Ram Deyal Singh v. Mt. Indrasan Kuer — 1964 DIGILAW 62 (PAT)

Judgment Ramratna Singh, J. 1. This second appeal by the plaintiff arises out of a suit for declaration of title to an area of about 12 bighas of culturable land, on the basis of a sale deed, dated the 1st February 1945, executed by two brothers, named Rajkishore and Nandkishore, who were, admittedly, the raiyats of the land, which is situated in three contiguous villages. A portion of the suit land had been given in usufructuary mortgage to some persons by Rajkishore and Nandkishore a few years before 1945-In respect of that area, which is recorded in silvery plot No. 4026, the plaintiff has sought a relief for redemption of the mortgage. Further, the plaintiff has also sought for confirmation of possession or, in the alternative, recovery of possession of the suit land. There is another prayer for adjudication that the two sale deeds, apparently dated the 12th January, 1945, one in favour of defendant No. 2 and the other in favour of the husband of defendant No. 1, were antedated, fraudulent and collusive. 2. The case of the plaintiff was that, on the 31st January, 1945 a contract for sale of the suit laud for Rs. 9,000.00 between him and the two vendors was entered into and the vendors purchased requisite stamps for the sale deed on the same day. On the 1st February 1945, the sale deed was drawn up and executed by the vendors, who made over the same to the plaintiff. According to the plaintiff, Rs. 1,000.00 out of the consideration money had been paid earlier by instalments, Rs. 5,724/- was paid to the vendors in cash at the time of the execution of the sale deed and Rs. 2,276/- was left by the vendors with the vendee in deposit for redemption of several usufructuary mortgage bonds in respect of the lands described in Schedule II of the plaint. On the 5th February, 1945, the plaintiff presented the sale deed for registration before the Sub-Registrar, Siwan. On the same day, the two executants filed an" application alleging that no cash consideration had been paid to them at any time in respect of the sale deed. The two vendors also filed a petition of complaint before the Sub-divisional Magistrate, Siwan, making the same allegations, but it was dismissed. On the same day, the two executants filed an" application alleging that no cash consideration had been paid to them at any time in respect of the sale deed. The two vendors also filed a petition of complaint before the Sub-divisional Magistrate, Siwan, making the same allegations, but it was dismissed. On the 23rd February, 1945, the plaintiff made an application before the Sub-Registrar for compulsory registration; and, as the executants did not contest that application, the sale deed was compulsorily registered on the 3oth January, 1946. About three years later, on the 30th Jeth, 1949 there was a tender by the plaintiff of Rs. 100/-to defendants 3 to 9, who are defendants second party, for redemption of plot No. 4,026, These defendants refused to accept the money and then the plaintiff filed Redemption Suit No. 5 of 1950. On the plea of these defendants in that suit that the zarpeshgi bond in their favour in respect of the plot had been redeemed by the defendants first party, who had taken two sale deeds from Rajkishore and Nandkishore on the 12th January, 1945, the suit was dismissed. According to the plaintiff, this dismissal cast a cloud on his title with regard to the land purchased by him under the sale deed dated the 1st February, 1945. Hence, the suit, out of which the present appeal arises. The defendants third party, most of whom were formerly zarpeshgidars of portions of the suit land, have since purchased a major portion of the suit land from the defendants fust party, who kept only 14 kathas of the suit land in themselves after these transfers. 3. All the three sets of defendants contested the suit and their defence was common. They asserted that the sale in favour of the defendants first party was a genuine transaction and that the sale deed in favour of the plaintiff was fraudulent and antedated. They further alleged that the plaintiff did not get possession of any portion of the land covered by his sale deed, which was without consideration. They also took a plea that because of the decision in Redemption Suit No. 5 of 1950, the present suit was barred by res judicata. 4. The trial Court accepted the case of the plaintiff on the merits and further found that the suit was not barred by res judicata. The suit was accordingly decreed. They also took a plea that because of the decision in Redemption Suit No. 5 of 1950, the present suit was barred by res judicata. 