JUDGMENT
1. This is a defendant's second appeal.
2. The facts necessary for the decision of the appeal are as under:
Smt. Premvati filed Civil Suit No. 20 cf 1971 against Smt. Shyama Devi and others praying for a relief of issuing permanent prohibitory injunction against the defendants restraining them from interfering in the possession of the property in suit.
3. Plaintiff's case is that one Sri Banarasi Das was the proprietor of two houses as Houses Nos. 51 and 52, situate at Mohalla Saraogyan, Mainpuri within the limits of Municipal Board, Mainpuri. Aforesaid Banarsi Das had two sons, namely, Hori Lal and Gopal Das. After the death of Banarsi Das, the property in dispute, which bears Municipal No. 52, was inherited by both Gopal Das and Hori Lal, and by mutual partition, Hori Lal became owner of half share in House No. 52 and remaining half share went to Gopal Das. Hori Lal has made a gift of his share in favour of Smt. Premvati, his wife, on 7-12-1946. The gift was for half share in the property in dispute. The plaintiffs further case was that twenty years back, Gopal Das abandoned the property of his share which was in the shape of a khandahar and shifted to some other district. Smt. Premvati encroached on the said portion and came in adverse possession and acquired proprietory rights on the basis of adverse possession and constructed a new house after demolishing the khandhar on the aforesaid plot No. 52 which was left by Gopal Das, twenty years back. The plaintiff further contended that the defendants have got no concern with the property in dispute, as such, they should be restrained from interfering in the possession of the plaintiff in regard to the property in dispute. It may also be mentioned that Smt. Premvati arrayed her husband Hori Lal as a defendant in the suit, who did not contest the suit. Only defendant-No. 1 Smt. Shyama Devi contested the suit and contended in her written statement that Banarsi Das, the predecessor-in-interest of Hori Lal and Gopal Das was owner of two properties being House No. 51 and House No. 52, described above, out of which House No. 51 fell in the share of Hori Lal and House No. 52 came in the lot of Gopal Das. Hori Lal was the owner of only House No. 51 and had nothing to do with House No. 52 which is house in dispute. Hori Lal had executed a gift deed in favour of his wife and she had sold the house situate in property No. 51 to one Ganga Prasad and Ganga Prasad had sold the said house in favour of Jumandar Das Jain and he is owner in possession of the aforesaid property. It was further contended in the written statement that so far as the house in property No. 52 is concerned, Gopal Das, the owner of the house, had executed a gift deed in favour of his sister's son Prakash Chandra on 13-4-1992 in respect of the aforesaid house and Prakash Chandra became the owner and came in possession of the property in dispute. Prakash Chandra had constructed a house in the aforesaid plot. Prakash Chandra sold part of the property to Smt. Indrani Jain on 20-12-1985 and remaining property was sold by Prakash Chandra in favour of Kusum Kumari on 23-9-1964. Defendant No. 1, namely, .Shyama Devi had purchased the aforesaid house by means of a registered sale deed, dated 13-7-1971 from Smt. Kusum Kumari and Prakash Chandra. The contention of defendant No. 1 was that she is the owner in possession of the aforesaid property on the basis of the sale deed executed in her favour on 13-7-1971. It was also contended that defendants Hori Lal and Gopal Das had taken the house in dispute on rent 11-12-1965 at the rate of Rs. 30/- per month from Smt. Kusum Kumari and plaintiff is residing in the aforesaid house with her husband, who is tenant of the house in question. The claim of the plaintiff that she has acquired rights in the house in dispute on the basis of adverse possession is baseless and false. Since the plaintiff is residing in the house along with her husband and is the tenant of the house, she cannot be permitted to claim adverse possession. On 17-7-1971, defendant No. 1 gave a notice to Hori Lal to vacate the house and terminated the tenancy of Hori Lal. The plaintiff filed the present suit claiming adverse possession, only to frustrate the proposed eviction proceedings against her husband.
4. On the pleadings of the parties, the trial Court framed issues. Out of the issues so framed, only following issues are relevant to be discussed for decision of the appeal:
"1. Whether the plaintiff is owner of the house in suit as alleged?
2. Whether the plaintiff has perfected her title to half of the house in suit by adverse possession for more than 12 years as alleged? If so, its effect?
