GHAR SINGH TAMANG Vs. TULARAM DAMAI

JUDGEMENT

(1.) The suit giving rise to this second appeal before this Court, preceded by a first appeal before the learned District Judge, was instituted by the plaintiff-respondent against the defendant-appellant in the Court of the Civil Judge, West Sikkim at Gyalshing, for declaration of title and recovery of possession of the suit land on the allegation that the defendant encroached upon the suit land belonging to the plaintiff and planted cardamom plants thereon.

(2.) The learned trial Judge dismissed the suit on the finding that "the plaintiff has never had possessory right over the suit-land and that the defendant has established his adverse possession over the suit-land as the same has been in his possession for the last many years." On appeal, however, the learned District Judge has reversed the judgment of the trial Court and has decreed the suit as according to him the evidence on record clearly proved that the plaintiff was the owner of the suit land and that though the defendant was in possession of the suit land, he neither having pleaded nor having proved adverse possession for the requisite period, such possession could not ripen into any right or title to defeat plaintiff's claim for title and possession.

(3.) I am afraid that the finding of the learned District Judge that "the evidence on record clearly proves that the plaintiff is the owner of plot No. 332 measuring 5.32 acres as per revenue record" is clearly erroneous and is based on no evidence to that effect, and will, therefore, irresistibly warrant our interference with the said finding. I have reminded myself about the grave concern expressed by the Supreme Court in Deity Pattabhiramaswamy v. S. Hanymayya (AIR 1959 SC 57 at p. 59) to the effect that "notwithstanding clear and authoritative pronouncement on the scope of S.100, Civil Procedure Code, some learned Judges of the High Court are disposing of second appeals as if they were first appeals" but I have no doubt that we shall not be acting as a first appellate Court in interfering with the aforesaid finding in this case, because, as already stated, the said finding is not based on any evidence and that would beyond doubt justify and necessitate our interference in this case according to the "clear and authoritative pronouncements" of the Supreme Court in Sree Meenakshi Mills Ltd. v. Commissioner of Income-tax, (AIR 1957 SC 49) and the aforesaid Deity Pattabhiramaswamy's case. In the Meenakshi Mill's case, the Supreme Court while considering similar question under S.66 of the Income-tax Act, 1922, has elaborately reviewed the case-law under S.100 of the Civil Procedure Code and has held (at 65) that a finding on a question of fact is open to attack in second appeal as erroneous in law when there is no evidence to support it. That apart, a finding as to ownership is not a pure question of fact when such a finding is to be based on legal inference to be drawn from the facts proved or admitted. As I shall presently show, nothing has been proved or admitted in this case from which any inference in law can be drawn as to the ownership of the plaintiff and the learned District Judge made an error of law in coming to such a finding and his finding is, therefore, "contrary to law" within the meaning of S.100, Civil Procedure Code.