Radha Prasad Singh Vs. Gajadhar Singh
& Ors  INSC 111 (7 September 1959)
GUPTA, K.C. DAS DAS, SUDHI RANJAN (CJ)
CITATION: 1960 AIR 115 1960 SCR (1) 663
Appellate Court, power of-Reversal of finding
of fact arrived at by trial Court-Question Of credibility of witness-Rule.
Although it is well-settled that a court of
appeal should not lightly disturb a finding of fact arrived at by the trial
judge who had the opportunity of observing the demeanour of the witnesses and
hearing them, that does not mean that an appellate court hearing an appeal on
facts can never reverse such a finding. Where the decision on a question of
fact depends on a fair consideration of matters on record, and it appears to
the Appeal Court that important considerations have not been taken into account
and properly weighed by the trial judge, and such considerations clearly
indicate that the view taken by the trial judge is wrong, it is its duty to
reverse the finding even if it involves the disbelieving of witnesses believed
by the trial court.
Where again the trial judge omits to properly
weigh or take into account 664 important considerations bearing on the
credibility of witnesses or the probability of their version, which point the
other way, it is the duty of the court of appeal to reverse the findings of the
If the question of fact does not solely
depend on the credibility of witnesses for its determination, but is one of
inference from proved facts, on a consideration of probabilities, the court of
appeal stands in the same position as the trial court and is free to reverse
Shunmugayoya Mudaliay v. Manikka Mudaliar,
(1909) L.R. 36 I.A. 185; Coghlan v. Cumberland, (1898) i Ch. 704; Wall (Thomas)
v. Thomas, (1947) i All E.R. 582; Bonmax v. Austin Motor Co. Ltd. (1955) i All
E.R. 326; Sayju Pershad v. Raja jwaleshwari Pratap Narain Singh, (195I) I.L.R.
43 Cal. 833 and Laljee Mohomet v. Girlder,  S.C.R. 78i, referred to.
Consequently, where, as in the present case,
the plaintiff brought a suit for pre-emption and the question for determination
was one of fact, namely, whether the plaintiff had performed the essential
ceremonies of Talab-E-Mowasibat and Talab-E-Ishtashad, and the trial court
believed his witnesses, not because it had been impressed by their demearour,
and the High Court in appeal disbelieved them in the light of the probabilities
of the case and reversed the decision of the trial court.
Held, that it was not correct to contend that
the way in which the High Court had approached the case was wrong or that its
decision was not justified.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 19 of 1954.
Appeal from the judgment and decree dated
April 8, 1949 of the Patna High Court, in Appeal from Original ]Decree No. 116
of 1947, arising out of the judgment and decree dated the February 28, 1947, of
the Sub-Judge at Begusarai in Title Suit No. 14/14 of 1944/45.
L. K. Jha and B. K. Sinha, for the appellant.
G. S. Pathak, B. Sen, B. K. Saran and R. C.
Prasad, for respondent No. 1.
S. D. Sekhri, for respondents Nos. 3 and 4.
1959. September 7. The Judgment of the Court
was delivered by DAS GUPTA J.-Though a member of questions, some of fact and
some of law were originally raised in this suit for pre- emption, the main
question for consideration in this appeal from the judgment of the 665 High
Court of Patna, reversing the decree for preemption granted by the Trial Court,
the Subordinate Judge of Monghyr, is the question on which the High Court based
its decision of reversal. That question is whether the ceremonies essential for
exercising the right of pre-emption were properly performed. Issue No. 9 in
which this question was raised is in these words:- " Did the plaintiff perform
the ceremonies of Talab-E- Mowasibat and Talab-E-Ishtashad as required by law
?" The plaintiff Radha Prasad Singh brought this suit for pre- emption in
respect of 5 items of property described in Schedule B of the plaint which
along with certain other properties were sold by the Defendant 2nd Party Mst. Jogeshwari
Kumari alias Jageshwari Kumari widow of Babu Ganga Prasad Singh deceased and
daughter of Babu Narsingh Prasad Singh by a deed executed on November 18, 1943,
at Moghra and registered on November 23, 1943, at Monghyr.
The Trial Court held that the plaintiff had
failed to prove that he was a co-sharer in respect of Item 2 of Schedule B. As
regards the other 4 Items of properties he held that the plaintiff was a
co-sharer and as already indicated he gave the plaintiff a decree for
pre-emption in respect of these 4 Items.
