GORDHANDAS KESHAVLAL SETH Vs. DHIRAJLAL DALSUKHRAM SETH

JUDGEMENT

(1.) In this case the question is whether the plaintiff has established his title to a wall or kotda, and a strip of land adjacent to it measuring about nine feet in breadth.

(2.) The trial Court found in his favour. The lower appellate Court reversed that decree and dismissed the plaintiff's suit with costs. The question of ownership mainly turns on the construction of certain documents which were produced in the trial Court. The two Courts have considered these documents in detail, and a question has been raised in this Court as to how far we are justified in second appeal in disturbing the finding of the lower Court that the documents and other evidence or circumstances did not establish the plaintiff's claim. That is a question which has been dealt with recently by the Privy Council in Midnapore Zamindary v. Uma Charan Mandal A.I.R. 1923 P.C. 187 where it is laid down that: To ascertain the date at which a particular holding first began as a definite holding, is essentially a question of fact, even if it is entirely dependent on documentary evidence and no second appeal lies to the High Court from the decision of the District Judge on appeal upon such a question, unless it can be shown that he has misdirected himself in point of law in dealing with it.

(3.) In the judgment it is said (p. 1287): Now to ascertain the date, at which a particular holding first began to be held as a definite holding is essentially a question of fact and must depend on evidence. That evidence may be, and naturally is, documentary, but the documents admitted in evidence upon that question are really historical materials, and although they have to be construed, and if possible understood, they are not to be treated as involving issues of law merely beoause they have to be construed. It is not as though they were being construed as instruments of title, or were contracts, or statutes, or otherwise the direct foundation of rights.