Nighona Bai vs Rai Singh

Bhutt, J.—This appeal was filed by the two plaintiffs, Mst. Nighona and Chandansingh. Mst. Nighona died during the pendency of this appeal and her legal representative was not brought on record. The decree appealed from is one of dismissal of the plaintiffs'' claim to possession and damages.

It was not disputed that Khasra No. 93/2 of mouza Samarboh belonged to Mst. Nighona and was given on batai to Chandansingh for the year 1949-50. Plaintiffs claimed that the defendants took possession of this held and removed the grass therefrom worth Rs. 100. They, therefore, instituted the suit for possession of the field and for recovery of Rs. 100 as damages. The defence was one of denial of the plaintiffs'' allegation that the defendants had dispossessed them and removed grass as alleged.

The suit was decreed by the trial Court but was dismissed in appeal. It is contended that the appeal Court was in error in interfering with the trial Court''s finding.

It is no doubt true, as observed by their Lordships of the Privy Council in Widetileka vs. Ranasinghe AIR (1931) P.C. 265 , review should be slow to differ from the opinion of the trial Judge as to the credibility of witnesses whom he has seen and heard: See also AIR 1938 91 (Privy Council) , AIR 1940 93 (Privy Council) This, however, applies only to case where the trial Judge has decided the case on the credibility of one set of witnesses as against the other, but where the finding is based on inferences from the facts or documents on record, the Judge of the first instance is in no better position than the appeal Court: See Andoli Udaibhan vs. Mst. Jamnabai (1941) N.L.J. 230. The finding of the lower appeal Courts is covered by this dictum.

The appeal accordingly fails and is dismissed with costs. It should, however, be understood that the dismissal is not based on any question of title which was not denied by the defendants.