The sale-deed is in favour of the defendant
first party, Gajadhar Singh. It is no longer disputed, however, that Gajadhar
Singh was a mere Benamidar and the real purchaser by this deed was Babu Lakshmi
Prasad Singh, his son Satya Narayan Singh and others.
A dispute was raised as to whether 4 annas 5
gandas odd share of Mauza, Majhaul Kilan Shri Ram, was sold or the entire 8
annas odd share of the vendor was sold. It has been held by both the Courts
below that the plaintiff's original case that the 4 annas 5 gandas odd share of
Majhaul Kilan Shri Ram was sold is not correct and that really 8 annas odd
share, the entire interest of the vendor in this property was sold by the deed,
but that after the registration of the sale deed it was tampered with and by an
act of forgery the 666 8 annas odd share was altered fraudulently to 4 annas 5
gandas. It was after the defendant's pleading in the written-statement that 8
annas odd gandas of this Mauza was sold and not 4 annas odd gandas as mentioned
in Schedule B, that the plaintiff prayed for and obtained an amendment of the
plaint by which an alternative prayer for pre-emption in respect of 8 annas odd
share of this Mauza was made. But for this amendment it is obvious the prayer
for pre-emption could not be granted as being only for a partial pre- emption,
once it has been found that 8 annas odd gandas were sold and not 4 annas odd
gandas. One question which was therefore raised whether the amendment was
rightly granted by the Trial Court. The question that the suit as brought was
for partial pre-emption was also raised from another aspect, viz., that though
the sale of this Mauza, Majhaul Kilan Shri Ram, was of all villages Asli Mai
Dakhili, i.e., original with dependencies, there is no prayer for pre- emption
in this suit in respect of Dakhili villages. As already indicated, however, the
main question in controversy was whether the essential ceremonies required in
law, i.e., Talab-E-Mowasibat and Talab-E-Ishtashad, were performed in
accordance with law.
A regards this the plaintiff's case is that
he came to know of this sale by his co-sharer Jogeshwari for the first time on
January 2, 1944, at about 11 a.m. when Jadunath Singh, a resident of Majhaul,
informed him of this and that he at once completed the formality of
Talab-E-Mowasibat in the presence of some persons and that shortly after this
he went to the properties of Tauzis 1130, 4201, and 1136, and also Mauza
Bugurgabad and performed Talab-E-Ishtashad, that he went then to the residence
of the purchaser Gajadhar Singh at Matihani on January 3, 1944, and again
performed the Talab-E-Ishtashad ; and that very day he started for the
residence of the vendor and performed the Talab-E-Ishtashad there on January 4,
The defence was that the story of any such
ceremonies having been performed is wholly untrue and that, in fact, the
plaintiff had knowledge of the sale 667 from long before January 2, 1944, he
having been a rival bidder for the purchase of those very properties. A
detailed story of a proclamation by beat of drums of the proposed sale by
Bindeshwary and the plaintiff's attempt to secure the property at the sale was
set out by the defendant in the written-statement and was sought to be proved
by his witnesses. The Trial Court disbelieved the. defendant's story on this
point. He also rejected the defence allegation that the plaintiff was himself
responsible for the forgery that was committed in respect of the deed of sale
by altering the statement of the share in Majhaul Kilan Shri Ram that was sold,
from 8 annas odd gandas to 4 annas odd gondas. On these findings he held the
plaintiff's suit was not barred by estoppel.
Proceeding then to the consideration of the
question whether the plaintiff 'came to know of the sale in favour of the first
defendant for the first time on January 2, 1944, from Jadunath as alleged, the
learned Judge has accepted the evidence given by the plaintiff and Jadunath on
this point and held that the plaintiff's case that he received information for
the first time on that day was true. He also accepted the evidence of the
plaintiff as regards the requisite ceremonies having been duly performed.
The very important question that arose for
the decision of the Court was whether the plaintiff's story that he came, to
know of the sale for the first time from Jadunath on January 2. 1944, is true.
The Trial Court held that it was true.
On this point the High Court came to a,
The learned judges of the High Court were of
opinion that the evidence of witness Jadunath was wholly unacceptable and that
the plaintiff's evidence that he came to know of the alleged sale on January 2,
1944, could not be accepted.
