S. Acharya, J.
1. Defendants 2, 3, 4, 8 and 9 have preferred this appeal against the decision of the Subordinate Judge, Kendrapara affirming the decision of the trial court declaring the plaintiff's title and possession over the suit land.
2. The plaintiff's case, bereft of the unnecessary details and relevant for the points raised in this second appeal, is as follows:--
In the year 1924 Biswanath, Damo-dar. Jagabandhu and Radheshyam purchased the sikmi right in the suit land from one Chaitan Samal, and thereafter in the year 1928, they purchased the occupancy right in respect of the same land from one Khetrabasi Bhadra. The land remained vacant even after its purchase by the above named four persons, and as the plaintiff wanted the said land to build a cow-shed thereon. Biswanath Damodar. Jagabandhu and Radheshyam sole the suit land orally to him for a consideration of Rs. 40/-, about 25-26 years prior to the institution of the suit. As the vendors were rich and influential persons and were not willing to execute a sale deed in that respect, and as the said purchase was for Rs. 40/- and delivery of possession of the suit land was given to the plaintiff in accordance with the said sale, the sale was not effected by a registered document. The plaintiff, after purchasing the suit land, built a cow-shed thereon towards its southern side and planted cocoanut trees on the rest of the land. In and from the year 1958 the defendants created disturbance in the peaceful possession of the plaintiff due to which there were criminal cases between the parties. Being thus disturbed in his possession the plaintiff instituted the suit for declaration of title, confirmation of possession, and for recovery of Rs. 300/- towards damages caused to the plaintiff by demolishing the structure on the suit land and by removing the materials thereof. In the alternative the plaintiff also claimed right over the suit land by adverse possession.
3. Defendants 3 and 4 contested the suit by filing a joint written statement. Defendant No. 2 subsequently appeared in the suit and adopted the written statement filed by defendants 3 and 4. Other defendants did not appear and were set ex parte. The above mentioned contesting defendants admitted that the suit land was purchased in the year 1924 by Biswanath. Damodar. Jagabandhu, the three brothers, along with Radheshyam. The above mentioned three brothers had half share and Radheshyam alone had half share in the said property. They denied the plaintiff's above mentioned case of purchasing the suit land by oral sale and his claim to possess the same. They claimed to be in possession of the suit land by keeping their cattle in the shed standing thereon and by planting cocoanut trees on the vacant portion of the same. They averred that their pre-decessors-in-interest were in possession of the suit land from 1924. and the defendants reconstructed the structure standing thereon in the year 1958. Other plaint allegations were also denied.
4. The learned Munsif. on an elaborate consideration of the evidence on record, both oral and documentary, found that the plaintiff purchased the suit land from the above named Biswanath, Damodar, Jagabandhu and Radheshyam by an oral sale for a consideration of Rs. 40/-some time in the year 1937, and that the plaintiff had been in possession of the suit land since then. He, however, dismissed the plaintiff's claim for a sum of Rs. 300/- towards damages.
5. The appellate Court also on cogent and elaborate consideration of the oral and documentary evidence on record, arrives at the finding that the plaintiff purchased the suit land from the above named persons, who were the predeces-sors-in-interest of the defendants 1 to 8, and he has been since then in possession of the same. On the above and other ancillary findings the decision of the trial court has been confirmed. Some significant findings of fact in the impugned judgment are to the effect that it is an admitted fact that the parties are close relations; the Sikimi and the proprietary rights in the suit land were purchased by Biswanath. Damodar, Jagabandhu and Radheshyam under Exts. 24 and 16 respectively, and they were wealthy persons; the sale in favour of the plaintiff as alleged by him took place in the year 1937 and that the above named vendors, on receipt of the consideration money of Rs. 40/- delivered possession of the suit land to the plaintiff. The court below finds that as the sale was effected in the aforesaid manner and the plaintiff somehow was obliged to the defendants and the parties were close relations, and the defendants were of a higher financial status, and the relevant provisions of the Orissa Tenancy Act for effecting sale of occupancy holdings by registered instruments had not come into force till the year 1938, the plaintiff could not insist on the execution of a registered deed for the aforesaid sale.
6. Mr. Mohanty, the learned counsel for the appellant, on the basis of the provisions of Section 54 of the Transfer of Property Act, contended that the Court below illegally arrived at the finding that title to the suit land passed to the plaintiff on the aforesaid oral sale, as the evidence of delivery of possession in favour of the plaintiff was not convincing and/or reliable, and the finding of delivery of possession was incorrect and illegal as the same was arrived at on a consideration of such unconvincing evidence and without taking into consideration all the documentary evidence on record on this aspect.
