RAGHUBIR SARAN DAS Vs. RAM DAS

JUDGEMENT

(1.) This second appeal raises some interesting points of law. It appears that the suit related to a. certain wall and a piece of land immediately to the south of it. The plaintiff who is the appellant before this Court claimed that the wall and the land were his private property. He complained that, the respondent, the defendant, interfered with his right of possession in certain ways. At this stage of the case it is not necessary to enter into the details. The Court of first instance partially decreed the suit and ordered the supposed interferences with the right of the plaintiff to be removed. The lower appellate Court came almost to a directly opposite conclusion and ordered the suit to be dismissed in toto. The first point that has been taken in this Court is that no appeal lay to the Court below. This plea arises out of the following circumstances. At the trial of the suit, the counsel for the parties stated that they were not prepared to adduce any oral evidence. They suggested that the Court, Subordinate Judge, should inspect the locality and should decide the case on the basis of what he might see on the spot and on an examination of such documentary evidence as might he adduced by the parties up to 3 p.m. of the day when the statement was recorded. The learned Subordinate Judge inspected the locality, examined the documentary evidence, heard the arguments for the parties and decided the case. It is urged for the plaintiff- appellant that the parties really constituted the Subordinate Judge their sole arbitrator of the case and that the judgment was really an award of an arbitrator, and no appeal lay to the District Judge. Several cases reported in Shahzadi Begam V/s. Muhammad Ibrahim A.I.R. 1921 All. 310.Bahir Das Chakravarty V/s. Nabin Cbunder Pal (1902) 29 Cal. 306 Nidamarthi Mukkanti V/s. Thamman Ramayya (1903) 26 Mad. 76 and Chinna VenkatasamiNaicken V/s. Venkatasami Nainken (1919) 42 Mad. 625 have been relied on on behalf of the appellant in support of his argument. I have examined each and every one of these cases and. I have found that the intentions of the parties in those cases were clear and were that they were binding themselves by the decision that might be given by the Court. No such intention can be gathered from the language used in this particular case. All that the parties did was to make a statement that they were not going to adduce oral evidence and that they requested the Court to exercise its inherent power of inspection of the locality. That is all. The parties did nothing beyond this. It was open to the parties not to adduce any oral evidence. As a matter of fact, in the circumstances of a case like this, the oral evidence could be of little use. The oral evidence that could be adduced would only go to show the state of facts as could be ascertained more easily on an inspection. The facts were, for example, how certain beams lay, certain spouts existed and so forth. In my opinion an appeal did lie to the lower appellate Court.

(2.) Coming to the merits of the case, the learned Judge has found that the plaintiff had no title to the property claimed, viz., to the wall and the land and dismissed the suit. The Court also considered certain other aspect of the cases which will be mentioned presently. In this Court, it has been urged that if the lower Court's finding that the plaintiff had not title be accepted as final, there still remained the fact that the plaintiff had certain possessory rights and the lower appellate Court had ignored the consequences of such rights as were apparent on the face of the record. I propose the examine this aspect of the case. There can be no doubt that the finding of the learned Judge as to title is conclusive. This finding is based on facts observed on the spot and on examination of the documentary evidence adduced by the parties. The Court found that the wall which the plaintiff claimed as his own was a part of a much large tract of land within which were good many shops and business quarters. The Judge found that the land which the plaintiff claimed as his own was a portion of a lane which went all round the land enclosed by the wall and inferred that it was a part of the site or the market Smithganj itself which was enclosed by the enclosing wall. These wore findings to which the lower Court had absolute jurisdiction to arrive and I am clear that this finding is binding on this Court.

(3.) Now coming to the question of possessory right and the consequences thereof, the Court of first instance dismissed a part of the plaintiff's suit and there was an appeal against that judgment. We need not therefore consider that part of the plaintiff's suit which failed in the Court of first instance. The judgment of the appellate Court shows that only one point was taken before it, concerning the question as it remained after the finding that the plaintiff bad no title either to the wall or to the site. As the judgment shows, it was urged on behalf of the plaintiff that the defendant's new building had blocked up two of his windows, opening on the lane. The learned judge pointed out that these openings had been created during the course of the suit and when the defendant was erecting his own building. It is clear therefore that there are no merits in this portion of the case. I may point out that nothing was said in the plaint about these windows for the simple reason that they never existed when the claim was filed.