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Kameshwar Pershad and anr. Vs. Amanutulla Alias Manick Babu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal53
AppellantKameshwar Pershad and anr.
RespondentAmanutulla Alias Manick Babu and anr.
Cases ReferredHemanta Kumari Debi v. Brojendro Kishore Roy Chowdhry
Excerpt:
second appeal - grounds of second appeal--civil procedure code (act xiv of 1882), sections 884, 585--professional communication--evidence act (i of 1872), sections 65, 66, 127--secondary evidence. - rampini, j.1. this is a suit to recover possession of an eight-annas share of mouzah ledha, which the plaintiff purchased at a sale in execution of a decree obtained against the defendant no. 2. the defendant no. 1 resists the plaintiff's suit on the ground that he is in possession of the property by virtue of a mokurari lease executed in his favour by the defendant no. 2. the plaintiff seeks to have this mokurari lease set aside on the ground that it is a fictitious and collusive lease, and that the defendant no. 1 is but a benamidar for defendant no. 2, who is still the owner, and who is really in possession of the mouzah. 2. the munsif decreed the suit, but on appeal his decree was reversed by the district judge, who, on the 30th july 1894, dismissed the suit, holding that the.....
Judgment:

Rampini, J.

1. This is a suit to recover possession of an eight-annas share of mouzah Ledha, which the plaintiff purchased at a sale in execution of a decree obtained against the defendant No. 2. The defendant No. 1 resists the plaintiff's suit on the ground that he is in possession of the property by virtue of a mokurari lease executed in his favour by the defendant No. 2. The plaintiff seeks to have this mokurari lease set aside on the ground that it is a fictitious and collusive lease, and that the defendant No. 1 is but a benamidar for defendant No. 2, who is still the owner, and who is really in possession of the mouzah.

2. The Munsif decreed the suit, but on appeal his decree was reversed by the District Judge, who, on the 30th July 1894, dismissed the suit, holding that the plaintiff had failed to prove that the mokurari lease was a fictitious transaction. A second appeal was then preferred to this Court, and on the 13th May 1896 the judgment of the Lower Appellate Court was set aside by a Division Bench of this Court, and the appeal was remanded to the Judge with certain instructions. The ground of the remand by this Court was that the judgment of the Lower Appellate Court was erroneous in law. The defects in the District Judge's judgment pointed out by this Court were: (1) That the Judge was wrong in supposing that the Munsif had shifted the onus of proof from the plaintiff to the defendants merely because of the relationship between the latter; (2) that the Judge was wrong in supposing that the transaction took place long before the plaintiff attempted to sell the property; and (3) that the Judge had omitted to remark upon the absence of the defendant No. 1 and upon his omission to prove that he actually paid consideration for the deed.

3. The case accordingly went back to the Judge 'for a fresh decision on the point, as to whether the plaintiff had made out a prima facie case, such as he might reasonably be expected to prove, and, if so, whether the defendant had succeeded in rebutting it.'

4. The appeal was retried by the District Judge on the 17th August 1896, and he has now found: (1) that the plaintiff has entirely failed to make out any prima facie case whatever against the defendant No. 1, whose bond fides was alone in issue; and (2) that the only point on which the plaintiff had offered evidence had been fully rebutted by the defence witnesses. He accordingly again decreed the appeal.

5. The plaintiff again appeals to this Court, and again it is argued that the Judge's decision is erroneous in law, and it has been contended that there are errors and defects in the Judge's judgment, which have affected the merits of his decision, and we are again asked to remand the case to the Judge with fresh instructions for a fresh decision.

6. I am unable to see that there are any such errors or defects in the Judge's decision as would justify us in taking this course. The Judge appears to me to have fully carried out the instructions given him by this Court, when remanding the case. He has rightly placed the onus of proof in the first instance, on the plaintiff, and has considered the evidence on both sides and has come to the conclusion that the plaintiff has not succeeded in establishing his case that the mokurari is a fictitious and fraudulent transaction. He has further held that the defendants have rebutted the evidence adduced by the plaintiff in support of his case. He has fully considered the evidence of the passing of the consideration and holds that it did not pass. He has considered the non-appearance of the defendant No. 1 in the Munsif's Court, and his failure to give evidence as to the passing of the consideration. He has further discussed the evidence of possession on both sides, and after fully complying with this Court's instructions has come to a fresh decision in the case.

