Patna High Court
Ramlagan Jamadar And Anr. vs Akleshwar Prasad And Ors. on 25 November, 1957
Equivalent citations: AIR1958PAT211, 1958(6)BLJR147, AIR 1958 PATNA 211, ILR 37 PAT 88
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. This appeal, by defendants 1 and 2, who were defendants first party to the suit, from a judgment of reversal, of the First Additional Subordinate Judge, Patna, who, in disagreement with the first Court, decreed the plaintiffs' suit, has been referred to a Division Bench by Kanhaiya Singh, J.
2. In support of the appeal, Mr. G.C. Mukherji has put forward two contentions, first, that the judgment of the Court of appeal below is not a proper judgment of reversal in accordance with law; and, second, that the sale deed executed by defendants 3 to 5, who were defendants second party to the suit, in favour of Khiru Jamadar, defendant 6, dated the 24th August, 1943, which was the document of title of the plaintiffs' vendor, being in custody of the plaintiff's throughout, and, they having allowed the thumb impressions of the executants of the sale-deed--defendants 3 to 5--to be blurred, were not entitled to a decree on the basis of the same.
3. In order to appreciate the two points raised by Mr. Mukherji, it is necessary to state briefly a few facts:
4. Khata 127, in village Harbanspur Sonsa, belonged originally to one Bhikhari, the father of defendants 3 to 5, defendants second party. On the 31st July, 1929, Bhikhari gave a portion of it in usufructuary mortgage to Ramlagan, defendant 2. On the 24th August, 1943, defendants 3 to 5 executed a sale-deed in respect of the disputed land, including the ijara land, in favour of Khiru Jamadar, defendant 6. The document was presented for registration on the 23rd November, 1943 before the Registrar, but as the executants of the document, defendants 3 to 5, did not appear to admit execution thereof, a proceeding for compulsory registration was started, and, eventually, the sale-deed was compulsorily registered on the 17th June, 1944.
But before its presentation for registration before the Registrar, defendants 3 to 5, on the 10th November, 1943, executed another sale deed in favour of defendant 1 in respect of the selfsame lands, which were conveyed earlier by them to defendant 6. Thereafter, plaintiffs 1 to 3 on the 25th June, 1945, and plaintiffs 4 to 7 on the 18th July, 1945 took transfers of the disputed lands from defendant 6. Plaintiffs 8 to 11 also took a transfer of a portion of the disputed land on the 9th December, 1948 from Dukhi Jamadar, who, in his turn, had purchased the portion of the disputed land on the 8th November, 1945 from defendant 6, The plaintiffs, therefore, brought the present suit, out of which the present appeal arises, for a declaration that after the execution of the sale deed on the 24th August, 1943 by defendants 3 to 5 in favour of defendant 6, defendants 3 to 5 had no title left in the disputed land which they could convey subsequently to defendant 1, on the principle Nemo dat qued non habet, (no one can give what he has not got), and, as such, the sale deed executed by defendants 3 to 5 in favour of defendant 1 on the 10th November, 1943 was invalid and inoperative, and, the defendants first party, namely, defendants 1 and 2, did not acquire any title by virtue of the said sale deed, and, therefore, their possession over the disputed land was illegal.
5. The suit was contested by defendants 1 and 2--defendants first party--the present appellants. Their defence was that the sale deed dated the 24th August, 1943, executed by defendants 3 to 5 in favour of defendant 6 was not genuine, and it was forged as defendants 3 to 5 did not execute any such sale deed on the 24th August, 1943, in favour of defendant 6. They further asserted that this sale deed had been brought into execution fraudulently by defendant 6 after the execution of the sale deed by defendants 3 to 5 on the 10th November, 1943 in favour of defendant 1 to defeat their title, and, as such, the plaintiffs had not acquired any title to the disputed lands by virtue of the sale deed of the 24th August, 1943.