After pointing out that the whole basis of
the plaintiffs claim that he performed 'the ceremonies of Talab-E- Mowashibat
and Talab-E-Ishtashad was without substance, they examined the evidence as
regards the performance of the ceremonies and held that this evidence was also
not acceptable, 668 The question in dispute before us is thus a pure question
of fact, viz., whether the plaintiff came to know of the sale for the first
time on January 2, 1944, and thereupon performed the ceremonies of
Talab-E-Mowasibat and Talab-E- Ishtashad. The main contention raised by Mr.
Jha, who appeared in support of the appeal is that in considering this question
of fact the High Court approached the question from a wrong point altogether
and was not justified in reversing the judgment of the Trial Court on that
The question as to what should be the right
approach for a Court of Appeal in deciding a question of fact already decided
in one way by the Judge in the Court of the first instance has often engaged
the attention of the courts, though the views expressed have not been uniform.
Emphasis has been laid in some cases on the importance of the Court of Appeal
deciding for itself the question of fact when the appeal is on facts, though
remembering that it should not lightly do so not having had the advantage which
the Trial Judge had of seeing the witnesses., More emphasis has been laid in
other cases on the importance of not reversing the Trial Judge's findings of
fact without compelling reasons.
All the Courts in all the cases have stressed
the rule which the courts of appeal should observe for themselves: that a Judge
sitting on appeal not having had the opportunity of seeing and hearing the
witnesses should think twice and more than twice before reversing the findings
of fact arrived at by the Trial Court who has had that opportunity. To say that
however is not to say that the Court of Appeal will never reverse a finding of
fact of the Trial Court. In Shunmugaroya Mudaliar v. Manikka Uudaliar (1), Lord
Collins pointed out that:
"It is always difficult for judges who
have not seen and heard the witnesses to refuse to adopt the conclusions of
fact of those who have; but that difficulty is greatly aggravated where the
Judge who heard them has formed the opinion, not only that their inferences are
unsound on the balance (1) (1909) L.R. 36 I.A. 185.
669 of probability against their story, but
they are not witnesses of truth." In the same judgment Lord Collins
referred approvingly to the judgment delivered by Lindley, Master of the Rolls,
in the Court of Appeal in the case of Coghlan v. Cumberland (1) which set out
the limitations of the rule :- " even where the appeal turns on a question
of fact, the Court of appeal has to bear in mind that its duty is to rehear the
case, and the Court must reconsider the materials before the Judge with such
other materials as it may have decided to admit. The Court must then make up
its own mind, not disregarding the judgment appealed from, but carefully
weighing and considering it; and not shrinking from overruling it if on full
consideration the Court comes to the conclusion that the judgment is wrong.
When, as often happens, much turns on the relative credibility of witnesses who
have been examined and cross-examined before the Judge, the Court is sensible
of the great advantage he has had in seeing and hearing them. It is often very
difficult' to estimate correctly the relative credibility of witnesses from
written depositions and when the question arises which witness is to be
believed rather than another; and that question turns on manner and demeanour,
the Court of Appeal always is, and must be, guided by the impression made on
the Judge who saw the witnesses. But there may obviously be other
circumstances, quite apart from manner and demeanour, Which may shew whether a
statement is credible or notand these circumstances may warrant the Courtin
differing from the Judge, even on a question offact turning on the credibility
of witnesses whom the Court has not seen." Almost the same view was
expressed by Lord Thankerton in Watt (or Thomas) v. Thomas (2 ) :- " I.
Where a question of the fact has been tried by a Judge without a jury and there
is no question if misdirection of himself by the Judge, an appellate (1)(1898)
1 Ch. 704.
(2) (1947) I All E.R. 582. 587.
85 670 court which is disposed to come to a
different conclusion on the printed evidence should not do so unless it is
satisfied that any advantage enjoyed by the Trial Judge by reason of having
seen and heard the witnesses could not be sufficient to explain or justify the
trial judge's conclusions. II.
The-appellate Court may take the view that,
without having seen or heard the witnesses, it is not in a position to come to
any satisfactory conclusion on the printed evidence. 111.
