GOLAM MUSTAPHA Vs. HANUMANDAS MUNDRA

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession of an occupancy holding on the allegation that it has been abandoned by the recorded tenant. The case for the plaintiff as alleged in the plaint is that defendant 3 was the original occupancy raiyat in respect of the land in suit, that defendants 1 and 2 are now in possession of this entire holding on the basis of purchase, and that defendant 3 is not in possession of any portion of the holding. It is on these allegations that the plaintiff wanted khas possession of the land. Defendant 1, who contested the suit, resisted the plaintiff's claim on the ground that the original tenant, that is defendant 3, was still in possession of a portion of the land, that there was not a transfer of the entire holding, inasmuch as the purchase of defendant 2 was only a benami purchase and was for the benefit of defendant 3. Defendant 2 and 3 did not appear and contest the plaintiff's claim. The trial Court held that defendant 3 was in possession of a portion of the holding and that defendant 3 never repudiated his liability to pay rent. The trial Court was further of opinion that the sale, at which defendant 2 purchased, was a collusive affair. In this view of the matter, the trial Court dismissed the plaintiff's claim for khas possession. On appeal, the lower appellate Court has held that the entire holding has been transferred and that defendant 3 is not in possession of any portion of the holding. On these findings the lower appellate Court came to the conclusion that the entire holding had been abandoned by the original tenant. In the result, the lower appellate Court has decreed the plaintiff's suit. Hence the present appeal by defendant 1.

(2.) The first contention of Mr. Mukerji, appearing on behalf of the appellant, is that the finding of the lower appellate Court about defendant 3's possession is not a proper finding, inasmuch as, reversing the finding of the trial Court, the learned Judge has overlooked the principle, that when the question arises as to whether one witness should be believed rather than another and that question turns on the demeanour of witnesses in the witness-box, it requires circumstances of exceptional character to justify a Court of appeal in coming to a different conclusion. It is urged by the learned advocate that the trial Court, in view of the demeanour of the plaintiff's gomasta in the witness box, disbelieved him and believed the evidence of defendant 1, as the latter appeared to him to have deposed in a very straight-forward manner. It is contended that the lower appellate Court however in believing the plaintiff's gomasta and in disbelieving defendant 1 has not at all taken into consideration the impression, which these witnesses made on the trial Court by their demeanour in the witness-box. There can be no doubt that, when a Court has got to deal with a pure question of credibility of witnesses, great weight ought necessarily to be given to the judgment of the Judge, who saw the witnesses. But there may be other circumstances and facts, quite apart from manner and demeanour, which may show whether a statement can be believed or not. These circumstances and facts may justify the appellate Court in differing from the trial Court even on a question of fact turning on the question of credibility of witnesses whom the appellate Court has not seen: see Coghlan V/s. Cumberland (1898) 1 Ch 704. It appears that the lower appellate Court disbelieved the evidence of defendant 1 about the residence of defendant 3 on a portion of the holding, mainly relying upon the record-of-rights, which shows that there is no homestead land in the holding. The lower appellate Court also relied upon another circumstance, namely, that, in the written statement, the story about the residence of defendant 3 on a portion of the holding was not specifically mentioned. There is therefore no substance in this contention.

(3.) It is next urged by the learned advocate in support of the appeal that the facts found by the lower appellate Court do not amount to abandonment and consequently the plaintiff is not entitled to khas possession. It may be pointed out, at the outset, that there is no finding in this case that there has been repudiation by defendant 3. It has not found also that there has been any abandonment within the meaning of Section 87, Ben. Ten. Act. The lower appellate Court has decreed the suit only on the ground that the holding has been abandoned by the original raiyat. Now the question is whether this finding can be challenged in Second Appeal. There can be no doubt that the question, as to whether there has been abandonment of the land by the raiyat, is largely and principally a question of fact depending upon a number of circumstances to be proved in each case: see Monohar Pal V/s. Ananta Moyee Dassee (1913) 20 IC 198 and Moharamdi V/s. Asmat 1926 Cal 751. It is no doubt true that Mitter, J., observed in the case of Aminaddin Sheikh V/s. Chandranath Sen 1929 Cal 120 that the question of abandonment is a question of fact and that the finding about abandonment is binding in Second Appeal. But, in the case of Aswini Kumar V/s. Har Kumar 1928 Cal 891, a Division Bench of this Court has observed that the inference from the facts found, as to whether there was abandonment or not, is a question of law. In view of the decision of this Court, I am not prepared to dismiss this appeal on the ground that it is concluded by finding of fact.