4. The trial Court accepted the case of the plaintiff on the merits and further found that the suit was not barred by res judicata. The suit was accordingly decreed. But the learned Additional District Judge, Mr. S.G. Waris, however, took a contrary view on both the points and dismissed the suit. Mr. Lalnarayan Sinha, who appeared for the appellant, challenged both the findings, 5. Regarding the plea of res judicata he submitted that, inasmuch as Section II of the Code of Civil Procedure strictly applied to this case, and the Court in which Redemption suit No. 5 of 1950 was instituted was not competent to entertain the present suit, one of the most important ingredients of that section was wanting in the instant case. This submission is well founded. The redemption suit was instituted in the Court Munsif at Siwan and was decided by the 1st Additional Munsif -- vide judgment, Ext. J. An appeal from that decision was decided by a Subordinate Judge of Chapra on the 28th January, 1954--vide judgment; Ext. J(1). Further, only the zarpeshied area, measuring 5 kathas 8 dhurs was the subject matter of the redemption suit--vide plaint, Ext. C(3) --whereas the subject-matter of the present suit is the entire area, measuring 12 bighas and odd covered by the sale deeds. The learned Additional District Judge relied, in support of his view, on a Bench decision of this Court in Gokaran Prasad V/s. Chhotey Narayan, AIR 1951 Pat 595 and a Full Bench decision of the Oudh Chief Court in Maqsood Ali V/s. Hunter, AIR 1943 Oudh 338. He quoted the following placitum from the Oudh decision : "The word suit in the expression such subsequent suit or the suit in which such issue has been subsequently raised should be construed liberally as meaning a part of a suit. There is no reason why, when the matter has been decided by a Court of competent jurisdiction, the decision should not be regarded as conclusive between the same parties when the question arises again in a different suit, though that suit as a whole could not be tried by the Court which decided the earlier suit". There is no reason why, when the matter has been decided by a Court of competent jurisdiction, the decision should not be regarded as conclusive between the same parties when the question arises again in a different suit, though that suit as a whole could not be tried by the Court which decided the earlier suit". He also referred to the observation of Reuben, J, (ass he then was) in the Patna case that a party could not be allowed to evade the provisions of Sec.11 by joining in one suit several causes of action, and that the bar of res judicata will be applicable in subsequent actions not only to cases where claim is laid to the same property but also to the same matter as was directly and substantially in dispute in the former litigation and that it was the identity of the issue and not the identity of the subject-matter which attracted the operation of the rule. These observations seem to have been culled by the learned Additional District Judge from different portions of the judgment of Reuben. J. But the basis of the decision of the Patna case is slightly different; and the same has been correctly summarised in the placitum, which, reads as follows: "The words in a Court competent to try such subsequent suit, must refer to the jurisdiction of the Court at the time when first suit was brought, that is to say, if the Court which tried the first suit was competent to try the subsequent suit if then brought, the decision of such Court would be conclusive, although on a subsequent date by a rise in the value of such property or from any other cause the said Court ceased to be the proper Court so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to that property." Where, therefore, in such a case a decision has been given by a competent Court in a previous suit, regarding part of the claim in the subsequent suit, and where both the suits are between the same parties and the causes of action relating to part of the claim are the same, that much part of the claim should be excluded from the subsequent; suit being barred by the principle of res judicata". The decision of Reuben, J. is based on the principle that the enactment of Sec.11 does not do away with the principle of estoppel by record which still exists. In the instant case, however, the value of the redemption suit was only Rs. 100, whereas the value of the present suit is Rs. 9100. Thus, the Court of the Munsif had no jurisdiction to entertain the present suit, and, therefore, not competent to try it. The observation of the Oudh, Court has been overruled by the Supreme Court in Gulab Bai V/s. Mauphool Bai, AIR 1962 SC 214 . In that case, it was argued in support of the plea of res judicata that for the purposes of Sec.11 only that part of the subject-matter of the suit, and the issue covered by both the suits should be taken into consideration. In view of the principle that an Individual should not be vexed twice for the same case it was argued that the word suit occurring in Sec.11 should be liberally construed in view of this principle, otherwise if the competence of the earlier Court is judged by reference to its competence to try the entire suit as subsequently instituted, in many cases where the matter directly and substantially in issue has been tried between the parties by the earlier Court it may leave to be tried again