3. Whether defendant No. 3 is the tenant on behalf of defendant No. 1 of the entire house in suit?
4. Whether the defendant No. 1 is the owner of the house in suit?"
5. The trial Court considered and decided Issues Nos. 1, 2 and 5 together and held that it is established from the evidence of the parties that the property of Banarsi Das was partitioned between Hori Lal and Gopal Das and Gopal Das had also his share in the land on which the house in suit had been constructed and Smt. Premvati, the plaintiff took possession of the vacant land and constructed house No. 52 on the aforesaid land in accordance with law on which she acquired title to the extent of of half share on the basis of gift deed executed in her favour by her husband and for remaining half she perfected her title on the basis of adverse possession on the basis of her remaining in possession over the property for more than 12 years. Other issues were also decided in favour of the plaintiff and against the defendants. The trial Court decreed the suit of the plaintiff against the defendants restraining them by means of a permanent prohibitory injunction from interfering in the possession of the property in suit. Aggrieved thereby, defendant Smt. Shyama Devi filed a civil appeal in the Court of the District Judge, Mainpuri being Civil Appeal No. 56 of 1977. The III Addl District Judge, Mainpuri, vide his judgment, dated 30-11-1978 has dismissed the defendant's civil appeal. Aggrieved thereby, the present second appeal has been filed by the defendant Smt. Shyama Devi.
6. I have heard Sri Prakash Chandra, the learned counsel for the appellant and Sri K. M. Dayal, learned counsel for the respondents.
7. The learned counsel for the appellant has contended that the Courts below have committed an error of law in arriving at a finding that the plaintiff had acquired right over the property in dispute by adverse possession inasmuch as on the basis of the evidence on record, the plaintiff has completely failed to prove her case of adverse possession. The learned counsel for the plaintiff respondent has contested the aforesaid submission and has stated that the findings recorded by the two Courts below are findings of fact and are not open for interference by thts Court in exercise of limited jurisdiction under Section 100, C.P.C.
8. I have given careful consideration to the submissions of the counsel for the parties.
The documents and oral evidence which have been relied upon by the Courts below for upholding the plaintiff's claim of adverse possession need consideration for testing the submissions made by the learned counsel for the parties.
9. The plaintiff in support of her case, filed following documents:--
(1) Gift Deed, dated 7-12-1946 executed by Hori Lal in her favour gifting his half share in the property which was inherited by her father Banarsi Das.
(2) The map sanctioned by the Municipal Board on 13-7-1966 relating to the disputed property (Ext. 4) (Paper No. 118-Ka).
(3) Application by Smt. Premvati through Prakash Chandra to the Municipal Board for sanction of the map.
(4) Extract of Register of Municipal Board that the permission for construction was granted to Smt. Premvati through Prakash Chandra.
(5) Notice served upon her under Section 143 of the U. P. Municipalities Act regarding House No. 73 in 1975 (Paper No. 117-Ka).
(6) Certified copy of the declaration made by her through Prakash Chandra to the Electricity Department on 8-7-1959 (Paper No. 150-C).
(7) Bill of payment of electricity dues in her name, dated 7-5-1962.
(8) Bill of payment of electricity dues in her name, dated 10-4-1962 to show that the electric connection in her name was taken through Prakash Chandra.
(9) Notice served by the Electricity Department on her on 14-5-1965.
(10) Receipt of water-tax of the year 1975-76 (This is a document relating to period of pendency of the suit, as such of no consequence).
10. Oral evidence, referred to and relied upon by the lower appellate Court is only of plaintiff Smt. Premvati herself and a circumstance that in the house in dispute, the words "PREMVATI BHAWAN" are engraved.
11. Before I proceed to consider the question of law involved for consideration in the present matter, it is necessary to refer to the documentary evidence filed by the defendants:
(a) A registered gift deed executed by Gopal Das for house No. 52 in favour of Prakash Chandra, dated 13-4-1954 registered on 24-4-1954 (paper No. 32-Ka-1).
(b) A registered sale deed executed by Prakash Chandra for part of the property No. 52 in favour of Smt. Indrani Jain, dated 20-12-1955.
(c) Another registered sale deed executed by Prakash Chandra-on 23-9-1964 for remaining portion of property No. 52 in favour of Kusum Kumari.
(d) A rent deed executed by Gopal Das and Hori Lal in favour of Kusum Kumari in respect of property No. 52 (which was sold by Prakash Chandra to Kusum Kumari by sale deed, dated 23-9-1964) agreeing to pay rent at the rate of Rs. 30/- per month.
(e) Sale deed executed by Smt. Kusum Kumari and Prakash Chandra in favour of the appellant, namely, Smt. Shyama Devi, dated 13-7-1971.
