Case: Radha Prasad Singh Vs. Gajadhar Singh

2. 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 Jogeshwari Kumari widow of Babu Ganga Prasad Singh deceased and daughter of Babu Narsingh Prasad Singh by a deed executed on 18-11-1943, at Moghra and registered on 23-11-1943, at Monghyr.        3. 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.        4. 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 Narain Singh and others.        5. 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 plaintiffs 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 8 annas odd share was altered fraudulently to 4 annas 5 gandas. It was after the defendants 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 was 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-Mowashibat and Talab-E-Ishtashad were performed in accordance with law.        6. As regards this the plaintiffs case is that he came to know of this sale by his co-sharer Jogeshwari for the first time on 2-1-1944, 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-Mowashibat 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 Buzurgabad and performed Talab-E-Ishtashad; that he went then to the residence of the purchaser Gajadhar Singh at Mathihani on 3-1-1944, and again performed the Talab-E-Ishtashad; and that that very day he started for the residence of the vendor and performed the Talab-E-Ishtashad there on 4-1-1944.        7. 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 from long before 2-1-1944, he having been a rival bidder for the purchase of these very properties. A detailed story of a proclamation by beat of drums of the proposed sale by Bindeshwari and the plaintiffs 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 defendants 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 gandsas to 4 annas odd gandas. On these findings he held the plaintiffs suit was not barred by estoppel.        8. 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 2-1-1944, from Jadunath as alleged, the learned Judge has accepted the evidence given by the plaintiff and Jadunath on this point and held that the plaintiffs 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 bee duly performed.        9. The very important question that arose for the decision of the Court was whether the plaintiffs story that he came to know of the sale for the first time from Jadunath on 2-1-1944, is true. The Trial Court held that it was true. On this point the High Court came to a contrary conclusion. The learned judges of the High Court were of opinion that the evidence of witness Jadunath was wholly unacceptable and that the plaintiffs evidence that he came to know of the alleged sale on 2-1-1944, 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.        10. 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 2-1-1944, 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 point.

Reasoning: 14. 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 Judges 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 justified15. 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 the plaintiff by Jadunath about the sale on January 2, 1944, at about 11 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 credibility16. 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 fail24. Turning to the evidence of 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 Jagdambas evidence on this point Mr. Justice Sinha, who delivered the leading judgment, stated:Plaintiffs 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 understand how they went to Buzurgabad or to the other items of property to perform the ceremonies, if they ever did soIt 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 Jagdambas 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 Buzurgabad at all as he and his witnesses say, he did25. It was the duty of the trial Judge to take into account there several considerations in testing the credibility of the account given by Jadunath, the plaintiff and Jagdamba 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 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 Judges 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 right26. 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 having failed to show that it was on January 2, 1944, that he received the information about the same27. 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 Tausa No. 1130 instead of 4 annas odd share as originally claimed and also whether the suit was bound to fail because there was no prayer for pre-emption for the Dakhili villages of Tausa No. 1130The 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. It is difficult not to agree to this estimate of probabilityFrom this evidence it is clear that though Jadunath was at the place until the Tandom had 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 Jadunaths house the same night at 8 p.m. 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 soldSuch 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 he acted in this peculiar manner. It has to be noticed, however, that Jadunath had been examined andd on January 9, 1947, and when the plaintiff was put in thex on the following day, i.e., January 10, 1947, the lawyer who examined him had before him the fact that Jadunaths evidence had brought out this strange silence on the part of the plaintiff after he had been informed of the 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 improbably story and rejected, in disagreement with the trial Court, Jadunaths evidence altogetheIt 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