Patna High Court
Shyamsundar Pd. Gupta And Ors. vs Darbhangi Rai And Ors. on 14 January, 1960
Equivalent citations: AIR1960PAT420, AIR 1960 PATNA 420
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
1. This is a Second Appeal by defendants 1, 2 and 7 from the concurrent decisions of the Courts below arising out of a suit brought by the plaintiffs-respondents for a declaration of their title to and recovery of possession of 1 bigha 15 kathas 10 dhurs of land comprised in survey plot 944 appertaining to Khata 552 situate in village Brahmpura.
2. The following short admitted pedigree will help in appreciating the respective cases of the parties :
BHAROSI _________________________|____________________________ | | | | | Raghunath Ramji Prayag Raghoji Rambilas _____|______ (deft. 10) = Widow (deft. 8) (deft. 11) | | (deft. 12) wife deft. 15 deft. 16 ___________|______ Binda Kuer |__________ | | (decd.) | | deft. 13 deft. 14 | deft. 17 deft. 18 Prabhudayal (deft. 9)
3. The disputed land originally belonged to A. P. Dutta. He conveyed this plot along with plot 1071 measuring 2 bighas 5 kathas 2 dhurs to Binda Kuer by virtue of a registered sale deed dated 1-9-1919 (Ext. 1 (e)). It will be seen that Binda Kuer was the wife of defendant 8 and mother of defendant 9 and daughter of Rajaram. Raghoji and his son Prabhudayal (defendants 8 and 9) conveyed 10 kathas out of plot 944 to the plaintiffs by virtue of a registered sale deed dated 10-1-1949 (Ext. 1).
They again conveyed 1 bigha 5 kathas 10 dhurs, out of the said plot, in favour of Parasnath by a registered sale deed dated 23-12-1949 (Ext. 1(a)). Subsequently, Parasnath executed a deed of relinquishment (ladavi) in favour of the plaintiffs (Ext. 2). Thus, the plaintiffs based their title to the disputed land on purchases from Raghoji and his son.
4. On the other hand, the title of the defendants is founded on the sale deeds -- one dated 16-5-1944 (Ext. A/1) executed by Rambilas, one of the sons of Bharosi in favour of Deonandan (defendant 19), the second dated 6-2-1949 (Ext. A/2) executed in their favour by Rambahadur who in his turn had purchased the same from Raghoji and another by a sale deed dated 18-10-1948 (Ext. 1 (b)) and the third dated 9-12-1949 (Ext. A/3) executed by Shyama Devi, widow of Prayag (defendant 12).
5. Admittedly, Binda Kuer was the wife of Raghoji (defendant 8) and the daughter of Rajaram. It is well to remember that the first sale deed (Ext. 1 (e)) dated 1-9-1919 was executed by A. P. Dutta in her favour. Further, it is the admitted case of the parties that Binda herself had no title to the disputed land and that she was a mere benamidar. The difference between the parties is as to the person whose benamidar Binda was. According to the plaintiffs she was the benamidar of her father Rajaram.
According to them, the land was actually purchased from A. P. Dutta by Rajaram who had no other issue than the daughter, Binda, and on his death, his son-in-law (defendant 8) and his grandson (defendant 9) inherited the property. Thus, the case of the plaintiffs is that defendants 8 and 9 had exclusive title to the disputed land and that by virtue of the purchase from them, they also acquired a valid title. On the other hand, the defendants pleaded that Binda was the benamidar of Bharosi, her father-in-law.
Their further defence was that all the lands standing in her name constituted the self-acquisition of Bharosi, After Bharosi's death, it is alleged, all his self-acquired properties were divided equal-
ly among his five sons. They denied that Raghoji and his son Prabhudayal had exclusive title to the disputed land and asserted that by virtue of the purchase from the sons of Bharosi or their transferees they acquired valid title to the disputed land.
6. In short, the plaintiffs claimed title to the disputed land by virtue of purchase from the heirs of Rajaram and the defendants from the heirs of Bharosi, and the question whether Rajaram had title or Bharosi had title to the disputed land depends upon whether Binda was the benamidar of Rajaram or Bharosi. Therefore, the main question, on which the outcome of this litigation depended was whether the disputed land was purchased by Rajaram or Bharosi in the name of Binda.
Both the Courts have concurrently held that she was the benamidar of Rajaram. In other words, Rajaram and not Bharosi had title to the disputed land. If this finding stands, the appellants have no case, because they claimed title through persons who had no right or interest in the disputed land.
