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Mst. Nighona Bai and anr. Vs. Raisingh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 678 of 1951
Judge
Reported inAIR1957MP222
ActsCode of Civil Procedure (CPC) , 1908 - Sections 107
AppellantMst. Nighona Bai and anr.
RespondentRaisingh and anr.
Appellant AdvocateJ.A. Khare, Adv.
Respondent AdvocateR.N. Mishra and ;J.P. Dwivedi, Advs.
DispositionAppeal dismissed
Cases ReferredSee Andoli Udaibhan v. Mst. Jamnabai
Excerpt:
- - gopal bux, air 1940 pc 93 (c), this however applies only to case where the trial judge has decided the case on the credibility of one set of witnesses as against the other, but where the finding is based on inferences from the facts or documents on record, the judge of the first instance is in no better position than the appeal court:.....air 1931 pc; 265 (a), that the court of review should be slow to differ from the opinion of the trial judge as to the credibility of witnesses whom he has seen and heard: 'see also sabhapathi v. huntley, air 1938 pc 91 (b); nand kishwar bux v. gopal bux, air 1940 pc 93 (c), this however applies only to case where the trial judge has decided the case on the credibility of one set of witnesses as against the other, but where the finding is based on inferences from the facts or documents on record, the judge of the first instance is in no better position than the appeal court: see andoli udaibhan v. mst. jamnabai, 194x nag lj 230 (d). the finding of the lower appeal court is covered by this dictum.5. the appeal accordingly fails and is dismissed with costs. it should, however, be.....
Judgment:

Bhutt, J.

1. This appeal was filed by the two plaintiffs, Mst. Nighona and Chandansingh. Mst. Nighona died during the pendency of this appeal and her legal representative was not brought on record. The decree appealed from is one of dismissal of the plaintiffs' claim to possession and damages.

2. It was not disputed that Khasra No. 93/2 of mouza Samarboh belonged to Mst. Nighona and was given on batai to Chandansingh for the year 1949-50. Plaintiffs claimed that the defendants took possession of this field and removed the grass therefrom worth Rs. 100/-. They, therefore, instituted the suit for possession of the field and for recovery of Rs. 100/- as damages. The defence was one of denial of the plaintiffs' allegation that the defendants had dispossessed them and removed grass as alleged.

3. The suit was decreed by the trial Court but was dismissed in appeal. It is contended that the appeal Court was in error in interfering with the trial Court's finding.

4. It is no doubt true, as observed by their Lordships of the Privy Council in Arthur Wijetilaka v. Ranasinghe, AIR 1931 PC; 265 (A), that the Court of review should be slow to differ from the opinion of the trial Judge as to the credibility of witnesses whom he has seen and heard: 'See also Sabhapathi v. Huntley, AIR 1938 PC 91 (B); Nand Kishwar Bux v. Gopal Bux, AIR 1940 PC 93 (C), this however applies only to case where the trial Judge has decided the case on the credibility of one set of witnesses as against the other, but where the finding is based on inferences from the facts or documents on record, the Judge of the first instance is in no better position than the appeal Court: See Andoli Udaibhan v. Mst. Jamnabai, 194X Nag LJ 230 (D). The finding of the lower appeal Court is covered by this dictum.

5. The appeal accordingly fails and is dismissed with costs. It should, however, be understoodthat the dismissal is not based on any question oftitle which was not denied by the defendants.


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