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Second Appeal Nos. 751 and 752 of 1951, decided oil 6th March 1957, against the decrees of Moulvi A. M. Hussain, Subordinate Judge, Comilla, affirming the decrees of Moulvi Mufizul Huq, Munsif, Comilla.
Inheritance‑Ascertainment of shares of co-heirs is not tantamount to partition of estate‑Shares can be separated only by an actual partition.
It is true that Muslim heirs take defined and ascertained shares but that does not necessarily mean that they also take these shares in separate portions in the properties inherited by them. The share is ascertained 'nut not the extent of the lands held by the heirs. For this purpose, it an heir intends to carve out his definite ascertained share in the properties, he has inevitably to file a partition suit and until the partition is effected,.‑he possesses his ascertained share jointly with his co‑heirs.
Inferences of facts drawn even by construction of docu ments are not questions of law. Only when the question is one relating to the ascertainment of the legal effect of the document does it become a question of law.
The Midnapur Zamindary Co., Ltd. v. Umacharan Mandal and others 29 C W N 131 (P C) and Wali Muhammad and others v. Muhammad Bakhsh and others 57 I A 86 ref. (c) Appeal‑Abatement of‑Considerations to be kept in view by the Court.
Concurrent findings of fact by lower Courts‑High Court will not interfere.
‑Judgment of Criminal Courts not inter partes‑‑Could only be admitted in civil cases for certain limited purposes.
U. K. Roy for Appellant.
Shamsul Huda for Muhammad Jani Alam for Respondents.
These two appeals are against the decision of the Subordinate Judge, Additional Court, Comilla, in Title Appeals Nos. 88 & 89 of 1949, which were heard together and disposed of by the same judgment.
These two appeals arose out of two suits, being Title Suits Nos. 194 and 205 of 1947, in both of which the defendant was the same but the plaintiffs were different. The res pective plaintiffs of the said two suits instituted these two Title Suits for confirmation of their respective possessions in the suit lands upon the declaration of their titles thereto. The lands in dispute formed two contiguous plots measuring 4 gandas each, of C. S. Dag No. 1183 of the Comilla Town Settlement.
The questions arising for determination being common in the said two suits, the said suits were heard together and disposed of by the same judgment. Hence, these two second appeals in this Court have also been heard together and will be disposed of by this judgment.
The cases of the respective plaintiffs in the said two suits were that the said C. S. Dag No. 1183 originally belonged to one Mahabbat Ali the predecessor‑in‑interest of pro forma defendants in these suits. Oil the 21st of Magh, 1317 B. S , corresponding to the 4th of February 1910, the said Mahabbat Ali granted a lease of the lands, forming the subject‑matter of Title Suit No. 194 of 1947, to one Abdul Karim, the predecessor‑in‑interest of the plaintiffs in the said suit, for a period of five years, namely, 1317 to 1321 B. S., by a patta, Exh. 1‑A. Again on the next day, namely, 22nd of Magh, 1317 B. S., corresponding to the 5th of February, 1910, the said Mahabbat Ali let out the lands forming the subject- matter of Title Suit No. 205 of 1947, to one Hamid Ali Mistri, the predecessor‑in‑interest of the plaintiffs in the said suit, on the same terms, by a patta, Exh. 1. Both these leases, contained an option for renewal. On the basis of the said leases, the said A. Karim and Hamid Ali Mistri entered into possession of the lands demised to them and continued to possess and enjoy the same until 19th of March 1943, when both the aforesaid lands were requisitioned by the Government under the Defence of India Rules for the pur poses of the War. But on the 6th of August 1946, when the properties were derequisitioned, the plaintiffs in both the suits claimed that they were restored to possession and had been continuing in possession of the said lands since then. They further alleged that defendant No, 1 was wrongfully threatening to dispossess them and hence they had filed these suits for the confirmation of their respective posses sions in these lands.
