SHEK KHAN MAHMUD Vs. SHEK SYEDALI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for declaration of title to the land described in the plaint and for recovery of possession. In the Court of the Munsif the plaintiff filed a petition stating that he would be bound by what defendants 1 to 3, who were his brothers, stated in Court on touching the holy Koran. Accordingly the three defendants made a special oath on touching the holy Koran stating that the plaintiff had no title to the land in dispute and that their defence was true. The Munsif dismissed the suit and the Subordinate Judge in appeal confirmed the decision.

(2.) In appeal to this Court two grounds have been taken. First, that the offer of the special oath was not made by the plaintiff but it was made by his son who had no authority to make the same; and secondly, that the plaintiff duly withdrew the offer before it was accepted by the defendants, and the Courts below were wrong in the circumstances to allow the defendants to make the special oath. As to ground 1, the learned advocates on both sides have placed the evidence before us. It appears that the plaintiff is an old man and the suit was in effect conducted by his son, who on 29 November instructed his pleader to file the petition offering to be bound by the special oath of the defendants. The offer was immediately communicated by the learned Munsif to the pleader of the defendants and on the next date of hearing, viz., 10 December, the three defendants appeared and filed a petition expressing their consent to make the special oath. On that date however the plaintiff filed a petition retracting the offer. The learned Subordinate Judge has found that the application making the offer was made either by the plaintiff himself or with his consent and under his instruction, It appears clear that though it was the son who instructed the pleader to make the offer, his action was fully approved by the plaintiff. If he did not approve of the action it was open to him immediately to inform his pleader and ask him to withdraw the offer. But ha deliberately omitted to make a petition of withdrawal until 10 December when the defendants came to Court prepared to make the special oath. In the circumstances, the first objection must be over-ruled. On ground 2 the learned advocate for the appellant has urged that the learned Subordinate Judge was wrong in law in holding that the offer of the special oath once made could not be withdrawn. I agree with the learned advocate that the Subordinate Judge has put the proposition too widely, but on the particular facts of the case it is apparent that the offer was not in fact withdrawn before it had been accepted by the defendants.

(3.) In my opinion both grounds urged by the learned advocate for the appellant fail. I would therefore dismiss the appeal with costs to the defendants who have appeared. Guha, J.