in a subsequent suit because the earlier Court had no jurisdiction to try the subsequent suit having regard to its pecuniary jurisdiction. It was contended that this position would be anomalous and inconsistent with the principle underlying the doctrine of res judicata. Their Lordships rejected this argument; and the views of their Lordships are correctly summarised in the placitum, which reads as follows; "The plain and grammatical meaning of the word suit occurring in clause in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised of Sec.11 of Civil P.C. includes, the whole of the suit and not a part of the suit, so that giving the word "suit" its ordinary meaning it is difficult to accept the argument that a part of the suit or an issue in a suit is intended to be covered by the said word in the material clause. It is the whole of the suit which should be within the competence of the Court at the earlier time and not a part of it. Having regard to the legislative background of Sec.11, there can be no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it." The learned Additional District Judge has also quoted a sentence from another Bench decision of this Court in Baidyanath Rai V/s. Satyanarain Rai, 1959 BLJR 594: ( AIR 1960 Pat 36 ): "It is really not the subject-matter of the litigation which determines the applicability of the principle of res judicata but the identity of the title which fonds the foundation of the claim". But at the same time the Court also said that, in order to attract the applicability of Sec.11, not only the matter must be directly and substantially in issue in both the suits but must also be litigated under the same title in a Court of competent jurisdiction. 6. The learned Advocate General, who appeared for the contesting respondents, could not cite any authority contrary to the above decision of the Supreme Court. Ho submitted, however, that the principles of constructive res judicata which are wider in application than the principles contained in Sec.11 support the finding of the learned Additional District Judge; and he. relied on a decision of the Supreme Court in Daryao V/s. State of U.P., AIR 1961 SC 1457 in a case under Article 32 of. the Constitution. But the general doctrine of res judicata cannot be applied to the instant case, because the only grounds on which res judicata can be urged in a suit are those contained in Sec.11 (see Janakirama Iyer V/s. P.M. Nilakanta Iyer, AIR 1962 SC 633 ). Hence, the plea of res judicata must fail; and the finding of the learned Additional District Judge must be set aside. 7. Before taking up the next point raised by Mr. Lalnarain Sinha, it will be convenient to dispose of a legal question raised by Mr, Jaleshwar Prasad on behalf of the respondents for the first time in this Court. Mr. 7. Before taking up the next point raised by Mr. Lalnarain Sinha, it will be convenient to dispose of a legal question raised by Mr, Jaleshwar Prasad on behalf of the respondents for the first time in this Court. Mr. Prasad submitted that, in view of suit No. 5 of 1950 the present suit is barred by the provisions of Order 2, Rule 2, of the Code of Civil Procedure, which lays down that "every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; and "where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished". Mr. Prasad cited several decisions; but most of them are of no help in this case. The facts were completely different in Dwarkadas V/s. Vimal, AIR 1964 Bom 42 , Krishnaji V/s. Raghunath, AIR 1954 Bom 125 , and Ram Prasad V/s. Radha Panday, AIR 1941 Pat 37. The decision in Ramkhelawan Sahu V/s. Bir Surendra Sahi, 18 Pat LT 977: (AIR 1938 Pat 22) (FB) did not deal with Order 2, Rule 2, but with the question of court-fee and valuation. The following principles were laid down by the Privy Council in Md. Khalil Khan V/s. Mahbub Ali, AIR 1949 PC 78: "(1) The correct test in cases falling under Order 2, Rule 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff". 8. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff". 8. The main question to be considered now is whether the present suit is in fact founded upon the same cause of action as was the foundation for suit No. 5 of 1950. The suit of 1950 was instituted by the plaintiff appellant on the following allegations; (i) Rajkishore and Nandkishore sold 12 bighas 3 kathas 19 dhurs to the plaintiff through a sale deed dated 1-2-1945; (2) 5 kathas 13 dhurs out of the above area was in possession of the defendants who were usufructuary mortgagees on the basis of a zarpeshgi bond dated 25-6-1942 for Rs. 100; and (3) the plaintiff had tendered the mortgage money, but the mortgagee-defendants refused to take the same. On these allegations, the plaintiff prayed for a decree for redemption. On a plea of the defendants that Indrasan Kuer and Ramsakal, who were subsequently impleaded as defendants, had already redeemed the mortgage, the plaintiff added a new allegation that they had no right to redeem on the basis of their sale deeds which were antedated, fraudulent and collusive and also added a new relief for declaration that these newly added defendants had no right to redeem. Ultimately, the suit was dismissed by an Additional Munsif of Siwan, ami an appeal preferred by the plaintiff was dismissed by the Subordinate Judge of Chapra. 