- (1.) THIS is an appeal by the plaintiff in a suit for a declaration that the gift-deed executed by the defendant No. 1 to 4 in favour of Jammu, defendant No. 5, dated 25th Oct. , 1944, and registered on 26th of October, 1944, was null and void against the plaintiff. The suit related to a certain piece of land situated in village Mehta was in the erstwhile State of Alwar. THIS land has been described in the plaint and it was alleged that the said land belonged to and was possessed by the plaintiff Kanhiram but the defendants 1 to 4 had without any right or title executed the gift-deed in favour of the defendant No. 5 (Jammu ).
(2.) THE defendant denied the title or possession of the plaintiff and pleaded that the land belonged to the executants of the gift-deed who were fully entitled to execute it in favour of the defendant No. 5 and thus transferred the property to him. It was also pleaded that the suit for declaration alone was barred as the plaintiff could have prayed for consequential relief of possession which he did not. Learned Munsif of Behror, who tried the case, dismissed the plaintiff's suit on the ground that he had failed to prove his title or possession over the land in suit. The plaintiff went in appeal and the learned District Judge. Alwar framed an additional issue on the point whether the suit was bad for declaration alone under the circumstances of the case and remitted that issue to the first court for evidence and finding thereon. The learned Munsif after remand recorded evidence on the newly framed issue and recorded a finding that the plaintiff was not in possession of the property in suit at the time of the suit. When the case came back to the learned Distt. Judge after the recording of the evidence and the finding on the newly framed issue, he went into the entire case and found that the plaintiff was not in possession of the property on the date of the suit and, therefore, his suit for declaration alone was bad. He also held that the plaintiff had failed to prove his title or prior possession of the property in suit before the suit. He consequently dismissed the appeal and confirmed the decree of the lower court. In this second appeal, it has been argued by Mr. R. C. Sharma on behalf of the appellant that both the lower courts have wrongly disbelieved the evidence of the plaintiff and have erred in believing the evidence produced by the defendants. Ordinarily no second appeal lies under Sec. 100 of the present Civil Procedure Code on a finding of fact which has been recorded after considering the evidence produced in the case. However, the learned counsel for the appellant argued that Sec. 100 of the present Civil Procedure Code was applied to the State of Alwar where the property in dispute was situated by the Act XVI of 1947 and before that the Alwar State Subordinate Civil Courts Act, 1941 was in force in the State of Alwar and under sec 16 of the said Act, besides the grounds given in sec 100 of the Civil Procedure Code, a second appeal could lie also on any other reasonable and sufficient ground. This ground is given under clause (d) of Sec. 16. Reasonable and sufficient ground might include a question of fact but to my mind, every finding of fact which is based on a consideration of the evidence produced cannot be said to come under clause (d ). If that were so then there was no necessity to incorporate several clauses in Sec. 16 and it would have been enough to say that an appeal shall lie to the High Court from every decree passed in appeal by any subordinate court to the High Court. Sec. 15 says that an appeal from a decree or order of a District Judge or Additional District Judge exercising original jurisdiction shall lie to the High Court. It does not say that it shall lie on certain grounds only. If it were the intention of the Legislature that a second appeal under Sec. 16 could lie to the High Court on any ground whatsoever whether it be of fact or law a simple statement as made in sec. 15 would have been made, and it would not have been necessary to say that a second appeal would lie only on certain grounds. Similarly clause (b) of sec. 15 says that an appeal from a decree or order of the Munsif shall lie to the Distt. Judge There too it has not been said that is would lie on certain grounds. It is, therefore, clear that|by Sec. 16, the Legislature clearly wanted to restrict the right in second appeal and it was not so wide as that given for a first appeal. I am, therefore, of the opinion that under cl. (b) of Sec. 16 a second appeal could lie on question of fact also but there must be very special ground on the questions of fact so that they might be interfered with because the law requires that the grounds should be reasonable and sufficient. I do not think that in any case where both the lower court have concurred in a finding of fact and it is based on the evidence on record, High Court could interfere with a finding of fact of the lower courts simply because in its opinion the evidence was such on which it could not have come to the same finding as the lower courts have come to if it were sitting as an original court or court of first appeal. Keep in this view in mind, examined the evidence which has been produced in this case. None of the parties has filed any documentary evidence. Evidence is only oral. Certain witnesses produced by the plaintiff in the first instance and certain witnesses by the defendant. Similarly after remand a few witnesses were examined on behalf of the plaintiff and two witnesses on behalf of the defendant. The plaintiff's witness supported the plaintiff's case and all that came out in their evidence was that the plaintiff stored his fuel wood or stones over the land in suit and in a small part of it he had a thatch. The defendant's evidence shows that the defendants used to the their cattle and that defendant No. 5 had stored his stories thereon after the gift-deed in his favour Now the evidence of the defendant was just as good or just as bad as that of the plaintiffs and it was for the plaintiff to prove his title or such possession as would entitle him to dispossess the defendant or to have gift-deed in his favour declared null and void. I do not think that the lower court have taken such a distorted view of the evidence in this case either on the point of title and prior possession or on the point of possession after this gift-deed or on the point of possession at the time of the suit which would entitle me to disturb the decree of the lower court clause (d) of Sec. 16 of the Alwar State Subordinate Civil Court Act, 1941, namely on any other reasonable or sufficient ground. I do not find any reason to interfere with the finding of fact of the lower court and consequently dismiss the appeal. The contesting respondent shall get his costs of this appeal from the plaintiff-appellant. . ;