6. The trial Judge accepted the defence and found that the sale deed dated the 24th August, 1943, in favour of defendant 6 was not genuine and valid, and that it was without consideration. He further found that the sale deed of the 10th November, 1943, in favour of defendant 1 was valid and for consideration, and, that it had conferred title on defendants 1 and 2 as against the sale deed dated the 24th August, 1943. He, accordingly, found that the plaintiffs had acquired no title under their sale deeds, and, therefore, they were not entitled to recover possession by ejecting defendants 1 and 2. On these findings, he dismissed the plaintiffs' suit.
7. The plaintiffs, thereafter, carried an appeal to the Court of appeal below, which was ultimately heard by the First Additional Subordinate Judge, Patna, who reversed the findings of the first Court and found that the sale deed of the 24th August, 1943 was executed by defendants 3 to 5, and, that it was genuine and with consideration. He, accordingly, found that defendants 3 to 5 had no title left in the disputed land, which could be conveyed subsequently by them to defendant 1, and, accordingly, he held that the sale deed relied upon by defendants 1 and 2 was invalid, and, it did not confer any title on them. On these findings, he decreed the plaintiffs' suit as prayed for.
8. On this second appeal, therefore, in support of his first contention, Mr. Mukherji has taken us through both the judgments of the Courts below in order to show that the evidence, facts, and circumstances, relied upon by the first Court for coming to the conclusion that the impugned sale deed was not genuine, had not been considered by the Court of appeal below before reversing the findings of the first Court, and, finding that the disputed sale deed was genuine, and, had been executed by defendants 3 to 5 in favour of defendant 6, as alleged by the plaintiffs.
9. Mr. Mukherji submitted that the Court of appeal below had exceeded its powers, which are given to it by Section 107 of the Code of Civil Procedure, 1908. On the question of ambit of the powers of an appellate Court, therefore, he strongly relied, in support of his argument, on Veeraswami v. Narayya, AIR 1949 PC 32: 75 Ind App 252 (A), and Watt (or Thomas) v. Thomas, (1947) AC 484 (B).
10. The last mentioned case was decided by the House of Lords, and, this has been relied upon by the Privy Council in the first case, and, therefore, I propose to deal with the last case first.
11. The principles governing the powers of an appellate Court have been laid down in several decisions, and the gist of the numerous decisions on the subject is clearly stated by Viscount Simon in the last just mentioned case, Watt Or Thomas v. Thomas (B).
12. Viscount Simon, the noble Lord, in his lucid address to the House of Lords, at PP. 485-486, said:
"Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts) Acts) an appellate Court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate Court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at) at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight.
This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. What I have just said reproduces in effect the view previously expressed in this House --for example by Viscount Sankey J. C. in Powell v. Streatham Manor Nursing Home, (1935) AC 243 at p 250 (C), and in earlier cases there quoted.
Lord Greene M. R. admirably stated the limitation to be observed in the course of his judgment in Yuill v. Yuill, 1945 P 15 at p. 19 (D). Lord President Clyde, ill Dunn v. Dunn's Trustees, 1930 SC 131 (E), summarized the scope of appellate correction, with copious citation of earlier authority, and I agree with him that the true rule is that expounded by Lord President Inglis in Kinnell v. Peebles, (1890) 17 R 416 at p. 423 (F), that a Court of appeal should attach the greatest weight to the opinion of the Judge who saw the witnesses and heard their evidence and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound."
13. The above observations of Viscount Simon were adopted and reproduced in extenso by the Privy Council, on an appeal from the Madras High Court, in Veeraswami v. Narayya (A), the first above mentioned case.
14. The scope of the powers of an appellate Court to interfere with findings of fact of a Judge of first instance, who sees, hears the witnesses and is in a position to assess their credibility from his own observation, has been considered also in several other decisions of the Judicial Committee. These cases are W.C. Macdonald Registered v. Fred Latimer, AIR 1929 PC 15 (G); Balarama Sastri v. Vasudeva Sastri, AIR 1948 PC 7 (H); Chandra Kishore v. Sissendi Estate, AIR 1949 PC 207: 76 Ind App 17 (I); and The Bank of India Ltd. v. Jamsetji A. H. Chinoy, AIR 1950 PC 90: 77 Ind App 76 (J).