8A. In the present suit, the plaintiff impleaded all the defendants of the earlier suit, besides a large number of other persons, who were made defendants third party on the allegation that they had taken fictitious sale deeds from Indrasan Kuer and Ramsakal Singh in respect of a major portion of the aforesaid area of 12 bighas and odd. 8A. In the present suit, the plaintiff impleaded all the defendants of the earlier suit, besides a large number of other persons, who were made defendants third party on the allegation that they had taken fictitious sale deeds from Indrasan Kuer and Ramsakal Singh in respect of a major portion of the aforesaid area of 12 bighas and odd. In this suit, the plaintiff gave details of the three sale deeds and the earlier litigation and asserted that a cloud had been cast on his title to the suit land on account of the dismissal of the earlier suit finally on 28-1-1954, which is one date of the cause of action, the other date of the cause of action being 1-10-1956, when there was interference with the plaintiffs possession. The reliefs claimed were (1) declaration of the plaintiffs title to the suit land on the basis of his sale deed dated 1-2-1945, (2) declaration that the sale deeds in favour of Indrasan Kuer and Ramsakal Singh (apparently dated 12-1-1945 were fraudulent, collusive and antedated, (3) a decree for redemption under Order 34, R. 4 of the Code of Civil Procedure in respect of the zarpeshgi bond dated 25-6-1942, and (4) confirmation of possession of the plaintiff over the entire suit land or, in the alternative, delivery of possession. 9. Can it be said, in view of the above facts, that the causes of action of the two suits were identical ? In my opinion, the causes of action in the two suits were distinct, though they may be said to have arisen out of the same transaction. As was observed by the Privy Council in P. R. Saminathan V/s. P.L. Palaniappa, 41 Ind App 142 (PC), while dealing with Sec.34 of the Ceylon Civil Procedure Code (which was in the same terms as Order 2, Rule 2) : "It is directed to securing the exhaustion of the relief in respect of a cause of action, and not to the inclusion in one and the same action of different causes of action even though they arise from the same transactions". One of the tests to determine whether the causes of action are identical or distinct is to find out if the relief claimed in the subsequent suit could have been claimed on the cause of action in the earlier suit (see Brijkishore Singh v. Sm. Nazuq Bai, AIR 1948 Cal 19. One of the tests to determine whether the causes of action are identical or distinct is to find out if the relief claimed in the subsequent suit could have been claimed on the cause of action in the earlier suit (see Brijkishore Singh v. Sm. Nazuq Bai, AIR 1948 Cal 19. In the instant case, the cause of action f5r the earlier suit was the tender of the zerpeshgi money by the plaintiff and the refusal of the mortgagee to accept the money and release the zarpeshgi land. In the present suit, on the other hand, the cause of action ie the cloud cast on the title of the plaintiff to the suit land on account Of the decision in the earlier suit, as also subsequent interference in the plaintiffs possession. In other words, the earlier suit was for redemption of a mortgage in respect of a few Kathas, while the present suit is for declaration of title to the entire area of 12 bighas and odd and ejectment of the trespassers therefrom. In Naro Balwant V/s. Ramchandra Tukdev, ILR 13 Bom 326, it was held that failure in a redemption suit does not bar a subsequent suit in ejectment, the causes of action in the two suits being essentially different. 10. Mr. Jaleshwar Prasad submitted that the evidence to support the plaintiffs claims in the , two suits would be the same, and, therefore, the cause of action was identical. Of course, in the case of Md. Khalil Khan, AIR 1949 PC 78, the Privy Council said that, if the evidence to support the two claims is different, the causes of action are also different; but the contrary proposition urged by Mr. Prasad does not necessarily follow. Further, it is true that in the instant case the plaintiff had to lead evidence regarding his sale deed in order to support his right to redeem a few kathas of land; but a finding adverse to the plaintiff in respect of such a right would not bar his claim in ejectment for the suit land. Further, it is true that in the instant case the plaintiff had to lead evidence regarding his sale deed in order to support his right to redeem a few kathas of land; but a finding adverse to the plaintiff in respect of such a right would not bar his claim in ejectment for the suit land. Of course, some material facts namely the facts relating to the three sale deeds, were common to both the suits; but "cause of action means all the material facts which the plaintiff has to allege and prove in order to succeed and, as pointed out earlier, some of the material facts were different in the two suits. Hence, it cannot be said that the cause of action were identical. 