GOSAIN Vs. PURAN SINGH

JUDGEMENT

(1.) This is a reference submitted to the High Court under Rule 17 of the rules and orders relating to the Kumaon Division.

(2.) This High Court is asked to give a ruling as to whether the Commissioner was right in upsetting the judgment and decree of the first appellate Court on a point of fact by taking into consideration the evidence on the record on which the first appellate Court had come to a contrary conclusion. The position is this: We are not asked to say whether we prefer the judgment of the Commissioner or the judgment of the District Judge. What we are asked to do is to consider what was the matter in dispute between the parties, by what documents and evidence the case was proved, what were the documents and evidence which led the District Judge to the conclusion at which he arrived, and what were the documents and evidence which led the Commissioner to the conclusion that be arrived at, and was he the Commissioner entitled to come to a contrary finding which in effect upset the District Judge on a finding of fact. It is necessary just to give an outline of the case so that the position may be understood. The plaintiffs claimed recovery of possession of a certain field and declaration of rights over another area of land. The point that really arose was this. What was the extent of the interest of the plaintiffs vendors in the land which they, the vendors, purported to convey in its entirety to the plaintiffs? The District Judge had to come to a conclusion as to the relationship which the hamlet called Kanwaldhurra bore to the neighbouring village of Baghar, and after reciting that the vendors to the plaintiffs were cosharers of Kanwaldhurra and defendants 1 to 4 were cosharers of Baghar, he then goes into certain matters of history of the two villages, as he describes them, and he points out circumstances which show, on the one hand, that the villages are separated and on another view of the case that the hamlet was considered to be an appendage to the village. He then considers the bearing on the case of an important document which he describes as the razinama of 1844. From what he considers to be the true construction of that document, he infers that the villagers apparently agreed that Kanwaldhurra should be separated and there was in the razinama a reference to a sale or decree by which the Kanwals of Kanwaldhurra from whom the plaintiffs derived title had obtained 4 thoks.

(3.) Then the learned District Judges deals with a partition of 1885, and he recites what was done at that partition and he infers from the documents before him that the khatas in suit were not Saujaitgaon of the whole village of all the cosharers. He thought that the entry showed that the khatas and fields in suit still remained notwithstanding the razinama of 1844, the property of certain co-sharers and that the whole right, title and interest of these properties had not passed exclusively to the plaintiffs vendors. That was the conclusion which the learned District Judge drew from a construction of various documents the most important one being the razinama of 1844. In the result he decided that the plaintiffs were only entitled to the extent of the shares which were laid down in phant and munthakhib. That was as regards one plot of land and he disallowed their claim for possession over plot 5497, Now the question which we have got to answer is, whether, when a matter of this kind comes up in appeal, the Commissioner is bound to accept the interpretation which the District Judge has put upon a particular document.