V.D. Bhargava, J.
1. This is a plaintiffs appeal arising out of a suit for declaration of the plaintiff's right, or in the alternative, for possession over certain zamindari property specified at the foot of the plaint.
2. According to the plaint the plaintiff's father Beni Prasad Pande and Jamna Prasad Pande were real brothers and they were joint. Jamna Prasad died on 23-11-1943, leaving behind him his widow Smt. Ramraji who was defendant No. 2 in the court below and a daughter Smt. Chhabraji, defendant No. 1. Both of them are dead and it is the adopted son of Chhabraji who is respondent in the present case.
3. The plaintiff's case was that according to the Hindu Women's Right to Property Act, Smt. Ramraji was only entitled to a widow's estate but she surrendered the same in his favour by executing a deed dated 31-1-44 by virture of which the plaintiff said, he became the exclusive owner and was entitled to the declaration, or if he is found to be out of possession, the possession of the plots in dispute.
After the deed of surrender the plaintiff applied in the revenue Court for the mutation of his name which was opposed by Smt. Chhabraji, defendant No. 2, and on her opposition his name was not brought on the record and this has necessitated the suit. Defendant No. 1 denied that the plaintiff and her husband Jamna Prasad formed a joint Hindu family and she also denied the execution of any deed of surrender. She pleaded that Jamna Prasad died in a state of separation. She also denied that Smt. Ramraji was the widow of Jamna Prasad, and according to her, the wife of Jamna Prasad had predeceased him and the deed executed by the socalled Ramraji was not binding and it was a fictitious transaction, Smt. Ramraji did not contest the suit.
4. Several issues were framed on the pleadings, but there had been a statement by counsel for the parties to the effect that only decision on issue No. 1 may bo arrived at and if the decision was in favour of the plaintiff then the suit should be decreed irrespective of the other defences and if the decision on that issue was against the plaintiff then the plaintiff's suit should be dismissed. Issue No. 1 was to the following effect ;
'Was Jamna Prasad at the time of his death, in 1943 a member of a joint Hindu family?'
The trial court considered the evidence on the record and came to the conclusion that Jamna Prasad was joint, and decided the issue in favour of the plaintiff and, therefore, decreed the suit. Against that decision the defendant went up in appeal and the appellate court has come to a contrary finding, namely, that Jamna Prasad was separate at the time of his death and, therefore, dismissed the suit. Against that decision the plaintiff has come in appeal to this Court.
5. The first ground which has been argued by learned Counsel for the appellant is that the decree passed by the trial court was a consent decree and, therefore, on account of Section 96, C, P. C., no appeal lay to the lower appellate court, hence the decree passed by the lower appellate court was without jurisdiction. This ground was not taken by the plaintiff before the lower appellate court, nor has it been taken in the grounds of appeal though as many as 19 grounds have been taken in the case, which cover three typed foolscap pages. However, I do not think there is much substance in that argument.
6. Learned Counsel for the appellant had placed reliance on several authorities which, in my opinion, do not touch the point in dispute at all and they are not relevant for the decision of the present appeal.
7. Learned Counsel far the appellant while placing reliance on the authorities argued that if the court adopts a special procedure, or if the matter is referred to the decision of the court or to a certain person then in that event, the decision arrived at is a consent decree and no appeal would He. I cannot, and I do not, doubt the correctness of this proposition, and this is what all the authorities cited by learned Counsel lay down. But the question is whether any special procedure had been adopted or not in this case and if so, whether it was such a special procedure which will make it a consent decree. The question has to be considered in each individual case separately and no broad proposition of law can be laid down.
8. In Makudam Mahommad v. Mahommad Sheik Abdul Kadir AIR 1930 Mad 856 (A) it was laid down -
'Where a party invites the Court to adopt a procedure which is not contemplated by the Code of Civil Procedure and is in fact a procedure extra cursum curiae, he cannot afterwards turn round and say that the Court is to be blamed for adopting the very procedure which he invited the Court to follow. The doctrine of estoppel would apply to him. The judgment of the Court is in the nature of an arbitrator's award, and as a general rule, no appeal from it would lie.'
9. In the above case both the parties agreed that a Commissioner be sent by the Court and if the key produced by defendant No, 2 could open the door of the house the suit should be dismissed, otherwise the suit should be decreed. There, in that case the matter had to be decided on one fact alone and had not to be decided on the merits.
It was the finding of that fact and that factalone which was to determine the decision, while in the present case the parties had agreed that only one issue be decided on merits, not in any arbitrary manner or in any other manner different from the usual mode in which the other suits are decided. The respondent never wanted to resile from the agreement nor the agreement was analogous to a reference to arbitration, so that the court's decision may he called 'in the nature of arbitrator's award.'
