1. This litigation has had a conquered his tory after the suit was filed. The appellants are We original plaintiffs. The plaintiffs sued for possession of certain fields and houses from the defendants and cer tain sums from defendants 3 and 1 for damages. The property originally belonged to one Ramchandra Patel or Shelu. He died on 23-3-1937 leaving behind him his married wife Anusuya and mother Bhimabai. Anusuya had no issues and soon after the death of Ramchandra sne remarried. On her remarriage, Bhimabai became the owner ot the property. Bhimabai died sometime in 1950 and a was after her death that the present litigation started in 1951. The original plaintiff No. 1 Ramrao claimed that is was the son of the deceased Ramchandra from one Mama-bal. Ramrao pleaded that his mother Mainabai was marnea to Ramchandra in the Gandharva Form somewhere in fasi and therefore he was a legitimate son of Ramchandra ana claimed possession of the property under that title. He put up an alternative case that, in any case, he was born of Mainabai from Ramchandra, that Mainabai was in exclusive keeping of Ramchandra and thus he was a Dasiputra of Ramchandra, which status entitled him to claim the property. The parties are Sudras and as a Dasiputra the appellant Ramrao had a preferential claim to the property as against the respondent, Jairam who claimed to be a reversionary heir of the deceased Ram-chandra. Admittedly, Mainabai was previously married to one Sattu and had also issues from him. The plaintiff No. 1's case was that Mainabai was divorced long prior to his birth and had remarried with Ramchandra or, at any rate, she was in his exclusive keeping. On the other hand, 'the defendants contested the status of Ramrao ana that, in any case, Ramrao was an offspring ot adulterous Inter-course between Ramchandra and Mainabai and could not claim any right to the property left by Ramchandra. The trial Court dismissed the suit. The trial Court field that Ramrao was born on 174-1935 and that he was bom to Mainabai from Ramchandra. But the trial Court held that he was not a lawful son, that Mainabai was only a keep of Ramchandra but that Ramrao could not claim the status of a Dasiputra. It was held that Ramrao was not born of lawful wedlock. On these findings the suit was dismissed.
2. Then the matter was taken to the District Court and the District Court held that It was not proved that Mainabai was divorced by Sattu. it affirmed the finding of the trial Court that plaintiff No. 1 was born to Mamabai from Ramchandra. It appears the District Court did not give any finding whether Mainabai was In exclusive keeping of Ramchandra. In view of the finding of the District Court that Ramrao had failed to prove that Maina-bai's husband had divorced her, it was held that plaintiff No. 1 must be taken to be born as a result or adulterous intercourse. On these findings, the dismissal of the suit was confirmed.
3. The plaintiffs filed a second appeal in this Court and by an interlocutory judgment of this Court dated5-7-1961 a specific issue was framed and remitted ior recording a finding by the trial Court. That Issue was as follows:
'Whether Mainabai was divorced by Sattu and was no more in his wedlock at the time of the plaintiff No. I's birth and as such the plaintiff No. 1 was not the true ot adulterous or incestuous intercourse?' The parties were allowed to amend their pleadings ana lead documentary and. oral evidence in support of their respective contentions. The trial Court gave such opportunities and recorded a finding on 30-9-1961 against the contentions of the plaintiffs. The trial Court held that is was not proved that Mainabai was divorced from Sattu. This finding was directly remitted by the trial Court to this Court and the second appeal was posted for hearing before this Court before Mr. Justice Desaj. When the case came up for hearing on 12-12-1961, the Court gave a direction that the finding recorded by the trial Court had not been certified by the District Court as required by the Rules and therefore, this Court director that the papers should be sent to the District court to enable it to certify the finding recorded by the trial Court and send the papers back to this Court with its certificate. This order was passed on 12-12-1961. After the matter was so sent for certification to the District Court, the District Court heard arguments of both the parties and has sent its report dated 22-2-1962. By this report the District Court did not agree with the finding of the trial Court in respect of the issue remitted to it. The learned District Court found that the plaintiffs had sufficiently established that there was divorce given by Sattu to Mainabai long before the birth of plaintiff No. 1 from Ramchandra to Mainabai. It has therefore held that the plaintiff No. 1 was not an off-spring of adulterous. Intercourse. With this finding submitted to this Court, the finding recorded by the original Court has been certified by tho District Court.
4. As the finding recorded by the District Court was against the contention of the respondents the respondents were expected to file objections to the finding of tne District Court within time. This has not been done. But the objections have been filed today with an application for condoning delay. I have condoned delay in filing tne objections to the finding and have taken the objections on record in spite of opposition from the appellant's counsel.
