http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: RADHA PRASAD SINGH

       Vs.

RESPONDENT: GAJADHAR SINGH & OTHERS

DATE OF JUDGMENT: 07/09/1959

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS DAS, SUDHI RANJAN (CJ) HIDAYATULLAH, M.

CITATION:  1960 AIR  115            1960 SCR  (1) 663

ACT:        Appellate  Court,  power  of-Reversal  of  finding  of  fact        arrived  at  by  trial  Court-Question  Of  credibility   of        witness-Rule.

HEADNOTE: Although  it is well-settled that a court of  appeal  should not  lightly  disturb a finding of fact arrived  at  by  the trial  judge  who  had  the  opportunity  of  observing  the demeanour  of the witnesses and hearing them, that does  not mean that an appellate court hearing an appeal on facts  can never  reverse  such  a finding.  Where the  decision  on  a question of fact depends on a fair consideration of  matters on record, and it appears to the Appeal Court that important considerations have not been taken into account and properly weighed by the trial judge, and such considerations  clearly indicate that the view taken by the trial judge is wrong, it is  its duty to reverse the finding even if it involves  the disbelieving  of  witnesses  believed by  the  trial  court. Where again the trial judge omits to properly weigh or  take into account 664 important  considerations  bearing  on  the  credibility  of witnesses  or the probability of their version, which  point the  other  way, it is the duty of the court  of  appeal  to reverse the findings of the trial Court. If  the  question  of fact does not  solely  depend  on  the credibility  of witnesses for its determination, but is  one of  inference  from  proved facts,  on  a  consideration  of probabilities,  the  court  of appeal  stands  in  the  same position  as  the  trial court and is free  to  reverse  its findings. 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, (195I) I.L.R. 43 Cal.  833 and  Laljee Mohomet v. Girlder, [1950] S.C.R. 78i,  referred to. Consequently,  where, as in the present case, the  plaintiff brought  a  suit  for  pre-emption  and  the  question   for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

determination was one of fact, namely, whether the plaintiff had performed the essential ceremonies of  Talab-E-Mowasibat and  Talab-E-Ishtashad,  and the trial  court  believed  his witnesses,  not  because  it had  been  impressed  by  their demearour, and the High Court in appeal disbelieved them  in the light of the probabilities of the case and reversed  the decision of the trial court. Held,  that  it was not correct to contend that the  way  in which  the High Court had approached the case was  wrong  or that its decision was not justified.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 19 of 1954.        Appeal  from the judgment and decree dated April 8, 1949  of        the  Patna High Court, in Appeal from Original  ]Decree  No.        116  of 1947, arising out of the judgment and  decree  dated        the  February  28, 1947, of the Sub-Judge  at  Begusarai  in        Title Suit No. 14/14 of 1944/45.        L.   K. Jha and B. K. Sinha, for the appellant.        G.   S.  Pathak, B. Sen, B. K. Saran and R. C.  Prasad,  for        respondent No. 1.        S. D. Sekhri, for respondents Nos. 3 and 4.        1959.  September 7. The Judgment of the Court was  delivered        by        DAS GUPTA J.-Though a member of questions, some of fact  and        some  of  law were originally raised in this suit  for  pre-        emption, the main question for consideration in this  appeal        from the judgment of the        665        High  Court  of Patna, reversing the decree  for  preemption        granted  by  the  Trial  Court,  the  Subordinate  Judge  of        Monghyr,  is the question on which the High Court based  its        decision   of  reversal.   That  question  is  whether   the        ceremonies essential for exercising the right of pre-emption        were properly performed.  Issue No. 9 in which this question        was raised is in these words:-        "  Did  the  plaintiff perform the  ceremonies  of  Talab-E-        Mowasibat and Talab-E-Ishtashad as required by law ?"        The plaintiff Radha Prasad Singh brought this suit for  pre-        emption  in  respect  of 5 items of  property  described  in        Schedule  B  of the plaint which along  with  certain  other        properties  were  sold  by  the  Defendant  2nd  Party  Mst.        Jogeshwari  Kumari  alias Jageshwari Kumari  widow  of  Babu        Ganga  Prasad Singh deceased and daughter of  Babu  Narsingh        Prasad  Singh  by a deed executed on November 18,  1943,  at        Moghra and registered on November 23, 1943, at Monghyr.        The Trial Court held that the plaintiff had failed to  prove        that he was a co-sharer in respect of Item 2 of Schedule  B.        As regards the other 4 Items of properties he held that  the        plaintiff  was a co-sharer and as already indicated he  gave        the plaintiff a decree for pre-emption in respect of these 4        Items.        The  sale-deed  is in favour of the defendant  first  party,        Gajadhar  Singh.   It is no longer disputed,  however,  that        Gajadhar  Singh was a mere Benamidar and the real  purchaser        by  this deed was Babu Lakshmi Prasad Singh, his  son  Satya        Narayan Singh and others.        A  dispute  was raised as to whether 4 annas  5  gandas  odd        share  of  Mauza, Majhaul Kilan Shri Ram, was  sold  or  the        entire  8  annas odd share of the vendor was sold.   It  has        been  held  by both the Courts below  that  the  plaintiff’s        original case that the 4 annas 5 gandas odd share of Majhaul        Kilan  Shri  Ram was sold is not correct and that  really  8