Both the said suits were contested by defendant No. 1 who claimed that the plaintiffs had lost title to the said lands by reason of abandonment of their respective tenancies created by the said two pattas, Exhs. 1 and 1‑A on the expiration of the terms thereof in 1322 B. S., corresponding to 1915, and also for the reason that they having long since removed from the said lands to some other place, the superior landlords, Rajchandra and others, had re‑entered upon the said lands, which, after having passed through various hands, had ultimately been purchased by the said defendant on the 21st of Poush, 1348 B. S., corresponding to the 5th of January 1942, by a kabala, Exh. A (3). The defendant claimed to be in khan possession of the said lands since the date of his aforesaid purchase until the requisition ing thereof by the Government‑ and he also claimed that upon the derequisitioning of the said lands, the possession of the same was made over to him by the Government but the plaintiffs had thereafter, on the 8th of August 1946, wrongfully trespassed upon the said lands and dispossessed him. For this, he had brought various criminal proceedings and the plaintiffs had actually been convicted for criminal trespass on the 22nd of February 1947. In these circum stances, the defendant also claimed that the plaintiffs had also lost their title by reason of their non‑possession for over 12 years.
Upon these allegations, some four issues were raised in the trial Court, which, after a consideration of the evi dence adduced in the case, came to the conclusion that the story of abandonment set up by the said defendant No. 1 could not be believed and came to the finding that the respective plaintiffs in the said two suits were continuously in possession of the said lands from the time of their res pective pattas until the requisitioning of the said lands and were also, since the derequisitioning thereof, in possession of the said lands. Furthermore that defendant No. 1 had purchased only the taluki right in respect of the said tenanted lands. In this view of the matter, the trial Court decreed both the suits, declared the titles of the respective plaintiffs to their respective suit lands and confirmed their respective possessions therein as well as permanently injuncted the said defendant No. 1 from interfering with the said possession.
Defendant No. 1 preferred appeals against the said decree and in the lower Appellate Court the only point that was canvassed was with regard to the alleged abandonment of the lands by the plaintiffs. The lower Appellate Court took the view that the story of the alleged abandonment was relied by the defendant's own documents, Exhs. A(2), A (3), B and E; that the plaintiffs were admittedly in possession of the said lands since the 8th of August, 1946, and, as such, the only period with regard to which there could be said to be any dispute as to the possession of the respective plaintiffs was between the 5th of January 1942, and the 19th of March 1943, the date of the requisition, With regard to this period, the Court of Appeal below considered that the documents relied upon by the defendant were of no assistance. The khatians prepared at the time of the re quisition of the lands could not, according to the learned Subordinate judge, be relied upon, as defendant No. 1, being the Nazir of the local Collectorate dealing with the matters relating to requisition of property during the War, might have manipulated the said records, The learned Subordinate judge also took the view that the judgments of the Criminal Courts were of no evidentiary value and the Municipal records relied upon by defendant No. 1 were of no assis tance, as they had not been connected with the lands in dispute. Hence the question of possession of the said lands, according to the learned Subordinate Judge, had to be decided on the oral evidence adduced in the case. So far as this oral evidence was concerned, the evidence, adduced on be half of the plaintiffs, was, in the opinion of the said Court, of an independent character and consistent with the other materials on the record and, therefore, more dependable, whilst the evidence adduced on behalf of the defendant was not of a very reliable character. Thus considering the oral and documentary evidence, the learned Subordinate Judge agreed with the finding of the learned Munsif that the respective plaintiffs had been continuously in possession of the respective disputed lands from the dates of the respective pattas, Exhs, 1 and 1 (a), except for the period during which the property was under requisition.
The learned Subordinate judge, furthermore, took the view that since defendant No. 1 claimed to have derived his title only by virtue of his purchase on the 5th of January, 1942, no question of limitation arose, since the suit had been instituted well within 12 years on the 3rd of April 1947. According to him, no question of the special limitation under Article 3 of the Third Schedule of the Bengal Tenancy Act also, arose in this case, as the disputed lands being home stead lands situated within the Municipal area and demised for non‑agricultural purposes were not governed by the Bengal Tenancy Act but by the Transfer of Property Act. The learned Subordinate judge also considered that since defen dant No. 1 had deliberately withheld, without any satis factory explanation, the lists of tenants said to have been attached to two of the documents relied upon by the said defendant, namely, Exhs. A and A (3), an adverse presump tion must also be drawn against him that, if the said lists had been submitted, they would not have supported the story of abandonment. Having come to these conclusions, the learned Subordinate judge also dismissed both the appeals and confirmed the decrees passed by the learned Munsif.