On the question of delivery of possession of the suit land in favour of the plaintiff, the trial court, on a lengthy and convincing appreciation of the oral and documentary evidence on record, held that the plaintiff purchased the suit land in the year 1937 and he had been since then in peaceful possession thereof in his own right and title, but in the year 1958 the defendants created some disturbance in his peaceful possession. The appellate court also on an elaborate and cogent consideration of the relevant oral and documentary evidence on record, arrived at the finding of fact that the above named vendors, on receipt of the consideration money for the said sale in the year 1937, delivered possession of the suit land to the plaintiff who continued in possession thereof. These concurrent findings of fact cannot be challenged and/or assailed without making out a ground of substantial e'rror or defect in the procedure, as this phrase is understood in the legal parlance. Challenging the above finding of fact in this second appeal merely on the ground that the same is based on unconvincing and/or unreliable evidence is not such a ground within the meaning of the above mentioned phrase.
The contention, that the finding of delivery of possession was arrived at without consideration of certain documents on record, is a case of rejection of evidence and not a case of absence of evidence. Section 167. Evidence Act provides that improper admission or rejection of evidence shall not be a ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independent of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. Mr. Mohanty could not pointedly show that any particular document and/or any other item of evidence on record was left out of consideration by the Court below, proper consideration of which would have turned the decision of the court on this aspect of the matter. So long that is not shown, on the provisions of Section 167, Evidence Act and as is well settled, the findings of fact arrived at by the courts of fact cannot be interfered with in a second appeal merely on the ground of non-consideration of certain evidence on record.
On a perusal of the impugned judgment I am satisfied that the findings of delivery of possession has been arrived at on an elaborate, cogent and convincing consideration of the relevant oral and documentary evidence on record, and no good and convincing ground is made out requiring my interference with such a concurrent finding of fact in this second appeal. There is therefore no basis and/ or substance in the above contention of Mr. Mohanty.
7. Mr. Mohanty next urged that the court below did not attach proper importance to the non-examination of the plaintiff in this case, and accordingly the finding of the court below cannot be justified. This is a pure question of appreciation and/or assessment of the evidence on record, and is not a good and proper ground to impeach the findings of fact inthis second appeal. Apart from that, both the courts below have given con-vincing reasons for the non-examination of the plaintiff in this case. The appellate court finds that there is no doubt about the fact that the plaintiff is a very old person. In this case the plaintiff's son has been examined as P. W. 1. who stated that his father was an old man and was not having a sound mind. On the above finding and the evidence on record the court below was justified in holding that no adverse inference should be drawn for the non-examination of the plaintiff.
8. It was at last contended by Mr. Mohanty that the plaintiff was a party in a previous suit for partition between defendants 1 and 2. in which a portion of the suit land fell to the share of the defendant No. 2. That being so, the plaintiff in this case could not on the principle of res judicata. claim any title to any portion of the suit land which fell to the defendant No. 2 in the previous suit.
Mr. Murty. the learned counsel for the respondents, besides questioning the propriety and the legality of raising the above plea for the first time in this second appellate stage, contended that the plea of res judicata, on the facts of the case, was also not tenable as the previous suit ended in a compromise, at the second appellate stage, between defendants 1 and 2 in the present suit, who were respectively plaintiff and defendant No. 1 in the previous suit, and the plaintiff in this suit, respondent No. 1 herein, was not a party to the said compromise, and the second appeal was dismissed with cost against the present respondent No. 1.
The above facts could not be controverted. It is seen from the decree passed by this court in the said second appeal, (part of Ext. G) that a compromise was arrived at in the second appellate stage only between the defendant No. 1 appellant and the plaintiff-respondent No. 1 therein, who are respectively defendant No,s. 2 and 1 in the present suit. The plaintiff-respondent No. 1 herein was respondent No. 19 in the said second appeal. By the decree, drawn up in this court in accordance with the aforesaid compromise, the appeal was disposed of in terms of the compromise as against respondent No. 1 therein -- defendant No. 1 herein --, and the appeal was dismissed with costs against all the other respondents in that appeal, as the same was not pressed against them. From the above it is quite evident that the plaintiff-respondent No. 1 herein was not at all a party to the aforesaid compromise, and the said compromise was arrived at in his absence. As the said compromise was arrived at specifically between the above mentioned two persons in the aforesaid circumstancesand the decree of this court was drawn up on the aforesaid terms, it cannot be said. merely on these facts and without anything else, that the plea of res judi-cata, now raised, is a formidable one. The correctness of the contention and/or the applicability plea cannot properly be adjudicated on the meagre materials in Ext. G. on which alone Mr. Mohanty based his above contention, without giving the party affected an effective opportunity to controvert the facts and to meet and counter act the various implications and the facets of this plea. On the facts considered above, and with the meagre materials on record, and the said plea having not been raised in any of the courts of fact, not even in the Memorandum of this second appeal, I am unable to accept the above contention in this second appellate stage.
9. On the above considerations I do not find any merit in this second appeal which is accordingly dismissed with costs.