs. Emperor, an appeal was remanded on the sole ground that the lower appellate Court bad failed to discuss the Commissioner''s report which had been relied on by the trial Court; in coining to its conclusion, and it was held that the failure amounted to an error of law entitling the High Court to remand the appeal for rehearing.

I do not intend to express any opinion regarding the circumstances to which I have referred beyond saying, as I have already indicated, that they are at least such as ought to have been taken into account in disposing of a first appeal. It is not necessary to make a detailed list of such important circumstances, for I feel confident that when the appeal is heard afresh the lower appellate Court will deal with the case in the manner indicated in the decision from Dilan Singh v. Choa Singh (1917) 42 IC 397 referred to already. The decree of the lower appellate Court is set aside and a fresh hearing of the appeal directed. Plaintiff will have the cost of the hearing in this Court in any event.