BACHAN SINGH Vs. BHIKA SINGH

JUDGEMENT

(1.) While I am anxious not to, in any way, abridge the effect of Section 100 of the Civil P.C., and not to depart from the well-established rule that findings of fact recorded by a Court of first appeal are binding in second appeal, I cannot, in view of the equally well-established rule, that inference from proved facts is always a question of law, affirm the finding or the decision of the lower appellate Court in this case. After an examination of the record I have come to the conclusion that the findings recorded by the learned Judge of the lower appellate Court are not borne out by the facts found by him, and that the conclusion at which the trial Court arrived was correct.

(2.) One Ganga Din obtained a simple money decree against Chandan Singh, father of the defendant-respondent, on the 28 of February, 1910. Before the decree could be executed, Chandan Singh died, and the defendant-respondent, who was then a minor and is still a minor, was brought upon the record as a judgment-debtor in place of his father. The father's sister of the defendant was appointed defendant's guardian ad litem. On the house in dispute being attached by Ganga Din in execution of his decree, an objection was preferred in the execution department by the defendant's guardian ad litem, questioning the right of the decree-holder to sell the house in dispute on exactly the same grounds on which the present suit was resisted by the defendant-respondent. It appears that the objections that were taken were not pressed and were eventually disallowed and the house in dispute was sold in execution of Ganga Din's decree and purchased by the plaintiff-appellant on the 7 of November, 1913. The plaintiff- appellant made no attempt to take possession of the house for a period of about 11 years and instituted the present suit for possession of the house on the 11 of January 1924.

(3.) One of the pleas urged is defence was that Chandan Singh, the defendant- respondent's father, was a drunkard, a spendthrift and a man of loose character, and the debt in respect of which the decree was obtained by Ganga Din was tainted with immorality. This common form of defence, which is usually taken by a Hindu son in order to deprive a creditor of the debts advanced by him to a Hindu father, totally broke down in the trial Court, and no attempt was made to challenge the finding of the trial Court on the point in the lower appellate Court.