7. I can see no defect in his judgment such as would justify us in again remanding the case.

8. There appears to me to be only one error in his judgment on a point of law, viz., that he has excluded the evidence of two pleaders on the ground that it was inadmissible under Section 126 of the Evidence Act. But he points out; that the Bench of this Court, who remanded the case, did not in any way animadvert on the exclusion by him of the evidence of these two witnesses at the first hearing of the appeal, and he argues that this shows either that the exclusion of the evidence of these two pleaders was not objected to before this Court, or else that this Court considered that their evidence had been rightly excluded from consideration.

9. However this may be, I consider that the evidence of these two pleaders is inadmissible, and has been rightly excluded, though not for the reason assigned by the District Judge. Their evidence has been read to us. They were called on to give evidence as to the contorts of a letter received by a pleader's mohurir from the defendant No. 1. Now this letter was not called for, and was not produced at the Court. Therefore, no secondary evidence of its contents was admissible, and the evidence of the pleaders is, therefore, inadmissible under Section 66 of the Evidence Act. The learned Counsel for the appellant urges that no objection appears to have been raised to the giving of this evidence, and hence he contends that their evidence is admissible. But there is no law in this country that the absence of objection to evidence, which is legally inadmissible, makes it admissible. I therefore consider that the evidence of the pleaders has been rightly excluded' from consideration. In any case, their evidence, which has been referred to before us by both sides, is not material. The Munsif points out that their evidence at the best can only give rise to a suspicion with regard to the claim of defendant No. 1.

10. I am further of opinion that we cannot interfere with the judgment of the Judge of the Lower Appellate Court as his finding on the only issue that arises in the case is a finding of fact, which cannot be set aside by us in second appeal. There are numerous rulings of the Privy Council to this effect: see Anangamanjari Chowdhrani v. Tripura Sundari Chowdhrani (1887) I.L.R., 14 Cal., 740: L.R., 14 I.A., 101; Pertap Chunder Ghose v. Mohendra Nath Purkait (1889) I.L.R., 17 Cal., 291: L.R., 16 I.A., 233; Durga Chowdhrani v. Jewahir Singh Chowdhri (1890) I.L.R., 18 Cal., 23: L.R., 17 I.A., 122; Ram Ratan Sukal v. Nandu (1891) I.L.R., 19 Cal., 249: L.R. 19 I.A., 1; Ram Gopal v. Shamskhaton (1892) I.L.R., 20 Cal., 93: L.R., 19 I.A., 228; and Lukhi Narain Jaga Deb v. Joda Nath Deo (1893) I.L.R., 21 Cal., 504: L.R., 21 I.A., 39. I am, therefore, of opinion that this appeal should be dismissed with costs, but as my learned brother does not agree with me on this point, the appeal must be laid before the learned Chief Justice for reference to a third Judge.

Henderson, J.

11. This was a suit by the plaintiffs, who are respectively the auction purchaser of an eight-anna share in a certain mouzah named Ledha, and his ticcadar, to obtain direct possession of that share by setting aside a mokurari, which had been set up by the defendants, on the ground that the mokuran was fraudulent and executed without consideration. It was alleged in the plaint that the plaintiffs had been in possession of the mouzah, but had been dispossessed, and an issue was framed upon this allegation. The Munsif was of opinion that the issue as to the possession and dispossession of the plaintiff was not very material, and he found upon the evidence that the plaintiff had never been in possession, although the plaintiff No. 2 had made an attempt to take possession, but without success.

12. The real issue in the case was, whether the mokurari executed by the defendant No. 2 in favour of the defendant No. 1 was collusive and fraudulent. As, to this issue the Munsif held, and rightly held, that under the circumstances it was for the plaintiffs to make out a prima facie case. He found that a few years before the execution of the mokurari, the plaintiff No. 1 had obtained a decree against the defendant No. 2; that the defendants No. 1 was a relative of defendant No. 2; and that notwithstanding the execution of the mokurari the defendant No. 2 had continued to remain in possession of the mouzah. Under these circumstances he held that the plaintiffs had made out a prima facie case, and proceeded to deal with the evidence adduced by the defendant to meet that case. Upon that evidence he found that the consideration for the mokurari had not been satisfactorily proved, and that there had been no change in the possession; and he laid considerable stress on the fact that the defendant No. 1 had not himself given evidence to prove payment of consideration and change of possession. Upon these findings he came to the conclusion that the mokurari was fictitious and gave the plaintiffs a decree. On appeal the District Judge held that the plaintiffs entirely failed to prove their case, and that the defendants were not called upon to produce even as much evidence as they did, and he allowed the appeal. On second appeal, the High Court, after commenting at some length upon various passages in the judgment of the District Judge, and pointing out that he had not sufficiently considered the evidence of the plaintiffs' witnesses, that the defendant No. 2 had after the execution of the mokurari continued in possession, and that he had altogether omitted to remark upon the evidence of the defendant No. 1, and upon his omission to prove that he actually paid consideration for the deed, made art order remanding the case in the following terms: 'Under these circumstances, we think that the District Judge has not properly applied his mind to the evidence in the case, and that the case ought to be sent back to him for a fresh decision on the point whether the plaintiffs have made out a prima facie case, such as he might reasonably be expected to prove, and if so whether the defendant has succeeded in rebutting it. The case will go back accordingly.' The District Judge has now reconsidered his former decision, and has held that the plaintiffs have entirely failed to prove their case.