(f) Municipal record (paper No. 138-A) relating to the year 1965 (wherein Prakash Chandra is mentioned as owner of house No. 52 and Hori Lal as a tenant).
(g) Paper No. 75-Ka (Ext.A-2) voter list of 1970 (in which Hori Lal was shown as resident of house No. 52).
(h) Paper No. 76-Ka (Ext.A-3) water tax assessment in the name of Prakash Chandra of the house in dispute of the year 1968-69.
(i) Paper No. 76-C/2 Municipal record for the period 1968-73 in which Prakash Chandra was recorded as co-owner and Hori Lal was recorded as co-tenant.
(j) Exts.A-2 to Ext.A-9 relating to the year 1969 and 1971, rent receipts issued by Kusum Kumari and counter, signed by Hori Lal as a proof of paying rent to Kusum Kumari for the house in dispute.
12. At the first appellate stage also, some documents were filed by the parties, a reference of those documents is also necessary. The defendant-appellant filed certified copy of the sale deed (paper No. 15-C) which was executed by Gopal Das and Hori Lal in favour of one Banarsi Das on 18-7-1958 to show that Gopal Das and Hori Lal had jointly transferred the land to Banarsi Das and Hori Lal and Gopal Das had not transferred any land separately. This document was also for the purpose for demonstrating that Gopal Das was throughout exercising his right and authority over the property as owner and denying the contention of the plaintiff that Gopal Das had abandoned the town.
13. The defendant appellant also summoned the original register from the Municipal Board to show that the Municipal records on which reliance was placed by the plaintiff was of doubtful character and subsequently the name of Smt. Premvati was added in the register over and above Prakash Chandra, who gave an application in his name for sanction of map of the house in dispute.
14. Important facts which also need mention for decision in the present matter, is that the plaintiff respondent herself admitted that Prakash Chandra was throughout living with the plaintiff and was doing pairvi on behalf of the plaintiff in all matters. Prakash Chandra was admittedly the sister's son of the plaintiffs husband. Another important thing to be mentioned is that Hori Lal and Gopal Das both were arrayed as defendants in the suit. The address of Hori Lal and the plaintiff was the same. The defendant-appellant summon-ed Hori Lal for purposes of obtaining his signatures to prove that rent note Was executed by Hori Lal in favour of Kusum Kumari in the year 1965 and the rent note contained the signatures of Hori Lal. Despite a warrant having been issued by the Court for summoning Hori Lal, Hori Lal did not turn up to deny his own signatures which were made by him in the rent note executed for the house in dispute by. Hori Lal and Gopal Das in favour of Smt. Kusum Kumari. It is clear from the record that originally Gopal Das and Hori Lal both were co-owners of the property in dispute. The plaintiff's own case is that she got only a half share in the properly which belonged to Hori Lal and perfected her claim of adverse possession over the remaining half portion of the property in dispute. Both Hori Lal and Gopal Das being co-owners, it is established proposition of law that the possession of one co-owner is possession of all the co-owners. In such circumstances, the concept of perfecting the right by adverse possession is to be construed in a different context. In case where a co-owner is claiming to have perfected right on the basis of adverse possession, such a co-owner has to prove the ouster of other co-owner, to the knowledge of all concerned, only then he can claim to have perfected rights on the basis of adverse possession against a co-owner.
15. In the aforesaid background before the findings of the lower appellate court are scrutinised, it is necessary to frame the substantial question of law which is involved for consideration in the present matter :-
"Where the plaintiff has proved ouster of the co-owner and on the basis of proving of such ouster after more than 12 years has perfected her rights on the basis of adverse possession?"
16. A bare analysis of the documents, referred to above, filed by the defendant amply demonstrate that Gopal. Das had executed a gift deed in favour of Prakash Chandra as far back as on 14-4-1954 by means of a registered gift deed. The plaintiff never cared to challenge the validity of the aforesaid gift deed, till she decided to file the present suit against the defendant-appellant. It is also on record that Prakash Chandra sold a share of property No. 52 to Smt. Indrani Jain on 20-12-1955. It is on the record that Smt. Indrani Jain is in possession of her share in property No, 52 and has constructed a house thereon. Again on 23-9-1964, Prakash Chandra sold the remaining portion of property No. 52 in favour of Kusum Kumari, even then plaintiff did not choose to put claim of adverse possession against any of the vendees of Prakash Chandra, namely, Smt. Indrani Jain and Kusum Kumari. These documents amply demonstrate that the other co-owner of the properly was throughout dealing with the property and the plaintiff did not claim any ouster of the co-owner or his transferee. In the light of such circumstances, the question which requires consideration is as to whether the plaintiff can claim to have proved ouster of the co-owner or his transferee over a portion of property No. 52. The courts below have not dealt with the case from the aforesaid angle. On the other hand, the courts below have dealt with the matter only from an angle that the plaintiff had been dealing with the property in her own name. This is not sufficient to prove an ouster of a . co-owner particularly the circumstance when the transferees of the co-owner were throughout dealing with the property and that the plaintiff was a silent spectator thereof.