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

      annas  odd share, the entire interest of the vendor in  this        property   was  sold  by  the  deed,  but  that  after   the        registration of the sale deed it was tampered with and by an        act of forgery the        666        8  annas  odd share was altered fraudulently to  4  annas  5        gandas.   It  was  after the  defendant’s  pleading  in  the        written-statement that 8 annas odd gandas of this Mauza  was        sold and not 4 annas odd gandas as mentioned in Schedule  B,        that  the plaintiff prayed for and obtained an amendment  of        the plaint by which an alternative prayer for pre-emption in        respect  of 8 annas odd share of this Mauza was  made.   But        for this amendment it is obvious the prayer for  pre-emption        could  not  be  granted as being only  for  a  partial  pre-        emption, once it has been found that 8 annas odd gandas were        sold  and  not 4 annas odd gandas.  One question  which  was        therefore  raised whether the amendment was rightly  granted        by  the Trial Court.  The question that the suit as  brought        was  for  partial pre-emption was also raised  from  another        aspect,  viz., that though the sale of this  Mauza,  Majhaul        Kilan Shri Ram, was of all villages Asli Mai Dakhili,  i.e.,        original  with  dependencies, there is no  prayer  for  pre-        emption  in  this suit in respect of Dakhili  villages.   As        already indicated, however, the main question in controversy        was whether the essential ceremonies required in law,  i.e.,        Talab-E-Mowasibat  and Talab-E-Ishtashad, were performed  in        accordance with law.        A regards this the plaintiff’s case is that he came to  know        of this sale by his co-sharer Jogeshwari for the first  time        on January 2, 1944, at about 11 a.m. when Jadunath Singh,  a        resident  of  Majhaul, informed him of this and that  he  at        once  completed  the formality of Talab-E-Mowasibat  in  the        presence of some persons and that shortly after this he went        to  the properties of Tauzis 1130, 4201, and 1136, and  also        Mauza  Bugurgabad and performed Talab-E-Ishtashad,  that  he        went  then to the residence of the purchaser Gajadhar  Singh        at  Matihani  on January 3, 1944, and  again  performed  the        Talab-E-Ishtashad  ;  and that very day he started  for  the        residence of the vendor and performed the  Talab-E-Ishtashad        there on January 4, 1944.        The defence was that the story of any such ceremonies having        been  performed  is  wholly untrue and that,  in  fact,  the        plaintiff had knowledge of the sale        667        from  long  before January 2, 1944, he having been  a  rival        bidder  for  the  purchase  of  those  very  properties.   A        detailed  story  of a proclamation by beat of drums  of  the        proposed sale by Bindeshwary and the plaintiff’s attempt  to        secure the property at the sale was set out by the defendant        in the written-statement and was sought to be proved by  his        witnesses.   The  Trial Court disbelieved  the.  defendant’s        story   on  this  point.   He  also  rejected  the   defence        allegation  that the plaintiff was himself  responsible  for        the  forgery  that was committed in respect of the  deed  of        sale by altering the statement of the share in Majhaul Kilan        Shri  Ram that was sold, from 8 annas odd gandas to 4  annas        odd gondas.  On these findings he held the plaintiff’s  suit        was not barred by estoppel.        Proceeding then to the consideration of the question whether        the  plaintiff  ’came to know of the sale in favour  of  the        first defendant for the first time on January 2, 1944,  from        Jadunath  as  alleged, the learned Judge  has  accepted  the        evidence  given by the plaintiff and Jadunath on this  point        and  held  that  the  plaintiff’s  case  that  he   received        information  for  the first time on that day was  true.   He

