ISWAR CHANDRA BISTU Vs. HARIRAM BISTU

JUDGEMENT

(1.) In this case there must obviously be a remand as prayed for by the learned advocate for the appellant for the purpose of a re hearing of the appeal by the lower appellate Court. The suit was for declaration of title to the eastern half of plot 1579 and the northern 5 feet of a certain wall falling partly inside that plot. The Record of Rights was against the plaintiff, but on a detailed consideration of the evidence adduced on both sides the trial Court came to the conclusion that notwithstanding the Record of Rights plaintiff's title to the eastern half of the plot was made out together with his title to the southern 2 feet out of the length of 5 feet of the wall referred to. The learned Subordinate Judge who heard the appeal differed from the trial Court both as regards the plot and as regards the wall.

(2.) He was entitled to do so on a consideration of the entire evidence, not excluding a series of important considerations set out in the painstaking judgment of the trial Court. The learned Subordinate Judge, however, has not thought fit to do anything of the kind. He gives reasons for disbelieving two out of three witnesses that he names at first (P. Ws. 4 to 6). He then comes to two other prosecution witnesses and says that they had no personal knowledge about the partition of plot 1579. This criticism is singularly beside the point, for the trial Court had referred to them in connexion with the plaintiff's story that the contesting defendant was at one time willing to buy from him the disputed land, which if true would be a material circumstance (unless explained away) in arriving at a decision as regards the title to the property.

(3.) The learned Subordinate Judge has entirely overlooked this circumstance, and has further made no reference whatsoever to the Commissioner's report which was dealt with in detail in the judgment of the trial Court. Nor has he referred to such considerations as that in a partition among four brothers made by the mother it was not likely that one of the brothers would be left without any share in the homestead at all without getting something for it somewhere else--another important consideration which was rightly laid stress upon by the learned Munsif. There is yet another circumstance to which I might refer: the heaps of earth found by the pleader Commissioner, regarding which the learned Munsif observed that there was no satisfactory explanation forthcoming from the side of the defendants in view of the evidence of his own witness (D.W. 5).