MT RANI KUNWAR Vs. MAHBUB BAKSH

JUDGEMENT

(1.) This is a first appeal by Mt. Rani Kunwar defendant from an order of remand passed by the lower appellate Court. The suit was brought by Mahbub Baksh plaintiff, and he claimed Rs. 2,762-15-0 made up of Rs. 1,100,the consideration of two sale deeds by the defendant to him and the costs of litigation between the plaintiff and the zamindar Ganga Prasad. The two sale-deeds were executed by the defendant on 23 February 1924 and 31 March 1924 in favour of the plaintiff. Each sale-deed purported to be of a plot of land 10 biswas in area, old number 1473, for the purpose of building a house. In the first sale-deed boundaries were given and in the second sale deed no boundaries were given. The plaintiff began to build his house and objections were made by Ganga Prasad, zamindar, and Ganga Prasad brought a suit against the plaintiff and a compromise was entered into with him by which the plaintiff admitted that the land on which he built his house was not the land which he purchased from the defendant Mt. Rani Kunwar but was land which belonged to Ganga Prasad. Accordingly the plaintiff took the land on a lease from Ganga Prasad.

(2.) The Court of first instance dismissed the present suit on the ground that the allegations of the plaintiff that the land had been demarcated by the agent of the defendant and shown to him were not true. The lower appellate Court, while upholding this finding of fact of the Court of first instance, has come to a contrary finding on issue 1 and has remanded the suit for disposal under the remaining issues and for determination as to whether the plaintiff is entitled to damages.

(3.) Issue 1 was whether the defendant was the owner in possession of the property sold by her to the plaintiff by means of the two sale-deeds dated 23rd February1924 and 31 March 1924 respectively. It is admitted that the defendant is a zamindar and owner of old plot 1473, area 87 bighas 11 biswas. This plot is barren land and there is no demarcation an the spot between it and old plot 1472 which is owned by the zamindar Ganga Prasad. The lower appellate Court has come to a finding of fact that on the western sides of plots 1473 and 1474 (lying to the south-east of plot 1473) there is a road. That road is not marked on the map Ex. 13, but the lower appellate Court made a local inspection and came to its finding of fact on its local inspection and on the evidence before it which was partly oral and partly documentary. It is not, therefore, open to us on second appeal to diner from this finding of fact.