V.P. Tyagi, J.
1. This is defendant's second appeal in a case for malicious prosecution and it arises out of the following circumstances:
2. Shri Vallabh D. W. 8 sold a portion of his ancestral house to one Kundanmal on 1st April, 1961, and it is alleged that the possession of that house was handed over by the vendor to the vendee. According to Kundanmal he handed over the keys of the Kotha to his father Jhumarmal. The house originally belonged to Tarachand who had left after his death two sons namely, Shri Vallabh and Kanhaiyalal, Kanhaiyalal was minor at the time of this sale and Tarachand's wife Mst. Ramkanwari was his guardian. On 14th April, 1961, Mst. Ramkanwari and her minor son Kanhaiyalal who used to live separate from Shrivallabh sold the same property to Hansraj and Ghewarchand and according to these vendors possession of the property was handed over to Hansraj and Ghewarchand.
3. A report was lodged at the police station Bhikamkor by Jhumarlal on 25th April, 1961, that on the night intervening 22nd and 23rd April, 1961 the room which was locked by him was broken open by some persons and articles put by the plaintiffs were removed therefrom. The police found the complaint incorrect, After about six months i.e., on 9th October, 1961, defendant Jhumarlal filed a complaint in the court of Magistrate first class No. 1, Jodhpur District, against Hansraj and Ghewarchand under Sections 457 and 380, Indian Penal Code but it appears that the complaint was registered only under Section 379, Indian Penal Code. After their acquittal, the plaintiff brought a suit for damages for malicious prosecution and claimed Rs. 5,000/- as damages from the defendant Jhumarlal. The claim of the plaintiff was resisted by the defendant on the ground that the complaint was lodged without any malice and with reasonable and probable cause. Issues were framed and evidence was led by both the parties. The learned trial court gave a very elaborate judgment after carefully scrutinising the evidence led by the parties and held that after the sale effected by Mst. Ramkanwari and Kanhaiyalal in favour of the plaintiffs Hansraj and Ghewarchand, possession of the property was handed over to the plaintiffs and, therefore, the complaint which was lodged after a pretty long time of the alleged incident, was without any reasonable and probable cause and that the element of malice was present. The learned trial court decreed the suit for Rs. 2,625/- against the defendant.
4. On appeal the. learned District Judge found that the complaint was lodged by the defendant appellant without any reasonable and probable cause and that the element of malice was playing its role in pursuing the proceedings in the criminal court. In this view of his finding the appeal of the defendant was dismissed. It is against this judgment and decree of the learned District Judge, Jodhpur dated 17th February, 1967, that the present appeal has been preferred by the defendant.
5. Learned counsel appearing on behalf of the respondent raised a preliminary issue that this Court while exercising its jurisdiction under Section 100, Civil Procedure Code has no jurisdiction to disturb the finding of fact recorded by the two courts below that the complaint was lodged by the defendant Jhumarlal against the plaintiffs Hansraj and Ghewarchand without any reasonable and probable cause and that he was actuated by the spirit of malice while lodging the complaint in criminal court. He further urged that the question whether there was any reasonable and probable cause present while lodging the report is a question of fact and, therefore, finding recorded by the two courts below squarely falls within the ambit of the finding of facts and hence this Court should not look into the merits of the case.
6. Learned counsel appearing on behalf of the, appellant on the other hand contended that the courts below have erred in arriving at a conclusion that the complaint was lodged without any reasonable or probable cause while examining the issue from a wrong angle and, therefore, the inference drawn by the two courts below conies within the purview of finding of law and not of fact. It was also urged that this question which has been decided by the two courts below is a mixed question of law and fact and, therefore, this Court in exercising its jurisdiction under Section 100, Civil Procedure Code can reappraise the evidence.
