'

S.C.R. SUPREME COURT REPORTS 663

ready for instant use near the confined space arises as r959

soon as a person is about to enter it, obviously with the C'. bh--:-H "d

.. fh . s.1: h d '"nuaiarias

perm1ss10n o t e occupier. o iar as t e secon part v.

is concerned, it is the duty of the occupier to see that The state of

the apparatus is always available in the factory and is Bombay

periodically examined and certified fit for use and a

sufficient number

of persons are trained in its use. The

WanC"hoo J.

view taken by the magistrate of the effect of this

section is not correct and the view taken by the High

Court is right except that it is not necessary to keep

the apparatus all the time near the confined space.

The High Court has ordered retrial with respect to the

contravention of sub-s. (4) also and the magistrate who

now retries

the case will do so in accordance with the

construction of the sub-section given by us. We have

carefully refrained from saying anything on the facts

of this case as there is going

to be a retrial and it will be

for

the magistrate to consider all the facts and circum-

stances before coming

to a decision one way or tho

other.

The appeal is hereby dismissed.

Appeal dismissed.

RADHA

PRASAD SINGH

v.

GAJ ADHAR SINGH & OTHERS

(S. R. DAs, C.J., M. HrnAYATULLAH and

K. c. DAS GUPTA, JJ.)

Appellate Court, power of-Reversal of finding of fact arrived

at by trial Court-Question of credibility of witness-Rule.

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

consider­

ation 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, aud 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 dis­

believing of witnesses believed by the trial court. Where again

the trial Judge omits

to properly weigh or take into account

I959

September 7.

1959

Radha Prasad

Singh

v.

Gajadhar Singh

and Others

664 SUPREME COURT REPORTS [1960(1)]

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 questi0n of fact does not solely depend on the credibi­

lity 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.

Shunmu.garoya Mudaliar v. Manikka Mudaliar, (r909) L.R. 36

I.A. r85; Coghlan v. Cumberland, (18q8) l Ch. 704; Watt (Thomas)

v. Thomas, (1947) l All E.R. 582; Bonmax v. Austin Motor Co.

Ltd. (r955) r All E.R, 326; Sarju Pershad v. Raja Jwaleshwari

Pratap Narain Singh, (r95r) LL.R. 43 Cal. 833 and Laljee

Mahomet

v. Girlder, [1950]

S.C.R. 781, referred to.

Consequently, where,

as in the present case, the plaintiff

brought a suit for pre-emption

and the question for 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 demeanour,

and the High

Court in appeal dis­

believed 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.

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 'fitle 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. 0. Prasad,,

for respondent No. 1.

S. D. Sekhri, for re8pondents Nos. 3 and 4.

1959.

September 7. The Judgment of the

Court

was delivered by

Das Gupta J. 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

con­

sideration in this appeal from the judgment of the

S.C.R. SUPREME COURT REPORTS 665

High Court of Patna, reversing the decree for pre­

emption granted by the Trial Court, the Subordinate

Judge ofMonghyr, 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 Tafab-E-Ishtashad as re­

quired by law?"

The plaintiff Radha Prasad Singh brought this suit

for pre-emption in respect af 5 items of property de­

scribed 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 proper­

ties 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 oflauza, 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 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

1959

Radha Prasad

Singh

v.

Gajadhar Singh

and Others

Das Gupta].

I959

Radha Prasad

Singh

v.

Gajadltar Singh

and Others

D(4S Gupta } .

666 SUPREME COURT REPORTS [1960(1)]

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

Manza was sold and not 4 annas odd gandas as

men­

tioned 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 Manza was made. But for

this

amendment it is obvious the prayer for

pre-emp­

tion 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 con­

troversy 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 J ogeshwari for the

first time on Jannary 2, 1944, at about

II 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 II30, 4201, and ll36, and also Manza

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 that

very day he started for the residence of the vendor

and performed the Talab-E-Ishtashad there on Janu­

ary 4, 1944.

The defence was that the story of any such cere­

monies having been performed is wholly untrue and

that, in fact, the plaintiff had knowledge of the sale

S.C.R. SUPREME COURT REPORTS 667

from long before January 2, 1944, he having been a

rival bidder for the purcease of those very properties.

