ANUKUL CHANDRA BHATTACHARJEE Vs. SURENDRA NATH BHATTACHARJEE

JUDGEMENT

(1.) This is a second appeal by the plaintiff in a suit for establishment of title to land and for recovery of khas possession. The land belonged originally to one Ekkari Bhattacharjee who died leaving a son named Kangali and a daughter named Shilabati. Kangali who was born in 1315 B.S., left home in 1333 B.S. and has not been heard of since then, so it is presumed that he is dead. He did not marry. Shilabati died childless in 1336 B.S. The plain, tiff's case is that he being the nearest heir as the son of Ekkari's brother has inherited the disputed property. The suit is contested by defendant 1 who is the husband of Shilabati, now deceased. His case is that Kangali was born deaf and dumb and so was excluded from inheritance, and that the property ultimately devolved on defendant 1 after the death of Shilabati and her son. The learned Munsif took up the question whether Kangali's alleged deafness and dumbness were congenital and incurable. Upon the evidence he held in the negative and in that view he decided that Kangali had inherited the disputed properties on his father's death and so the plaintiff has now become the heir of Kangali. Accordingly he decreed the suit. On appeal the learned District Judge decided upon the evidence that Kangali was a congenital deaf mute and as such debarred from inheritance, He therefore disagreed with the Munsif and dismissed the suit. Hence this second appeal by the plaintiff.

(2.) In this second appeal it is contended that the judgment of the learned Judge below is not a proper judgment of reversal as, he has not properly considered the points upon which the trial Court decided in favour of the plaintiff's case. The learned Judge has considered three items of documentary evidence saying that they were mainly relied on by the Munsif, namely the fact that Kangali's name was recorded in the settlement proceedings, that when filing objections under Section 103, Ben. Ten. Act, the defendant did not base his case on the allegation that Kangali was deaf and dumb, and thirdly that Kangali's name was mutated in respect of a revenue paying estate in the Touzi Register. The learned Judge holds that these items of documentary evidence cannot outweigh the oral evidence in favour of the defence and he remarks that the learned Munsif admitted that the oral evidence that Kangali was deaf and dumb was clearly in favour of the defence. The learned Judge however omits to consider what the Munsif did consider, viz. whether the witnesses are interested and how far their evidence would stand the test of consideration in the light of probabilities. The learned Munsif also pointed out that the plaintiff had bitter enmity with defendant 1 and his witness Dr. Manmatha Nath Mukherjee (D.W. 6). It seems to me that the learned Judge below did not consider the evidence in all its aspects as learned Munsif did.

(3.) I therefore accept the contention that the judgment is not a proper judgment of reversal. On that ground it must be set aside and the matter should be remanded to the lower Appellate Court for fresh consideration.