17. The learned counsel for the respondent has submitted that the documents filed by defendant referred to above, have not been proved in accordance with law and as such cannot be relied upon by the defendant-appellant. For appreciating the submission of the learned counsel for the plaintiff-respondent, the above documents need scrutiny. The registered gift deed executed by Gopal Das in favour of Prakash Chandra (paper No. 31-Ka/1) is signed by Gopal Das, the executor of the gift deed. Sri Shanti Chandra and Upendra Kumar are witnesses of the gift deed. The defendant has examined on oath Sri Upendra Kumar as DW1, who has deposed on oath that the document executed, paper No. 31-Ka/l, is the same document which was executed by Gopal Das gifting his property in favour of Prakash Chandra and the witness and one Shanti Chandra both signed the document as witnesses. The document was written in his presence. He also attended and proved the signatures of Gopal Das and Shanti Chandra on the said document. This document has been denied by the plaintiff.
18. The learned counsel for the plaintiff respondent has contended that the aforesaid document has not been proved in accordance with the requirement of S. 68 of the Evidence Act and as such cannot be looked into in evidence. It has also been contended by the learned counsel for the plaintiff-respondent that since the document was the basis of the defence of the defendant-appellant, therefore, the presumption of correctness for registered document is not available to the defendant-appellant in regard to the aforesaid document.
19. Section 122 read with S. 123 of the Transfer of Property Act provides that a gift deed is a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Section 123 provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
20. Section 68 of the Evidence Act is relevant for the purpose and as such is being reproduced below:--
"68. Proof of execution of document required by law to b attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom its purports to have been executed is specifically denied."
21. The aforesaid section provides that if -adocument is required by law to be attested, it shall not be allowed to be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive etc. The proviso to the aforesaid section provides that if the document required to be attested is a registered document, then it shall not be necessary to call an attesting witness in proof of execution of any document, unless its execution by the person by whom it purports to have been executed is specifically denied.
22. In the present case, the execution of the gift deed, referred to above, has not been denied by the executor, namely, Gopal Das and as such the proviso to S. 68 is clearly attracted. The gift deed being a registered document, it did not require formal proof under the main proviso of S. 68. In any case, even assuming that the gift deed required proof, the statement of Upendra Kumar, DW 1, referred to above, has flearly proved the document and the courts below were in error in not accepting the document on a presumption that the document has not been proved. This is a clear error of law by the courts below while dealing with a registered gift deed, the execution whereof was not denied by the executor. Likewise, other two documents, namely, the sale deed, dated 20-12-1955 executed by Prakash Chandra in favour of Smt. Indrani Jain and sale deed, dated 23-9-64 executed by Prakash Chandra in favour of Kusum Kumari are also registered ones, execution whereof has not been denied by the- executor, namely, Prakash Chandra, and no formal proof of the aforesaid two documents was also required. The only criticism against the aforesaid two documents advanced by the learned counsel for the appellant is that since the very basis of the right of Prakash Chandra for dealing with the property, namely, the execution of gift deed by Gopal Das in favour of Prakash Chandra has not been proved, the subsequent dealing of the property by Prakash Chandra is of no consequence and cannot affect 'the rights of the plaintiff. This argument also falls through in view of my finding that no formal proof of a registered gift deed was required in view of proviso to S. 68 of the Evidence Act and in any case, the said documents were proved in accordance with law and were admissible in evidence. Section 90-A of the-Evidence Act, as amended by the State of Uttar Pradesh, may also be referred to :
"90-A. (1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a court of justice, is produced from any custody which the court in the particular case considers proper, the court may presume that the original was executed by the person by whom it purports to have been executed.
(2) This presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plain or written statement.
The explanation to sub-sec. (1) of S. 90 will also apply to the section."