A detailed story

of

a proclamation by beat of drums

of the proposed sale by Bindeshwary and the plaint­

iff'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 defenc'e allegation that the plaint­

iff 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

Ja.dunath as alleged, the learned

Judge has accepted the evidence given by the plaintiff

and J adunath on this point and held that the plaint­

iff's case that he received information for the first

time on

that day was true. He also accepted the

evidence of the plaintiff as regards the requisite

cere­

monies 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 unaccept­

able 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 plaintiff's claim that he performed the cere­

monies of Talab-E-Mowashibat and Talab-E-lshtashad

was without substance, they examined the evidence as

regards the performance of the ceremonies and held

tlia.t this evidence was also not acceptable,

r959

Radha Prasad

Sin&h

v.

Gajadhar Singh

and Others

Das Gupta f·

r959

Radha Prasad

Singh

v.

Gajadhar Singh

and Others

Das Gupta J.

668 SUPREME COURT REPORTS [IQ60(1)]

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 conten­

tion 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 ap­

proach 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 atten­

tion of the courts, though the views expressed have

not been uniform. Emphasis has been laid iu some

cases

on the importance of the

Court of Appeal decid­

ing 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 em­

phasis has been laid in other cases on the importance

of not reversing the 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 fo~ themselves: that a Judge sitting

on appeal not havmg 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 oppor­

tunity. 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 21fudaliar (

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. 18~.

S.C.R. SUPREME COURT REPORTS 669

of probability against their story, but they are not

witnesses of truth."

In the same judgment Lord Collins referred approv­

ingly to the judgment delivered by Lindley, Master

of the Rolls, in the Court of Appeal in the case of

Ooghl,an v. Oumberlancl (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 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 dis­

regarding 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 judgmentjs wrong. When,

as often happens, much turns on the relative credi-.

bility

of witnesses who have been examined and

cross-examined before the Judge, the

Court is sensi­

ble 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 deme~nour,

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

demea­

nour, which may shew whether a statement is

credible

or not ; and these circumstances may

war­

rant the Court in differing from the Judge, even on

a question

of fact turning on the credibility of

witnesses whom the

Court has not seen."

Almost the same view was expressed by Lord Than­

kerton in Watt (or Thomas) v. Thomas (2) :-

" I. Whel'e a question of the fact has been tried by

a. Judge without a. jury and there is no question of

misdirection of himself by the Judge, an appellate

(1) (1898) I Ch. 704.

85

(2) (1947) I All E.R. s!l2, 587.

r959

Radha Prasad

Singh

v.

Gajadhar Singh

and Others

Das Gupta].

I959

Rodha Ptasad

Singh

v.

Gajadhar Singh

and Others

Das Gupta].

670 SUPREME COURT REPORTS [1960(1)]

court which is disposed to come to a different con­

clusion 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

justifiy the trial judge's conclusions. IL

The~appel­

late 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. III. The appellate

Court, either because

the reasons given

by the Trial Judge are not

satis­

factory, 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.,(').

(See also the observations of Mokerjee, J., in Lrdjee

M ahomed v. Gir/,der (•).

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. Rada Jwaleshwari Pratap Narain

Singh(') ..

Mukherjea, J., while delivering the

judg­

ment 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 de­

posed 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-aud it is nothing

more

than

a rule of practice-that when there is con­

flict of oral evidence of the parties on any matter in

issue and the decision hinges upon the credibility of

(1) (1955) I All E.R. 326. (2) (19t 5) I.L.R. 43 C.t. 833.

(3) (1950] S.C.R. 781, 78+

S.C.R. SUPREME COURT REPORTS 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

appel­

late 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 credi­

bility 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

inform­

ation being given to plaintiff by J adunath about the

:c959

Radha Prasad

Singh

v.

Gajadhar Singh

at!.d Others

Das Gupta J.

r959

Radha Prasad

Singh

v.

Gajadhat Singh

and Others

Das Gupta .T.

672 SUPREME COURT REPOR.TS [1960(1JJ

sale on January 2, 1944, at about 11 a.m. It does not,

however, appear t.hat the learned Trial Judge arrived

at his conclusion on the basis of the demeanour of

these witneRRes 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

t.he plaintiff is that on January 2, 1944, certain inform­

ation 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 thn,t Mn,ghrawalli Jugesliwari Kumari had

sold n, way her Milkiat to Gajadhar Rai of Matihani,

this was n,bout 11 a.m. Radha was startled to hear

this and standing up said :

"Jo jo jn,idad Babu Gajadhar Singh hath (then

says Maghrawalli :M:ussammat Jageshwari Kumari

ne jo jo jaidad Babu Gajadhar Singh ka hath becha

hai uske kharidnc ka haq mera. Ham Kharida, Ham

Kharida, Ham Kharida. Talab lowashibat karte

hain. Bn,bu Jagdamba Prasad aur Babu Narayan

Prasad gabah rahie. . .. I came to know from a

man of Chitral, 1 kos from l\Iatihani that Gajadhar

h1id 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

Samastipur was at plaintiff's house at the time ...

Jadunath Singh told Radha Prasad that Musammat

Jageshwari Knmari of laghra had sold away her

property in-Manjhaul to Gajadhar Singh ofMatihani.

As soon as Jadnnath 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.

S.C.R. SUPR.EM:E COURT REPORTS 673

You Jagdamba Prasad Singh, you Narayan Prasad

Singh and you J adunath Singh, bear witness to this

fact. He uttered these words thrice."

In deciding the question whether the information

from d adunath 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 bride-groom and that there Gajadhar Singh inform­

ed 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 plaintiff's 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 oi these m.atters 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 J adunath 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

SatyaNarain 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

pame to the conclusion

that J adunath was not a witness of truth.

It is clearly a ease 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

z959

Radha Prasad

Singh

v.

GajadharSingh and Others

Das Gupta].

I959

Radha Prasad

Singh

v.

Gajadhar Singh

and Others

Das Gupta].

674 SUPREME COURT REPORTS [1960(1))

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

plain­

tiff's house after what may be taken to be an arduous

journey in an unsuccessful search for a bridegroom, to

inform the plaintiff of a matter in which he himself

had no interest-a 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

:·aspect 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 ex­

amination-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

Jogesh­

wa.ri 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 j.n 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 Gaja.dha.r'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 com­

pletely 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

J adunath a false story of purchase by himself of

properties. It was urged that this Gajadha.r did with a. view to raise the Tilak which he could thus obtain.

-

S.C.R. SUPREME COURT REPORTS 675

Jadunath himself has not said anything about the

negotiations about Tilak but o~e Mahabir Ray has

said

that when he was going to the fields Gajadhar

called

him and there he 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 Gajadbar 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 J ogeshwari, the defendant

No.

2. It is difficult not to agree to this estimate of

probability.

Even more important was the question of

probabi­

lity 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 Talah-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 Ta.lab, i.e.,

Talab-E-Mowasibat.

Once that was completed he

would

ply his informant with questions as tow here he

got this information, what the information exactly

was, what properties had been sold, what the

con;

sideration 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 :-

1959

Radha Prasad Singh

v.

Gajadhar Singh

and Others

Das

Gupta].

1959

Radha. Prasad

Singh

v.

Gajadhar Singh

and Others

Du Gupta].

676 SUPREME COURT REPORTS [1960(1)]

" 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 "ll.me 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 Tandem

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 J adunath'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

anq any Judge of facts with exper.ieuce 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 he 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

•

..

S.C.R. SUPREME COURT REPORTS 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

qufot. It

appears to us that the learned judges of the High

Court of Patna were right in attaching great import­

ance 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 Musammat apni Jaidad Babu Gajadha.r

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

differ­

ence 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 para­

graph 4 of the plainj;, it was stated that the informa­

tion 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 Jt\dunath's evidence he does not appear

to have mentioned the defendant 3rd parties as the

sellers nor gave any details to show that the propertie~

86

I959

Radha Prasad

Singh

v.

Gajadhar Singh

1Jnd Olh•rs

Das Gupta].

'959

Radha Prasad

Singh

v.

Gajadhar Singh

and Others

Das Gupta].

678 SUPREME COUR'l' REPORTS [1960(1)]

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 J adunath we find that J agdamba says:

"Jadunath Singh told Radha Prasad that Musammat

Jogeshwari Kumari of Maghra had sold away her

property in Majhaul to Gajadhar Singh of llfotihani."

According to the plaintiff himself the information

which

Jadunath gave

was that Gajadhar Singh had

purchased the lajhaul properties from the Maghra­

wali 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 propei:ty in llfauza 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 Jadu­

nath told the plaintiff that the second defendant

had sold her property in Majhaul to the first defen­

dant. If that is so, it is a little difficult to under­

stand how they went to Bngurgabad 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 Jadnnath, 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.

..

•

S.C.lt. SUPREME COURT R~PORTS 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 there­

fore wholly without foundation. The learned judges

of the High Court rightly took these matters into

consideration and the 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

plamtiff 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 t,he 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

t)lerefore to decide the

further question that appears to have been raised,

· viz., that even if the evidence as regards the perform­

. ance 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

demand­

ing his right of pre-emption. We express no opinion

wheth<:>r 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 accordan'be 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

z959

Radha Pras;1d

Singh

v.

Gajadhar Singh

and Others

Das Gupta J.

1

959

Ra,dha Prasad

Singh

v.

Gajadhar Singh

'and Others

Das Gupta].

1959

September IfJ

680 SUPREME COURT REPORTS [1990(1)]

no prayer for pre-emption for the Dakhili villages of

Tauza No. 1130.

In our.opinion ~he plaintiff having failed to prove

that the mformat1on of the sale was conveyed to him

by Jadunath on January 2, 1!!44, the suit was rightly

dismissed by the High Court. This appeal is, there­

fore, also dismissed with costs.

REHMAN SHAGOO AND OTHERS

v.

STATE OF JAMMU AND KASHMIR

(S. R. DAS, C.J., s. K. DAS, A. K. SARKAR,

K. N. WANCHOO and M. HIDAYATULLAH, JJ.)

Constitutioti-Legislative competence of Ruler of ]ammu and

Kashmir-Ordinance promulgated creating new offence of aiding the

enemy and prescribing trial by special Judges following special

procedure-If discriminatory-Whether Ordinance was legislation

with respect to defence-Defence, meaning of-Repeal of law

empowering Ruler to legislate-Whether Ordinance survives-Cess­

ation of emergency-If Ordinance occasioned by emergency also lapses

-Jammu

and Kashmir Constitution Act, 5.

r996, s. 5-Enemy

Agents Ordinance, 5. 2005 CJ. K. Ordinance V Ill of 5. 2005)­

J ammu and Kashmir Constitution (Amendment) Act, S. 2005 (]. K.

XVII of S. 2005)-Jammu and Kashmir General Clauses Act,

s. r977 (]. K. XX of 5. r977), s. r6(b)-Constitution of India,

Art,

I4; Part XV JI[,

Under the J ammu and Kashmir Constitution Act

all powers,

legislative, executive and judicial vested in

the Ruler. On the

accession of the State to India on October 22,

1947, the, powers in

respect of defence, external affairs and communications were

ceded to India. Under s. 5 of the Constitution Act, the Ruler

promulgated the Enemy Agents Ordinance, S. 2005, which provided

for the trial and punishment of enemy agents and other persons

siding the enemy.

The Ordinance provided for

trial of offences

by Special Judges and prescribed a procedure materially different

from

that followed in the criminal

Courts. Section 5 of the

Constitution Act was repealed on· November 17, l95I. The

appellants were prosecuted under the Ordinance for offences

alleged to

have been committed on June 27 and 28,

1957· They

contended (i) that the Ordinance violated Art. 14 of the Constitu­

tion of India, (ii) that the Ruler had no legislative competence to

issue the Ordinance

as it dealt with defence,

·(iii) that s. 5 of the