7. There has been a controversy in the judicial opinion in this country where the finding regarding the absence of otherwise of the reasonable and probable cause and malice is recorded, but this controversy now stands resolved by the judgment of this Court in Brijlal v. Premchand, AIR 1974 Raj 124. In that case Modi, J., has very elaborately dealt with the authorities cited before him, and after giving a detailed judgment he has laid down law that according to the Privy Council authority in Pestonji's case (1901) ILR 25 Bom 332 (PC) the inference drawn by the court from the facts found to have been established in a case must be taken to be a finding of fact and not of law.
8. In Pestonji's case (1901) ILR 25 Bom 332 (PC) the plaintiff claimed Rs. 3,00,000/- as damages for malicious prosecution. The trial court as well as the High Court held that the plaintiff had failed to prove the existence of reasonable and probable cause and also the element of malice. The suit was therefore dismissed by both the courts. The case then came up before the Privy Council on a certificate granted by the Bombay High Court. The certificate was resisted before the Privy Council on the ground that the finding recorded by the courts below related to the findings of fact and, therefore, no question of law was involved in that case. While considering that objection their Lordships of the Privy Council observed as follows;
'It appears to their Lordships that the only question involved is a question of fact on which there are concurrent findings. It is quite true that according to English law it is for the Judge and not for the jury to determine what is reasonable and probable cause in an action for malicious prosecution. The jury finds the facts. The Judge draws the proper inference from the findings of the jury. In that sense, the question is a question of law. But where the case is tried without a jury there is really nothing but a question of fact and a question of fact to be determined by one and the same person. It appears to their Lordships that the certificate allowing the appeal to Her Majesty must have been granted under a misapprehension.'
9. These observations of the Privy Council came up for consideration before Oudh Court in Fatehchand's case, AIR 1940 Oudh 320, the Nagpur High Court in Ajodhiaprasad's case AIR 1933 Nag 23 and the Patna High Court in Naik Pandey v. Bidya Pandey, AIR 1916 Pat 174. These courts took a view that those observations of the Privy Council were limited only to the question of granting certificate for leave to the Privy Council and they did not lay down the law that the determination of what is reasonable and probable cause in an action for malicious prosecution in a suit in India is determining a question of fact not open to consideration in second appeal. But this view of these three High Courts has not been accepted by Modi, J., while deciding the case of Brijlal, AIR 1974 Raj 124. While disagreeing with the Patna, Oudh and Nagpur High Courts the learned Judge also cited another Privy Council case in C. Sabhapathi v. G. Huntley, AIR 1938 PC 91 wherein it was held that the finding of the learned Judge of the first instance on the question of malice is a finding of fact and the reason given was that the state of man's mind is as much a fact as the state of his digestion and, therefore, their Lordships of the Privy Council did not like to disturb the finding of the lower court question.
10. After e careful scrutiny of all the cases cited before the learned Judge in Brijlal's case AIR 1974 Raj 124 it was observed by him as follows:--
'A finding of fact therefore does not cease to be a finding of fact merely because it is in the nature of an inference to be drawn from certain proved facts. 1 am therefore clearly of the view that the question as to the existence or absence of reasonable and probable cause and malice is a question of fact and cannot be gone into in second appeal unless, of course it is shown that the facts on which the inference of existence or absence of reasonable and probable cause and malice is based are not supported by evidence or that the inference drawn is perverse.'
11. With respect I entirely agree with the observations of Modi, J. and hold that the finding recorded by the trial court regarding the absence or otherwise of reasonable and probable cause or malice in such cases is always a finding of fact and this Court in second appeal cannot disturb such finding specially when the findings of the two courts below are concurrent.
12. I have very carefully gone through the judgment of the trial Court who has dealt with the question of delivery of possession of the portion of the house sold by Mst. Ramkanwari and Ranhaiyalal to Hansraj and Ghewarchand. All aspects of the question have very elaborately been discussed by the learned trial court and I do not see any reason to observe that the findings recorded by the trial court and endorsed by the appellate court are in any manner erroneous or perverse. In this view of the matter this Court cannot reappraise the evidence as is desired by the learned counsel for the appellant.
13. For the reason mentioned above the appeal fails and is hereby dismissed with costs.