G. Mehrotra, J. - (1.) THIS is Defendant's appeal. Briefly the facts are that one Bogabhot had two wives. From his first wife he had two sons, Sona and Khedalu. His first wife and both the sons from his first wife died during his life -time. Thereafter he married Sarufuli. Sarufuli according to the Plaintiff had a daughter the and a son Rupa. Plaintiff is the son of Telo. Rupa had a daughter Bhogriya who is now dead and was married to Defendant No. 2. Defendant No. 1 claims to be it direct descendant of Bogabhot's brother Indur. The admitted fact is that Bogabhot acquired the right of occupancy under pro forma Defendants Nos. 3 to 10 in respect of 21 B, 3 K. 4 lechas of land described in the schedule attached to the plaint. The case of the Plaintiff is that after the death of Bogabhot the property devolved upon his son Rupa and after the death of Rupa the Plaintiff as the sister's son of Rupa is his heir. The Plaintiff claims to be the preferential heir of Rupa.
(2.) THE defence taken was mainly that Telo -Plaintiff's mother was not the real sister of Rupa. Sarufuli had been married before she was married to Bogabhot and Telo the mother of the Plaintiff was born of her wedlock with her former husband. The Plaintiff thus is not the sister's son of Rupa and has no preferential claim over that of the Defendant. Only Defendant No. 1 contested the suit. Both the Courts on consideration of the evidence have come to the conclusion that Tele -is the daughter of Sarufuli from Bogabhot and not from her former husband and the Plaintiff is a preferential heir.
(3.) THE only point urged before me is that the judgment of the Court below is no judgment in the eye of law. In substance the argument is that the Court below has affirmed the decree of the trial Court without applying its mind to the evidence and thus there has been no proper disposal of the appeal. The Court below has committed an error of .procedure and this Court can under Section 100, Code of Civil Procedure interfere with the decision of the lower appellate Court. There are two alternatives open to this Court ' either to send back the case to the Court below for disposal of the appeal or examine evidence for itself and come to its own conclusion on the merits, of the case. The infirmity pointed out in the judgment of the Court below is that the Court below has not independently examined the evidence for itself. It has only affirmed the assessment of the evidence made by the trial Court. In the grounds some part of the evidence of the Plaintiff has been quoted to show that if the Court below had applied its mind to the evidence of the Plaintiff's and Defendant's witnesses independently, it could not have come to the conclusion to which it came. Reference is made to two cases of this Court in support of the contention that the Court below should not only endorse the view of the trial Court but should also give reference to the evidence and give its own reason for believing or disbelieving the evidence of the parties.;