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

      also  accepted the evidence of the plaintiff as regards  the        requisite ceremonies having been duly performed.        The  very important question that arose for the decision  of        the Court was whether the plaintiff’s story that he came, to        know of the sale for the first time from Jadunath on January        2.  1944, is true.  The Trial Court held that it  was  true.        On this point the High Court came to a, contrary conclusion.        The  learned judges of the High Court were of  opinion  that        the evidence of witness Jadunath was wholly unacceptable and        that  the plaintiff’s evidence that he came to know  of  the        alleged  sale  on January 2, 1944, could  not  be  accepted.        After  pointing out that the whole basis of  the  plaintiffs        claim   that  he  performed  ’the  ceremonies  of   Talab-E-        Mowashibat and Talab-E-Ishtashad was without substance, they        examined  the  evidence as regards the  performance  of  the        ceremonies  and  held  that  this  evidence  was  also   not        acceptable,        668        The question in dispute before us is thus a pure question of        fact,  viz., whether the plaintiff came to know of the  sale        for  the  first  time  on January  2,  1944,  and  thereupon        performed  the ceremonies of Talab-E-Mowasibat and  Talab-E-        Ishtashad.   The  main  contention raised by  Mr.  Jha,  who        appeared  in  support of the appeal is that  in  considering        this question of fact the High Court approached the question        from  a  wrong  point altogether and was  not  justified  in        reversing the judgment of the Trial Court on that point.        The  question as to what should be the right approach for  a        Court  of  Appeal  in deciding a question  of  fact  already        decided  in one way by the Judge in the Court of  the  first        instance  has  often engaged the attention  of  the  courts,        though the views expressed have not been uniform.   Emphasis        has  been laid in some cases on the importance of the  Court        of Appeal deciding for itself the question of fact when  the        appeal  is on facts, though remembering that it  should  not        lightly  do so not having had the advantage which the  Trial        Judge  had of seeing the witnesses., More emphasis has  been        laid  in other cases on the importance of not reversing  the        Trial  Judge’s findings of fact without compelling  reasons.        All the Courts in all the cases have stressed the rule which        the  courts of appeal should observe for themselves: that  a        Judge  sitting on appeal not having had the  opportunity  of        seeing and hearing the witnesses should think twice and more        than twice before reversing the findings of fact arrived  at        by  the  Trial Court who has had that opportunity.   To  say        that  however  is not to say that the Court of  Appeal  will        never  reverse  a finding of fact of the  Trial  Court.   In        Shunmugaroya Mudaliar v. Manikka Uudaliar (1), Lord  Collins        pointed out that:        "It  is  always difficult for judges who have not  seen  and        heard  the witnesses to refuse to adopt the  conclusions  of        fact  of  those  who have; but that  difficulty  is  greatly        aggravated  where  the Judge who heard them has  formed  the        opinion,  not only that their inferences are unsound on  the        balance        (1)  (1909) L.R. 36 I.A. 185.        669        of  probability  against  their  story,  but  they  are  not        witnesses of truth."        In  the same judgment Lord Collins referred  approvingly  to        the  judgment delivered by Lindley, Master of the Rolls,  in        the Court of Appeal in the case of Coghlan v. Cumberland (1)        which set out the limitations of the rule :-        "  even  where the appeal turns on a question of  fact,  the        Court  of  appeal has to bear in mind that its  duty  is  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