11. Mr. Jaleshwar Prasad then contended that, inasmuch as the claim for redemption is common to both the suits, the present suit must fail. On the other hand, Mr. Sinha rightly submitted that the cause of action in a redemption suit is a recurring one and a second redemption would fail only if the right of redemption had been extinguished by any act of the parties or by operation of law (see Subba Rao V/s. Raju, AIR 1950 FC 1). In the instant case, however, the fact whether the right of redemption had been really extinguished or not will depend on the finding whether the plaintiffs sale deed prevails over the disputed sale deeds of the contesting respondents. If the sale deeds of Mt. Indrasan Kuer and Ramsakal Singh were fraudulent, collusive and antedated, then they had no right to redeem the zarpeshgi dated 25-6-1942; and, if they got possession of the zarpeshgi land from the mortgagee, then they become trespassers. Hence, the plaintiffs claim in the present suit in respect of the zarpeshgi land is a claim in ejectment and the voluntary offer of the plaintiff to pay the zarpeshgi money cannot bar his claim for ejectment. On the other hand, if it is found that the sale deeds of Indrasan Kuer and Ramsakal Singh are not fraudulent or antedated and they shall prevail over the plaintiffs sale deed, then it will necessarily follow that the right of redemption has been extinguished and Indrasan or Ramsakal is not a trespasser. On the other hand, if it is found that the sale deeds of Indrasan Kuer and Ramsakal Singh are not fraudulent or antedated and they shall prevail over the plaintiffs sale deed, then it will necessarily follow that the right of redemption has been extinguished and Indrasan or Ramsakal is not a trespasser. But, as I have decided to remand the case to the Court below, it is not possible to anticipate the finding regarding the plaintiffs plea of fraud; and, therefore, it is not possible to decide the last contention of Mr. Jaleshwar Prasad at this stage. 12. The next question for consideration is whether the second appeal is concluded by findings of fact. Mr. Lalnarain Sinha submitted that the learned Additional District Judge did not consider at all some of the important facts, on the basis of which the trial Judge came to the. conclusion that the two sale deeds in favour of Indrasan Kuer and Ramsakal Singh were antedated, collusive and fradulent; he considered each of the other facts separately, without considering the cumulative effect of all the facts; and he came to the conclusion that the plaintiff failed to establish fraud. In such a situation, Mr. Sinha contended, inference of fraud or absence of fraud is a question of law; and the learned Additional District Judge ought to have come to the finding that all the established facts, taken together could not be explained on any hypothesis other than fraud; his finding to the contrary is wrong in law, and the appeal should be allowed and the suit decreed by this Court. In the alternative, he submitted that even, if the process of inference adopted by the Court below is an inference of fact, then the finding of the lower appellate Court is vitiated by (a) complete non-consideration of some of the important factors considered by the trial Judge, (b) the first appellate Courts failure to draw any inference whatsoever from some of the other important factors mentioned in the appellate Judgment, and (c) the appellate Courts misapprehension of the nature of the criticisms in regard to some of the factors. 13. In support of his contentions, he relied on several decisions. In Sree Meenakshi Mills, Madurai V/s. The Commissioner of Income-tax. 13. In support of his contentions, he relied on several decisions. In Sree Meenakshi Mills, Madurai V/s. The Commissioner of Income-tax. Madras, 1956 SCR 691 : ( AIR 1957 SC 49 ), their Lordships of the Supreme Court said: "When a conclusion has been reached on an appreciation of a number of facts established by the evidence, whether that is sound or not must bo determined not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting in the picture as a whole". Then their Lordships discussed certain decisions of the Privy Council as to when a Court of second appeal having authority to review decisions of the lower appellate Court on a question of law could interfere with its findings of fact, and quoted with approval the following principles laid down by the Privy Council in Wali Mahomed V/s. Mahomed Bakhsh, 57 Ind App 86: (AIR 1930 PC 91): "(1) There is no jurisdiction to entertain a second appeal on the ground of erroneous finding, of facts, however gross the error may seem to be. (2) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact." In