FATAH GUGAN Vs. SARDARA

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent raises the question whether it is within the competence of a Court of second appeal to disturb findings of fact arrived at by a Court of first appeal when such findings are supported by evidence and are not unreasonable Or perverse.

(2.) MST. Bharto, wife of Arjan, a tenant having a right of occupancy in a plot of land, died in or about the year 1948 and the revenue officers mutated the right in favour of the male collateral relatives of her deceased husband. The landlords challenged the correctness of this decision and brought a suit for possession against the collaterals on the ground that the latter were not entitled to succeed to the right of occupancy as Than Singh, the common ancestor of the deceased occupancy tenant and of the collaterals, had never occupied the said land. The trial Court held that Than Singh had six sons, that at the time of the first settlement in the year 1845 fields Nos. 976 and 978 were in occupation of one kishan Das who was unconnected by ties of blood or relationship with Than Singh, that the remaining portion of the land was in the occupation of a son and two grandsons of Than Singh who were described as occupancy tenants, that the land was not shown to be in the occupation of any other son or grandson of Than singh, that the land was not in the possession of all the descendants of Than singh in their ancestral shares, that in the circumstances it could not be presumed that the son and grandsons who were in occupation of the land in suit had got it from Than Singh and consequently that Than Singh could not be said to have occupied the land. In this view of the case, the trial Court decreed the landlords' suit and the order of the trial Court was upheld by the learned District) Judge in appeal. The learned single Judge to whom a second appeal was preferred came to a contrary conclusion. He held that as a son and two grandsons of Than Singh were recorded as occupancy tenants in the year 1845 in respect of this plot of land, a presumption arose that Than Singh must have occupied the said land. This presumption could not be demolished by the mere circumstance that every one of his sons was not so recorded, for it may well be that the common ancestor occupied a large area of land and later on some of his sons occupied one portion and the others occupied the other portion. The learned Single Judge accordingly expressed the view that a presumption arose that the common ancestor had occupied the land, that this presumption was not rebutted and that the collaterals had succeeded in proving that the land in suit, excepting fields Nos. 976 and 978, was occupied by the common ancestor. He accordingly allowed the appeal, decreed the landlords' suit in, respect of fields nos. 976 and 978 and dismissed the suit in respect of the other fields. The landlords are dissatisfied with the order and have come to this Court in appeal under Clause 10 of the Letters Patent.

(3.) SECTION 100 of the Code of Civil Procedure accords statutory recognition to the well-known principle that a Court of second appeal will not determine disputed or doubtful questions of fact or disturb findings on pure questions of fact when such findings are supported by evidence and are not unreasonable or perverse. If, therefore, the judgment of the first appellate Court is in accord with correct principles of law and based on competent evidence reasonably tending to support the findings, the order of the first appellate Court will be affirmed even though it would have decided otherwise if it had occupied the place of the trial Court or the first appellate Court: Sree Meenak-shi Mills Ltd. v. Commr. of Income Tax, madras, (S) AIR 1957 SC 49 (A ).