7. Prima facie, this appeal is concluded by findings of fact. Mr. Lalnarayan Sinha appearing for the appellants, however, argued that even assuming that the disputed land belonged to Rajaram, Raghoji, and his son Prabhudayal had no exclusive title, as Rajaram had another daughter and another son, who is alive, and that the findings of the Courts below were vitiated because of non-consideration of Ext. A/6, which corroborated the fact of Rajaram having another daughter, and the evidence of P.W. 2 which showed that Rajaram had a son.
Whether Rajaram had another issue or not is essentially a question of fact, and both the Courts have recorded a clear finding that Rajaram had no other issue than Binda, and there is sufficient evidence to support the conclusions reached by the Courts below. It cannot be urged legitimately that the evidence of P.W. 2 or Ext. A/6 could have made any difference to the conclusions recorded by the Courts below. It may be that on this point they did not accept the evidence of P.W. 6 and did not consider Ext. A/6 as conclusive.
Any way, assume that the findings of the Courts below are erroneous, an erroneous finding of fact is not a ground for upsetting the decrees of the Courts below, unless it is unsupported by evidence or unreasonable and perverse in nature, which is not the case here. In Durga Chowdhrani v. Jawahir Singh, 17 Ind App 122, the Judicial Committee stated the law thus :
"There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be."
The principle laid down in this decision has been consistently followed by different High Courts as well as by the Privy Council. In Midnapur Zemindari Co. Ltd. v. Uma Charan, 29 Cal WN 131 : (AIR 1923 PC 187), elucidating the principle further, it observed as follows:
"If the question to be decided, is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed."
Again, in Wali Muhammad v. Muhammad Baksh, AIR 1930 PC 91, the Judicial Committee has laid down that the fact that the finding of the first appellate court is based upon some documentary evidence does not make it any the less a finding of fact. These principles were recently affirmed by the Supreme Court in D. Pattabhiramaswamy v. S. Hanvmayya, AIR 1959 SC 57. Having regard to the clear and authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, the ground now urged is not available in the Second Appeal.
8. Learned counsel next contended that the finding of benami recorded by the Courts below was also vitiated because of failure to give effect to the statements in the sale deeds which formed the basis of the title of the plaintiffs. Our attention was drawn to certain passages in the sale deeds. It is difficult to say that those passages were not correctly construed by the Courts below. Those statements, however, are not conclusive of the question, and the Courts below have examined the question of benami in all its aspects and have discussed all the evidence on the record. As pointed out by their Lordships of the Supreme Court in Meenakshi Mills, Ltd., Madurai v. The Commissioner of Income-tax, Madras, 1956 SCR 691 : ((S) AIR 1957 SC 49), the soundness of a conclusion based on a number of facts found on evidence must be judged by the cumulative effect of all the facts and it is altogether a wrong approach to consider them individually in an isolated manner in order to explain them and show that inferences other than those drawn by the Tribunal could be drawn from them. They further laid down in that case that misappreciation of evidence does not amount to want of evidence and unless the evidence can be shown to be irrelevant or inadmissible, the conclusion of the Tribunal cannot be challenged on the ground that it is based on no legal evidence. The cumulative effect of the evidence on the record is, as found by the Courts below, that Rajaram was the real purchaser and Binda Kuer was his benamidar and that Bharosi had nothing to do with the purchase from A. P. Dutta, and did not acquire any title.
The question whether Binda was a benamidar of Rajaram or Bharosi is essentially a question of fact and, as stated in the case of Meenakshi Mills, Madurai, 1956 SCR 691 : ((S) AIR 1957 SC 49), aforesaid, the question of benarni is purely a question of fact and not a mixed question of law and fact as it does not involve the application of any legal principle for its determination. This point also is not entertainable in Second Appeal and must be overruled.
9. Lastly, learned counsel contended that the conveyance was void for uncertainty and the plaintiffs must be non-suited on that ground. At any rate, the appeal, he urged, must be remanded for further clarification. In this connection, he referred to the description of the lands conveyed under the sale deeds executed in favour of the plaintiffs. The details of the land vended under the sale deed (Ext. 1) are as follows :
Khata No. Khasra.
N. S. E. w.
Area.361
943 in portion.
Road.
Road.
Rambahadur Pd.
Darbhanga Ram.
10 kathas in portion from the western side.
944 in portion.
As held by the Courts below, and not disputed before us, plot 943 is a mistake for plot 945. The boundaries of the land conveyed by the sale deed, Ext. 1 (a), are as follows :
Khata No. Khasra No. Land 552 944 North ...
Dagar | | | | | | | } | | | | | | | B. 1 K. 5 Dh.10
South ...
Dagar East ...
Dagar West ...
Darbhangi Rai 1071 (Portion.) North ...
Dagar South ...
Dagar East ...
Darbhangi West ...