The appellate Court, either because the
reasons given by the Trial Judge are not satisfactory, or because it
unmistakably so appears from the evidence, may be satisfied that he has not
taken proper advantage of his having seen and heard the witnesses, and the
matter will then become at large for the appellate court. It is obvious that
the value and importance of having seen and heard the witnesses will vary
according to the class of case, and, it may be, the individiual case in
question." These observations were cited with approval by Lord Reid in Bonmax
v. Austin Motor Co., Ltd., (1). (See also the observations of Mokerjee, J., in
Laljee Mahomed v. Girlder (2).
This question of the proper approach of the
Court of Appeal to decisions on questions of fact arrived at by the Trial Court
was considered by this Court in Sarju Pershad v. Raja Jwaleshwari Pratap Narain
Singh(3). Mukherjea, J., while delivering the judgment of the Court observed:-
" In such cases, the appellate court has got to bear in mind that it has
not the advantage which the trial Judge had in having the witnesses before him
and observing the manner in which they deposed in Court. This certainly does
not mean that when an appeal lies on facts, the appellate court is not
competent to reverse a finding of fact arrived at by the trial judge. The rule
is-and it is nothing more than a rule of practice-that when there is conflict
of oral evidence of the parties on any matter in issue and the decision hinges
upon the credibility of (1) (1955) I All E.R. 326. (2) (1915) I.L.R. 43 Cal.
671 the witnesses, then unless there is some
special feature about the evidence of a particular witness which has escaped
the trial judge's notice or there is a sufficient balance of improbability to
displace his opinion as to where the credibility lies, the appellate court
should not interfere with the finding of the trial Judge on a question of
fact." The position in law, in our opinion, is that when an appeal lies on
facts it is the right and the duty of the Appeal Court to consider what its
decision on the question of facts should be; but in coming to its own decision
it should bear in mind that it is looking at the printed record and has not the
opportunity of seeing the witnesses and that it should not lightly reject the
Trial Judge's conclusion that the evidence of a particular witness should be
believed or should not be believed particularly when such conclusion is based
on the observation of the demeanour of the witness in Court. But, this does not
mean that merely because an appeal court has not heard or seen the witness it
will in no case reverse the findings of a Trial Judge even on the question of
credibility, if such question depends on a fair consideration of matters on
record. When it appears to the Appeal Court that important considerations
bearing on the question of credibility have not been taken into account or
properly weighed by the Trial Judge and such considerations including the
question of probability of the story given by the witnesses clearly indicate
that the view taken by the Trial Judge is wrong, the Appeal Court should have
no hesitation in reversing the findings of the Trial Judge on such questions.
Where the question is not of credibility based entirely on the demeanour of
witnesses observed in Court but a question of inference of one fact from proved
primary facts the Court of Appeal is in as good a position as the Trial Judge
and is free to reverse the findings if it thinks that the inference made by the
Trial Judge is not justified.
Turning now to the instant case we find that
the Trial Judge having seen and heard Jadunath and the plaintiff, believed
their evidence on the point of information being given to plaintiff by Jadunath
about the 672 sale on January 2, 1944, at about II a.m. It does not, however,
appear that the learned Trial Judge arrived at his conclusion on the basis of
the demeanour of these witnesses having created a favourable impression on his
mind as to their credibility.
In scrutinising the evidence of the plaintiff
and of Jadunath it must be borne in mind that the case of the plaintiff is that
on January 2, 1944, certain information having been received by him, he
performed the formalities.
There is no case that the formalities were
performed on any other date. Therefore, if the story of the communication of
information on January 2, 1944, is not established then the whole case of the
plaintiff must fail.
Jadunath's evidence on this point was:-
" On 2-1-44 I told Radha Babu at his house in Manjhaul that Maghrawalli
Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Matihani, this
was about 11 a.m. Radha was startled to hear this and standing up said:
"Jo jo jaidad Babu Gajadhar Singh hath
(then says Maghrawalli Mussammat Jageshwari Kumari ne jo jo jaidad Babu
Gajadhar Singh ka liath becha hai uske kharidne ka haq mere.
Ham Kharida, Ham Kharida, Ham Kharida. Talab
Mowashibat karte hain. Babu Jagdamba Prasad aur Babu Narayan Prasad gabah
rahie. . . . I came to know from a man of Chitral, I kos from Matihani that
gajadhar had a marriageable grandson.".
Mention should be made in this connection
also of the evidence of Jagdambi Prasad:- "On 2-1-44 I had been to
plaintiff's house at 10-30 a.m.
