DAUDAS Vs. PUNAMCHAND

JUDGEMENT

(1.) This is a review application by Daudas against the judgment of a Division Bench of this Court which was delivered on 31-7-1950 and has arisen in the following circumstances.

(2.) A suit was brought by Punamchand against Motilal, his mother Mst. Dhapo, Sunder Lal, Daudas, Gulabdas and Hemraj defendants for possession of a certain house. Punamchand claimed to be the owner of the house by virtue of it being ancestral property which had come to him. The suit was resisted by Daudas and his case was that the house had been sold in his decree against Sangidas. He put the decree in execution against Gulab Das, son of Sangidas, and attached the house and it was sold by auction and purchased by Hemraj defendant. Sangidas in his turn had purchased this house by a private sale from Motilal and Mst. Dhapo, his mother. The further case of Daudas was that there had been a separation in the family of Punamchand and Motilal long before the sale to Sangidas and this house had come to the share of Motilal's grandfather. The trial court dismissed the suit and there was a first appeal to this Court. That appeal was allowed and the suit was decreed. Thereafter, the present application for review was made and the same learned Judges, who decided the appeal, issued notice. The case has now come before us to decide whether review should be granted or not as the two learned Judges who decided the appeal are no longer on the Beneh of this Court.

(3.) Learned counsel for the applicant urges that there are errors apparent on the record and this Court should grant the review. He has particularly pointed out two matters where according to him the learned Judges while deciding the appeal had made errors apparent on the record. He contends that it is an undisputed fact in this case that the joint family of Punamchand, Motilal and others had separated as far back at least as 1900 and the learned Judges have not considered this undisputed fact at all anywhere in the judgment. Secondly, he urges that the trial Court had raised the presumption of Section 90, Evidence Act, in favour of two documents Ex. D-1 and D-2. The learned Judges who heard the appeal did not raise that presumption for certain reasons and even then did not give him an opportunity to prove the documents. He, therefore, urges that in view of at least these two errors apparent on the record, the review should be granted.