It is against this decision that the said defendant No. 1 has now come up on appeal before this Court and in view of the concurrent findings of facts of the Courts below, Mr. U. K. Roy appearing on behalf of the appellant has attempted to attack the judgment of the learned Subordinate Judge mainly on the ground that the findings of the Court of Appeal below were bad as they were based upon the clear misconstruction‑ of certain documents of title relied upon by the said defendant, as also by the failure )of the learned Subordinate judge to attach sufficient weight to the judgments of the Criminal Courts, the Municipal receipts and the requisition khatians filed in the case. In respect of the latter, Mr. Roy also contends that the Court of Appeal below erred in not drawing proper presumptions arising from record of rights.
Before I take up for consideration the points urged on behalf of the appellants, I must dispose of a preliminary objection taken by Mr. Shamsul Huda, the learned Advocate appearing on behalf of the respondents in both these appeals, relating to the competency of Second Appeal No. 752 of 1951. His contention is that respondent No. 2 in said appeal was reported to be dead by the peon in his return of service of the notice of this appeal filed on the 24th of December 1952, but since no steps have been taken to bring the heirs of the said deceased respondent on record, the entire appeal has abated, since the decree for confirmation of possession was jointly in favour of all the respondents.
Mr. Roy on the other hand contends that the appeal is not incompetent as the said deceased respondent No. 2 did not contest the appeal in the Court below and he relies for this purpose on the case of Hari Charan Moulik and others v. Kalipada Chakrabarty and others (33 C W N 359). In that case, it appears that one of the three appellants in the Court of appeal below, who were also plaintiffs in the said suit, had died but no steps were taken by other plain tiffs‑appellants to have the representatives of the said deceased appellant added as a party to the appeal. Their Lordships Rankin, C. J., and Mukerji, J., took the view that in those circumstances the whole appeal did not be come incompetent, for, in their Lordships' view, although, in the absence of the deceased plaintiff's representatives, the other co‑plaintiffs had no absolute right to go on with the appeal, they could, however, go on with it if they could be given a different relief from the one they had originally claimed and their Lordships indicated that in such circums tances the proper order to make would be to give liberty to the appellants to amend their plaint by seeking for joint possession with the defendants.
This case, in my view, has no application to the facts of the present case. In the present case, a joint decree was made in favour of the plaintiffs in the Court of Appeal below and, if the appeal in this Court succeeds, then inevita bly there will be two inconsistent decrees, one a decree confirming the possession of the deceased respondent in the suit lands, against whom the present appeal has abated, and another decree against the other respondents refusing to confirm their possession. So far as the abatement of an appeal is concerned, different considerations have to be taken into account and we have to consider the nature of the decree appealed from and then see if, in the event of success in the appeal, the result will be to make two conflicting decrees. If so, then it must be held that the entire appeal has abated.
Mr. Roy next contends that, in any event, the question of abatement of the entire appeal cannot arise in the present case since the parties being Muslims took definite ascertained shares from their predecessor‑in‑interest and hence the plaintiff respondents in this appeal each had a definite ascertained share in the lands in dispute and so the appeal could only abate in respect of that specified share. It is true that Muslim heirs take defined and ascertained shares but that does not necessarily mean that they also take these shares in separate portions in the properties inherited by them. The share is ascertained but not the extent of the lands held by the heirs. For this purpose, if an heir intends to carve out his definite ascertained share in the properties, he has A inevitably to file a partition suit and, until the partition is effected, he possesses his ascertained share jointly with his co‑heirs.
In these circumstances, I am unable to accede to either of these contentions of the learned Advocate for the appellant and I must hold that the said Appeal No. 752 of 1951 has abated in toto.
However, since the points involved in both the appeals Nos. 751 and 752 of 1951 are common, in spite of my finding that Second Appeal No. 752 of 1951 has abated, I have still to decide the very same questions in Second Appeal No. 751 of 1951.
