Radha Prasad Singh vs Gajadhar Singh and Others
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 19 of 1954
Decision Date: 7 September 1959
Coram: K.C. Das Gupta, M. Hidayatullah
In this case the parties were Radha Prasad Singh as petitioner and Gajadhar Singh together with others as respondents. The matter was decided by the Supreme Court of India on 7 September 1959. The judgment was authored by Justice K.C. Das Gupta, who sat on the bench together with Justice M. Hidayatullah. The official record lists the author as K.C. Das Gupta and identifies the bench as Gupta, K.C. Das, Sudhi Ranjan (Chief Justice) and Hidayatullah, M. The citation of the decision appears in the 1960 volume of the All India Reporter as AIR 115 and in the Supreme Court Reporter as 1960 SCR (1) 663. The case is also catalogued under Civil Appeal No. 19. The decision refers to the statutory provision concerning the appellate court’s power to reverse a finding of fact arrived at by a trial court, particularly where the credibility of a witness is in question, and it is described as a rule.
The headnote of the judgment explains that while it is well-settled that an appellate court should not lightly disturb a finding of fact made by a trial judge who had the opportunity to observe the demeanor of witnesses and hear their testimony, this principle does not mean that an appellate court can never reverse such a finding. The Court observed that when a decision on a factual issue depends on a fair consideration of the material on record, and the appellate court finds that the trial judge failed to take into account important considerations or failed to weigh them properly, and those considerations clearly demonstrate that the trial judge’s view is wrong, the appellate court has a duty to reverse the finding even if that requires disbelieving witnesses who were believed by the trial court. Likewise, where the trial judge omits to properly weigh or consider important factors bearing on the credibility of witnesses or on the probability of their version, and those factors point in the opposite direction, the appellate court must reverse the trial court’s findings. The Court further noted that if a question of fact does not rest solely on the credibility of witnesses but is a matter of inference from proved facts and a consideration of probabilities, the appellate court stands in the same position as the trial court and may freely reverse its findings. The judgment referred to several authorities, namely Shunmugayoya Mudaliay v. Manikka Mudaliar (1909) L.R. 36 I.A. 185; Coghlan v. Cumberland (1898) I Ch. 704; Wall (Thomas) v. Thomas (1947) I All E.R. 582; Bonmax v. Austin Motor Co. Ltd. (1955) I All E.R. 326; Sayju Pershad v. Raja jwaleshwari Pratap Narain Singh (1951) I.L.R. 43 Cal. 833; and Laljee Mohomet v. Girlder [1950] S.C.R. 78. Applying these principles to the present case, the Court noted that the plaintiff had instituted a suit for pre-emption and that the factual issue to be determined was whether the plaintiff had performed the essential ceremonies of Talab-E-Mowasibat and Talab-E-Ishtashad. The trial court had accepted the plaintiff’s witnesses, not because it was impressed by their demeanor, but on the basis of the evidence presented. The High Court on appeal, however, disbelieved those witnesses after considering the probabilities of the case and consequently reversed the trial court’s decision. The Supreme Court held that it was incorrect to contend that the High Court’s approach was wrong or that its decision was unjustified, thereby affirming the correctness of the appellate reversal.
In the year 1954, an appeal was taken against the judgment and decree dated 8 April 1949 issued by the Patna High Court. The appeal arose from Original Decree No. 116 of 1947, which itself stemmed from the judgment and decree rendered on 28 February 1947 by the Sub-Judge at Begusarai in Title Suit No. 14/14 of 1944-45. The appellant was represented by counsel L. K. Jha and B. K. Sinha, while the respondent identified as No. 1 was defended by G. S. Pathak, B. Sen, B. K. Saran and R. C. Prasad. Additional representation for respondents Nos. 3 and 4 was provided by S. D. Sekhri. The judgment of the Court was delivered on 7 September 1959 by Justice Das Gupta. Although the suit for pre-emption originally raised several questions of fact and some of law, the principal issue for determination in this appeal from the Patna High Court’s reversal of the trial court’s decree concerned the performance of the ceremonies essential to exercising the right of pre-emption. The High Court had based its reversal on the determination of whether the plaintiff had correctly performed the ceremonies of Talab-E-Mowasibat and Talab-E-Ishtashad as required by law, a question expressly framed in Issue No. 9 of the appeal.
The plaintiff, Radha Prasad Singh, instituted the suit for pre-emption concerning five items of property enumerated in Schedule B of the plaint. These items, together with certain other properties, had been conveyed by the second-party defendant, Mst. Jogeshwari Kumari alias Jageshwari Kumari, widow of the late Babu Ganga Prasad Singh and daughter of Babu Narsingh Prasad Singh, by a deed executed on 18 November 1943 at Moghra and subsequently registered on 23 November 1943 at Monghyr. The trial court concluded that the plaintiff had failed to establish his status as a co-sharer with respect to Item 2 of Schedule B. However, for the remaining four items, the court found that the plaintiff was indeed a co-sharer and consequently granted a decree of pre-emption in his favour for those four items. The sale deed was recorded in the name of the first-party defendant, Gajadhar Singh, who was acknowledged to be a mere benamidar, with the substantive purchaser being Babu Lakshmi Prasad Singh, his son Satya Narayan Singh, and other co-purchasers. A dispute subsequently arose regarding whether the share of Mauza Majhaul Kilan Shri Ram sold comprised 4 annas 5 gandas (odd share) or the entire 8 annas (odd share) owned by the vendor. Both the trial court and the High Court held that the plaintiff’s original claim that the 4 annas 5 gandas odd share had been sold was incorrect; in reality, the deed transferred the full 8 annas odd share of the vendor’s interest. After the registration of the sale deed, it was alleged that the deed had been tampered with and that, by means of forgery, the 8 annas odd share had been fraudulently altered to reflect a 4 annas 5 gandas share.
The Court observed that after the defendant asserted in the written-statement that the entire eight annas and an odd ganda of the Mauza had been sold, rather than the four annas and an odd ganda shown in Schedule B, the plaintiff sought and obtained an amendment of the plaint. By this amendment the plaintiff substituted an alternative prayer for pre-emption covering the full eight annas and an odd ganda share of the Mauza. The Court noted that, had the amendment not been granted, the original prayer for pre-emption could not have succeeded because it sought only a partial pre-emption while the fact-findings established that the whole eight annas and an odd ganda, not merely four annas and an odd ganda, had been conveyed. Consequently, the trial judge had to decide whether the amendment was properly allowed. The Court further considered another objection that the suit, as originally framed, dealt with a partial pre-emption while the sale involved all villages classified as Asli Mai Dakhili, that is, the original villages with their dependencies. The plaintiff’s pleading, however, contained no claim for pre-emption with respect to those Dakhili villages. The principal issue in dispute, according to the Court, was whether the statutory ceremonies required by law—Talab-E-Mowasibat and Talab-E-Ishtashad—had been duly performed. The plaintiff contended that he first learned of the sale from his co-sharer Jogeshwari on 2 January 1944 at about eleven o’clock in the morning, when Jadunath Singh, a resident of Majhaul, informed him. He claimed that immediately thereafter he completed the Talab-E-Mowasibat in the presence of witnesses, then proceeded to the properties identified as Tauzi 1130, 4201 and 1136, as well as Mauza Bugurgabad, where he performed Talab-E-Ishtashad. He further asserted that on 3 January 1944 he visited the purchaser, Gajadhar Singh, at Matihani and performed another Talab-E-Ishtashad, and on the same day traveled to the vendor’s residence where he again performed Talab-E-Ishtashad on 4 January 1944. The defence opposed this narrative, stating that no such ceremonies had ever taken place and that the plaintiff had actually known of the sale long before 2 January 1944 because he had been a rival bidder for the same properties. The defendant’s written-statement described a detailed proclamation of the proposed sale, accompanied by the beating of drums by Bindeshwary, and asserted that the plaintiff had attempted to acquire the property at that sale, an allegation the defendant sought to prove through his witnesses. The trial court found the defendant’s version implausible and disbelieved his testimony on the ceremony issue. It also rejected the defence’s allegation that the plaintiff had been responsible for the alleged forgery that altered the sale deed, changing the description of the share in Majhaul Kilan Shri Ram from eight annas and an odd ganda to four annas and an odd ganda. Based on these findings, the trial judge concluded that the plaintiff’s suit was not barred by estoppel and proceeded to consider the remaining matters of the case.
The Court first examined whether the plaintiff truly learned of the sale in favour of the first defendant on 2 January 1944 from the witness Jadunath, as the plaintiff claimed. The trial judge accepted the testimonies of both the plaintiff and Jadunath, concluding that the plaintiff’s allegation of receiving the information for the first time on that date was correct. The trial judge also accepted the plaintiff’s evidence that the required ceremonies of Talab-E-Mowashibat and Talab-E-Ishtashad had been properly performed. Consequently, the trial court held that the plaintiff’s version of events—that he first became aware of the sale on 2 January 1944 and thereafter carried out the ceremonies—was established as fact. The High Court, however, reached a contrary conclusion. The appellate judges found the testimony of Jadunath to be wholly untenable and refused to accept the plaintiff’s claim that he first learned of the alleged sale on the said date. After observing that the foundation of the plaintiff’s claim of performing the ceremonies was without substance, the High Court also dismissed the evidence relating to the performance of those ceremonies as unacceptable. Thus, the matter before the present Court was a pure question of fact: whether the plaintiff first became aware of the sale on 2 January 1944 and, in consequence, performed the ceremonies of Talab-E-Mowashibat and Talab-E-Ishtashad.
The principal argument presented by counsel for the appellant was that the High Court had approached this factual issue from an erroneous perspective and was not justified in overturning the trial judge’s findings on that point. The appropriate method for an appellate court to decide a factual dispute already resolved by a trial judge has long attracted judicial commentary, though opinions have not been uniform. Certain authorities stress that an appellate court must determine the facts for itself when an appeal raises factual questions, while also recognizing that the appellate judge lacks the advantage of having seen and heard the witnesses. Other decisions emphasize the necessity of refraining from reversing a trial judge’s factual conclusions absent compelling reasons. Across jurisprudence, courts consistently underscore the principle that a judge hearing an appeal, without the opportunity to observe the witnesses, must exercise great caution—indeed, must think twice or more—before overturning the factual findings reached by the trial court, which had that opportunity.
The Court explained that stating the general rule does not mean that an appellate court is forever barred from overturning a trial judge’s finding of fact. It cited the decision in Shunmugaroya Mudaliar v. Manikka Uudaliar (1) where Lord Collins observed that a judge who has not seen or heard the witnesses finds it inherently hard to reject the factual conclusions drawn by the trial judge who did. He added that the difficulty becomes still greater when the trial judge believes that the witness statements are not only unreliable on the balance of probability but also lack any claim to truth. Lord Collins then endorsed the earlier judgment of Lindley, Master of the Rolls, in the Court of Appeal case Coghlan v. Cumberland (1), which explained the limits of the rule. In that passage Lindley stressed that even when an appeal hinges on a factual issue, the appellate court must remember its duty to rehear the case and to consider all material before it, including any additional evidence it may admit. The appellate court must form its own opinion, not simply ignore the judgment under appeal, but must weigh it carefully and be prepared to overrule it if full consideration shows the original decision to be wrong. Lindley noted that credibility assessments often rely heavily on the trial judge’s direct observation of witnesses during examination and cross-examination, and that it is difficult to gauge credibility from written depositions alone. While the appearance, manner, and demeanour of witnesses are important, Lindley warned that other circumstances, independent of those factors, may indicate the credibility of a statement and could justifiably lead the appellate court to depart from the trial judge’s view, even on factual questions that depend on witness credibility that the appellate judges have not personally observed.
The Court also referred to the similar position expressed by Lord Thankerton in Watt (or Thomas) v. Thomas (2). He explained that when a factual issue has been tried by a judge without a jury, an appellate court that wishes to reach a different conclusion on the basis of the written record should do so only after being satisfied that any advantage the trial judge derived from seeing and hearing the witnesses cannot adequately explain or justify the trial judge’s conclusions. Lord Thankerton further indicated that the appellate court may, in such circumstances, take the view that without the benefit of direct observation it is not in a position to arrive at a satisfactory conclusion solely from the printed evidence. He added that the appellate court may be compelled to intervene if the reasons given by the trial judge are unsatisfactory or if the evidence unmistakably shows that the trial judge failed to make proper use of the advantage of having heard the witnesses, thereby allowing the appellate court to reassess the matter.
The Court observed that an appellate court, having not seen or heard the witnesses, could not reach a satisfactory conclusion solely on the basis of the printed record. It further explained that the appellate court might be satisfied, either because the reasons given by the trial judge were unsatisfactory or because the evidence plainly indicated that the trial judge had not properly taken advantage of his opportunity to see and hear the witnesses, that the matter then became open for appellate review. The Court noted that the value and importance of having seen and heard the witnesses varied with the class of case and, indeed, with the particular facts of each case. These observations were endorsed by Lord Reid in Bonmax v. Austin Motor Co., Ltd. (1) and were also reflected in the observations of Mokerjee, J., in Laljee Mahomed v. Girlder (2). The proper approach of the Court of Appeal to factual findings of the trial court had earlier been considered by this Court in Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh (3). In that case Mukherjea, J., while delivering the judgment of the Court, stated that the appellate court must remember that it does not enjoy the advantage possessed by the trial judge of having the witnesses before him and observing their manner of deposition. He emphasized that this does not mean that an appellate court lacks competence to reverse a factual finding of the trial judge when an appeal rests on facts. The rule, according to him, was a rule of practice: when there is a conflict of oral evidence on any material issue and the decision depends on the credibility of the witnesses, the appellate court should not interfere with the trial judge’s finding unless a special feature of a particular witness’s evidence escaped the trial judge’s notice or there is a sufficient balance of improbability to overturn his view on credibility. The Court then stated its position that, when an appeal is based on facts, it is both the right and the duty of the appellate court to consider what its own decision on those facts should be. However, in forming that decision, the appellate court must bear in mind that it is limited to the printed record and does not have the opportunity to observe the witnesses personally. Consequently, it should not lightly reject the trial judge’s conclusion that a particular witness’s evidence should be believed or not believed, especially when that conclusion rests on the judge’s observation of the witness’s demeanor in court. This caution, the Court clarified, does not mean that the appellate court will never overturn a trial judge’s finding on credibility simply because it has not heard the witness; it may do so when the record shows that the trial judge failed to consider important credibility factors or when the probability of the witness’s story is clearly contrary to the evidence.
The Court observed that an appellate court is empowered to set aside the findings of a trial judge even on matters of credibility, provided that the credibility issue can be determined by a fair and proper consideration of the material that is on the record. It further held that where the appellate court is of the view that the trial judge has failed to take into account, or has not given due weight to, important factors affecting credibility – including the probability of the story narrated by the witnesses – and that those omitted or improperly weighed factors clearly demonstrate that the trial judge’s conclusion is erroneous, the appellate court should not hesitate to reverse the trial judge’s findings on such credibility questions. The Court distinguished between credibility assessments that rely solely on the demeanor of witnesses observed in the courtroom and those that involve an inference of one fact from proved primary facts. In the latter situation the appellate court is placed in a position no less competent than the trial judge and therefore may freely reverse the trial judge’s finding if it is of the opinion that the inference drawn by the trial judge is not justified.
Turning to the case presently before it, the Court noted that the trial judge, having heard and seen both Jadunath and the plaintiff, accepted their testimony that Jadunath had given the plaintiff information regarding the sale on 2 January 1944 at about II a.m. The Court emphasized that the trial judge’s conclusion does not appear to have been based on any favourable impression created by the witnesses’ demeanor, but rather on the substance of their statements. In examining the evidence of the plaintiff and of Jadunath, the Court kept in mind that the plaintiff’s case rests on the proposition that, upon receiving certain information on 2 January 1944, he proceeded to perform the necessary formalities, and that no allegation was made that those formalities were carried out on any other date. Consequently, the Court held that if the narrative that the information was communicated on that date cannot be established, the plaintiff’s entire claim must fail.
Jadunath’s evidence on the crucial point was recorded as follows: “On 2-1-44 I told Radha Babu at his house in Manjhaul that Maghrawalli Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Matihani; this was about 11 a.m. Radha was startled to hear this and, standing up, said: ‘Jo jo jaidad Babu Gajadhar Singh hath…’ (then saying) ‘Maghrawalli Mussammat Jageshwari Kumari ne jo jo jaidad Babu Gajadhar Singh ka liath becha hai uske kharidne ka haq mere. Ham Kharida, Ham Kharida, Ham Kharida. Talab Mowashibat karte hain. Babu Jagdamba Prasad aur Babu Narayan Prasad gabah rahie….’ I came to know from a man of Chitral, I kos from Matihani that Gajadhar had a marriageable grandson.” The Court also indicated that the testimony of Jagdambi Prasad must be considered, which was quoted as: “On 2-1-44 I had been to plaintiff’s house at 10-30 a.m. Babu Narayan Prasad Singh, a pleader of Samastilpur, was at plaintiff’s house at the time… Jadunath Singh told Radha Prasad that Musanimat Jagesliwari Kumari of Maghra had sold away her property in Manjhaul to.”
In the testimony, Jadunath Singh reported that Gajadhar Singh of Matihani had sold the property in question. When Jadunath conveyed this information, Radha Prasad Singh reacted with surprise, rose to his feet and declared repeatedly, “I have a right to purchase this property. I have purchased; I have purchased; I have purchased.” He then called upon Jagdamba Prasad Singh, Narayan Prasad Singh and Jadunath Singh to bear witness to his statement, uttering the words three times. To determine whether Jadunath’s account represented the plaintiff’s first knowledge of the sale, the Trial Judge was required to evaluate the plausibility of the narrative that Jadunath had learned of the transaction on 2 January 1944 at about 11 a.m., that he had discovered the sale while seeking a bridegroom at Gajadhar’s residence, that Gajadhar Singh had disclosed the sale to him, and that Jadunath had promptly returned to his village and proceeded to the plaintiff’s house to report the information. The Judge also needed to assess the likelihood of the plaintiff’s reaction as described and to consider any inconsistencies in the story. The record shows that the Trial Judge did not address any of these probabilities. His only comment on Jadunath’s credibility was that the witness’s testimony had been attacked on the basis that he had served as a witness for the plaintiff in an earlier suit filed by the plaintiff against the ancestors of Satya Narain Singh, and that, in the Judge’s view, this was not a sufficient reason to discard Jadunath’s evidence. The Court agreed that the mere fact of Jadunath’s prior involvement as a witness did not, by itself, warrant rejection of his testimony. Nonetheless, the Court emphasized that this conclusion did not relieve the trial court of its duty to test the testimony against the standard of probability. The High Court applied that probability test and concluded that Jadunath was not a truthful witness. The Court cited the principle expressed by Lord Thankerton that a trial judge must make full use of having seen and heard the witnesses, and that any unresolved issues should be taken up by the appellate court. The witness in question could not be regarded as completely independent because, according to his own account, he had undertaken a difficult journey to the plaintiff’s house after an unsuccessful search for a bridegroom, solely to convey a matter in which he himself had no apparent interest, despite having previously participated as a witness in a pre-emption suit brought by the same plaintiff many years earlier.
The Court observed that the facts of the case required a very careful examination of the witness’s testimony before a conclusion could be drawn that, merely by appearance, the witness could be regarded as truthful; such careful scrutiny was notably missing. When the witness’s evidence is considered in its entirety, he first narrates that after learning of the contested sale he visited the house of Gajadhar, the first defendant, in the village of Matihani to make inquiries concerning a marriage proposal for his daughter involving his grandson, and that during that visit Gajadhar spoke to him about the purchase. Yet, in his direct examination the witness suddenly jumps to an account of going to the plaintiff’s house on 2 January 1944 and informing the plaintiff of Jogeshwari’s sale of her Milkiat to Gajadhar, without mentioning his earlier visit to Gajadhar’s house, the purpose of that visit, how Gajadhar conveyed the information, or any details of the information itself. It is only on cross-examination that he reveals that his visit to Gajadhar’s house was for “barthuari”. The Court finds that whether in direct or cross-examination the witness ever explains exactly what Gajadhar told him remains unclear. The Court recalls that it is no longer disputed that Gajadhar himself had no interest in the properties and was merely a Benamidar. Even if Gajadhar’s own denial of any knowledge of the transactions is disregarded, the Court must still assess how probable it was that Gajadhar would fabricate a story of purchase to place on Jadunath, allegedly to raise the Tilak he could then obtain. The witness does not speak of any negotiations concerning Tilak, but another person, Mahabir Ray, testified that when he was going to the fields, Gajadhar called him and demanded a higher Tilak, claiming he had recently bought property at Majhaul from Mussammat. Jadunath does not state that he saw Mahabir at Gajadhar’s house; he claims he went there with a servant, a detail that Mahabir never mentions. The Court therefore considers whether a total stranger to the plaintiff, such as Mahabir, would be summoned by Gajadhar to discuss such matters, a point that appears to have been ignored by the trial judge. The High Court judges concluded that there was no reason for Gajadhar to go out of his way to inform Jadunath that he had bought Jogeshwari’s Milkiat, and the Court finds this assessment of probability persuasive. Moreover, the probability concerning the plaintiff’s reaction to the alleged information is also a crucial issue that must be examined.
Both Jadunath and Jagdambi testified that the plaintiff was startled when he learned of the alleged sale and that, at that moment, he immediately uttered the formula known as the Talab-E-Mowsibat. The Court considered what a man of ordinary prudence, let alone a man of property who had previously been involved in litigation, would ordinarily do under such circumstances. It was held that there could be no alternative view on this point. A prudent person would likely regard it as unwise to press his informant for further details before first completing the initial Talab, that is, the Talab-E-Mowasibat. After that formal request was made, a reasonable person would then question the informant about the source of the information, the precise nature of the information, the identity of the properties that had been sold, the consideration involved, and any other related matters. In the present case, however, the evidence of Jadunath indicated that the plaintiff asked none of these questions. In his examination-in-chief Jadunath recounted that the plaintiff ordered his syce to bring his tandom, told Jagdamba Babu that he intended to make a Talab-E-Ishtashad, and requested Jagdamba’s accompaniment. While they were boarding the tandom, Jai Prakash Narayan arrived, and Radha Babu also asked to join them. Later that night, at about eight o’clock, Radha Babu visited Jadunath’s house and asked Jadunath where he had obtained the information concerning the sale. From this testimony it was clear that Jadunath remained at the scene until the tandom had been brought, that both the plaintiff and Jagdamba entered the tandom, and that Jai Prakash Narayan also arrived, yet the plaintiff never posed any inquiries to Jadunath about the sale at that time. It was further noted that the plaintiff went to Jadunath’s residence the same night at eight p.m. and the sole question he raised was where Jadunath had learned of the sale; he made no inquiries about which properties had been sold or about the amount for which they had been sold.
During cross-examination Jadunath reiterated his earlier statement, saying, “When I broke the news, Radha Prasad did not ask me where I had received the information, or who had purchased the properties; what properties had been purchased, or what the consideration was.” The Court found such conduct on Jadunath’s part to be extraordinary, and held that any judge familiar with normal human behaviour could not hesitate to conclude that the events could not have occurred as Jadunath described them. The appellant’s counsel, Mr Jha, argued that it would be unfair to draw a conclusion based on the alleged improbability or unnatural silence of the plaintiff without first giving the plaintiff a chance to explain why he acted in that peculiar manner. The Court observed, however, that Jadunath had been examined and cross-examined on 9 January 1947, and that the plaintiff was placed in the witness box the following day, on 10 January 1947, where the lawyer conducting the examination had the opportunity to elicit an explanation from Radha Prasad regarding this unusual silence. The Court noted that no such questioning was undertaken, suggesting that the plaintiff had no satisfactory explanation to offer.
After Jadunath’s testimony revealed the plaintiff’s unusual silence following the disclosure of a sale, the counsel who examined Radha Prasad on the next day possessed the knowledge of this silence. The counsel’s duty, according to the Court, was to obtain an explanation from Radha Prasad for his lack of response. However, the counsel asked no questions on the subject. The Court inferred that the most plausible reason for this silence was that Radha Prasad had no explanation to offer, and that the counsel, aware of this, chose to remain silent. The Court further observed that the judges of the Patna High Court were correct in attaching great significance to this conduct of the plaintiff and were justified in deeming the plaintiff’s story improbable, thereby rejecting Jadunath’s evidence in its entirety, in disagreement with the trial judge’s findings.
The Court also considered another circumstance noted in the High Court judgment concerning the precise information that Jadunath claimed to have conveyed. In his examination-in-chief, Jadunath recounted that he had told “Radha Babu” at his residence in Majhaul that “Maghrawalli Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Motihani.” During cross-examination, he first described the information as: “Maghrawali Musammat apni Jaidad Babu Gajadhar Singh Motihani wale ke chan bech dia,” and subsequently corrected himself to say: “Babu Gajadhar Singh ne kaha ki Maghrawali Musammat ki jaidad kharid kia.” The Court acknowledged that it is unrealistic for anyone to recall the exact words spoken many years earlier, and it held that there was no substantial difference between Jadunath’s account in his examination-in-chief and his statement in cross-examination. The plaint, however, in paragraph 4, portrayed Jadunath’s information as: “That the defendants 2nd and 3rd parties had sold the properties entered in Schedule B of this plaint, along with other properties, to the defendant 1st party, under a registered deed of sale.” According to Jadunath’s testimony, he did not identify the third defendant as a seller, nor did he provide details indicating that the properties listed in Schedule B were covered by such a sale, nor did he mention any registered deed of sale. The Court then turned to the evidence of the plaintiff and of Jagdamba concerning what Jadunath had allegedly told the plaintiff. Jagdamba testified that “Jadunath Singh told Radha Prasad that Musammat Jogeshwari Kumari of Maghra had sold away her property in Majhaul to Gajadhar Singh of Motihani.” The plaintiff himself affirmed that the information conveyed by Jadunath was that Gajadhar Singh had purchased the Majhaul properties from the Maghrawali Musammat. An examination of Schedule B revealed that while the first three items were properties situated in Mauza Majhaul, the fourth item pertained to a property in Buzurgabad and the fifth item to a property in Mauza Dundit. The Court found no justification to treat these fourth and fifth items as properties in Majhaul, thereby highlighting a discrepancy between Jadunath’s account and the plaintiff’s understanding of the alleged sale.
It could not be reasonably said that the fourth and fifth items listed in Schedule B were at all part of the Majhaul estate or could be described as Majhaul properties. In examining the testimony of Jagdamba on this issue, Justice Sinha, who delivered the principal judgment, observed that the plaintiff’s second witness recounted Jadunath informing the plaintiff that the second defendant had transferred her Majhaul land to the first defendant. He added that, if this statement were accurate, it was difficult to understand how the parties could have proceeded to Bugurgabad or to the other enumerated parcels in order to perform any ceremonial acts, assuming such ceremonies ever took place. The Court noted the striking inconsistency between the direct statements attributed to Jadunath and the versions presented by the plaintiff and by Jagdamba regarding what had actually been said. The Court further observed that, should Jagdamba’s version—supported by the plaintiff’s own affirmation—prove correct, there remains no satisfactory explanation for why the plaintiff would have considered travelling to Bugurgabad, as his own evidence and that of his witnesses claim he did. The trial judge was required to evaluate all of these factors when assessing the credibility of the accounts offered by Jadunath, the plaintiff, and Jagdamba concerning the alleged communication by Jadunath on 2 January 1944 that a sale had occurred. The trial judge failed to give this consideration the weight it demanded. Accordingly, the appellate judges of the High Court, acting in their capacity as a Court of Appeal, were obligated to examine these credibility issues before accepting the trial judge’s findings. The Court rejected any criticism that the High Court’s approach was erroneous, holding such criticism to be wholly unfounded. The High Court correctly assessed the matters, concluded that the trial judge’s evaluation of the evidence was mistaken, determined that Jadunath could not be regarded as a truthful witness, and declined to accept the plaintiff’s claim that Jadunath had communicated the sale information on 2 January 1944. Having reached this conclusion, the Court found it unnecessary to inquire further into whether any ceremonies were allegedly performed on the 2nd, 3rd, or 4th of January 1944, as alleged by the plaintiff and his witnesses. Even if such ceremonies had occurred, they would not aid the plaintiff because he had not demonstrated that he received the pertinent information on 2 January 1944. Consequently, the Court also refrained from addressing the additional issue raised—that even if the evidence concerning the performance of the two Talabs, namely Talab-E-Mowashibat and Talab-E-Ishtashad, were accepted at face value, the statutory requirements had nevertheless not been satisfied. The High Court had held that the plaintiff failed to show that the language he employed when making the second demand of Talab-E-Ishtashad was sufficient to draw the witnesses’ attention to the particular parcels for which he claimed a right of pre-emption. The Court expressly declined to express any opinion on this particular finding.
In the present judgment the Court expressly stated that it would not express any view on whether the observations made by the learned judges of the High Court were correct. The Court further clarified that it would not pass any opinion on two additional questions that were raised before it. The first of those questions concerned the conduct of the Trial Court, specifically whether the Trial Court had acted in accordance with the law when it granted leave to the plaintiff to amend his plaint so that the plaint could contain an alternative prayer for pre-emption of the eight annas odd share in Tauza number 1130, instead of the four annas odd share that had been claimed in the original pleading. The second question concerned whether the suit was bound to fail because the plaintiff had omitted a prayer for pre-emption relating to the Dakhili villages that formed part of Tauza number 1130. After considering the material placed before it, the Court held that the plaintiff had failed to establish that the information concerning the sale had been communicated to him by Jadunath on 2 January 1944. In the view of the Court, that failure of proof meant that the dismissal of the suit by the High Court was proper. Accordingly, the appeal filed by the plaintiff was dismissed and the appellant was ordered to bear the costs of the proceedings.