MOTICHAND HIRACHAND GUJAR Vs. KHUDABAKSH GULAMHUSEN TAMBATKAR

JUDGEMENT

(1.) THIS is a Letters Patent appeal from the decision of Mr. Justice Sen. The present appellants were the plaintiffs in the suit filed in the Ahmed-nagar Court, The plaint was to obtain possession of a certain site of land admeasuring 45'-10" X 39'-5", being part of survey No.5578, Municipal No.5624. The defendants are representatives of a Masjid and the suit was filed against them in that character. Three issues were raised. The first was whether the plaintiffs prove their ownership to the plaint property, and (2) whether the plaintiffs prove their possession within twelve years before the suit. The trial Court found in favour of the plaintiffs both these issues and held that the property claimed belonged to the plaintiffs. An appeal was preferred against that decision to the District Court of Ahmednagar where also similar issues were framed and answered in favour of the plaintiffs. Original defendants preferred a second appeal and persuaded Mr. Justice Sen to hold on a perusal of the documents that the title to the open land claimed by the plaintiffs was not conveyed to them. We notice from the judgment that the learned Judge arrived at his conclusion with considerable hesitation.

(2.) THE first objection raised by the appellants herd is that the learned Judge erred in entertaining the argument of the present respondents (the original defendants) as it involved a question of fact. It is not disputed that if the decision is on a queston of fact it is not competent in second appeal to go into that question. It has been urged that the question is not of fact as it depends on the construction of title-deeds and that is a question of law. On this point our attention has bieen drawn to Wall Mohammad v. Mohamnad Baksh (1929) 32 Bom. L. R. 380 P. C. , where their Lordships of the Privy Council laid down five propositions for deciding what questions could be properly discussed in second appeal. THEy run as follows (pp. 384-385) : (1) THEre is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross the error may seem to be. (2) THE legal inference to be drawn from proved or admitted facts is a matter of law, or, in other words, the proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact. (3) Where the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of rights but were really historical materials, have to be construed for the purpose of deciding the question. (4) A second appeal would not lie because some partion of the evidence might be contained in a document or documents and the first appellate Court had made a mistake as to its meaning. (5) THE question whether a statutory presumption is rebutted by the rest of the evidence. . . is always a question of fact.

(3.) AS our attention has been drawn to the conveyances we must observe that the whole fallacy underlying the contention of the respondents is that the documents in which boundaries are described in different years must be held to be the same. It overlooks the obvious contingency that in the interval adjoining lands may have changed hands and may be incapable of being described in the same terms for describing the boundaries. It appears that the Survey Inspector was called upon to make a report and prepare a plan. The Inspector was not examined in Court but his report has gone in. A large portion of that document consists of facts taken from other documents. That report does not necessarily prove that the contents of other documents, from which the materials are gathered, are authentic or reliable to fix the boundaries on either side. In our opinion Mr. Justice Sen had also overlooked the fact that the question of ownership was not agitated in the lower Courts only on documents of title but on the several other records from which extracts were produced. There was also oral evidence of possession which was considered as supplementary proof of the title. AS mentioned in the fourth proposition in Wall Mohammad v. Mohammad Baksh (1929) 32 Bom. L. R. 380, P. C. the conclusion arrived at by the two lower Courts was a result of the conveyances and other evidence. It is therefore not within the competence of a party to agitate in second appeal a question of fact decided under those circumstances.