      rehear the case, and the Court must reconsider the materials        before  the Judge with such other materials as it  may  have        decided to admit.  The Court must then make up its own mind,        not  disregarding the judgment appealed from, but  carefully        weighing   and  considering  it;  and  not  shrinking   from        overruling  it if on full consideration the Court  comes  to        the  conclusion that the judgment is wrong.  When, as  often        happens, much turns on the relative credibility of witnesses        who have been examined and cross-examined before the  Judge,        the  Court is sensible of the great advantage he has had  in        seeing  and  hearing them.  It is often very  difficult’  to        estimate  correctly  the relative credibility  of  witnesses        from written depositions and when the question arises  which        witness  is  to be believed rather than  another;  and  that        question turns on manner and demeanour, the Court of  Appeal        always is, and must be, guided by the impression made on the        Judge  who  saw the witnesses.  But there may  obviously  be        other circumstances, quite apart from manner and  demeanour,        Which may shew whether a statement is credible or notand        these circumstances may warrant the Courtin    differing        from the Judge, even on a question offact turning on  the        credibility of witnesses whom the Court has not seen."        Almost  the  same view was expressed by Lord  Thankerton  in        Watt (or Thomas) v. Thomas (2 ) :-        " I. Where a question of the fact has been tried by a  Judge        without  a jury and there is no question if misdirection  of        himself by the Judge, an appellate        (1)(1898) 1 Ch. 704.        (2) (1947) I All E.R. 582. 587.        85        670        court which is disposed to come to a different conclusion on        the printed evidence should not do so unless it is satisfied        that  any advantage enjoyed by the Trial Judge by reason  of        having seen and heard the witnesses could not be  sufficient        to  explain or justify the trial judge’s  conclusions.   II.        The-appellate  Court may take the view that, without  having        seen or heard the witnesses, it is not in a position to come        to any satisfactory conclusion on the printed evidence. 111.        The appellate Court, either because the reasons given by the        Trial Judge are not satisfactory, or because it unmistakably        so  appears from the evidence, may be satisfied that he  has        not taken proper advantage of his having seen and heard  the        witnesses, and the matter will then become at large for  the        appellate   court.   It  is  obvious  that  the  value   and        importance of having seen and heard the witnesses will  vary        according  to  the  class  of case,  and,  it  may  be,  the        individiual case in question."        These observations were cited with approval by Lord Reid  in        Bonmax  v.  Austin  Motor  Co., Ltd.,  (1).  (See  also  the        observations  of Mokerjee, J., in Laljee Mahomed v.  Girlder        (2).        This question of the proper approach of the Court of  Appeal        to  decisions on questions of fact arrived at by  the  Trial        Court was considered by this Court in Sarju Pershad v.  Raja        Jwaleshwari  Pratap Narain Singh(3).  Mukherjea,  J.,  while        delivering the judgment of the Court observed:-        " In such cases, the appellate court has got to bear in mind        that  it has not the advantage which the trial Judge had  in        having the witnesses before him and observing the manner  in        which  they deposed in Court.  This certainly does not  mean        that  when an appeal lies on facts, the appellate  court  is        not competent to reverse a finding of fact arrived at by the        trial judge.  The rule is-and it is nothing more than a rule        of practice-that when there is conflict of oral evidence  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

      the  parties on any matter in issue and the decision  hinges        upon the credibility of        (1) (1955) I All E.R. 326.   (2) (1915) I.L.R. 43 Cal. 833.        (3) [1950]S.C.R.781,784.        671        the  witnesses,  then unless there is some  special  feature        about the evidence of a particular witness which has escaped        the trial judge’s notice or there is a sufficient balance of        improbability  to  displace  his opinion  as  to  where  the        credibility  lies, the appellate court should not  interfere        with the finding of the trial Judge on a question of fact."        The position in law, in our opinion, is that when an  appeal        lies  on  facts it is the right and the duty of  the  Appeal        Court to consider what its decision on the question of facts        should be; but in coming to its own decision it should  bear        in mind that it is looking at the printed record and has not        the  opportunity of seeing the witnesses and that it  should        not  lightly  reject the Trial Judge’s conclusion  that  the        evidence  of  a  particular witness should  be  believed  or        should not be believed particularly when such conclusion  is        based on the observation of the demeanour of the witness  in        Court.   But,  this  does not mean that  merely  because  an        appeal court has not heard or seen the witness it will in no        case  reverse  the  findings of a Trial Judge  even  on  the        question of credibility, if such question depends on a  fair        consideration of matters on record.  When it appears to  the        Appeal  Court that important considerations bearing  on  the        question of credibility have not been taken into account  or        properly weighed by the Trial Judge and such  considerations        including the question of probability of the story given  by        the  witnesses clearly indicate that the view taken  by  the        Trial  Judge  is  wrong, the Appeal  Court  should  have  no        hesitation  in reversing the findings of the Trial Judge  on        such  questions.  Where the question is not  of  credibility        based  entirely  on the demeanour of witnesses  observed  in        Court  but a question of inference of one fact  from  proved        primary  facts the Court of Appeal is in as good a  position        as the Trial Judge and is free to reverse the findings if it        thinks  that  the inference made by the Trial Judge  is  not        justified.        Turning now to the instant case we find that the Trial Judge        having  seen and heard Jadunath and the plaintiff,  believed        their  evidence on the point of information being  given  to        plaintiff by Jadunath about the        672        sale  on  January  2, 1944, at about II a.m.  It  does  not,        however, appear that the learned Trial Judge arrived at  his        conclusion on the basis of the demeanour of these  witnesses        having  created  a favourable impression on his mind  as  to        their credibility.        In  scrutinising  the  evidence  of  the  plaintiff  and  of        Jadunath  it  must  be borne in mind that the  case  of  the        plaintiff  is that on January 2, 1944,  certain  information        having  been received by him, he performed the  formalities.        There is no case that the formalities were performed on  any        other date.  Therefore, if the story of the communication of        information on January 2, 1944, is not established then  the        whole case of the plaintiff must fail.        Jadunath’s evidence on this point was:-        " 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   says        Maghrawalli Mussammat Jageshwari Kumari ne jo jo jaidad Babu

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

      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.".        Mention  should  be  made in this  connection  also  of  the        evidence of Jagdambi Prasad:-        "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 Gajadhar   Singh  of        Matihani.  As soon as Jadunath Singh said this Radha  Prasad        Singh was startled, stood up and said:        I have a right to purchase this property.  I have purchased;        I have purchased; I have purchased.        673        You Jagdamba Prasad Singh, you Narayan Prasad Singh and  you        Jadunath Singh, bear witness to this fact.  He uttered these        words thrice."        In  deciding  the  question  whether  the  information  from        Jadunath was the first information received by the plaintiff        the  Trial  Judge had necessarily to  consider  whether  the        story  that  Jadunath came to know of the sale  and  brought        this information on to the plaintiff on January 2, 1944,  at        about 11 a.m. was true or not.  In arriving at a decision on        the  point  it  was  necessary  for  him  to  consider   the        probabilities  of  the  story, of Jadunath  having  gone  to        Gajadhar’s  house in search of a bridegroom and  that  there        Gajadhar  Singh  informed him of the sale and  then  of  the        probability  of  the  story that he  would  be  taking  upon        himself   the  task  of  going  to  the   plaintiffs   house        immediately  on  return  to  his  village  to  convey   this        information,  the  probability of the story as  to  how  the        plaintiff  reacted to the account and also the  question  of        discrepancy.   It  does not appear that  the  learned  Trial        Judge  took  any of these matters into  consideration.   All        that  he  says  about Jadunath’s  credibility  is  that  his        evidence  had been criticised on the ground that he was  one        of plaintiff’s witnesses in the previous suit brought by him        against  Satya Narain Singh’s ancestors and that is  in  his        opinion  was not a valid ground for discarding the  evidence        of Jadunath Singh.  We agree with the learned Judge that the        mere fact that Jadunath was one of the plaintiff’s witnesses        in  the  previous suit brought by him against  Satya  Narain        Singh’s ancestors about 33 years ago would not by itself  be        a valid reason for discarding his testimony.  The fact  that        this  was  not a valid reason for discarding  his  testimony        does not, however, absolve the Court of the duty of  testing        the  witness’s testimony on the touch-stone of  probability.        The  learned  judges of the High Court applied  that  touch-        stone  and  came to the conclusion that Jadunath was  not  a        witness of truth.        It is clearly a case where the words used by Lord Thankerton        that  the Trial Judge had not taken proper advantage of  his        having  seen and heard the witnesses, and the  matter  would        become at large for the appellate        674        court,  should apply.  Here was a witness who could  not  be        considered  to  be  wholly independent.   For,  on  his  own        showing  he took the trouble of going to  plaintiff’s  house        after  what  may  be taken to be an arduous  country  in  an        unsuccessful   search  for  a  bridegroom,  to  inform   the        plaintiff of a matter in which he himself had no interest--a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

      witness  who had figured, though many years ago, in  a  pre-        emption  suit brought by the same person.  These facts  made        close scrutiny of the witness’s account necessary before the        Judge could say just by looking at him that he was a witness        of  truth.   That scrutiny is conspicuous  by  its  absence.        Taking  his evidence as a whole we find that his story  that        after coming to know of the sale in question he went to  the        house of Gajadhar, the first defendant, at village  Matihani        to  make enquiries about a marriage proposal in  respect  of        his  daughter  with  his grandson and that it  was  in  that        connection  that Gajadhar spoke to him about  his  purchase.        But  it  is curious that in  his  examination-in-chief  this        witness  came  straight  to his account of  ’coming  to  the        plaintiff’s  house  on January 2, 1944,  and  informing  him        about  the  sale by Jogeshwari of her  Milkiat  to  Gajadhar        without  saying a word as to his visit to Gajadhar’s  house,        to the purpose of his visit and the manner in which Gajadhar        gave him the information, or even the detailed nature of the        information.  It was in cross-examination that he  disclosed        that he went to Gajadhar’s house for  "barthuari". It is  in        vain that we look into his evidence, whether in examination-        in-chief or in cross-examination, for the exact  information        given by Gajadhar.        It  has  to be remembered in this connection that it  is  no        longer  disputed  that Gajadhar himself had no  interest  in        these  properties  and  was  a  mere  Benamidar.   Even   if        Gajadhar’s  own account that he was completely in  the  dark        about  these  transactions  be left out of  account  it  was        necessary for the Court to consider how far it was  probable        that  Gajadhar  would  put  on Jadunath  a  false  story  of        purchase  by himself of properties.  It was urged that  this        Gajadhar  did with a view to raise the Tilak which he  could        thus obtain.        675        Jadunath   himself   has  not  said   anything   about   the        negotiations  about Tilak but one Mahabir Ray has said  that        when  he  was going to the fields Gajadhar  called  him  and        there  lie heard Gajadhar demanding a higher  Tilak  stating        that  he had recently purchased properties at  Majhaul  from        Mussammat.   Jadunath himself does not mention  having  seen        this  Mahabir at Gajadhar’s house.  Jadunath claims to  have        gone to his house with a servant.  Mahabir has not mentioned        the  presence of this servant.  The question whether  a  man        like Mahabir who was a total stranger to the plaintiff would        be  called by Gajadhar to hear such talks also requires  the        serious  consideration of the Court.  The Trial  Judge  does        not appear to have given the slightest consideration to this        aspect of the matter.  The learned judges of the High  Court        thought that there was no reason that Gajadhar would go  out        of his way to convey the information to Jadunath that he had        purchased the Milkiat of Jogeshwari, the defendant No. 2. It        is difficult not to agree to this estimate of probability.        Even  more  important  was the question  of  probability  as        regards  the  story  of the plaintiff’s  reaction  when  the        information  is  said  to  have been  given  to  him.   Both        Jadunath and Jagdambi say that the plaintiff was startled on        getting  information  of the sale and at  once  uttered  the        words  which  have  been set out  already  of  the  Talab-E-        Mowsibat.   What  would a man of  ordinary  prudence-not  to        speak of the man of property and with experience of previous        litigation   like   the  plaintiff-would   do   under   such        circumstances  ?  There cannot be any two opinions  on  this        question.   He may consider it unwise to ask  his  informant        any  further question before making the first  Talab,  i.e.,        Talab-E-Mowasibat.  Once that was completed he would ply his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

