MATBAR SINGH Vs. RANBAZ SINGH

JUDGEMENT

(1.) IT appears that one Sheo Parsan Singh had three sons, named Ram Adhin Singh. Kudam Singh and Hanwant Singh. Sheo Parsan Singh s sons are dead. One Musammat Gujrati was the widow of Ram Adhin Singh and the daughter in law of Sheo Parsan Singh. She executed a deed of gift of the property in dispute on the 26th of November 1915 by a registered deed in favour of Mautbar Singh, a remote collateral of Sheo Parsan Singh. Mnsammat Gujrati died in July 1916. On the 28th of November 1916 the suit out of which this appeal has arisen wan brought, by the plaintiff appellant against the defendants-respondents for a declaration that he, the plaintiff, was entitled to the property in dispute and that the defendants- respondents, who are alleged to be the reversioners of the husband of Mnsammat Gajrati, had no right to the said property. The suit was brought on the allegation that the defendants respondents has denied the title of the plaintiff before the Kanungo and were thinking of opposing the plaintiff in the Revenue Court in connection with the mutation proceedings. IT was also alleged in the plaint that the property in dispute which had been gifted to the plaintiff was the stridhan of the donor. The defendants respondents resisted the claim on various pleas. They alleged that the property in dispute belonged to Ram Adhin Singn, who died after his father Sheo Parsan, and that Mttsamnat Gujrati had entered oa possession as a Hindu widow and that the gift by her to the plaintiff was invalid after her death. The Court of first instance found that Ram Adhin Singh had predeaeased his father, Sheo Parsan Singh, and that Musam-mat Gujrati had been in possession of the property in suit without any title for about 40 year. She had, therefore, become an absolute proprietor of the property and a mid make a valid gift which would last beyond her lifetime. The other pleas for the defends attacking the validity of the deed of gift on the ground that the lady excepted the dead without any independent and that the claim was barred under Section 42 of the Specific Relief Act, were also disallowed by the first Court. On appeal by the defendants, the learned Judge reversed the decree of the first Court. He held that Musammat Gujrati was put into possession by her father in-law over the property in dispute for her maintenance; that her possession over the property in only for her life and that, therefore, the gift made by her to the plaintiff came to an end on her death. The learned Judge was doubtful as to whether the plaintiff was in possession of the property in suit since the gift in his favour, and, therefor", held that Section 42 defeated the plaintiff s claim, in second appeal to this Court it is contended on behalf of the plaintiff appellant that the finding of the lured Judge that Musammat Gujrati entered on possession of the property in suit at the instance and with the permission of her father-in-law for her lifetime only and for her maintenance, is based upon evidence which has been misread of misunderstood by the learned Judge. In other words , it is said that there is no evidence on the record to support the finding of the learned Judge. Besides, he has made out a new case for the decree. No play was taken on behalf of the defendants that the possession of Musammat Gajrati over the property in suit was put-missive or that she was put in possession over it by her father-in-law for her maintenance, As to the plea based on Section 42, it is urged that the property in dispute is a fixed-rate Tenancy and is in possession of sub tenants, and that the plaintiff could not claim possession, inasmuch as the opposite party is not in possession nor have they interfered with the collection of rent by the plaintiff. All that: the defendants have done has been to deny the title of the plaintiff which made the latter some into Court to seek for a declaration of his title. We find, after an examination of the papers on the record and the pleadings in the case, that the defence nowhere put up the plea that Musammat Gujrati was put into possession by her father-in-law for her maintenance. On the contrary, the defense is that Sheo Parsan Singh died before Ram Adhin Singh, the husband of Musammat Gajrat , and that it was after the death of Ram Adhin Singh that Musammat Gujrati entered on possession as a Hindu widow. In fast, the evidence for the defence is to the same effect. The opinion of the learned Judge that Musammat Gujrati was allowed by her father-in- law the property in dispute for her maintenance is based upon the statement of one of the witnesses, namely, Sahdeo. On reference to the evidence of Sahdeo, we find that he says that Musammat Gujrati entered on possession of the property in dispute after the death of Sheo parsan Singh. IT is true that, in his cross- examination, the witness says that Sheo Parsan Singh gave a field to Musammat Gujrati for her maintenance because he thought that his two other sons might not support her. The witness nowhere says that the property in dispute was made over to Musammal Gujrati by Sheo Parsan Singh for her maintenance. IT is, therefore, obvious that the finding of the learned Judge is not based upon or supported by the evidence on the record. As to the plea under Section 42 of the Specific Belief Act, we also find that the opinion of the learned Judge is not borne out by the evidence on the record. The Patwari says distinctly that the collections were made by the plaintiff both in the lifetime and after the death of Musammat Gujrati. IT is true that the Patwari admits that no collections were made in his presence, but he says that his riyats were always written out on the information given to him by the plaintiff. There is one other witness for the plaintiff who says positively that the collections have been made by the plaintiff both in the lifetime and after the death of Muiammat Gujrati. The evidence, therefore, shows that the plaintiff was in rent collecting possession until the institution of the suit. No evidence was led on behalf of the defence to show the contrary an argument was pressed on behalf of the respondents, and pressed very strongly before us, that the findings of the learned Judge are findings of fact and should not be questioned in second appeal. We appreciate the argument and we would certainly not interfere with the findings of fact in second appeal. But in this case the objection to the findings is, that they are not based upon evidence but upon evidence which has been misread or misunderstood. IT was on account of that objection that we allowed both the learned Vakils to read to us the evidence, the plaintiff s Vakil to show that his objection was well founded and the defendants Vakil to show that the findings of the learned Judge were supported by the evidence on the record. After hearing the evidence read and criticized by the learned Vakils for both side, we have come to the conclusion that the findings of the learned Judge are not borne out by the evidence on the record. We, therefore, are constrained to allow the appeal and we allow it, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs throughout including fees in this Court on the higher scale.