Babu Narayan Prasad Singh, a pleader of
Samastilpur was at plaintiff's house at the time . . . Jadunath Singh told
Radha Prasad that Musanimat Jagesliwari Kumari of Maghra had sold away her
property in Manjhaul to Gajadhar Singh of Matihani. As soon as Jadunath Singh
said this Radha Prasad Singh was startled, stood up and said:
I have a right to purchase this property. I
I have purchased; I have purchased.
673 You Jagdamba Prasad Singh, you Narayan
Prasad Singh and you Jadunath Singh, bear witness to this fact. He uttered
these words thrice." In deciding the question whether the information from
Jadunath was the first information received by the plaintiff the Trial Judge
had necessarily to consider whether the story that Jadunath came to know of the
sale and brought this information on to the plaintiff on January 2, 1944, at
about 11 a.m. was true or not. In arriving at a decision on the point it was
necessary for him to consider the probabilities of the story, of Jadunath
having gone to Gajadhar's house in search of a bridegroom and that there
Gajadhar Singh informed him of the sale and then of the probability of the
story that he would be taking upon himself the task of going to the plaintiffs
house immediately on return to his village to convey this information, the
probability of the story as to how the plaintiff reacted to the account and
also the question of discrepancy. It does not appear that the learned Trial
Judge took any of these matters into consideration. All that he says about
Jadunath's credibility is that his evidence had been criticised on the ground
that he was one of plaintiff's witnesses in the previous suit brought by him
against Satya Narain Singh's ancestors and that is in his opinion was not a
valid ground for discarding the evidence of Jadunath Singh. We agree with the
learned Judge that the mere fact that Jadunath was one of the plaintiff's
witnesses in the previous suit brought by him against Satya Narain Singh's
ancestors about 33 years ago would not by itself be a valid reason for
discarding his testimony. The fact that this was not a valid reason for discarding
his testimony does not, however, absolve the Court of the duty of testing the
witness's testimony on the touch-stone of probability.
The learned judges of the High Court applied
that touch- stone and came to the conclusion that Jadunath was not a witness of
It is clearly a case where the words used by
Lord Thankerton that the Trial Judge had not taken proper advantage of his
having seen and heard the witnesses, and the matter would become at large for
the appellate 674 court, should apply. Here was a witness who could not be
considered to be wholly independent. For, on his own showing he took the
trouble of going to plaintiff's house after what may be taken to be an arduous
country in an unsuccessful search for a bridegroom, to inform the plaintiff of
a matter in which he himself had no interest--a witness who had figured, though
many years ago, in a pre- emption suit brought by the same person. These facts
made close scrutiny of the witness's account necessary before the Judge could
say just by looking at him that he was a witness of truth. That scrutiny is
conspicuous by its absence.
Taking his evidence as a whole we find that
his story that after coming to know of the sale in question he went to the
house of Gajadhar, the first defendant, at village Matihani to make enquiries
about a marriage proposal in respect of his daughter with his grandson and that
it was in that connection that Gajadhar spoke to him about his purchase.
But it is curious that in his
examination-in-chief this witness came straight to his account of 'coming to
the plaintiff's house on January 2, 1944, and informing him about the sale by
Jogeshwari of her Milkiat to Gajadhar without saying a word as to his visit to
Gajadhar's house, to the purpose of his visit and the manner in which Gajadhar
gave him the information, or even the detailed nature of the information. It
was in cross-examination that he disclosed that he went to Gajadhar's house for
"barthuari". It is in vain that we look into his evidence, whether in
examination- in-chief or in cross-examination, for the exact information given
It has to be remembered in this connection
that it is no longer disputed that Gajadhar himself had no interest in these
properties and was a mere Benamidar. Even if Gajadhar's own account that he was
completely in the dark about these transactions be left out of account it was
necessary for the Court to consider how far it was probable that Gajadhar would
put on Jadunath a false story of purchase by himself of properties. It was
urged that this Gajadhar did with a view to raise the Tilak which he could thus
675 Jadunath himself has not said anything
about the negotiations about Tilak but one Mahabir Ray has said that when he
was going to the fields Gajadhar called him and there lie heard Gajadhar
demanding a higher Tilak stating that he had recently purchased properties at
Majhaul from Mussammat. Jadunath himself does not mention having seen this
Mahabir at Gajadhar's house. Jadunath claims to have gone to his house with a
servant. Mahabir has not mentioned the presence of this servant. The question
whether a man like Mahabir who was a total stranger to the plaintiff would be
called by Gajadhar to hear such talks also requires the serious consideration
of the Court. The Trial Judge does not appear to have given the slightest
consideration to this aspect of the matter. The learned judges of the High
Court thought that there was no reason that Gajadhar would go out of his way to
convey the information to Jadunath that he had purchased the Milkiat of
Jogeshwari, the defendant No. 2. It is difficult not to agree to this estimate
Even more important was the question of
probability as regards the story of the plaintiff's reaction when the
information is said to have been given to him. Both Jadunath and Jagdambi say
that the plaintiff was startled on getting information of the sale and at once
uttered the words which have been set out already of the Talab-E- Mowsibat.