      informant   with   questions  as  to  where  he   got   this        information,   what  the  information  exactly   was,   what        properties  had been sold, what the consideration  was,  and        other  connected questions.  In this case, according to  the        evidence  of  Jadunath no such questions were asked  by  the        plaintiff.  In his examination-in-chief, Jadunath says:-        676        "  He  (plaintiff) asked his syce to bring his  tandom.   He        told  Jagdamba  Babu  that  he would  go  to  make  talab-e-        isthashad  and asked him to accompany him.  While they  were        boarding  the  tandom  Jai Prakash Narayan  came  that  way.        Radha Babu asked him also to accompany him.  The same  night        Radha Babu met us at my house at 8 p.m. He asked me where  I        had obtained the information about the sale."        From  this evidence it is clear that though Jadunath was  at        the  place  until  the  Tandom  bad  been  brought  and  the        plaintiff  and Jagdamba got into the Tandom and Jai  Prakash        Narayan  also arrived, no question was put by the  plaintiff        to  Jadunath  in this behalf.  It has to be noted  that  the        plaintiff went to Jadunath’s house the same night at 8  p.m.        and  the  only question which was asked was:  Where  he  had        obtained  the  information about the sale  and  nothing  was        asked  about what properties had been sold or for  how  much        had they been sold.  In cross-examination Jadunath made  the        further statement in these words:-        " 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."        Such  conduct on the part of Jadunath is incredible and  any        Judge of facts with experience of normal human conduct could        have  no hesitation in coming to the conclusion that  things        could  not have happened in the way Jadunath has  described.        Mr.  Jha, the learned Counsel for the appellant, urged  that        it  would be unfair to base any conclusion on  the  supposed        improbability  or unnaturalness of such silence on the  part        of the plaintiff without having given him an opportunity  to        explain-why be acted in this peculiar manner.  It has to  be        noticed, however, that Jadunath had been examined and cross-        examined on January 9, 1947, and when the plaintiff was  put        in  the Witness-Box on the following day, i.e., January  10,        1947,  the lawyer who examined him had before him  the  fact        that  Jadunath’s  evidence  had  brought  out  this  strange        silence  on  the  part of the plaintiff after  he  had  been        informed of the        677        sale.   It  was  his duty to obtain  from  Radha  Prasad  an        explanation  of  such conduct.  But he put no  questions  to        Radha  Prasad about this.  The obvious reason is that  Radha        Prasad  had no explanation to offer and the  lawyer  knowing        this  kept quiet.  It appears to us that the learned  judges        of  the  High Court of Patna were right in  attaching  great        importance  to  this  conduct  of  the  plaintiff  and  were        justified  when  they thought that this  was  an  improbable        story  and  rejected, in disagreement with the  Trial  Judge        Jadunath’s evidence altogether.        Mention  has  to be made of another circumstance  which  was        noticed in the High Court judgment.  That is as regards  the        exact  information  which  is said to  have  been  given  by        Jadunath.   Jadunath’s  own account in  the  examination-in-        chief  is that he "told Radha Babu at his house  in  Majhaul        that Maghrawalli Jugeshwari Kumari had sold away her Milkiat        to  Gajadhar Rai of Motihani.  In his  cross-examination  he        first said :-        "  The  information I gave was in  these  terms:  Maghrawali