In the present case, the main question, in fact the only question, that was canvassed before the lower Appellate Court was whether the disputed lands had been abandoned by the respective plaintiffs in the two suits as alleged by defendant No. 1. This was purely a question of fact. It is true that to establish this fact of abandonment defendant No. 1 did rely on quite a few documents to show that the superior landlords of the said lands purported to transfer their inter ests therein both in respect of lands held in khas as well as tenanted lands. It is also true that in arriving at its decision the Court of Appeal below did take into consideration certain recitals in the schedules to some of these documents and inferred therefrom that the said recitals negatived the story of abandonment. In doing so, however, in my opinion, the lower appellate Court was not construing the documents at all nor was it drawing any legal inference as to the legal effect of these documents. All that the lower Appellate Court was doing was making inferences as to the existence or non- existence of certain facts from these documents. This to my mind was not at all a question relating to the construction of the documents. In so far as I am aware, inferences of facts drawn either from facts proved or from documents proved are never questions of law, as has been repeatedly laid down by their Lordships of the Judicial Committee. Thus in the case of The Midnapur Zamindary Co., Ltd. v. Uma charan Mandal and others (29 CWN 131 PC), where the question was on what date an under‑tenure had originated, Lord Sumner, in deliver ing the opinion of the Board, observed as follows
"Now to ascertain the date, at which a particular holding first began to be held as a definite holding, is essentially a question of fact, and must depend on evidence. That evidence may be, and naturally is, documentary, but the documents admitted in evidence upon that question are really historical materials, and although they have to be construed, and, if possible, understood, they are not to be treated as involving issues of law merely because they have to be construed".
Again in the case of Wali Muhammad and others v. Muhammad Bakhsh and others (571 A 86), their Lordships laid down some six propositions for determining as to what were and what were not questions of law which could be agitated in a second appeal under section 100 of the Code of Civil Procedure. I propose to refer to two of them, namely, the second and the fourth
"(2) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact . . . . . . . .
(4) A second appeal would not lie because some portion of the evidence might be contained in a document or docu ments, and the first Appellate Court had made a mistake as to its meaning". .
Thus it is clear that inferences of facts drawn even by cons truction of documents are not questions of law but only when the question is one relating to the ascertainment of the legal effect of the document does it become a question of law. In the present case, the Court of Appeal below was not considering the legal effect of the documents, but it was merely drawing certain inferences as to the existence of a question of fact, which it had to determine, from the recitals contained in these documents I am unable, therefore, to accede to the contention of Mr. Roy that any question of construction of a document was involved in the present case, Indeed, as I have pointed out earlier, the lower Appellate Court has relied mainly upon the oral evidence adduced in the case to come to its finding of fact with regard to the continuous possession of the respective plaintiffs in the suit lands. This is furthermore a concurrent finding of fact with which I can‑not interfere in a second appeal.
With regard to the complaint of Mr. Roy that due weight had not been attached to certain documents, I must again confess that I am unable to appreciate how this becomes a question of law. Evidence may be oral or documentary and the weight to be attached to such evidence is purely a question of fact and not a question of law at all.
However, I need only say that I have no reason to dis agree with the opinion of the Court of Appeal below that the judgments of the Criminal Courts which are not inter partes; could only be admitted for certain limited purposes, namely, to show who the parties there were, what the dispute was and what was decided. Accepted for such limited purposes in the present case, all that those judgments could show were that the plaintiffs in the suits had been originally prosecuted for trespass and that they had been convicted. This does not either prove or disprove their possession of the suit lands. Similarly, with regard to the Municipal receipts, I have already indicated that the Court of Appeal below did not consi der that they had been shown to relate to the lands in dispute. Hence, in my opinion, it was right in not relying on such Municipal receipts.
With regard to the requisition Khatians, I am first of all not convinced that these are proper records‑of‑rights under the Bengal Tenancy Act to which a statutory presumption has been attached by reason of the provisions of the said Act. Again, even if a presumption arose, the Court of Appeal below considered the presumption to have been rebutted by reason of the fact that defendant No. 1 may have had a hand in the preparation of these documents by virtue of his employ ment as Nazir of the Collectorate by which these Khatians were prepared. The question whether a presumption is rebutted or not is again a question of fact.
For these reasons, I am of the view that none of the points urged by the learned Advocate in support of these appeals can be acceded to. These appeals must accordingly be dismissed with costs.
M. S./ A. H.
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