13. With regard to the question whether the defendant No. 2 ever relinquished possession, he says: 'But admitting their existence (the relationships between the defendants), what the plaintiffs really undertake to prove, and that under the circumstances is about the only relevant fact they are in a position to prove, is that defendant No. 2 not?3 has relinquished possession. If he establishes a prima facie case on this point the onus certainly shifts very heavily to the defendants.' He then deals with the evidence adduced by the plaintiffs to show that they had had possession, but had been dispossessed by the defendant No. 2. This evidence he rejects as the Munsif had done. He goes on to say:

It is argued by respondents that, although he disbelieves the possession of Ajudhia Sing (plaintiff No. 2), and his dispossession by Shamsher Bahadur (defendant No. 2), the Munsif is at liberty to take the plaintiffs' evidence, as a whole, as sufficient to prove that Shamsher Bahadur never relinquished possession to his alleged vendors (mokuraridars).

The next argument is that the consideration of Rs. 1,000 is inadequate and defendant No. 2's evidence shows that it was probably never paid. The third argument is that the defendant No. 2 produces no witnesses as to the passing of the consideration. The fourth, that defendant No. 1, though given every opportunity, does not appear. Finally, it is said that no challans for Government revenue are produced.

As regards the first point I find it is impossible to separate the false story of dispossession by Shamsher Bahadur from the general allegation that Shamsher Bahadur was in possession. The whole evidence is directed to one point, and the possession of Shamsher Bahadur is merely incidental to his conduct in dispossessing Ajudhia Sing, an event which never happened. The case on plaintiffs' evidence is simply this: A dispossessed B. Therefore A must have held possession. When it is shown that the first member of this proposition is absolutely untrue, it seems impossible to me to assume the second.

14. I shall first deal with the finding that it is impossible to separate the false story of dispossession by Shamsher Bahadur, the defendant No. 2, from the general allegation that Shamsher Bahadur was in possession, that is, did not relinquish possession. To my mind there is no connection between the two points. They are quite distinct. It may be that the plaintiffs' story that they were dispossessed is entirely false, or false so far that they merely attempted unsuccessfully, as the Munsif held, to take possession. But in either view it does not follow that the evidence adduced by the plaintiffs, to show that the defendant No. 2 never relinquished possession after the execution of the mokurari is false. The non-relinquishment of possession depends upon evidence which is entirely independent of the evidence as to the alleged dispossession, and that evidence is corroborated by other circumstances, which are admitted. This appears from the original judgment of the District Judge. The weight to be given to that evidence, and to the corroborating circumstances, was no doubt a question for the Judge. In his original judgment the District Judge makes the following remarks: 'The only point that plaintiff does offer any evidence on is the point of defendant No. 2's possession. All his witnesses say that defendant No. 2 continued in possession, and defendant No. 1 never had possession. This, it is contended, is supported by the defendant's evidence that the village amlas were never changed. I do not think this contention can prevail, the parties are admittedly relatives. The patwari is a permanent official, and the barahil is the chowkidar of the village, and has always been barahil of the sixteen annas. The plaintiff's witnesses are ryots of a neighbouring village, and there is not a particle of evidence to show where the collections really went. It is only shown that the same servants continued to collect them.' In his judgment on remand the District Judge has reseated his observations with regard to the fact that the patwari, barahil and chowkidar had not been changed, but he-appears to have withdrawn from his consideration the evidence as to the non-relinquishment, apparently because he has been unable to separate what he calls the false story of dispossession by the defendant No. 2 from the alleged non-relinquishment of possession by defendant No. 2. In this I think, he has erred. In the passage I have quoted from his former judgment he had stated, that all the plaintiff's witnesses say that defendant No. 2 continued in possession and that defendant No. 1 never was in possession. In his present judgment he appears also to be wrong in saying that the whole evidence is directed to one point, and that the possession of Shamsher Bahadur is merely incidental to his conduct in dispossessing Ajudhya Singh (plaintiff No. 2). The case on the plaintiffs' evidence is not simply the A and B proposition stated in the passage I have quoted. It is not quite clear whether the District Judge means to hold, but I think be does mean to hold, that the Munsif was not at liberty to take the plaintiffs' evidence, as a whole, to prove that Shamsher Bahadur, defendant No. 2, never relinquished possession to his alleged vendor (mokuraridar); but, if the does mean so to hold, I think he is again wrong.