15. This question has also been considered by our Supreme Court in Sarju Pershad v. Jwaleshwari, AIR 1951 SC 120: 1950 SCR 781 (K), in which the two cases relied upon by Mr. Mukherji as also the first just mentioned case of W. C. Macdonald. Registered v. Fred Latimer (G), have been referred to and quoted with approval.
16. On a review of all the above mentioned decisions, the principles which seem to have been firmly established by them may be summarised as below:
17. (1) Where an appeal on facts lies it is Within the jurisdiction of an appellate Court to reverse a finding of fact; but such a course is only to be adopted upon very clear proof of error where the case depends upon the credibility of witnesses whom the trial Judge has seen and believed. An appellate Court, therefore, has jurisdiction to review the record of the evidence in order to determine, whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution.
(2) The appellate tribunal, therefore, is justified in reversing the decision on questions of fact by the trial Judge, who had the advantage of seeing and hearing the witnesses, if there is no evidence and justification for the findings of the trial Judge. If there is no evidence to support a particular conclusion, then this is really a question of law, and, the appellate Court will not hesitate so to decide.
(3) But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and, especially if that conclusion has been arrived at on conflicting testimony by a tribunal, which saw and heard the witnesses, the appellate Court will, no doubt, bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight, but this is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.
(4) Further, the application of the above principle, that the conclusion on a question of fact arrived at by the trial Judge, who had the advantage of hearing and seeing the witnesses, should not be lightly set aside, depends upon the special circumstances of each case. Where a Judge rejects an evidence not because he is dissatisfied with the manner in which it has been given but because he has made certain assumptions or drawn inferences from circumstances not directly connected with the evidence of that witness, it is incumbent upon the Court of appeal to strictly scrutinize the evidence for itself and attach such value as the evidence warrants.
(5) Therefore, no doubt, the appellate Court would be reluctant to differ from the conclusion of the trial Judge it his conclusion is based on the impression made by a person in the witness box; but, if the trial Judge based his finding and his opinion of the person on a theory derived from documents and a series of inferences and assumptions founded on a variety of facts and circumstances which, in themselves, offer no direct or positive support for the conclusion reached, the right of the appellate Court to review this inferential process cannot be denied.
(6) Accordingly, when an appeal lies on facts, the appellant Court is certainly competent to reverse a finding of fact arrived at by the trial Judge; and, 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 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 duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the appellate Court, outweighs such finding,
18. After reading the judgments of the two Courts below, we are satisfied that there is no foundation for the alleged ground of attack by Mr. Mukherji on the judgment under appeal.
19. In the present case, as I will presently show, the above principles have been kept in view, and not disregarded.
20-22. His Lordship discussed the judgment of the lower appellate Court and proceeded).
23. After a consideration of all the facts and circumstances, including the facts and circumstances relied upon by the first Court, the learned Additional Subordinate Judge came to the conclusion that the sale deed of the 24th August, 1943, executed by defendants 3 to 5 in favour of defendant 6 was a genuine document and was executed by them, as alleged by the plaintiffs.
24. In the instant case, the trial Judge made certain assumptions and drew certain inferences founded on a variety of facts and circumstances, which in themselves offer no direct or positive support for the conclusion reached. In these special circumstances of the case, it cannot be said that the lower appellate Court was not entitled in review this inferential process and that it has exceeded its powers conferred on it by Section 107 of the Code of Civil Procedure.
25. I, therefore, find that the Court of appeal below has committed no error of law in reversing the decision of the first Court and in decreeing the plaintiffs' suit. The first contention of Mr. Mukherji is, therefore, overruled.