23. The contention of the learned counsel for the plaintiff-respondent is that since the documents were the basis of the defence, the presumption under S. 90-A(I) of the Evidence Act was not available to the defendant-appellant. In the context of the present case, this argument is also fallacious as in the present case, the burden was solely and exclusively on the plaintiff to have proved ouster of the co-owner. The defendant was only demonstrating that the property in question was throughout being dealt with by Prakash Chandra, the co-owner of the plaintiff in strict sense. These documents cannot be claimed the basis of defence in the context of the present suit. The sale deed dated 20-12-1955 (paper No. 77-C) proves that on some pprtion of property No. 52, Smt. Indrani Jain is in possession is not disputed and both the courts below have concurrently found that in aportion of the property No. 52. Smt. Indrani Jain is in possession thereof and it is also not disputed that she has constructed house on half of the portion of the property on the basis of the sale deed executed by Prakash Chandra in her favour.
24. So far as the sale deed, dated 23-9-1964 is concerned, the same has been specifically proved by the defendant's witness Jugmandar Das, who has deposed on oath that the aforesaid sale deed was executed by Prakash Chandra in his presence on which Gopal Das and Hori Lal signed as witnesses in his presence and Hori Lal is the husband of Smt. Premvati, the plaintiff in the suit. After looking into the document in question, the witness proved the signatures of Prakash Chandra, Gopal Das and Hori Lal. It may also be mentioned that all the aforesaid 3 persons, the executor of the sale deed and its witnesses, are closely related to the plaintiff, namely, Smt. Premvati. Prakash Chandra, the executor of the sale deed, is the sister's son of Hori Lal, Hori Lal is the husband of the plaintiff and Gopal Das is the elder brother of Hori Lal. The defendant summoned Hori Lal for proving the aforesaid document and other documents, namely, rent note and rent receipts, but Hori Lal did not turn up in spite of warrant having been issued by the court. It is also established on the record that Hori Lal and the plaintiff are husband and wife and ay living together. The plaintiff has not come forward with any stand that her relations with Hori Lal are strained or she has not been able _to demonstrate that her interest is adverse to the interest of Hori Lat. In these circumstances, a presumption ought to have been drawn against the plaintiff for Hori Lal not coming forward to appear in the witness box, who was a vital witness for the controversy involved in the suit particularly when the plaintiff was to discharge an onerous burden of proving ouster of a co-owner.
25. In the light of the aforesaid discussion, the judgment of the lower appellate court requires a further scrutiny. The first document on which the lower appellate court has placed reliance is the gift deed executed by Hori Lal in favour of the plaintiff on 7-12-1946 which shows that half of the property was gifted by Hori Lal in favour of his wife, namely, Smt. Premvati, the plaintiff-respondent. This document has no bearing in the controversy involved in the suit as it is not on the basis of the gift deed that the plaintiff is claiming her right over the property in dispute but itis on the basis of her possession, she has filed the suit on the portion of the property which admittedly fell in the share of Gopal Das.
26. The next document which has been relied upon by the lower appellate court is the map. Paper No. 118-Ka (Ext. 4) sanctioned for construction by the Municipal Board which relates to the property in dispute and paper No. 159-C, the extract from the register of the Municipal Board showing that the said permission for construction was granted to the plaintiff through Prakash Chandra. Ext. 4 is a map relating to house No. 52 on which the signatures of plaintiff Smt. Premvati are there and which have been shown to have been signed by the Executive Officer on 13-7-1966. The other document is document No. 159-C/a, which is an extract from the Register of the Municipal Board in which the application, dated 28-6-1956 is mentioned and in column No. '5', which is to show the names of the parties, the language mentioned is as under :
Jherh izseorh }kjk nj[kkLr Jh izdk'kpUnz vk;k nh xbZ ckcr rehj edku eqrkfod uD'kk "Shrimati Premvati Dwara Darkhwast Shri Prakash Chandra Agya Di Gai Babat Tamir Makan Mutabik Naksha."
