SEKH NURUL ISLAM Vs. ESRAIL MUNSHI

JUDGEMENT

(1.) This appeal by the principal defendants from an appellate judgment and decree of reversal concerning an action for preemption under the Mahomedan Law has been opened by Mr. Ghose, the learned advocate for the appellants, on two points only. First, the judgment under appeal is not a proper judgment of reversal. Second, no case of inconvenience to the plaintiffs respondents has been made out and, worse, the right of pre-emption on the ground of vicinage does not extend to the subject-matter of this litigation, a doba (pond) which is plot no. 7116 in khatian no. 61 of mouza Sirharai within the jurisdiction of Galsi police-station in the district of Burdwan.

(2.) The first point Mr. Ghose urges upon me arises thus. The learned munsif who dismisses the suit finds that Tamena, a daughter of the vendor Abu Bakkar, the pro-forma defendant, and also a son-in-law of the pre-emptor Esrail Munshi, a plaintiff respondent, could not have accompanied the said Esrail Munshi out for fishing in the doba in controversy here when he was told by Morfatan Bibi, the mother of the vendee and the first appellant Nurul Islam, of the sale by Abu Bakkar on Jan. 25, 1951 [vide Ext. B(1)] and made the demand of jumping, talab-i-mowasibat, then and there. So the making of that formality is disbelieved. The learned appellate judge who upsets the decision of the learned munsif and decrees the suit for preemption says nothing about it. But only because this is so, the judgment under appeal cannot go down as not a proper judgment of reversal. Reference may be made to the case of Jatra Mohan Vs. Pitamber, 19 C.L.J. 385 , where it has been held that the lower appellate court is not bound to dispose of seriatim all the reasons given by the first court if it give special reasons for an opposite conclusion. Here the learned appellate judge, the last court of facts, after having reviewed the whole of the evidence, finds as a fact that the formality of talab-i-mowasibat was gone through in fact. For all I see, there is no error of law which vitiates this finding. So, this finding of fact must stand. It does not appear to be of the least materiality that the learned appellate judge has not spoken a word about the probability of Tamena having accompanied Esrail Munshi while he was out for fishing in the doba in controversy here. Were it open to me to enter into this question of fact, I would have had unhesitatingly rejected the approach made by the trial court. On the other hand, I would have" held, going by probability, that it was very natural for Tamena, a daughter, to be left behind with her mother. It was equally natural for the father to take only the sons along with him. Since, however, the realm of facts is a prohibited area for me, I need not say on this anything further.

(3.) I shall now assume on the basis of submissions made by Mr. Ghose that the finding of fact on this point come to by the last court of facts is wrong. Even then, it is not for me to upset it unless I see any error of law. The warning given by the Supreme Court in Deity Pattabhi Ramaswamy Vs. S. Hanymayya, A.I.R. 1959 S.C. 57 , is worth remembering. Some learned Judges of the High Court, the Supreme Court observes, are disposing of second appeals as if they were first appeals. This introduces, the Supreme Court continues, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This caution is repeated in Ram Chandra Ayyar Vs. Ramalinga Chettiar, A.I.R. 1963 S.C. 302 . Again, in Madamanchi Ramappa and another Vs. Muthaluru Bojjappa, A.I.R. 1963 S.C. 1633 , it is said: