HARI PADA MUKHERJEE Vs. RADHA BULLAV PAL

JUDGEMENT

(1.) We regret that we have to remand this appeal. The judgment of the learned Subordinate Judge is very unsatisfactory. It is confused, ill-expressed and the learned Subordinate Judge does not seem to have applied his mind to the points for decision. He ought to remember that in trying an appeal it is his duty to come to clear findings, as they are final and this Court cannot go behind them.

(2.) In dealing with the question whether the plaintiff is the reversionary heir of Asananda, he says: "the learned Munsif has found that the plaintiff and Asananda and Parmananda are of the same family. Therefore, the appeal must succeed." Then he says, the defendants could not set up a nearer heir." It is no part of the duty of the defendants to set up any nearer heir. The whole of the onus is on the plaintiffs to show that they are the reversioners. The Subordinate Judge then says, "so the evidence adduced by the plaintiff must be accepted as sufficient." Probably what he intended to say was that inasmuch as there was no evidence on the other side, although the evidence given on behalf of the plaintiff is that of interested persons, having regard to the other fasts of the case such evidence ought to be accepted. If he had said that one could have understood his point of view, but the way in which he has treated the matter throwing the onus on the defendants is responsible for confused and indefinite finding. We think he ought to arrive at a clear finding with regard to this matter.

(3.) Then as regards the properties the plaintiff based his claim upon the fact that Asananda and Permananda were brothers in joint possession, that Permananda died first, leaving a widow named Taramoni, that Taramoni survived her husband for a considerable number of years, that after Taramoni s death Adharmoni, the widow of Asananda, became possessed of this property and held adversely for 12 years and after her death her daughter Sarnamoyee obtained possession of this property. The defendants case was that after Permananda s death, Taramoni his widow succeeded to the property, that Adharmoni died before her and that on the death of Taramoni "while she, was the owner of the property left by home husband, there was no one alive in the family of her husband. So Sarnamoyee got the property by inheritance and was all along in possession." The portion of the judgment in which the learned Subordinate Judge deals with this matter is very confused. He says that "the defendants stated in their defence that the widow of Permananda died after Adharmoni and so Sarnamoyee got his properties not as an heir of Adharmoni but adversely as against others. This contention is not tenable as the disputed properties had belonged to Asananda even according to the defendants." This is exactly what the defendants had not said. The defendants in two portions of the written statement, namely, in paragraph 10 and in paragraph 12, deal with the shares of the two brothers, paragraph 10 dealing with Asananda s share and paragraph 12 with Permananda s share. We regret to have to say that the learned Subordinate Judge in dealing with those matters ought to have carefully dealt with the real contentions between the parties.