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Bijadhar Bhagat Vs. Jeat Chamar - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All518; 80Ind.Cas.601
AppellantBijadhar Bhagat
RespondentJeat Chamar
Excerpt:
letters patent (allahabad), clause 10 - letters patent appeal--finding of fact, whether can be questioned--procedure. - - 1. we are satisfied that this decision is right and that it would be idle to issue notice. if he does not like that capacity and repudiates ram kishun, then he becomes a mere trespasser. we wish it to be clearly understood that in matters of law, like a second appeal in this court, the position is not the same as an appeal from a trial, where the evidence and the findings of the judge can be reconsidered in the appellate court......we desire also to say that even if it were not, we should decline to listen to an appeal against a statement of fact in the judgment to which counsel themselves have made themselves parties. we wish it to be clearly understood that in matters of law, like a second appeal in this court, the position is not the same as an appeal from a trial, where the evidence and the findings of the judge can be reconsidered in the appellate court. the judge is required by law to express his opinion on the question of law submitted to him, and if counsel choose to submit to him questions of law based upon a statement of facts which they do not challenge, in fact which they convey to the court, they cannot afterwards be heard to question it in a letters patent appeal. in other words, the judge's judgment.....
Judgment:

1. We are satisfied that this decision is right and that it would be idle to issue notice. The case had got into a muddle by the time it reached our brother Mr. Justice Kanhaiya Lal, but on the view of the evidence taken by him, there can be no doubt that the law laid down is correct. The point is quite simple. It is found that Manohar, the predecessor of the plaintiff, was the holder of an occupancy tenancy. This he purported to lease in 1897 for 23 years to one Ram Kishun, the Zemindar of the village. It would appear doubtful whether Ram Kishun interested himself very much in the tenancy, and whether he actually cultivated or occupied, but there is no doubt that at a later date, Bijadhar, who was also defendant in the suit, came into possession. If he came into possesssion with the permission of Ram Kishun, he would be either his sub-tenant or assignee. He would, therefore, be lawfully in possession. Mr. Das says that he has been found to he the Zemindar. It may be so, but it does not appear exactly how. Mr. Das says it is immaterial, but we can only suppose that it is either by purchase from Ram Kishun or by some other method known to the law, but inasmuch as the transaction was subsequent to the lease, it could not affect the lessor's right, and, therefore, Bijadhar being in possession, could only claim to be so through Ram Kishun the lessee. If he does not like that capacity and repudiates Ram Kishun, then he becomes a mere trespasser. Bijadhar, having appeared upon the scene, got his name entered as in possession and this property entered as his khudkasht. This moved the plaintiff into activity and produced this suit. He treated it as what has been called a 'cloud upon his title' and sued for a declaration. He could not claim possession as he had leased the property.

2. The mere statement of these facts is sufficient to show that the plaintiff had a clear case to which there was no defence. All sorts of defences were raised, and it is difficult to understand the law, either of the Assistant Collector, or of the District Judge. The most serious thing is a finding of fact in favour of Mr. Das client, namely, that the lease was fictitious. But fictitious is an ambiguous phrase and nobody suggests that it did not exist. Indeed the District Judge complains that Ram Kishun refused to produce the document and the lower Court had to rely on a certified copy. We agree with Mr, Justice Kanhaiya Lal that there was no evidence upon which the Court in this case would find that the lease was fictitious. Upon these facts, extracted with difficulty from the cloud of misunderstanding in the Courts below, Mr. Justice Kanhaiya Lal has applied the law correctly and it is impossible to find fault with his judgment. Mr. Das was originally instructed, when opening the appeal, to challenge the statement of the learned Judge that Bijadhar was the successor-in-interest of Ram Kishun. We think that this a correct statement of the portion, but we desire also to say that even if it were not, we should decline to listen to an appeal against a statement of fact in the judgment to which Counsel themselves have made themselves parties. We wish it to be clearly understood that in matters of law, like a second appeal in this Court, the position is not the same as an appeal from a trial, where the evidence and the findings of the Judge can be reconsidered in the Appellate Court. The Judge is required by law to express his opinion on the question of law submitted to him, and if Counsel choose to submit to him questions of law based upon a statement of facts which they do not challenge, in fact which they convey to the Court, they cannot afterwards be heard to question it in a Letters Patent Appeal. In other words, the Judge's judgment must be judged with respect to the law laid down by him, in accordance with the facts stated at the Bar. The proper remedy, if there has been any misunderstanding or slip, so that an erroneous statement of fact has crept into the judgment, owing to a slip by Counsel or a misunderstanding by the Judge, is to go back to the learned Judge in review, and ask him to review his judgment on the ground that he has decided the law upon a misunderstanding of what the facts found in the Court below were. We wish Counsel to understand that they must not allow the Judge to decide a point of law upon one hypothesis of fact to which they are parties, and then come up and argue a point of law on another hypothesis altogether. This appeal must be dismissed.


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