1. This second appeal has arisen from a suit brought by the appellant for recovery of possession of plot No. 258 with trees standing' thereon. The trial Court decreed the suit. The lower appellate Court dismissed it.
2. It is common ground that the plaintiff owned what looked on the spot like a grove surrounded by a ditch all round. It, is however composed of two distinct plots, No. 257 area 753 karis or one bigha 6 bis was 14 dhurs and No. 258 area 97 kari or 3 biswas 9 dhurs. There are tiroes all over the grove on both the plots. The plaintiff executed a sale-deed in favour of the defendant in 1925 in respect, of a grove which is described in the body of the sale-deed as No. 257, area 753 karis, bounded as stated at the foot of the deed. The boundaries include not only plot No. 257, but also No. 258. The lower appellate Court treated it as a case of ambiguity and proceeded to decide on evidence whether the sale-deed was meant to cover the enitire grove, including plots No. 258, as alleged by the defendant, or only No. 257, as alleged by the plaintiff. There was, oral evidence on both sides which the lower appellate Court did not consider to be quite reliable. On the documentary evidence and certain circumstances referred to in the judgment that Court held that the plaintiff sold the entire grove, including No. 258, and that the defendant, has, been in possession of the entire grove ever since the date of sale. On that, finding the plaintiff's, suit was dismissed.
3. The learned advocate for the appellant argues, that this was not a case of latent ambiguity and that extrinsic evidence was not admissible. He points out that the sale-deed clearly mentions the area of the property sold besides its number and that the vendee is not entitled to any area in excess of what, is mentioned in the deed. If there had been nothing else in the sale-deed, this argument would have been unanswerable but the document must be taken as a whole and if there is inconsistency between two parties of it, there can be no doubt, whatever, that the case is one of ambiguity. The deed purports to convey plot No. 257 subject to the qualification, viz., the area enclosed within the boundaries set forth at the foot, of the deed. The defendant's case was that the plaintiff showed to him on the spot, the grove which was enclosed by a ditch, on all sides of it. and that the parties entered into the transaction of sale in respect of the entire grove which at that time was considered to be only No. 257 with an area of 753 karis. This lower appellate Court has found that, the defendant has been in possession of the entire grove, including No. 258, ever since the date of sale. The plaintiff himself admits that he (the defendant) is in possession of No. 258, because the present suit is one for possession. 'The 'khatauni' of 1334 Fasli which corresponds to 1926-27, records both plots Nos. 257 and 258, in the name of the defendant as grove-holder. In all subsequent years the same entry is found. Learned advocate for the appellant attempted to explain away the entry in the khatauni of 1334 Fasli on the ground that plot No. 258 is, shown in red ink. It does, not however appear what significance of the entry in red ink is. He suggests that plot, No. 258 was subsequently entered in the defendant's grove khata. This may be so. The fact remains that the plaintiff did not take any exception to the defendant's possession for nearly 8 years, or to the entries in the 'khatauni.' This fact is strongly relied upon by the lower appellate Court, which refers to one or two other circumstances which, according to it, give rise to an inference in favour of the defendant.
4. It is conceded that the finding arrived at by the lower appellate Court is one of fact and is supported by, at least, some evidence. The only contention which is put forward on behalf of the appellant is that the lower appellate Court was not justified in entering into the question as to whether anything more than plot No. 257 was sold. In my opinion Section 97, Evidence Act is fully applicable. It provides that, when the language used applies partly to one set of existing facts and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show which of the two it was meant to apply. In the present case, the language of the deed, so far as the boundaries are concerned, is indicative of the fact alleged by the defendant, namely, that the whole of the grove was sold. Another part of the deed, which refers to the number and area, is indicative of the fact alleged, by the plaintiff, namely, that part only of the grove that is to say. No. 257, was sold. In this state of things, evidence is clearly admissible to show whether it was meant that, the deed should convey the whole of the grove or only part of it. In my opinion, the lower appellate Court was justified in admitting extrinsic evidence. As already stated, such evidence being admitted, the finding of the lower appellate Court is one of fact and cannot be questioned in second appeal, which is accordingly dismissed, with costs.
5. Leave to appeal under the Letters Patent is refused.