15. The District Judge does not appear to have properly applied his mind to the point whether possession changed on the execution of the mokurari.

16. It has been contended that the District Judge has wrongly excluded from consideration the evidence of two pleaders who were called by the plaintiffs. It may be, and I express no opinion as to it, that this evidence is of little weight, but it was clearly relevant on the question whether the defendant No. 2 did in fact relinquish possession to the defendant No. 1. With regard: to this evidence the Munsif makes the following remarks: The plaintiffs examined two pleaders of this Court, one Babu Thakur Prasad, and another Babu Sashi Bhusan Mukerjee, pleaders for defendant No. 1. It appears from their evidence that in the latter part of the year 1892, the defendant No. 1 wrote a letter to the address of one Abdul Thakur, mohurir of pleader Babu Shashi Bhusan Mukerjee; that in that letter reference was made to the successful result of the criminal case in favour of defendant No. 1; and that the defendant No. 1 in that letter stated that the enam or reward for the criminal case will be sent by the defendant No. 2. The letter is not forthcoming. It is said to be with Abdul Thakur, and it was not called for. The letter was being opened by Babu Sashi Bhusan on a particular day in this Court room, when Babu Thakur Pershad, pleader, without any authority and against the protest of Sashi Babu, read a portion of it to the hearing of Munshi Ibrahim Hossein, plaintiff's pleader, who immediately said to the other two pleaders that they would have to give evidence on this point, and that they should remember the content (sic) thereof. This fact throws a good deal of suspicion on the claim of defendant No. 1 to this property as his own.'

17. In his original judgment the District Judge, with regard to this evidence, made the following remarks: 'The communications were privileged and I must expunge all reference to this evidence from the judgment and the record.' In his judgment now under appeal he says: 'The evidence of the plaintiff's witnesses Nos, 7 and 8 I excluded as inadmissible, and their Lordships have not overruled my finding on this point. I need not, therefore, re-admit their evidence, but would merely draw attention to the Munsif's remarks on it at pages 8 and 9 of the paper book, as showing that it was on their evidence alone, coupled with the fact of relationship, that the Munsif held the document fictitious and threw the onus on the defendants. If their evidence disappears there is not one particle of the plaintiff's case left.'

18. I may mention here that it was pointed out to us that it was in evidence that Sashi Bhusan Mukerjee on being pressed stated that the costs in the criminal case, which arose out of the attempt by the plaintiffs to get possession, would be paid by defendant No. 2. There can be no question that the evidence of the pleaders (witnesses Nos. 7 and 8) was admissible, and that the District Judge had, therefore, improperly withdrawn it from consideration. The fact that this Court, in remanding the case, did not refer to the opinion expressed by the District Judge, as to the admissibility of the evidence, does not, it seems to me, preclude us now from dealing with it. The remark of the District Judge, that it was on their evidence alone coupled with the fact of relationship that the Munsif held the mokurari fictitious and threw the onus on the defendants, is not correct. It is merely a repetition of what he had said in his previous judgment, and upon this point this Court in remanding the case pointed out the incorrectness of the statement, and drew his attention to the fact that the Munsif had relied upon other circumstances, and amongst them to the continuance in possession by the defendant No. 2. What the Munsif said on page 8 was: 'He adduced evidence to show that he obtained the decree against defendant No. 1 in the year 1888, that the defendant No. 1 is maternal uncle of one Ekbul Hossein, who is defendant No. 2's sister's husband, and that the defendant No. 2 is in actual possession of the property. The relationship as between defendant No. 2 and' defendant No. 1 has been admitted. The plaintiff No. 1 has, therefore, shown that the particular transaction is suspicious, and the onus, therefore, shifts on the defendant No. 1 to show that the consideration was actually paid, and that he is actually in possession for himself.