Dr. R.P. Ghosh V/s. B. and N.W. Rly. Co. Ltd. AIR 1943 Pat 177, a Bench of this Court said that, where the judgment of the first appellate court is one of reversal and the finding which it has arrived at is in the nature of an inference from the facts and circumstances of the case, its failure to take into consideration the very facts and circumstances upon which the findings of the trial court were based amounts to such an error as would justify the High Court in second appeal in interfering with the decision of the first appellate court. In Ishar Singh V/s. Gajadhar Prasad Singh, 1956 B L J R 745 ; ( AIR 1957 Pat 174 ), another Bench of this Court said, where the first appellate court takes into consideration only a portion of the evidence of a party, and leaves out material portions of his evidence to the contrary, its finding based on consideration of such a portion of the evidence of the party, after omitting the material portion, will not be binding in second appeal on the High Court. On the other hand, the learned Advocate General relied on a decision of the Supreme Court in Ramchandra V/s. Ramalingam AIR 1963 SC 302 . While dealing with Sec.100(1)(d) of the Code of Civil Procedure, their Lordships of the Supreme Court said: "The defect or error must be substantial--that is one fact to remember; and the substantial error or defect should be such as may possibly have! produced error or defect in the decision of the case upon the merits--that is another fact to be borne in mind. The error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to, the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits .... On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result substantially, of this wrong approach, that may be regarded as a defect in procedure; if in dealing with questions of fact, the lower appellate court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate court fails to consider an issue which had been tried and found upon by the trial Court and proceeds to reverse the trial Courts decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure," But the examples of an error or defect in procedure given in this observation are not exhaustive. If, for instance, the lower appellate Court ignores some, material evidence, which might possibly have the effect of reversing the conclusion, it would be an error of defect in procedure of the same category as the discarding of evidence on the ground that it is inadmissible. The learned Advocate General then submitted that the question of inference of fraud or the absence of fraud from the circumstances arises only when there is no direct evidence regarding the same. This proposition of law was not challenged by Mr. Lalnarain Sinha. In Raja Singh V/s. Chaichoo Singh, AIR 1940 Pat 201 a Bench of this Court summarised the legal position. It was held that where the evidence is direct, the finding of fraud may be a pure finding of fact; but where there is no direct evidence but only an inference, then the finding involves the legal question as to whether the circumstances are such that the necessary inference can legally be derived. The criterion applicable to circumstantial evidence in order to draw an inference of fraud is that the circumstances must exclude every reasonable possibility except that of fraud. Where the lower court errs in applying this criterion the second Appellate Court is entitled to interfere. It was further observed that where fraud is to be inferred from the circumstances and is not directly proved, those circumstances must be such as to exclude any other reasonable possibility. The criterion is similar to that which is applicable to circumstantial evidence in criminal cases. 14. Mr. It was further observed that where fraud is to be inferred from the circumstances and is not directly proved, those circumstances must be such as to exclude any other reasonable possibility. The criterion is similar to that which is applicable to circumstantial evidence in criminal cases. 14. Mr. Lalnarain Sinha submitted that the learned Additional District Judge has in fact omitted to consider some material facts and circumstances, and each of the other facts considered by him was considered in isolation, without applying his mind to the cumulative effect of all the facts; and; therefore, he had committed an error of law. He also submitted that the finding regarding absence of fraud was not based on direct evidence. 