1. This is a reference submitted to the High Court under Rule 17 of the rules and orders relating to the Kumaon Division.
2. This High Court is asked to give a ruling as to whether the Commissioner was right in upsetting the judgment and decree of the first appellate Court on a point of fact by taking into consideration the evidence on the record on which the first appellate Court had come to a contrary conclusion. The position is this: We are not asked to say whether we prefer the judgment of the Commissioner or the judgment of the District Judge. What we are asked to do is to consider what was the matter in dispute between the parties, by what documents and evidence the case was proved, what were the documents and evidence which led the District Judge to the conclusion at which he arrived, and what were the documents and evidence which led the Commissioner to the conclusion that be arrived at, and was he the Commissioner entitled to come to a contrary finding which in effect upset the District Judge on a finding of fact. It is necessary just to give an outline of the case so that the position may be understood. The plaintiffs claimed recovery of possession of a certain field and declaration of rights over another area of land. The point that really arose was this. What was the extent of the interest of the plaintiffs' vendors in the land which they, the vendors, purported to convey in its entirety to the plaintiffs? The District Judge had to come to a conclusion as to the relationship which the hamlet called Kanwaldhurra bore to the neighbouring village of Baghar, and after reciting that the vendors to the plaintiffs were cosharers of Kanwaldhurra and defendants 1 to 4 were cosharers of Baghar, he then goes into certain matters of history of the two villages, as he describes them, and he points out circumstances which show, on the one hand, that the villages are separated and on another view of the case that the hamlet was considered to be an appendage to the village. He then considers the bearing on the case of an important document which he describes as the razinama of 1844. From what he considers to be the true construction of that document, he infers that the villagers
apparently agreed that Kanwaldhurra should be separated and there was in the razinama a reference to a sale or decree by which the Kanwals of Kanwaldhurra from whom the plaintiffs derived title had obtained 4 thoks.
3. Then the learned District Judges deals with a partition of 1885, and he recites what was done at that partition and he infers from the documents before him that the khatas in suit were not Saujaitgaon of the whole village of all the cosharers. He thought that the entry showed that the khatas and fields in suit still remained notwithstanding the razinama of 1844, the property of certain co-sharers and that the whole right, title and interest of these properties had not passed exclusively to the plaintiffs vendors. That was the conclusion which the learned District Judge drew from a construction of various documents the most important one being the razinama of 1844. In the result he decided that the plaintiffs were only entitled to the extent of the shares which were laid down in phant and munthakhib. That was as regards one plot of land and he disallowed their claim for possession over plot 5497, Now the question which we have got to answer is, whether, when a matter of this kind comes up in appeal, the Commissioner is bound to accept the interpretation which the District Judge has put upon a particular document.
4. Our answer to that question is that it must depend upon what is the nature of the document. If the District Judge gives what he considers to be the proper construction of instruments of title or of contracts or statutes or any other documents which may be the direct foundation of rights, his view of the legal effect of such documents may undoubtedly be questioned before the Commissioner. If, however, all that he is called upon so do is to consider the history of a case by collecting together and putting in their chronological order sale-deeds, mortgages leases, etc., and all these documents are mere pieces of evidence involving no question of construction, then the inference which the District Judge draws from those mere pieces of evidence is a fact which cannot be over set by the Commissioner. The distinction is a somewhat fine one and the case which is relied upon as an authority is Midnapur Zamindary Company Ltd. v. Uma Charan Mandal AIR 1923 PC 187. The test, therefore, in all these cases is, is the conclusion of fact which in appeal a party seeks to get rid of by argument before the Commissioner a question of fact founded upon the effect of a series of documents or of one document quite apart from any difficulties of construction treating the documents as being narratives of events recorded in them. If they are merely narratives of events recorded in them such as 12 documents produced to show that the ryots in a certain village were unable to sell their houses, and if the phraseology of the documents is such that they give rise to no difficulties of construction, those documents must be treated as part of the history of the case and a conclusion founded upon them cannot be made the subject of appeal. If, however, the documents, which are transfers and are tendered to prove the right of ryots to transfer their houses, give rise in the very body of the documents to questions of nicety of construction, then whatever decision the District Judge may come to can be challenged in appeal before the Commissioner. That appears to be the principle underlying the Midnapur Zamindari Company case AIR 1923 PC 187. Applying that principle to this case we are of opinion that one has only to examine the method by which the District Judge approached the razinama of 1844 to prove that he was there endeavouring to ascertain what were the legal rights created. And similarly when one examines the manner in which the Commissioner of the Kumaon Division approached that document, he was clearly endeavouring to give to it what he regarded as its legal construction. He said:
It does seem to me that the iqrarnama which evidences the transaction, does amount to an admission that the Baghar people had given up all Interest in the Simal thok and can hardly now claim part ownership in the Sanjait land therein.
5. That construction may have been the right one or may have been the wrong one; with that we have no concern. We are of opinion that in this particular case both the Courts were required to consider instruments of title and documents which were the direct foundation of rights. That being so, we are of opinion that our answer to this reference must be that the Commissioner was right in holding that he was entitled to reverse the judgment and decree of the first appellate Court by taking into consideration the evidence on the record on which the first appellate Court had come to a contrary conclusion. Let this answer be returned to the Local Government.