MT CHAULI ALIAS SUBHADRA DEVI Vs. MTMEGHOO

JUDGEMENT

(1.) The question which has been referred to this Full Bench arises in an appeal instituted by Mt. Chauli alias Subhadra Devi. She instituted the suit, which gave rise to the appeal, in order to obtain possession over an enclosure or gher, the whole of the village of Somli and a share of five biswas in the village of Nanadur. These properties originally belonged to Amolak Ram who left him surviving on his death three daughters, Mt. Parmeshri who died in 1905, Mt. Lachhmi who died in 1910 and Mt. Barfi who died in 1922. Mt. Chauli is the daughter of Mt. Lachhmi. This was a joint family of Jains and it is admitted that the daughter's daughter would have preference in respect of self-acquired property over a daughter's son but that a daughter's son would succeed to the ancestral property in preference to a daughter's daughter. It thus became necessary to decide which of the properties in suit were self-acquired and which were ancestral. The trial Court held that Somli village was ancestral property, that the enclosure was acquired with the aid of an ancestral nucleus of property and that the share in Nandpur was self-acquired. In view of certain transfers by the daughters of Amolak Ram, the Court found that the plaintiff was entitled to recover possession only of one-third of five biswas of the village of Nandpur. It gave her a decree for that share with mesne profits and dismissed the suit for the recovery of the rest of the property. The appeal was first heard by a Bench of this Court (Thorn C. J. and Ganga Nath J.). The learned Judges found that half the village of Somli and the whole of the gher or enclosure was self-acquired and that there was no legal necessity for the transfer of any part of the five biswas in the village of Nandpur but they found it necessary to remit three issues to the trial Court in order to discover what amount, if any, was due on account of mesne profits in respect of the village of Somli and the gher and what compensation, if any, was due to some of the defendants on account of improvements made to the gher. The trial Court recorded findings on these issues and when the case came up before another Bench, Collister and Bajpai JJ. the question arose whether the learned Judges were bound by the findings of the first Bench. The learned Judges referred the following question to a Full Bench: Whether and to what extent, in the circumstances of the present case, the findings at which the former Bench had arrived in this case on the earlier occasion are binding upon this Bench?

(2.) In the first place, I must make it clear that the decision of a single Judge of this Court or of a Bench of this Court is the decision of the Court and that it follows that the position of the second Bench was exactly the same as would have been the position of the first Bench if the appeal had come up before the same Judges again when findings on the issues were submitted by the trial Court. If the learned Judges of the first Bench would have been entitled to reconsider their previous findings the learned Judges of the second Bench are similarly so entitled. If the learned Judges of the previous Bench had not been entitled to reconsider their findings, then the learned Judges of the second Bench would equally not be so entitled. In order to simplify the matter, therefore, I propose to consider whether the learned Judges who constituted the first Bench could have reconsidered their findings, in the circumstances of this case, if the appeal had come up before them again after the findings on the remitted issues had been submitted by the lower Court. As a matter of principle, it is necessary to consider three positions. The learned Judges may either be bound, in law, to reconsider the case and record new findings which may or may not be the same as the findings previously recorded or they may be bound to accept their findings so as not to be entitled to reconsider the matter at all or the question may be one of discretion, namely, that they may refuse to re-hear the arguments and record fresh findings or they may consent to do so. I do not think that any Court can be bound to re-hear arguments which it has once heard and to reconsider a matter which it has decided. Every party is entitled to place his case fully before theCourt but once he has done so his right is extinguished. In the present case, the parties had apparently full opportunity to put their cases before the first Bench before issues were remitted and, consequently, it seems to me that the Court would have been justified in refusing to go into the disputed questions again. The first position, therefore, in my judgment is untenable.

(3.) On the other hand, it cannot be said that any -question has been finally determined until it leads to some action, that is, to a decree which may be executed or an order which must be carried into effect. When issues are remitted in a case of this kind, the only order which can be carried into effect is that lower Court must try the issues and submit the finding Section Any other findings which are recorded cannot be carried into effect until an ultimate decree is passed. One can well imagine circumstances in which it might be quite clear that the original findings were erroneous and it seems impossible to me that the Court when it came to pass its decree, would be compelled to pass an erroneous decree as the result of those finding Section It might be, for instance, that a question of law was involved which in the meanwhile had been settled by a superior Court in such a way as to render the previous findings wrong. It may also be that the previous findings can be shown to have been based on a misconception due to some oversight or misapprehension. I understand that the question has arisen in this appeal because certain documents were printed and placed before the first Bench although they were not upon the record and this fact was overlooked by the parties to the appeal. I think it would be impossible to insist that a Court should pass a decree ultimately knowing that it was wrong and I, therefore, think that the second position is as untenable as the first.