1. In this ease the question is whether the plaintiff has established his title to a wall or kotda, and a strip of land adjacent to it measuring about nine feet in breadth. The trial Court found in his favour. The lower appellate Court reversed that decree and dismissed the plaintiff's suit with costs. The question of ownership mainly turns on the construction of certain documents, which were produced in the trial Court. The two Courts have considered these documents in detail, and a question has been raised in this Court as to how far we are justified in second appeal in disturbing the finding of the lower Court that the documents and other evidence or circumstances did not establish the plaintiff's claim. That is a question which has been dealt with recently by the Privy Council in Midnapore Zamindary v. Uma Charan Mandal : (1923)25BOMLR1287 , p.c. where it is laid down that:-
To ascertain the date at which a particular holding first began as a definite holding, i.e. essentially a question of fact, even it it is entirely dependent on documentary evidence and no second appeal lies to the High Court from the decision of the District Judge on appeal upon such a question, unless it can be shown that he has misdirected himself in point of law in dealing with it,
2. In the judgment it is said (p 1287):-
Now to ascertain the date, at which a particular holding first began to be held as a definite holding, is essentially a question of fact, and must depend on evidence. That evidence may be, and naturally is, documentary, but the documents admitted in evidence upon that question are really historical materials, and although they have to be construed, and if possible understood, they are not to be treated as involving issues of law merely because they have to be construed. It is not as though they were being construed as instruments of title, or ware contracts or statutes or otherwise the direct foundation of rights.
3. On the other hand, it has often been held by the Privy Council, for instance in Fateh Chand v. Kishan Kunwar I.L.R.(1912) All. 579 : 14 Bom L.R. 1090. that if the construction of a document is necessary for deciding a material question, it is a point of law on which a second appeal can lie. But the latest decision draws a very definite line between oases where the construction is one that can be a question in second appeal and cases where it cannot. In the present case, so far as the plaintiff-appellant bases his claim on a title conveyed to him by the first document, Exhibit 90, I think it clearly is a question of construction of a document as an instrument of title, and so can be the subject of a second appeal.
4. As regards the other documents, what is relied upon is that they do not contain any assertion of defendant's ownership of this particular strip of hand or the wall with description of boundaries, as might be expected if they had really belonged to the defendant or his predecessor-in-title, and that the lower appellate Court was wrong in not giving that importance to the omission which the trial Court gave to it. That, I think, amounts to saying that these documents contain an implied admission that the land is not the defendant's and it really is on the same footing as the proved omission of a party to do a certain act, which similarly is relied upon as going against his case. The sole question in such a case is one of the weight that is to be attached to such an implied admission, and unless the District Judge has misdirected himself in law as to how he should deal with that particular question, I do not, for myself, think that we would be justified in second appeal in upsetting his decree on the ground that we might take a different view as to the weight to be attached to the evidence. However, we have heard arguments at very considerable length on all these documents, and I also am not satisfied that there has been any misconstruction by the lower appellate Court in regard to any of these documents I agree with it in holding that Exhibit 90 does not in fact evidence a family arrangement by which the plaintiff's predecessor-in-title was given this wall and strip of land. It seems to me that to give the word (sic) the effect, which the Subordinate Judge did, is unjustifiable in view of the measurements not being given, so that there is no description of the area of the land referred to. In my opinion, it intended merely to refer to the land provided for building on, as in the other three cases where the measurements are similarly omitted, and the conjunction is used merely to connect two adjectival phrases. Against the construction contended for, is the fact that where extra land was given in another case, this was clearly provided for, as also the recita at the end about other lands being kept joint. As regards the other documents, the District Judge points out that the boundary given is not complete, as is evident from the description given in the document itself, and it is entirely a matter of appreciation of evidence whether the omission to refer to this strip of land really amounts to an admission, on which the plaintiff can rely. Having heard all the arguments, I do not think that there are sufficient grounds for saying that it should be taken as such an admission. This is particularly so in regard to the award, Exhibit 94. It must be remembered that the arbitrators would not be so intent upon giving an exact description of the house dealt with as upon deciding to whom it should be allotted. Even if the defendant's predecessor-in-title had wanted the strip inserted in the boundaries, it is difficult to suppose that the arbitrators would necessarily have given effect to his desire, Similarly, in regard to the defendant's documents, Exhibits, 122-124, there is, in my opinion, no misdirection anywhere. The District Judge has dealt with them in paragraph 15 of his judgment, and it is correct to say, that it is purely a negative piece of evidence.
5. In regard to the plan, Exhibit 108, the Judge has rightly dealt with the matter in paragraph 20. The mere fact that the defendant admitted the plan to be correct does not suffice to establish an admission on his part that this wall was the plaintiff's. The plan was drawn for purposes quite apart from the issue in this suit, and it would be unfair, I think, to treat this statement, which is, in any case, of rather an ambiguous character, as an admission binding on the defendant.
6. In these circumstances, I think that there is no sufficient ground to interfere with the lower Court's decree, and I would dismiss the appeal with costs.
7. As regards the construction of Exhibit 90, both the learned Judges below who disposed of the case know Gujarathi and I will not, therefore, venture to deal in detail with the Gujarathi construction. It appears to me that the single word (sic) is entirely inadequate to bear the weight of meaning and inference and construction sought to be placed upon it for the appellant. Obviously, one writer might use this phrase 'open space for the construction of a Dehelun admeasuring' without the word 'and', while another might insert the word 'and' before the last word. It hardly appears, whether in English or in Gujarati, that the single addition of the word 'and' necessarily implies that the open space is to be understood to be of the same measurements as the other open space awarded to other brothers The lower appellate Court was, therefore, right in holding that the plaintiff-appellant had failed to prove his right to the portion A B C D in the plan. As regards the other three documents, it appears to me very doubtful whether it is open to the appel'ant to ask us in second appeal to consider their evidentiary value and to arrive at a conclusion different from that arrived at by the lower appellate Court.
8. The appeal, in my opinion, fails and should be dismissed with costs.
9. It is unnecessary for the purposes of this litigation to decide whether the whole land A B C D is or is not joint. We, therefore, do not express an opinion on it.