In column No.'7', the date is mentioned as 1.3-7-1956 and in column No. '8', which is the date of decision is 1-12-1956. Apparently the lower appellate court was in error in connecting the two documents. The map Ext. 4 has been shown to have been sanctioned on 13-7-1966. This is a date which falls after the date'of execution of sale deed by Prakash Chandra in favour of Kusum Kumari. No application connecting the aforesaid map has been brought on record. The extract of Municipal Register. Paper No. 159/C-1 relates to some other application and the language of the column No. '5' also, prima facie, demonstrates the words "Premvati Dwara" has been added later on. Only the words "Darkhwast Sri Prakash Chandra Babat Tamir Makan Motabik Naksha" were mentioned. The entire language of column No.'5' does not make any sense. If Smt. Premvati would have been the applicant, the proper language would have been as under:
"Darkhwast Shrimati Premvati Dwara Shri Prakash Chandra."
nj[kkLr Jherh izseorh }kjk Jh izdk'kpUnz In this connection, what is more important is how the trial court has dealt with this document. The trial court while dealing with the map Ext. 4 referred to the statement of DW 4, who brought the original Municipal Register summoned by the defendant and stated on bath that it is noted in the register at serial No. 330, dated 4-2-1956 that the application of Prakash Chandra for construction of the house in Mohalla Soraogyan was rejected on 16-6-1956. It was proved by the defendant that the application of Prakash Chandra was rejected by the Municipal Board and in the register there was no mention of Smt. Premvati. The plaintiffs counsel contended before the trial court that since Prakash Chandra was not the owner of the property, the map was rejected, but that is hardly a justification relating the two documents reHed upon by the courts below, namely, Ext. 4 and paper No. 159-C/1 for arriving at a finding that the map given by the plaintiff for construction of the'house in the year 1956 was sanctioned by the Municipal Board. Even otherwise, these documents belie the case of the plaintiff, who claimed that the house over the property in dispute was constructed by her some time in the year 1953-54. I have also carefully examined the other documents filed by the plaintiff on which reliance was placed by the courts below and a reference to the same may be made. Paper No. 116-Ka filed by the plaintiff is in respect of premises No. 73. Likewise, paper No. 117-Ka relied npon by the plaintiff is in respect of house No. 73. Document No. 148-Ka, which is a notice from the Electric Supply and General Mills Company Ltd., Mainpuri is in the name of Smt. Premvati where house No. 52 and Mohalla have been mentioned with different ink. Thus it is clear that the courts below have casually dealt with the matter and have not scrutinised the evidence on which reliance has been placed by the courts below particularly in the background . that the plaintiff was put to specific burden of proving ouster of a co-owner. In the same connection, it may also be mentioned that the document on which reliance has been placed by the defendant has not been properly dealt with by the lower appellate court. Particularly with reference to the rent note and the rent receipts filed by the defendant for showing that Hori Lai and. Gopal Das both executed a rent note in favour of Kusum Kumari in which both Hori Lal and Gopal Das agreed to pay rent at the rate of Rs. 30/- per month to Kusum Kumari for the house in dispute. The reasoning for discarding the aforesaid document is based only on the basis of the signatures of one of the witnesses in the rent note. So far as the signatures of Gopal Das and Hori Lal are concerned, these signatures are very clear on the record and Hori Lal having refused to come forward in the witness box to deny the aforesaid signatures. The documents on which the defendant placed reliance should have been scrutinised with more care and caution. No proper reasons have been given for discarding the documentary evidence filed by the defendant showing that Prakash Chandra was throughout shown as owner of the house in dispute and Hori Lal was shown as tenant. A reference to the aforesaid documents have already been made in the judgment. The courts below were in error in recording a finding that the name of Prakash Chandra was not mutated in the Municipal records while documents filed by the defendant-appellant show otherwise.
27. On the basis of the aforesaid analysis, I am of the view that the findings of the courts below are vitiated in law in view of the wrong approach for arriving at a decision where the plaintiff was claiming ouster of a co-owner, However, since the matter involved virtually the appreciation of oral and documentary evidence, it will not be proper in exercise of jurisdiction, under S. 100, C.P.C. to consider the entire evidence afresh at the second appeal stage and in view of the fact that the parties are litigating right from the year 1971 and 24 years have already elapsed. I am of the opinion that the ends of justice will meet if the judgment and decree passed by the lower appellate Court is set aside and the matter is remanded back to the lower appellate court with a direction to decide afresh the defendant's appeal on merits in the light of the observations made in this judgment.
28. The appeal is accordingly allowed with costs. The judgment and decree passed by the lower appellate court, dated 30-11-
1978 is set aside and the case is remanded back to the lower appellate court for decision afresh keeping in regard the observations made above, within three months of the receipt of the certified copy of this judgment along with the record of the case.
29. Office is directed to ensure that the record of the case is sent back to the lower appellate court, within 15 days of the delivery of the judgment.
30. Appeal allowed.