BALA Vs. GIRDHAR

JUDGEMENT

(1.) THE plaintiff's respondents, Girdhar, Umakant and Laxman, brought the present suit against the defendants-appellants, Bala, Gangaram, Vithu, Daji and Narain, in the Court of the Additional Subordinate Judge, Second Class, Kelapur, for a declaration that the Defendants Nos. 3 to 7 were not the permanent tenants of the field in suit and that the order of Mr. Vaidya Sub-divisional Officer, dated 28-11-1923 (cf. Exhibit P. 3), was incorrect. Plaintiff 1 Girdhar is the managing proprietor of the village in question, whilst the other two plaintiffs and defendants Rajanna and Sohanna are other co-sharers of mouza Adegaon. The Judge of the first Court held that the plaintiffs' allegation that the field was leased for the first time in 1897-98 to four persons named was not established; that the field was held by Annapurna Bai in the years 1893-94, 1894-95 and 1895-96 and by Mahadeo and Ragho in 1897-98, and that the defendants not having been in possession since 1895 were not permanent tenants, their possession having originated after the year 1895-96. Decree was accordingly passed in favour of the plaintiffs.

(2.) BALA , Gangaram, Vithu, Daji and Narain appealed to the Court of the Additional District Judge, Yeotmal. The learned Additional District Judge held that after the 1st of June 1895, viz., in the year 1895-96, one Annapurna Bai was in possession of the field, and this finding necessarily implied that the defendants were not permanent tenants.

(3.) IT has next been urged on behalf of the appellants that the evidence justifies the presumption that their predecessor in title was in possession of, at any rate, part of the field in suit in 1895. If this were so, I should have expected to find mention of the fact in the lagwans for 1891-95 and 1895-96 (Exs. P-7 and P-8). Both the documentary and the oral evidence, however, justifies the finding that defendants' predecessor was not in possession in 1895-96. Mere assertion by witnesses, some of whom were obviously too young to have personal knowledge of the fact that defendants or their father had been in possession for 30 or 35 years, is of little or no value and it is peculiarly significant that Defendant 1, Bala, as D. W. 1, as well as others of the defendants' witnesses admitted that Annapurna Bai had previously held the field. All the weight of the evidence on record is against the idea that Annapurna Bai only held the field before 30 or 33 years ago.; In any event there is a prima facie satisfactory and reasoned finding of fact arrived at by both the lower Courts on this point and that finding of fact cannot, in the circumstances, be questioned on second appeal.