19. As to the consideration for the mokurari the High Court on remanding the case said: 'On the question of consideration the Judge merely says this: The defendant meets the mere statement of plaintiff that no consideration passed by his own statement on oath that he got the money.' That remark applies to defendant No. 2, who was the party alleged to be interested in effecting this fictitious transfer in order to save the property from his creditor. The Judge omits altogether to remark upon the absence of the defendant No. 1, and upon his omission to prove that ha actually paid consideration for the deed.' The District Judge now makes the following remark: I do not think any witnesses as to the passing of the consideration were necessary, unless plaintiff had made out some prima facie case to prove that no consideration did pass. It is absurd to say that defendant must prove affirmatively every point which plaintiff has entirely neglected to give any evidence upon. Defendant No. 1 had no obligation beyond putting forward defendant No. 2 to admit the receipt and to prove the potta, which is itself a perfectly valid legal receipt.' The passage which I have first quoted shows a want of appreciation of the position. The determination of the question, whether the consideration was paid or not, could only become necessary, if the plaintiffs made out a prima facie case that the mokurari was not genuine, and then it was for the defendants, who alone had any knowledge on the subject, and not for the plaintiffs, to prove consideration. It was not enough to say that the defendant No. 1 had no obligation beyond putting forward defendant No. 2 to admit the receipt and prove the potta, which is itself a perfectly valid receipt. The recital as to payment in the potta is no evidence of payment as between the - plaintiffs and the defendants. The District Judge appears to have paid very little attention, if any, to the direction in this connection given to him in the judgment remanding the case as to the absence of the defendant No. 1, and his omission to prove that he actually paid consideration for the mokurari. Moreover, in dealing with the discrepancies between the evidence of defendant No. 2 and the recitals in the mokurari as to the payment of consideration, the Judge relies upon a supposed usage, as to which there is absolutely no evidence.

20. With regard to the fact that the defendant No. 1 did not give evidence the District Judge finds that his non-appearance was due to a misapprehension of the proper procedure on the part of the Munsif, and he has quoted a passage from the Munsif's judgment, but I am unable to see that there was any misapprehension on the part of the Munsif as to the proper procedure. It appears that while the plaintiffs were anxious to have the defendant No. 1 examined in Court, they did not wish to examine him as their witness on commission. It was no part of the duty of the plaintiffs to call the defendant No. 1 as their witness. If it became material to prove that the consideration actually passed it was for the defendant No. 1 to prove that fact. He had ample opportunity, the Munsif has stated, to give his evidence, the case being adjourned on many occasions for this appearance. It was not until after the conclusion of the evidence on both sides that any application was made by his pleader that he might be examined on commission. No medical certificate as to his health appears to have been furnished on his behalf, for the Judge remarks that if the Munsif doubted that the man was really ill he should have ordered a medical certificate to be produced. The District Judge has held that the defendant No. 1 was perfectly ready and also within time with his evidence, and had no Opportunity given him to give it. This may possibly amount, though I am not prepared to say it does, to a finding of fact with which this Court ordinarily cannot interfere, but it seems to me that it also involves a finding that the Munsif was wrong in refusing, as he did, under the circumstances stated by him, to issue a commission at the last moment-a finding with which I cannot agree.

21. With regard to the non-production of the challans for Government revenue, the District Judge remarks that 'their non-production by any one shows that the defendant No. 1 must have been the person who paid.' This certainly was not the proper inference to draw. If the plaintiffs had made out a sufficient case to make it necessary to prove who paid the Government revenue, it was for the defendant No. 1 to prove that he, if it was the fact, paid it. Again, the District Judge states that the defendant No. 1 was precluded from producing the challans, as he was given no opportunity to give this evidence, but surely these challans might have been proved, without the defendant No. 1 going into the witness box himself.

22. In my opinion, if the Judge really considered that the defendant No. 1 had been improperly precluded from giving evidence, which under the circumstances was necessary for his case, his proper course would have been to remand the case in order that his evidence might be taken.

23. Finally, the District Judge finds that the plaintiff has entirely failed to prove his case, i.e., to make out any prima facie case whatever against defendant No. 1 whose bond fides alone is in issue, and that the only point the plaintiff offered evidence upon has been fully rebutted by the defence witnesses, and he allowed the appeal and dismissed the plaintiff's suit.

24. Even in the statement of his final conclusion the District Judge repeats the mistake in saying that there was only one point on which the plaintiffs had given evidence, the one point being apparently the alleged dispossession of the plaintiffs by the defendant No. 2, and not the non-relinquishment of possession by the defendant No. 2 on the execution of the mokurari. See paper book, page 9.

25. It has been urged before us by the respondent's pleader that the finding on the whole case is a finding of fact with which this Court cannot interfere on second appeal, and we have been referred to a number of decisions of the Privy Council. On the other hand, Counsel for the appellants has contended, that the District Judge has not complied with the directions given to him by this Court in its judgment remanding the case, and that by reason of the defects in his judgment, which I have pointed out, there has been an entire mistrial of the case.