26. Mr. Mukherji, then, put forward his second contention with greater vehemence, and, submitted that because the thumb impressions of defendants 3 to 5 on the sale deed of the 24th August, 1943, are blurred, and, this sale deed was throughout in the custody of the plaintiffs, it must be held that the plaintiffs were responsible for the thumb impressions being blurred, and, therefore, on the basis of such a document, they were not entitled to a decree at all. He relied on a number of English and one Indian decisions on this question. As Mr. Mukherji has placed strong reliance on these cases, I propose to notice them briefly, although there is no dispute, nor, can there possibly be any dispute about the correctness of the principles laid down therein.
27. The first case relied upon is Henry Pigots case, reported in (1572-1616) 77 ER 1177 (L). In this case, it was resolved :
"1. The erasure of a deed by which it be- comes void, may be given in evidence under the plea of non est factum. 2. The alteration of a deed by the obligee in a point material or not material, avoids the deed; but the alteration by a stranger without the privity of the obligee does not avoid the deed, unless the alteration is in a material point."
28. The second case relied upon is Davidson v. Cooper, (1844) 153 ER 142 (M). This was an action of assumption on a guarantee brought by the plaintiff. The plea, by one defendant, was that after the making of the guarantee, and while it was in the plaintiff's hands, it was, without the defendant's consent or knowledge, materially altered by some person unknown to the defendant, by affixing two seals by and near to the signatures of the defendants, and, thereby its apparent nature and effect were wholly altered. Issue being taken on this plea, the jury found it was so altered; and judgment was given by the Court of Exchequer for the defendant, which was affirmed on a writ of error on the above judgment brought by the plaintiff in the Exchequer Chamber.
29. Lord Denman, C. J., in delivering the judgment in the just mentioned case at page 146, observed :
"The strictness of the rule on this subject, as laid down in Pigot's case (L,), can only be explained on the principle that a party who has the custody of an instrument made for his benefit, is bound to preserve it in its original state. It is highly important for preserving the purity of legal instruments that this principle should be borne in mind, and the rule adhered to. The party who may suffer has no right to complain, since there cannot be any alteration except through fraud, or laches on his part. To say that Pigot's case (L) has been overruled, is a mistake, on the contrary it has been extended, the authorities; establishing, as common sense requires, that the alteration of an unsealed paper will vitiate it.
Upon the doubt whether this instrument is altered, because it remains exactly as it was when signed, but only something is added near to the signatures of the defendants, we may observe, that that addition gives a different legal character to the writing, and would, if made with the consent of all interested, completely change the nature of the relation towards each other of the parties to it, and the remedies upon it. The observation that a deed is not made by sealing, but by delivery, does not appear to touch the argument, for no addition, erasure, or interlineation, after execution, makes the actual instrument different in legal effect from what it was; the original document may be perfectly visible through the attempt to disguise it, but a different appearance is produced. The truth cannot be known from inspection, but would require to be established by evidence, and this through some default of the person to whose care it was consigned, and who would be possessed of a superior legal remedy if the altered writing could be imposed on the contractor as genuine."
30. The third case relied upon is Suffell v. The Bank of England, (1882) 9 QBD 555 (N). In this case, in an action against the Bank of England for the non-payment of notes payable to bearer which had been regularly issued by the bank, it appeared that the notes had been bona fide purchased by the plaintiff for value, but that before the plaintiff took them the notes had been altered by erasing the numbers upon them and substituting others, with the object of preventing the notes from being traced, as payment had been stopped and a notice issued specifying their numbers. It was held by the Court of Appeal that although the alteration did not vary the contract, it was material in the sense of altering the notes in an essential part, and that therefore the notes were vitiated, so that the plaintiff could not recover in his action on them against the bank.
31. Jessel, M. R., in the above mentioned case, at page 559, referred to Pigot's case (L), (supra), and observed :
"I will first of all consider the general law on the subject, which I take to be settled now beyond dispute. The leading case and which from the time of James I has always been so treated, is (1572-1616) 11 Co Rep 26b (L), and, whatever may be said of the first resolution in Pigot's case (L), no doubt has ever been raised as to the second resolution, which is this, "that when any deed is altered in a point material by the plaintiff himself, or by any stranger without thr privity of the obligee, be it by interlineation, addition, erasing, or by drawing of a pen through a line or through the midst of any material word, the deed thereby becomes void''. So that even if a single word which is material is erased it destroys the instrument.