10. Another authority relied on by learned Counsel for the appellant was Jaggu Mal v. Brij Lal : AIR1930All127 . In that case both the parties had agreed to abide by the decision of the Munsif who was to decide after making inspection. Ordinarily, as has been mentioned in that decision itself, a Court is not bound to make inspection. By that decision, when the parties agreed to abide by the Munsif's inspection, the Munsif was in the position of an arbitrator and his decision will have the same sanctity as that of an award by an arbitrator. Hera in the present case nobody had been made the sole judge of the question irrespective of the merits.
11. Baij Nath v. Dhani Ram : AIR1929All577 is another case of the same nature. There also the case depended on the inspection ot the locality by the Munsif and also in the case of Sita Ram v. Peare : AIR1925All558 .
12. In all the above decisions there would be an element of arbitration on the part of the Munsif and the decision would not depend on the evidence produced in the case. The parties in this case did not want a decision on other questions which were raised and each party gave up its position as regards other issues and the decision of the whole case was to depend on the decision arrived at after going through evidence and not arbitrarily on the whim of any person.
13. Reliance was also placed on Ramchandra Dec Garu v. Chaitana Sahu AIR 1920 PC 139 (E). So far as the giving up of other issues is concerned, that case is very similar, but the manner in which the remaining issues were to be decided was entirely different. In that case the plaintiff had filed the suit for a certain amount of money on accounts stated. The suit was time barred but the defendant gave up that plea and said that he would be prepared to pay the amount which the plaintiff had proved.
The amount which the plaintiff proved was admitted by the defendant and a consent decree was passed. Thereafter the defendant wanted to challenge that decree and it was held that there could not be a reinvestigation of a decree which was passed with consent. The portion of the judgment which makes it clear that it was with the consent of the defendant that the decree was passed, is in the following terms.
'The defendant having, however, consented, the learned Judge made an order for a particular sum, directed that the plaintiffs should pay the costs of the suit and disallowed interest from the plaint to the date of the decree.'
Thus, there was consent about the amount which had to be decreed, and if that was so, it would clearly be a case of a consent decree. Here I have not been able to find any consent being given to any decree being passed. In a consent decree when the parties come to terms, the decree could be passed in terms of the compromise or in terms of the consent.
Here if the court were to pass any decree without investigation, it would not have been possible to pass a decree. Therefore in this case it will be a misnomer to call this decree a consent decree. This is a decree which was passed, after certain pleas had been given up, on merits and on merits alone. Therefore, the appeal to the lower appellate courtwas a proper appeal.
14. As is clear from the issue, it was an issue on a question of fact and the finding of fact arrived at by the lower appellate court is binding upon me in second appeal, but the learned Counsel for the appellant challenged that finding on two grounds. Firstly, he had argued that the burden of proving jointness was wrongly laid on the plaintiff. There was a presumption and a presumption strong enough in his favour, according to him, of jointness between the uncle and the nephew and that the burden of proving separation should have been on the defendant.
15. It is true that to a certain extent the court erred in placing the burden on the plaintiff. Rut there are two points to be considered. Firstly, the case has not been decided on burden of proof, but it has been decided on believing the evidence of the defendant and disbelieving the evidence of the plaintiff. In case when both the parties lead evidence and the case is decided after evaluating the evidence of both the sides then the question of burden of proof loses its significance.
16. Secondly, I would say that the strong presumption of jointness which existed about 25-30 years ago is no longer as strong as it used to be. Lack of brotherly feelings, lack of willingness of the earning members to support the non-earning members of the family, desire to live independently, certain recent legislations, cost of living and many other factors have contributed towards the change in the attitude among the members of a Hindu family, and to-day there are very few families where it could be said that presumption of joint-ness between the uncle and the nephew would be taken to be as strong as it could be taken 25-30 years ago. In the present times much less evidence is necessary to rebut that presumption of jointness. Therefore much reliance cannot be placed by the appellant, on the ground of presumption.
17. The second ground on which the finding of fact was challenged, was, that the evidence given on behalf of the defendant about separation was not enough in law. The evidence on which reliance has been placed by the court below is three-fold; Circumstantial, documentary and oral. As regards circumstantial evidence, the court has come to the conclusion that their living and messing separately was a very strong fact to be taken in favour of separation.
On the documentary evidence the court has relied on certain khasra entries wherein the uncle and nephew were having separate cultivation. On the oral evidence the court has relied on six defence witnesses who had been produced and they have been believed. I cannot say that in the circumstances the court was not justified in finding separation as proved. That finding being a finding of fact is binding upon me in second appeal. The appeal in accordingly dismissed with costs.
18. Leave to file special appeal is asked for and is refused.