26. The question, whether a second appeal will lie, having regard to the decisions of the Privy Council in Durga Chowdhrani v. Jewahir Singh Chowdhri (1890) I.L.R., 18 Cal., 23: L.R., 17 I.A., 122, and Ram Gopal v. Shamskhaton (1892) I.L.R., 20 Cal., 93: L.R., 19 I.A., 228, is one which is not free from difficulty. I may mention, however, that the judgment of the learned Judges of this Court, who made the order of remand in this case, is really an authority, if the point were taken, that a second appeal does lie. The finding of the District Judge, with which this Court had then to deal, is the same finding as that now before us. But, be that as it may, the judgment of the District Judge is extremely unsatisfactory, and I consider there is great force in the contention that there has really been a mistrial of the case.

27. In the first placed the District Judge has improperly excluded from consideration the fact, which he himself admits, thai; all the witnesses for the plaintiff's say that the defendant No. 2 continued in possession, and that the defendant No. 1 never was in possession after the execution of the mokurari. He has done so not so far as one can gather from his judgment because he has disbelieved their evidence, but because he considered it was impossible to separate the story of the alleged dispossession of the plaintiff's from the story of the defendant No. 2 having continued in possession-two matters between which, as I have said before, there was no apparent connection. This error is one of law rather than of fact. Had he considered that evidence it is possible he would have taken a very different view as to the necessity for the defendants to have proved affirmatively that the consideration actually passed. He might also have taken a different view of the fact that after the execution of the mokurari the same servant continued to collect the rents.

28. In the next place he was wrong in treating the evidence as to the possession of the defendant No. 2 as being merely incidental to his conduct in connection with the alleged dispossession of the plaintiff's. This also is not a mere error in finding of facts.

29. Again he erred in holding that the Munsif and therefore he himself also were not at liberty to take the plaintiff's evidence as a whole to prove that the defendant No. 2 never relinquished possession, and also in excluding altogether from consideration the evidence of the pleaders. These I take it are errors, in law.

30. In stating that, apart from the relationship and the evidence of the pleaders, there was not a particle of the plaintiffs' case left, he appears merely to be repeating the view already referred to that the evidence as to non-relinquishment could not in the face of the story as to the alleged dispossession be considered.

31. The District Judge has also erred in law in treating the recitals in the mokurari as to the payment of consideration as any evidence as between the plaintiff's and the defendants, and also in relying upon a supposed usage in respect to such recitals as to which there was no evidence whatever. With regard to the passing of the consideration, if, by reason of the case made by the plaintiff's as to the relationship of the defendants and the non-relinquishment of possession by the defendant No. 2, it became necessary to decide the question at all, it was for the defendant to show that the consideration actually passed..

32. The finding that the fact that the defendant No. 1 did not give his evidence was due to a misapprehension on the part of the Munsif as to the proper procedure, and that the defendant No. 1 had no opportunity given to him to give his evidence, in my opinion precluded the District Judge from drawing-as he was entitled though not bound to draw-an inference against the defendant.

33. The errors to which I have drawn attention are not merely errors in findings as to matters of fact. They are no doubt involved in such findings, and if they are not strictly errors in law they are errors in law and fact. To use a phrase more often applied to a charge to a jury, the District Judge has misdirected himself as to various matters of law and fact, and, moreover, while he has omitted to take into consideration all evidence in the case, he has relied on matters which were not in evidence at all.

34. For the reasons stated above, I am of opinion that it is impossible to say that there has been a proper trial of the case by the District Judge. His final conclusion that the plaintiff's have entirely failed to make out a case against defendant No. 1 is one based upon, amongst other considerations, the various erroneous findings to which I have alluded. It is not correct, therefore, in my opinion to say that his final conclusion is merely an erroneous finding of fact, with which this Court cannot, regard being had to the decisions of the Privy Council to which I have referred, interfere on second appeal. I would therefore send the case back to the District Judge in order that he may reconsider his decision in the light of the observations which I have made.

Banerjee, J.

35. The suit out of which this appeal arises was brought to recover possession of certain immoveable property upon obtaining a declaration that the mokurari lease, dated the 5th December 1891, executed by the defendant No. 2 in favour of the defendant No. 1, was a fabricated, collusive and fraudulent document, and that the defendant No. 1 had acquired no title under it.

36. The allegations of fact upon which the plaintiffs brought this suit were, that the plaintiff No. 1 had purchased an eight-annas share of mouzah Ledha at a sale in execution of a decree against defendant No. 2; that the defendant No. 1 in collusion with the defendant No. 2 dispossessed the plaintiff No. 2, who was a ticcadar under the plaintiff No. 1, and set up a false and fraudulent mokurari lease; and that the plaintiffs were, therefore, obliged to bring this suit.