Nij.
From the east of both the numbers.
These are the two title deeds of the plaintiffs. The contention of the learned counsel is that none of the sale deeds specifies the exact area of plot 044 which was conveyed to the plaintiffs thereunder. It is true that 10 kathas in all from the west of plots 945 and 944 and 1 bigha 5 kathas 10 dhurs from the east out of plots 944 and 1071 were conveyed to the plaintiffs without stating separately the area of each plot conveyed thereunder. On these facts, learned counsel founded the argument that the title of the plaintiffs failed for vagueness, and the Court could not arbitrarily lay down the area that was transferred out of each plot.
Mr. P. R. Das appearing for the respondents, however contended that the description of the properties conveyed by the two sale deeds was sufficiently clear and precise, and there was no difficulty in finding out what in fact was conveyed to the plaintiffs and that in a case of this nature, the purchasers had the right to select which portion from what plot was in fact given to them under the sale deeds. In support of his contention he referred to a passage in Foa's "The Law of Landlord and Tenant', Sixth Edition, page 419, which is as follows :
"The uncertainty which is relied on as a defence to the action must be as to a matter of substance. An uncertainty in merely subordinate portions of an agreement sufficiently certain in all its material parts will be no ground for resisting specific performance, especially where the agreement has been partly executed; for original uncertainty may be removed by user and course of dealing between the parties.....And uncertainty of description of the subject-matter may be got over by the election of one party to the contract, where the effect of the contract is to give such a right of election; for instance, an agreement to let a glebe 'except thirty-seven acres' was held sufficiently certain for specific performance, on the ground that it gave the right of selecting the excepted portions to the lessor."
These observations of the learned author are based upon the decisions of certain cases, more particularly upon the case of Jenkins v. Green, (1858), 54 ER 172. In this case of incumbent agreed grant, at a future period a lease of his glebe, containing about 437 acres, "except .37 acres thereof," which were not specified. No arrangement was ever made between the parties as to which of the thirty-seven acres of the farm were to be excepted from the demise. The defendant entered into possession of the farm. The objection raised was, that the agreement was void for uncertainty, and that the Court could not direct it to be carried into execution. On these facts, Sir John Romilly, M. R., observed as follows :
"I must consider this as an agreement to grant a lease to this farm, excepting thirty-seven acres, 'on or before the 1st of July, next,' and to obtain certain consents. The selection must therefore be made by the person granting the lease, before it is executed and excepted out of the demise.
"But if the lease had been executed in the very terms of the agreement, without specifying the lands excepted, then the right of selecting the excepted lands would rest with the tenant.
"The plaintiff must make his selection before the execution of the lease, but he must not exercise his right oppressively, or in a manner which will make it impossible or difficult for the defendant usefully and advantageously to occupy the rest of the farm."
In other words, it was held in that case that the contract was not void for uncertainty, that the right of selecting belonged to the lessor, he having the first act to do, but that if a lease had actually been granted in the uncertain form of the contract, the right of selecting would then have belonged to the tenant. The principles laid down in this case were later affirmed in Sir Walter Hungerford's case reported in 74 ER 28. The contention of Mr. Das thus appears to be well-founded and must be accepted as correct. Applying the principles of those decisions, the plaintiffs in the instant case have the option to select the portions out of the several plots conveyed to them, and if they made the selection and claimed the specific portions out of different plots, and the appellants raised no objection in the Courts below, they cannot now turn round and agitate in Second Appeal that the entire conveyance was bad for uncertainty or that the points required further clarification.
Mr. Lalnarayan Sinha did not challenge the correctness of the principles enunciated by Mr. Das, but he urged that those principles applied where there was a compact area a portion of which only was conveyed and that they had no application where the land comprised in survey plots was the subject-matter of conveyance, as in this case. I do not think, how the compactness of an area is destroyed by different portions of the same being given different survey numbers in course of Survey and Settlement Proceedings. Different plots situated at one place may constitute one compact block, and such a compact area is not any the less a compact area because of its division into different survey plots.
I am, therefore, not inclined to accept the contention of Mr. Sinha. Further, this point was not agitated in the Courts below, and it has been raised for the first time in the Second Appeal. When the Courts below have given decrees to the plaintiffs for specific areas out of the disputed plot, the decrees now cannot be challenged as bad for want of certainty simply because this question was not raised in the courts below. In my opinion, this cannot be allowed to be agitated in the Second Appeal, especially when the law gives the plaintiffs an option to elect which portion out of the different plots they would occupy and hold, I would, therefore, overrule this contention.
10. In the result, there is no merit in this appeal, which is accordingly dismissed with costs.
Ramaswami, C.J.
11. I agree.