1. This is a Letters Patent appeal from the decision of Mr. Justice Sen. The present appellants were the plaintiffs in the suit filed in the Ahmed-nagar Court, The plaint was to obtain possession of a certain site of land admeasuring 45'-10' X 39'-5', being part of survey No. 5578, Municipal No. 5624. The defendants are representatives of a Masjid and the suit was filed against them in that character. Three issues were raised. The first was whether the plaintiffs prove their ownership to the plaint property, and (2) whether the plaintiffs prove their possession within twelve years before the suit. The trial Court found in favour of the plaintiffs both these issues and held that the property claimed belonged to the plaintiffs. An appeal was preferred against that decision to the District Court of Ahmednagar where also similar issues were framed and answered in favour of the plaintiffs. Original defendants preferred a second appeal and persuaded Mr. Justice Sen to hold on a perusal of the documents that the title to the open land claimed by the plaintiffs was not conveyed to them. We notice from the judgment that the learned Judge arrived at his conclusion with considerable hesitation.
2. The first objection raised by the appellants herd is that the learned Judge erred in entertaining the argument of the present respondents (the original defendants) as it involved a question of fact. It is not disputed that if the decision is on a queston of fact it is not competent in second appeal to go into that question. It has been urged that the question is not of fact as it depends on the construction of title-deeds and that is a question of law. On this point our attention has bieen drawn to Wall Mohammad v. Mohamnad Baksh (1929) 32 Bom. L.R. 380 where their Lordships of the Privy Council laid down five propositions for deciding what questions could be properly discussed in second appeal. They run as follows (pp. 384-385) :-
(1) There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross the error may seem to be.
(2) The legal inference to be drawn from proved or admitted facts is a matter of law, or, in other words, the proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact.
(3) Where the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of rights but were really historical materials, have to be construed for the purpose of deciding the question.
(4) A second appeal would not lie because some partion of the evidence might be contained in a document or documents and the first appellate Court had made a mistake as to its meaning.
(5) The question whether a statutory presumption is rebutted by the rest of the evidence...is always a question of fact.
3. In Sahebrao v. Jaiwantrao : (1933)35BOMLR816 which is again a judgment of the Judicial Committee, it was stated as follows :
Where plaintiffs claimed to be entitled as co-sharers to a part of the lawajama (cash pension or allowance) received by the defendant and the lower appellate Court on the evidence negatived the plaintiff's claim and found that it was not proved that the lawajama was included in the watan or hereditary endownment :-
Held, that this was a finding of fact by the lower appellate Court, and there being no misconstruction by it of the entries in the Inam documents, and a mistaken inference from documents being an error not of law but of fact, the judgment of the lower appellate Court was not liable to be reversed by the Judicial Commissioner on second appeal as being contrary to law.
In course of the judgment it is stated (p. 822) :-'Unless there has been misconstruction a mistaken inference from documents...is an error not of law but of fact.' In Secretary of State v. Ratneshvaram Devasthmam : (1934)36BOMLR539 the Judicial Committee had again to consider the question what could be considered in second appeal and observed as follows :-.the High Court has no jurisdiction to reverse the findings of fact arrived at by the lower appellate Court, however erroneous, unless they are vitiated by same error of law. This rule is equally applicable to cases in which the findings of the lower appellate Court are, based on inferences drawn from documents, not being themselves instruments of title or otherwise the direct foundation of rights, but are exhibited as mere items of evidence.
On behalf of respondents it was urged that in the present case what Mr. Justice Sen was called upon to do was to construe the documents of title and to arrive at a conclusion as to whether plaintiffs had proved their title to the land.
4. In our opinion this was not a question competent to be decided by the High Court in second appeal. The documents to which our attention has been drawn in detail raise no points of construction. The words used are explicit and require no construction. The question is whether having regard to what is stated in the documents it is proper to infer that title to the land in question passed to the plaintiffs' predecessor or not. There is no question of misconstruction of documents. The question is what is the proper inference to be drawn from the documents whose construction is not open to any controversy. We therefore think that the question involved in this litigation, as presented to Mr. Justice Sen, was a question of fact and a second appeal was not competent to the High Court. On that ground this appeal should be permitted and the judgment of the First Class Subordinate Judge of Ahmed-nagar confirmed.
5. As our attention has been drawn to the conveyances we must observe that the whole fallacy underlying the contention of the respondents is that the documents in which boundaries are described in different years must be held to be the same. It overlooks the obvious contingency that in the interval adjoining lands may have changed hands and may be incapable of being described in the same terms for describing the boundaries. It appears that the Survey Inspector was called upon to make a report and prepare a plan. The Inspector was not examined in Court but his report has gone in. A large portion of that document consists of facts taken from other documents. That report does not necessarily prove that the contents of other documents, from which the materials are gathered, are authentic or reliable to fix the boundaries on either side. In our opinion Mr. Justice Sen had also overlooked the fact that the question of ownership was not agitated in the lower Courts only on documents of title but on the several other records from which extracts were produced. There was also oral evidence of possession which was considered as supplementary proof of the title. As mentioned in the fourth proposition in Wall Mohammad v. Mohammad Baksh (1929) 32 Bom. L.R. 380 the conclusion arrived at by the two lower Courts was a result of the conveyances and other evidence. It is therefore not within the competence of a party to agitate in second appeal a question of fact decided under those circumstances.
6. The appeal is allowed with costs throughout. The decree of the learned First Class Subordinate Judge is restored.