37. The defence of the defendant No. 1, who alone contested the suit, was to the effect that the mokurari lease impugned by the plaintiffs was a real bond fide and valid lease, and that the defendant No. 1 was entitled to retain possession of the property in dispute as mokuraridar.

38. The first Court found for the plaintiff's and gave them a decree. On appeal by the defendant No. 1, the learned District Judge reversed the Munsif's decree and dismissed the suit. There was a second appeal against the District Judge's judgment; upon which that judgment was set aside, and the case remanded to the District Judge for a fresh decision upon the point as to whether the plaintiffs had made out a prima facie case, such as they might reasonably be expected to prove, and, if so, whether the defendant had succeeded in rebutting it. Upon this remand, the learned District Judge, after a consideration of the evidence, has come to the conclusion that the plaintiffs have failed to make out a prima facie case, and he has accordingly again dismissed the plaintiffs' suit. The plaintiffs have now preferred this second appeal, and as the learned Judges, Mr. Justice Rampini and Mr. Justice Henderson, before whom the appeal came on for hearing, have differed in opinion, the former being of opinion that the appeal ought to be dismissed, and the latter that the decree of the Lower Appellate Court ought to be reversed, and the case remanded, the case has been referred to me under Section 575 of the Code of Civil Procedure, read with Section 587.

39. The grounds upon which the learned Vakil for the appellant contends that the judgment of the Lower Appellate Court ought to be reversed are, first, that the learned Judge below is in error in holding that it is impossible to separate the false story of dispossession by Shamsher Bahadur from the general allegation that Shamsher Bahadur was in possession, when he ought to have held that the two points were fairly separable from one another; second, that the learned Judge below was in error in excluding from consideration the evidence of the two pleaders as inadmissible; third, that the learned Judge below is wrong in holding that no witnesses, as to the passing of consideration, wore necessary; fourth, that the learned Judge in the Court below is also wrong in his remarks about the non-examination of the defendant No. 1; fifth, that the learned Judge below is further wrong in his remarks on the non-production of the Government challan; and, sixth, that the learned Judge below is wrong in observing that the evidence as to the payment of consideration a few days after registration, was exactly in conformity with usage, in the absence of evidence to prove such usage. And these, I may add, are also the main grounds, upon which Mr. Justice Henderson in his judgment says that the decision of the Lower Appellate Court ought to be set aside.

40. Before considering these points in detail, I may observe that the grounds upon which a second appeal lies, and it is open to this Court to interfere with the judgment of the Lower Appellate Court, are those set out in Section 584 of the Code of Civil Procedure; and Section 585 expressly enacts that no second appeal shall lie except on the grounds mentioned in Section 584. And their Lordships of the Privy Council have, in more than one case, pointed out the necessity of adhering strictly to the provisions of these sections. I need only refer to the cases of Anangamanjari Chowdhrani v. Tripura Sundari Chowdhrani (1887) I.L.R.,' 14 Cal., 740: L.R., 14 I.A., 101; Pertap Chunder Ghose v. Mohendra Nath Purkait (1889) I.L.R., 17 Cal., 291; L.R., 16 I.A., 233; Durga Chowdhrani v. Jewahir Singh Chowdhri (1890) I.L.R., 18 Cal., 23: L.R., 17 I.A., 122; and Ramratan Sukal v. Nandu (1891) I.L.R., 19 Cal., 249: L.R., 19 I.A., 1.

41. Now, the grounds mentioned above, upon which I am asked to interfere with the judgment of the Lower Appellate Court can come only under the heads (a) and (c) of Section 584, if indeed they can come under the section at all.

42. Let us then see how far the grounds urged before me by the learned Vakil for the appellant really come under either of those two heads. The first ground is, that the learned Judge below is in error in saying that it is impossible to separate the false story of dispossession by Shamsher Bahadur from the general allegation that Shamsher Bahadur was in possession, when really there is no logical impossibility in separating the one from the other. Can this come under either Clause (a) or Clause (c) of that section, 584? That is it contrary to any law or does it involve any error of procedure, for a Court that has to deal with the facts of a case, to say, that it cannot believe one part of the story told by certain witnesses when another part of the story told by the same witnesses is manifestly false

43. The answer to this question must, in my opinion, be in the negative. It is true that the Lower Appellate Court has expressed itself a little too strongly when it says that it is impossible to separate the one story from the other; but we must take language in its ordinary sense, and I do not think that the learned Judge below meant, in the passage of the judgment to which reference is made, that it was logically impossible to separate one part of the story from the other. All that he means to say, as is evident from the context and especially from an earlier part of the judgment, in which he has criticised the evidence of the witnesses in detail, is, that taking the evidence as a whole, he finds it practically impossible to accept as true that part of their statements wherein they allege that the defendant No. 2, Shamsher Bahadur, was all along in possession, when he must disbelieve their evidence so far as it goes to show that the plaintiff, Ajudhya Singh, had obtained possession, and had been subsequently dispossessed by Shamsher Bahadur.