It was next decided that such rule of law which applied to deeds applied to documents not under seal. The case which decided this was the well-known case of Master v. Miller, (1791) 4 Term Rep 320: 1 Sm LC 3th Ed. p. 857 (O), decided in the year 1791. There Lord Kanon, who was Lord Chief Justice of the Queen's Bench, held that the rule which applied to instruments under seal applied to documents not under seal. 'because' he said, 'no man shall be permitted to take the chance of committing a fraud without running any risk of losing by the event, when it is detected'."
32. The rule relating to the effect of material alterations in a deed made after its execution, by or with the consent of any party thereto, as it prevails in English Courts, can be briefly summarised as follows :
33. If an alteration (by erasure, interlineation or otherwise) is made in a material part of a deed after its execution, by or with the consent of any party thereto or person entitled thereunder, but without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance however is not ab inifio or so as to nullify any conveyancing effect which the deed has already had; but only operates as from the time of such alteration and so as to prevent the person who has made or authorized the alteration and those claiming tinder him, from putting the deed in suit to enforce, against any party bound thereby who did not consent to the alteration, any obliga-
tion, covenant Or promise thereby undertaken or made.
34. A material alteration is one which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed.
35. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The avoidance of the deed is not retrospective and does not revest or reconvey any estate or interest in property which passed under it. And the deed may be put in evidence to prove that such estate or interest so passed or for any other purpose than to maintain an action to enforce some agreement therein contained. (See Halsbury's Laws of England, Edn. 2, Vol 10, p. 227, para 287, quoted in extenso in Nathu Lal v. Mt. Gomti Kuar, AIR 1940 PC 160: 67 Ind App 318 (P).
36. The question whether the above rule is applicable to conditions in India has been considered in the Calcutta case relied upon by Mr. Mukherji, as also in other cases by the other High Courts in India.
37. The Indian decision relied upon by Mr. Mukherji was Gogun Chander Ghose v. Dhuronindhur Mundul, ILR 7 Cal (516 (Q), In this case, the plaintiff, who had a bond executed in his favour by one of three brothers, forged the signature of the other two brothers to the bond, and brought a suit upon it in its altered form against the three brothers. The forgery having been established, the Court of first instance dismissed the suit against all the three defendants, and this decision was affirmed on appeal. On second appeal to the High Court also, it was affirmed by a Bench of the Calcutta High Court.
38. Sir Richard Garth, C. J., who delivered the judgment of the Court, in the above case, relied upon Davidson v. Cooper (M), (supra) and Gardner v. Walsh, (1885) 24 LJQB 285 (R), and, observed :
"It has been argued that in this country the law of England in this respect does not apply. I am sure I do not know why it should not; and I see much reason why it should. The law of England, so far as it is consistent with the principles of equity and good conscience, has generally prevailed in this country, unless it conflicts with the Hindu or Mahomedan law. The learned pleader who appears for the defendants seems to think that, in equity and good conscience, the plaintiff in this case ought to succeed against one of the defendants. But we are clearly of a different opinion. Where a man has been wicked enough to alter a document fraudulently in this way, we do not think it consistent with equity and good conscience, or with sound policy, (especially in a country like this, where forgery and fraud is so lamentably common), that he should be entitled to recover upon it. Even looking at the question as one of proof merely, the plaintiff ought to fail in his contention, because he has not proved the instrument upon which he founds his claim."
39. The above Calcutta case as well as several other Indian and English decisions were all reviewed in 1940 by the Privy Council in 67 Ind App 318: AIR 1940 PC 160 (P). Their Lordships of the Judicial Committee expressed their complete accord with the above views of Sir Richard Garth, C. J.