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

      Musammat  apni Jaidad Babu Gajadhar Singh Motihani  wale  ke        chan  bech  dia." and then correcting himself said:  "  Babu        Gajadhar  Singh  ne kaha ki Maghrawali  Musammat  ki  jaidad        kharid kia."        It is not possible for anybody to remember exactly the words        used  by himself many years ago and it is reasonable to  say        that there was no substantial difference between the account        given by him of this matter in his examination-in-chief  and        in  cross-examination.   It  is  interesting  to   remember,        however,  that in paragraph 4 of the plaint, it  was  stated        that the information that Jadunath gave was:        "  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 evidence he does not appear to  have        mentioned the defendant 3rd parties as the sellers nor  gave        any details to show that the properties         86        678        entered  in  Schedule B were covered by the  sale  nor  that        there was a registered deed of sale.        Turning  to  the evidence on the plaintiff and  Jagdamba  as        regards the information said to have been given by  Jadunath        we  find  that Jagdamba says: " Jadunath  Singh  told  Radha        Prasad  that Musammat Jogeshwari Kumari of Maghra  had  sold        away her property in Majhaul to Gajadhar Singh of Motihani."        According  to  the plaintiff himself the  information  which        Jadunath  gave  was that Gajadhar Singh  had  purchased  the        Majhaul   properties  from  the  Maghrawali  Musammat.    An        examination of Schedule B shows that while the first 3 items        were properties in Mauza Majhaul, the 4th item is a property        in  Buzurgabad  while the 5th item is a  property  in  Mauza        Dundit.   There appears to be no reason to think that  these        properties 4 and 5 could be even loosely be considered to be        properties in Majhaul or Majhaul Properties.  Commenting  on        Jagdamba’s  evidence  on this point Mr. Justice  Sinha,  who        delivered the leading judgment        stated :        "  Plaintiff’s witness No. 2 has stated that  Jadunath  told        the  plaintiff  that  the  second  defendant  had  sold  her        property in Majhaul to the first defendant.  If that is  so,        it  is a little difficult to under. stand how they  went  to        Bugurgabad or to the other items of property to perform  the        ceremonies, if they ever did so."        It is strange that there should be such discrepancy  between        the  evidence  of  Jadunath himself and  the  plaintiff  and        Jagdamba  as to what actually was said.  But  if  Jagdamba’s        account  such as is supported by the plaintiff  himself,  is        true  then there is no acceptable explanation as to why  the        plaintiff  could think of going to Bugurgabad at all  as  he        and his witnesses say, he did.        It  was  the duty of the Trial Judge to  take  into  account        these  several considerations in testing the credibility  of        the  account given by Jadunath, the plaintiff  and  Jagdambi        that  Jadunath  informed the plaintiff on  January  2,  1944        about the sale.  He did not do so, The learned judges of the        High Court as a        679        Court  of  Appeal  were  in duty  bound  to  consider  these        questions before accepting the decision of the learned Trial        Judge.   The  criticism  that the approach  of  the  learned        judges  of  the  High Court was wrong  is  therefore  wholly        without  foundation.  The learned judges of the  High  Court        rightly  took  these  matters  into  consideration  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

      decision  they arrived at on these considerations  that  the        Trial Judge’s assessment of the evidence was wrong and  that        Jadunath  was  not a witness of truth and that  the  account        given by the plaintiff that the information was conveyed  to        him  by Jadunath on January 2, 1944, should not be  accepted        is clearly right.        Once this decision is reached it is unnecessary to  consider        the  further question whether any ceremonies were  performed        at  all on 2nd, 3rd or 4th January, 1944, as stated  by  the        plaintiff and his witnesses.  Even if they were, they  would        be  of no assistance to the plaintiff as the  plaintiff  had        failed  to  show  that it was on January 2,  1944,  that  he        received the information about the same.        It  is  unnecessary for us therefore to decide  the  further        question  that appears to have been raised, viz., that  even        if the evidence as regards the performance of the two Talabs        i. e., Talab-E-Mowashibat and Talab-E-Ishtashad is  accepted        at its face value the requirements of the law have not  been        fulfilled.   The  High  Court held that  the  plaintiff  had        failed  to prove that the words used by him at the  time  of        the  making of the second demand of  Talab-E-Ishtashad  were        sufficient  to  draw the attention of the witnesses  to  the        specific properties in respect of which he was demanding his        right  of pre-emption.  We express no opinion  whether  this        view  of the learned judges of the High Court is correct  or        not.  We also express no opinion on the two other questions,        viz.,  whether the Trial Court acted in accordance with  law        in granting leave to the plaintiff to amend his plaint so as        to include the alternative prayer for pre-emption in respect        of  8 annas odd share of Tauza No. 1130 instead of  4  annas        odd  share as originally claimed and also whether  the  suit        was bound. to fail because there was        680        no prayer for pre-emption for the Dakhili villages of  Tauza        No. 1130.        In our opinion the plaintiff having failed to prove that the        information of the sale was conveyed. to him by Jadunath  on        January 2, 1944, the suit ’was rightly dismissed by the High        Court.   This  appeal  is, therefore,  also  dismissed  with        costs.