Daniels and Neave, JJ.
1. This is a defendant's appeal arising out of a suit for damages for defamation. The undisputed facts are that the 'defendant is the mukhia of Tillage Bisalpur. About the 1st or 2nd of October one Ishura Ban-jara, who had been in the service of the plaintiff, disappeared from the village. Nothing was heard of him for a week or More, and his father was in great distress about him. The mukhia went to the Superintendent of Police and made a report about the disappearance. At the bidding of the Superintendent, this report was taken down in writing, and it is in this that the defamation complained of is contained.
2. The report recited that it was rumoured that Ishura had stolen some gram belonging to the plaintiff, and that the plaintiff with two other men had beaten him till he fell down senseless. Since that time Ishura had disappeared, and it was rumoured in the village that he was dead. The mukhia had-further been informed that the missing youth's parents had been warned to make no report on peril of a beating. He stated that he himself had made a search in the village, but could find no traces of the missing man, and he asked that ' inquiry should be made.
3. The plaintiff brought this suit claiming Rs. 1,000 as special damages.
4. The trial court in a long and careful judgment found that the libel alleged' was true in substance, and that the report was made by the defendant in the discharge of his duty as mukhia and not maliciously. It further found that no special damages had been proved, and that if the defendant were to be held liable for damages at all, they should not exceed Rs. 200.
5. The lower appellate court in a very perfunctory judgment has stated that there is no evidence on the record that Ishura had ever been beaten by the plaintiff and that there is no evidence on the record that there was any rumour that Ishura had fallen down and had been removed, or that he was dead. The learned vakil for the appellant contends that both these statements are incorrect, and that the learned Judge's findings, though they purport to be findings of fact, for that reason are not binding on this Court in second appeal. He has taken us through part of the record and has shown** that, as a matter of fact, there is evidence on the record to prove all these facts referred to. Two witnesses depose to the beating of Ishura by the plaintiff and six to the general rumour in regard to the other matters.
6. The learned Judge has wound up by stating, 'when it is shown that the major portion of the report was false, malice would be implied.' Before this can be accepted as a correct statement of the law, the words 'to the knowledge of the person making the report' must be inserted after the word 'false.' It is clear that in arriving at the finding as to the falseness of the report, the learned Judge was misled by his failure to realize the existence of evidence as to the rumours referred to by the mukhia in his report. It is to be observed that the mukhia made none of the statements in this report as of his own knowledge but only professed to give information which he had derived from general rumour. As is observed by the trial court, it was part of his duty as mukhia to report to the police any mysterious disappearance, and failure to do so would have rendered him liable to punishment.
7. It has been held in Govind v. Vithal (1896) I.L.R. 20 Bom. 753, that a finding on an issue of a lower appellate court which is based on a misconception of what the evidence is, cannot be accepted in second appeal as a legal finding on it. In the present case it is clear that the lower appellate court has completely misconceived the real nature of the evidence. We dissent entirely from its findings and allow the appeal. The plaintiff's suit is accordingly dismissed with costs in all courts.