What would a man of ordinary prudence-not to speak of the man of property and
with experience of previous litigation like the plaintiff-would do under such
circumstances ? There cannot be any two opinions on this question. He may
consider it unwise to ask his informant any further question before making the
first Talab, i.e., Talab-E-Mowasibat. Once that was completed he would ply his
informant with questions as to where he got this information, what the
information exactly was, what properties had been sold, what the consideration
was, and other connected questions. In this case, according to the evidence of
Jadunath no such questions were asked by the plaintiff. In his
examination-in-chief, Jadunath says:- 676 " He (plaintiff) asked his syce
to bring his tandom. He told Jagdamba Babu that he would go to make talab-e-
isthashad and asked him to accompany him. While they were boarding the tandom
Jai Prakash Narayan came that way.
Radha Babu asked him also to accompany him.
The same night Radha Babu met us at my house at 8 p.m. He asked me where I had
obtained the information about the sale." From this evidence it is clear
that though Jadunath was at the place until the Tandom bad been brought and the
plaintiff and Jagdamba got into the Tandom and Jai Prakash Narayan also
arrived, no question was put by the plaintiff to Jadunath in this behalf. It
has to be noted that the plaintiff went to Jadunath's house the same night at 8
and the only question which was asked was:
Where he had obtained the information about the sale and nothing was asked
about what properties had been sold or for how much had they been sold. In
cross-examination Jadunath made the further statement in these words:- "
When I broke the news Radha Prasad did not ask me where I had received the
information, or who had purchased the properties; what properties had been
purchased or what the consideration was." Such conduct on the part of
Jadunath is incredible and any Judge of facts with experience of normal human
conduct could have no hesitation in coming to the conclusion that things could
not have happened in the way Jadunath has described.
Mr. Jha, the learned Counsel for the
appellant, urged that it would be unfair to base any conclusion on the supposed
improbability or unnaturalness of such silence on the part of the plaintiff without
having given him an opportunity to explain-why be acted in this peculiar
manner. It has to be noticed, however, that Jadunath had been examined and
cross- examined on January 9, 1947, and when the plaintiff was put in the
Witness-Box on the following day, i.e., January 10, 1947, the lawyer who
examined him had before him the fact that Jadunath's evidence had brought out
this strange silence on the part of the plaintiff after he had been informed of
the 677 sale. It was his duty to obtain from Radha Prasad an explanation of
such conduct. But he put no questions to Radha Prasad about this. The obvious
reason is that Radha Prasad had no explanation to offer and the lawyer knowing
this kept quiet. It appears to us that the learned judges of the High Court of
Patna were right in attaching great importance to this conduct of the plaintiff
and were justified when they thought that this was an improbable story and
rejected, in disagreement with the Trial Judge Jadunath's evidence altogether.
Mention has to be made of another
circumstance which was noticed in the High Court judgment. That is as regards
the exact information which is said to have been given by Jadunath. Jadunath's
own account in the examination-in- chief is that he "told Radha Babu at
his house in Majhaul that Maghrawalli Jugeshwari Kumari had sold away her
Milkiat to Gajadhar Rai of Motihani. In his cross-examination he first said :-
" The information I gave was in these terms: Maghrawali Musammat apni
Jaidad Babu Gajadhar Singh Motihani wale ke chan bech dia." and then
correcting himself said: " Babu Gajadhar Singh ne kaha ki Maghrawali
Musammat ki jaidad kharid kia." It is not possible for anybody to remember
exactly the words used by himself many years ago and it is reasonable to say
that there was no substantial difference between the account given by him of
this matter in his examination-in-chief and in cross-examination. It is
interesting to remember, however, that in paragraph 4 of the plaint, it was
stated that the information that Jadunath gave was:
" That the defendants 2nd and 3rd
parties had sold the properties entered in Schedule B of this plaint, along
with other properties to the defendant 1st party, under a registered deed of
sale." According to Jadunath's evidence he does not appear to have
mentioned the defendant 3rd parties as the sellers nor gave any details to show
that the properties 86 678 entered in Schedule B were covered by the sale nor
that there was a registered deed of sale.
