MAHAMMAD KHAN Vs. DUKHULAL DAS AND ANR.

JUDGEMENT

(1.) THE Plaintiff has brought this second appeal against the judgment dated 27 -3 -50 of Sri J.K. Misra, District Judge of Sambalpur, setting aside the decision of Sri D.N. Das, Subordinate Judge of Sambalpur, arising out of a suit brought by the Plaintiff for recovery as damages of a sum of Rs. 3000/ - being the value of 300 bags of Kendu leaves, each being valued at Rs. 10/ -. Defendant No. 1 is the zamindar of Garloisingh and the Plaintiff is the lessee under the zamindar having the sole right of collection and purchase of Kendu -leaves from the zamindary area, Defendant No. 2, however, is the lessee for collection of Kendu -leaves from the Government forest area known as Dhama Range. Both these areas are contiguous. The case refers to the leases of Plaintiff and Defendant No. 2 in the year 1954. The Plaintiff's case is that Defendant No. 2 being in collusion with the zamindar (Defendant No. 1) opened collection centers within the zamindary area for the purpose of collection of kendu -Ieaves and in fact purchased Kendu -lever plucked by the regular pluckers of the zamindary area in the month of Baishakh. Defendant No. 2 is not entitled to collect any Kendu leaves from the zamindary area this being the leasehold of the Plaintiff. The Plaintiff avers that the total quantity of Kendu -leaves collected and purchased by Defendant No. 2 from the zamindary area in the said year was 300 bags worth Rs. 3000/ - and so the present suit.

(2.) THE defence is a complete denial of the fact that Defendant No. 2 collected kendu -Ieaves from the zamindary area. On the contrary the emphatic assertion of Defendant No. 2 is that what ever collection he had made was from the Dhama forest range area in respect of which he had taken lease from the Government to collect and purchase Kendu -leaves for the year 1945. The Defendant had also contested the Plaintiff's claim in the matter of the quantity of Kendu -leaves and value thereof.

(3.) MANIFESTLY the main and the first question to be determined in the present case is whether as a matter of fact Defendant No. 2 had made collection of the Kendu -leaves during the alleged period of the year 1945 from the zamindary area in respect of which a lease has been granted in favour of the Plaintiff as the sole collecting lessee, or Defendant No. 2 had made collection from the Government forest area in respect of which he had taken a lease for the year 1945. The determination of the question depends entirely on the oral evidence adduced in the case and the only document (Ext. B series) the account -papers of Defendant No. 2. The Plaintiff had examined as many as 26 witnesses including himself out of which nearly 21 deposed on the point of plucking of Kendu -leaves from the zamindary area and selling them to the manager and agent of Defendant No. 2. Some of them fairly respectable witnesses, such as, Punches of some villages and the Gountias but most of the witnesses are the actual pluckers. The Defendant has examined only 2 witnesses -his servant and the manager. It is a well recognised principle that in cases of this nature where the issue for determination depends solely on the appreciation of the oral evidence, very great weight is to be attached to the assessment made of the value of oral evidence by the trial court who had the advantage of seeing and hearing the witnesses and marking the demeanour of the witnesses in the box. It cannot certainly be laid down as an universal proposition of law that in no case can the first appellate court (the final court of fact) disturb such a finding of the trial court, but he can disturb and set aside the finding on such issue arrived at by the trial court only for grave and compelling reasons, or if the trial court has committed serious errors in overlooking or misjudging some very salient and material features of the evidence of which he was to attach the value. The judgment under appeal being a judgment of reversal and when the sole question was the appreciation of oral evidence of quite a number of witnesses examined on behalf of the Plaintiff, we have carefully gone through the two judgments and the oral evidence of each of the witnesses examined on behalf of the parties. After a careful examination we are of the view that far from there being any compelling or grave reasons vitiating the judgment of the trial court the judgment of the lower appellate court appears to have been vitiated on account of errors f record and the learned lower appellate court having misdirected himself in one or two material points. The ground on which he has disbelieved the voluminous oral evidence adduced by the Plaintiff appears to be -extremely flimsy and unwarranted by law.