44. Upon the second point, the learned Judge below is of opinion that the evidence of the two pleaders, who depose to defendant No. 1 having written to the mohurir of one of them, who was his own pleader, that the pleader's reward in a certain criminal case was to be paid by the defendant No. 2 was inadmissible, because it involved the disclosure of a privileged communication. That view Mr. Justice Rampini considers incorrect, though he is of opinion that the evidence has been rightly excluded. I am of opinion that so far as the evidence of the pleader Shashi Bhusan Mukerjee is concerned, the ground upon Which the learned Judge below has excluded it, is correct because Sashi Bhusan Mukerjee was the pleader of defendant No. 1, who wrote the letter, and though the communication contained in the letter was not addressed to the pleader direct but was addressed to the pleader's clerk, Section 127 of the Evidence Act extends to such a communication the same confidential character that attaches to a communication to a pleader direct under Section 126.

45. As regards the evidence of the other pleader, Thakur Pershad, I concur with Mr. Justice Rampini in thinking that the learned Judge was wrong in excluding it on the ground of its involving a disclosure of a privileged communication; and I also agree with him in thinking that, though the evidence of this second pleader was not inadmissible upon the ground upon which the learned District Judge excluded it, it is really inadmissible on the ground that it involves the giving of secondary evidence of the contents of a document without satisfying the conditions required to be fulfilled by Section 65 of the Evidence Act.

46. As to the third point, no doubt the learned Judge below is wrong in law when he says, 'I do not think any witnesses as to the passing of the consideration were necessary;' but that part of his judgment is wholly matter of Surplusage, he having in an earlier part of his judgment found that there was evidence to prove payment of consideration, that evidence consisting of the receipt for the consideration and the deposition on oath of the defendant No. 2 in which the receipt of consideration is admitted.

47. On the fourth point I think it enough to say that the learned Judge below has found-I am quoting his words 'that the defendant No. 1 was perfectly ready and also within time with his evidence and had no opportunity given him to give it;' and I think that this finding is sufficient to dispose of the objection that the learned Judge below was wrong in not attaching due weight to the non-examination of defendant No. 1; and this remark is sufficient also to meet the fifth point raised.

48. As to the sixth point, it is true that the learned Judge below does make use of the word 'usage,' when he says that 'it is the invariable practice to acknowledge full consideration of the purchase-money in these deeds, and the deposit of 25 per cent, or so, followed by the payment in full four or five days after registration, i.e., when 'takaza badlani, or exchange of the registration receipt for the money takes place, is so exactly in conformity with usage that it corroborates defendant No. 2's statement.' But what he really means to say is this, that the account given by the defendant No. 2 as to the manner in which consideration was paid, is one that accords best with the way in which such transactions usually take place; and I do not think that this involves any error of Law. If any fact bad been found without any evidence to support it then no doubt the finding would have been open to interference in second appeal as has been held by the Privy Council in the case of Hemanta Kumari Debi v. Brojendro Kishore Roy Chowdhry (1890) I.L.E., 17 Cal., 875: L.R., 17 I.A., 65. But that is not the case here. I should add that not only has the Lower Appellate Court found in this case that the plaintiffs' evidence is insufficient to make out a prima facie case but it has also found that the evidence adduced by the defendant has sufficiently met the only case put forward by the plaintiff in his evidence. The learned Judge observes: 'As regards the actual evidence to rebut plaintiff's case on the record it fully and categorically meets the only case put forward by plaintiff in his evidence. That case is, as I have said, that defendant No. 1 never had possession. Three raiyats of Ledha, of whom one is chowkidar and one is barahil, distinctly swear that he was.' And, then, after giving his reasons for dissenting from the Munsif's view, that these witnesses were not reliable, he concludes in these words: 'I have thus given the evidence for both sides my most mature and detailed consideration, and I can only repeat my previous finding that the plaintiff has entirely failed to prove his case, i.e., to make out any prima facie case whatever against defendant No. 1, whose bona fides alone is in issue, and that the only point the plaintiff offered evidence upon has been fully rebutted by the defence witnesses.'

49. I am, therefore, of opinion that no ground has been made out for the interference of this Court with the judgment of the Lower Appellate Court in second appeal, and I agree with Mr. Justice Rampini in dismissing this appeal with costs. The respondent is, entitled to the costs of the two hearings in this Court.


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