40. It is, therefore, firmly established that the rule laid down in England applies to India also. Mr. M. R. Jayakar, in delivering the unanimous opinion of the Board, in the just mentioned Privy Council case, observed :
"Is there anything in the principle or origin of this rule which makes it inapplicable to conditions prevailing in India? Their Lordships have no difficulty in answering the question in the negative. The rule is based tin 'great good sense. It is dictated by public policy and is' independent of considerations of clime or race. It is consistent with the principles of equity and good conscience which have generally prevailed in India, unless they conflicted with Hindu or Mahomedan Law. In their Lordships' opinion, there is no such conflict and there is no reason why the rule should not be made applicable to India.
Their Lordships are not therefore surprised to find that the rule has in fact been adopted in Indian decisions which are numerous."
41. If the above rule is applied to the circumstances of the present case, then two questions arise, first, does the fact that the executants' thumb impressions are blurred amount to material alterations within the meaning of the rule stated above?; and, second, if it does, what is the effect of the same on the plaintiffs' claim based on a document which bears blurred thumb impressions of the executants?
42. It is not necessary to decide, for our present purpose, whether these alterations are material or not. It is true that a material alteration varies to rights, liabilities or legal position of the, parties ascertained by the deed. But the crucial question here is, even assuming that these alterations are material, "Can the plaintiffs be nonsuited on that account?" We have no difficulty in answering the question in the negative, in the instant case, for the reasons given herein below.
43. The test is did these thumb impressions of defendants 3 to 5 become blurred, and thereby material alterations made in the document, while it was in the custody of the plaintiffs? The obvious answer, on the finding of the Court of appeal below, is "No". It is not the case of the defendants that the plaintiffs themselves made these material alterations by blurring their (defendants') thumb impressions, nor, is the case that these material alterations were made by a stranger with the consent of the plaintiffs. If this would have been their case, surely the plaintiffs would not have been entitled to any decree on the basis of the same on the principle that a man shall not take the chance of committing a fraud and when that fraud is detected recover a decree on the instrument as it was originally made, and, also because the deed thus altered no longer continues the same deed, and, therefore, no person can maintain an action on it.
Their case, however, is that they became blurred while the document was in the custody of the plaintiffs. But, in the present case, the finding of the Court of appeal below, which is a finding of fact, is that the sale deed left the custody of the plaintiffs, when it had been filed by them in the malik's sherista for mutation of their names, and, therefore, the deed did not remain in the custody of the plaintiffs all along, and, the thumb marks were not blurred by them. This finding of fact is based on evidence, and, therefore, such a finding of fact cannot be interfered with by the High Court on second appeal.
44. The law on the subject is settled beyond dispute that where there is no error or defect in the procedure, nor any error of law, within the meaning of Section 100, of the Code of Civil Procedure, the finding of the first appellate Court upon the question of fact is final, if that Court had before it evidence proper for consideration in support of the finding. A finding of fact, however erroneous, cannot be challenged in a second appeal, and, it must stand final, as a second appeal can be entertained only on the specific grounds mentioned in Section 100, Code of Civil Procedure. The only question, therefore, which the High Court on second appeal may consider in such a case is, whether the lower appellate Court had before it any evidence proper for its consideration in support of its finding: The Midnapur Zamindary Co. Ltd. v. Secy. of State, AIR 1929 PC 286: 56 Ind App 388 (S) and Arjan Singh v. Kartar Singh, AIR 1951 SC 193: 1951 SCR 258 (T).
45. In the instant case, it has not been disputed by Mr. Mukherji that the above finding of fact of the Court of appeal below is not based on any evidence or that the Court of appeal below had not before it any evidence proper for its consideration in support of its finding. In these circumstances, on the above finding, the ratio decidendi of the cases relied upon by Mr. Mukherji can obviously be of no assistance to him.
46. For the reasons given above, I find that there is no substance in either of the contentions of Mr. Mukherji, and, accordingly, they are overruled.
47. In the result, the appeal fails, and, is, accordingly dismissed with costs.
Ramaswami, C.J.
48. I agree.