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Bhagoji and anr. Vs. Bapuji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom75
AppellantBhagoji and anr.
RespondentBapuji
Excerpt:
.....is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - 3. in deciding this appeal it was incumbent on the assistant judge to hate determined the facts for himself from the evidence......defendants are bound by these findings, as they took no objection in his court to the subordinate judge's decree. but that decree was in their favour. the facts found by the subordinate judge did not appear to him to warrant the inference which the assistant judge afterwards in appeal drew from them; and the assistant judge should not have accepted the facts on which he based his decision as incontestably proved, merely because no objection to the decree was filed under section 561 of the code of civil procedure. he should himself have dealt with the evidence in the case, and found on it whether the alleged gift was proved or not. the decree must now be reversed, in order that the appeal may be reheard. at the rehearing the lower appellate court should have its attention directed to the.....
Judgment:

Birdwood, J.

1. It appears to us that the lower appellate Court, in arriving at its finding in favour of the gift of land relied on by the plaintiff, has adopted an improper method of dealing with the evidence. The Subordinate Judge had found against the alleged gift, but held that, at the marriage of the plaintiff's daughter-in-law Jaya, through whom the plaintiff claims, her father Bhagoji, who is defendant No. 2's vendor, made her a gift of land orally, and had the land in dispute transferred to her name in the Collector's books, and up to 1878 (when Jaya died) made payments of rice annually to the plaintiff. The Assistant Judge is of opinion that the defendants are bound by these findings, as they took no objection in his Court to the Subordinate Judge's decree. But that decree was in their favour. The facts found by the Subordinate Judge did not appear to him to warrant the inference which the Assistant Judge afterwards in appeal drew from them; and the Assistant Judge should not have accepted the facts on which he based his decision as incontestably proved, merely because no objection to the decree was filed under Section 561 of the Code of Civil Procedure. He should himself have dealt with the evidence in the case, and found on it whether the alleged gift was proved or not. The decree must now be reversed, in order that the appeal may be reheard. At the rehearing the lower appellate Court should have its attention directed to the ruling in Fatma v. Darya Saheb 10 Bom. H.C. R 187 in which it was held that the Collector's book is kept for purposes of revenue, not for purposes of title. The fact of a person's name being entered in the Collector's book as occupant of land does not necessarily of itself establish that person's title or defeat the title of any other person.

2. We reverse the decree of the lower appellate Court and remand the appeal for re-trial. Costs to abide the result.

Parsons, J.

3. In deciding this appeal it was incumbent on the Assistant Judge to hate determined the facts for himself from the evidence. He ought not to have held the appellants bound by the facts found by the Subordinate Judge, merely because they took no objection to the decree. That decree was entirely in their favour; the facts found were in the opinion of the Subordinate Judge also in their favour. Moreover, the presumptions drawn by the Assistant Judge are so opposed to those drawn by the Subordinate Judge from the same facts that they cannot be accepted without some grounds being shown to justify them. None such appears in his judgment, For instance, unless there is some evidence that the rice paid bore some proportion to the produce of the land in suit, the presumption that the rice was the produce of the land in dispute appears hardly sustainable, while the facts that the rice was only paid during Jaya's life-time and that Bhagoji always paid the assessment have not been considered at all. Again the Assistant Judge says that the second defendant is not entitled to plead his purchase for valuable consideration, as the fact of the lands being entered in Jaya's name was sufficient to put him on enquiry as to her title. This statement is not correct, since 'the fact of the entry of the person's name in the Collector's boots does not of itself establish that person's title or defeat the title of another'--Fatma v. Darya Saheb 10 Bom. H.C. R. 187. It has never yet been held that an entry in the Collector's books is of the same effect as registration. I concur, therefore, in reversing the decree and remanding the appeal for a rehearing.


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