Turning to the evidence on the plaintiff and
Jagdamba as regards the information said to have been given by Jadunath we find
that Jagdamba says: " Jadunath Singh told Radha Prasad that Musammat
Jogeshwari Kumari of Maghra had sold away her property in Majhaul to Gajadhar
Singh of Motihani." According to the plaintiff himself the information
which Jadunath gave was that Gajadhar Singh had purchased the Majhaul
properties from the Maghrawali Musammat. An examination of Schedule B shows
that while the first 3 items were properties in Mauza Majhaul, the 4th item is
a property in Buzurgabad while the 5th item is a property in Mauza Dundit.
There appears to be no reason to think that these properties 4 and 5 could be
even loosely be considered to be properties in Majhaul or Majhaul Properties.
Commenting on Jagdamba's evidence on this point Mr. Justice Sinha, who
delivered the leading judgment stated :
" Plaintiff's witness No. 2 has stated
that Jadunath told the plaintiff that the second defendant had sold her
property in Majhaul to the first defendant. If that is so, it is a little
difficult to under. stand how they went to Bugurgabad or to the other items of
property to perform the ceremonies, if they ever did so." It is strange
that there should be such discrepancy between the evidence of Jadunath himself
and the plaintiff and Jagdamba as to what actually was said. But if Jagdamba's
account such as is supported by the plaintiff himself, is true then there is no
acceptable explanation as to why the plaintiff could think of going to
Bugurgabad at all as he and his witnesses say, he did.
It was the duty of the Trial Judge to take
into account these several considerations in testing the credibility of the
account given by Jadunath, the plaintiff and Jagdambi that Jadunath informed
the plaintiff on January 2, 1944 about the sale. He did not do so, The learned
judges of the High Court as a 679 Court of Appeal were in duty bound to
consider these questions before accepting the decision of the learned Trial
Judge. The criticism that the approach of the learned judges of the High Court
was wrong is therefore wholly without foundation. The learned judges of the
High Court rightly took these matters into consideration and the decision they
arrived at on these considerations that the Trial Judge's assessment of the evidence
was wrong and that Jadunath was not a witness of truth and that the account
given by the plaintiff that the information was conveyed to him by Jadunath on
January 2, 1944, should not be accepted is clearly right.
Once this decision is reached it is unnecessary
to consider the further question whether any ceremonies were performed at all
on 2nd, 3rd or 4th January, 1944, as stated by the plaintiff and his witnesses.
Even if they were, they would be of no assistance to the plaintiff as the
plaintiff had failed to show that it was on January 2, 1944, that he received
the information about the same.
It is unnecessary for us therefore to decide
the further question that appears to have been raised, viz., that even if the
evidence as regards the performance of the two Talabs i. e., Talab-E-Mowashibat
and Talab-E-Ishtashad is accepted at its face value the requirements of the law
have not been fulfilled. The High Court held that the plaintiff had failed to
prove that the words used by him at the time of the making of the second demand
of Talab-E-Ishtashad were sufficient to draw the attention of the witnesses to
the specific properties in respect of which he was demanding his right of
pre-emption. We express no opinion whether this view of the learned judges of
the High Court is correct or not. We also express no opinion on the two other
questions, viz., whether the Trial Court acted in accordance with law in
granting leave to the plaintiff to amend his plaint so as to include the
alternative prayer for pre-emption in respect of 8 annas odd share of Tauza No.
1130 instead of 4 annas odd share as originally claimed and also whether the
suit was bound. to fail because there was 680 no prayer for pre-emption for the
Dakhili villages of Tauza No. 1130.
In our opinion the plaintiff having failed to
prove that the information of the sale was conveyed. to him by Jadunath on
January 2, 1944, the suit 'was rightly dismissed by the High Court. This appeal
is, therefore, also dismissed with costs.