5. It is contended by the respondents that in spite of the finding recorded by the District Court in certifying the finding of the trial Court, it is open to the respondents to challenge the finding as a finding of fact before this Court because there is no provision In the code ot Civil Procedure that when an issue is remitted to tne trial Court for recording a finding to have it certified through the District Court and for the District Court to record its own finding, while so certifying the finding or the trial Court. In my opinion, there is no substance in this contention. This Court has framed rule 422 to be found In Volume 1 of the Civil Manual which contains the Rules issued by this Court for the guidance of the Civil Courts and officers subordinate to it. Rule 422 to be found in Chapter XX at page 173 of the First Volume is as follows:
'When the High Court refers a suit to tbe trial Courtfor recording its findings on any issue or issues with adirection that the findings should be certified through theDistrict Court, the District Court should also record itsfindings before transmitting the case papers to tne HighCourt.'
It is this procedure which Is to be followed and was not followed when the finding was directly submitted by the trial Court to this Court. The matter was again placed before this Court and by the direction given by this court on 12-12-1961 the District Court was directed to certify the finding of the trial Court. 1 also find that while so directing specific direction was given to the lower appellate Court to give an opportunity to the parties or their Advocates to be heard. Thus, there is no doubt that tne District Court is equally empowered and is in fact under a duty while certifying on an issue remitted to the trial Court, to record its own finding. Obviously, this is because the finding being in respect of a question of fact arrived at after hearing fresh evidence or pleadings, the final Court of fact, namely, the District court, should nave an. opportunity to assess the correctness of that finding of the trial Court and submit its own finding to this Court. It Is as second appellate Court that this court requires the finding on an issue of fact to be recorded. The position would be anomalous if the finding were recorded only by the trial Court and that finding was capable of challenge directly before this Court hearing the matter in second appeal, To that extent, it would amount to hearing a first appeal so far as the fresh finding is concerned. This anomaly is removed oy rule 422 In the Civil Manual which requires that the District Court must certify the finding recorded by the trial court and while so certifying must give its own finding on me finding recorded by the trial Court. In my view, therefore. It Is no longer open to the parties to canvass the issue as if it is open for canvassing as an issue of fact in first appeal.
6. The finding of the District Court In this case is that Mainabai was divorced long before the birth of Ramrao, plaintiff No. 1. Good reasons have been given by tne District Court for its taking a view different from the trial Court on this issue. The District Court has pointed out that Mainabai and her first husband Sattu have given testimony that they were divorced long before Ramrao was bom. The District Court has also pointed out that in respect of the two children born to Mainabai after divorce, the name of Ramchandra has been shown as father in tne Birth Register in respect of these children. In the face or unhesitating testimony of Sattu and Mainabai which has been accepted by the District Court supported as it is by the documentary evidence, the Birth Certificate, it is nit possible for the respondent now successfully to challenge that finding. That finding has to be accepted and that being a finding of fact there is no escape from the conclusion that Ramrao, appellant No. 1, was a Dasiputra of Ramchandra.
7. Mr. Phadke learned counsel ror the responaems, has raised one more issue, namely, that it has not been conclusively established that Mainabai was in exclusive Keeping of Ramchandra. Unless Mainabai was so established to be in exclusive keeping of Ramchandra, Ramrao cannot claim the status of Dasiputra. In my opinion, this question is no longer open to debate. It Is an admitted position that the District Court when it first heard tne appeal did not record any evidence as to whether Mainabai was or was not in exclusive keeping of Ramchandra. But this Court in its preliminary judgment has clearly observed that it has been found that Mainabai had been in exclusive keeping of Ramchandra. The only issue regarding which dispute was raised on account of imperfect pleadings, was regarding the fact of divorce being established between Mainabai and Sattu. It is for that limited issue that fresh opportunity was given to the parties toestablish by amendment of pleadings and leading evidence before the trial Court so that there may be no prejudice to either side. Thus, it is not open now to the respondents to contend that the question whether Mainabarwas in exclusive keeping of Ramchandra is open to challenge. It has been held by this Court in its preliminary judgment that Mainabai was in exclusive Keeping or Ramchandra. In view of the finding of the District Court, while certifying the finding of the trial Court, that Mamabai was duly divorced by Sattu there is no impediment now in tne way of plaintiff No. l Ramrao being nero entitled to the status as a Dasiputra. it is not disputed That as a Dasiputra of Ramchandra he is the preferential heir to the respondent Jairam.
8. Thus, the result is that the appeal is allowedand the plaintiff's suit is decreed with costs tnrougnnut,Let a decree be now drawn up accordingly.
9. Appeal allowed.