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Judgment
Das, J.—The question in this appeal turns upon the construction of a sale certificate (Ex. E). If the learned Subordinate Judge is right in his view that the document is ambiguous, then he was entitled to look into the surrounding facts and his conclusion upon those facts would be binding on us in second appeal. The first question, therefore, is, is the Subordinate Judge right in taking the view that there is some ambiguity in the document?
The material portion of the sale certificate is in this term: "2 annas 3 kauris 1 dant and 10 rains out of 16 annas in Mauza Telya Chapra appertaining to taluka mahal Bishunpur, Fergana Gadasand, Touzi No. 1685, elaka Thana and Sub-registry Paru area of which is 32 acres and 30 poles, jama of the entire mahal, Rs. 941-14-8, jama of the share to be sold is Rs. 25-2-0 under register of 1228 F.S. in which the jama of every village is separately recorded." The only question is, what was it that was purchased by Narsingh Tewari represented in this action by the defendants first party, the appellants in this Court. The defendants contended that what was purchased by Narsingh Tiwari was 2 annas 3 kauris odd out of 16 annas in Telya Chapra. The contention of the opposite side is that this document is ambiguous, for it is open to the construction that what was purchased by Narsingh Tewari was 2 annas 3 kauris etc., in the residuary share No. 1685. The contention of the respondents found favour with the Court below and the learned Judge went into extrinsic evidence and came to the conclusion that what was purchased by Narsingh Tewari was 2 annas 3 kauris etc., in Mouza Telya, separate account No. 3. I am unable to concur in this view. There is, in my opinion, no ambiguity whatever in the sale certificate. The error in the judgment of the learned Subordinate Judge consists in thinking that what was purchased by Narsingh Tewari was 2 annas 3 kauris odd in the residuary account No. 1685; but this is not what the sale certificate says. In my opinions the sale certificate means what it says, namely, that under it 2 annas 3 kauris odd out of 16 annas in Mouza, Telya passed to the defendants first party. It is conceded that if this view be correct then the plaintiffs'' suit must fail.
I would allow this appeal, set aside the judgment and decree passed by the Courts below and dismiss the plaintiffs'' suit with costs in all the Courts.
Ross, J.
I agree.