15. Some of the important facts found by the trial court are these: (1) There was a long gap of about five months between the purchase of stamps dated 12-8-1944 for the sale deeds of Indrasan Kuer and Ramsakal Singh and the apparent date, viz., 12-1-1945 of the execution of these sale deeds. The trial Court did not accept the explanation that this gap was due to the fact that executant Nandkishore was out in service and the sale deeds had to be executed after his return from service. (2) There was no good reason to purchase stamps for these two sale deeds from Barharia village sub-registry office on 12-8-1944 during the rainy season, when they were to be written, executed and registered at Siwan sub-divisional registry office. (3) The, stamp vendor selected for the purchase of stamps at Barharia was one Ganesh Prasad, who had the reputation of selling antedated stamps as appears from the document, Exts. 10 series. (4) The consideration money, viz, Rs. 5000, of the two sale deeds taken together was grossly inadequate. (5) There was no evidence about the purchase. of stamps on 12-8-1944. (6) Four stamps of lower denominations were purchased for each of the two sale deeds of Indrasan Kuer and Ramsakal Singh, because stamps for one sale deed for Rs. 5000 would have necessitated: purchase of stamps from Saran Treasury. lathis connection, the trial court also relied on the fact that the persons in whose names the two sale deeds were taken were members of the same joint family; and the contract pleaded by Indrasan and Ramsakal was a single transaction for Rs. 5000 for the entire suit property. 5000 would have necessitated: purchase of stamps from Saran Treasury. lathis connection, the trial court also relied on the fact that the persons in whose names the two sale deeds were taken were members of the same joint family; and the contract pleaded by Indrasan and Ramsakal was a single transaction for Rs. 5000 for the entire suit property. (7) There was delay of at least forty days between the alleged date (12-1-1945) of the execution of the two sale deeds and the date (22-2-1945) of their presentation for registration at Siwan, The explanation given for this delay was that the documents could not be presented for registration on the date of execution as it had become late that day and thereafter the executants left the same evening for their village home and both remained ill for the identical period of forty days; but this explanation was rejected by the trial court. 16. But it appears that the learned Additional District Judge did not at all consider the material facts, Nos. (4), (5) and (6). The other facts were, of course, considered by the learned Judge; but he had not considered them in their true perspective and he did not at all consider the cumulative effect of all the facts and circumstances. For instance, the learned Judge has observed that the long gap of about five months between the date of the purchase of stamps and the date of the execution of the sale deeds in favour of Indrasan and Ramsakal, even if the explanation given be not accepted, cannot be a sufficient circumstance to find that the two sale deeds were antedated. He has then observed that the purchase of the stamps from Ganesh Prasad at Barharia may give rise to some suspicion, but "in my opinion, this suspicion, in absence of any other evidence, is not sufficient" to find that the stamps had been antedated and the sale deeds had in fact been fraudulent and antedated. (See paragraph 13 of the judgment). (See paragraph 13 of the judgment). Again, in paragraph 21 of this judgment, the learned Judge has observed: "If the explanation for the long gap between the date of purchase of the stamp and the date of the execution of the sale deeds, the long gap between the date of the execution of the sale deeds and the date of registration is not accepted then these and the further fact that the stamp was purchased at Barharia, no doubt, create some suspicion; but in face of the positive evidence of the scribe and the attesting witnesses, these circumstances are not sufficient to warrant finding that the sale deeds in favour of the defendants were fraudulent or antedated." Regarding the finding of the trial court that a grossly inadequate price was mentioned in the sale deeds of Indrasan Kuer and Ramsakal Singh, the learned Addl. Dist. Judge observed that if the lands were of the value of Rs. 2000 per bigha, the total value of the vended area would be near about Rs. 25,000, and in that case the sale deed of the plaintiff was also for inadequate consideration. What the learned Subordinate Judge had done was that he considered the sale rates contained in several documents, one of which was in respect of a portion of the suit land, of 1931, 1948 and 1955 along with the evidence of P. W. 5 and then found that the entire suit land was worth much more than Rs. 5000, the consideration mentioned in the two sale deeds in dispute. It is, therefore, evident that he did not value the suit land at Rs. 2000 per bigha. Further, the inadequacy of the consideration of the plaintiffs sale deed cannot be a ground for ignoring the finding of the trial Judge regarding the grossly inadequate consideration of the two sale deeds in dispute, particularly, when the consideration in the plaintiffs sale deed is almost double. Mr. Sinha was, therefore, justified in his submission that there was a complete misapprehension oi the evidence by the Additional District Judge on this point. Then, there is an important admission of D.W. 17 which the learned Judge did not consider in dealing with the inference drawn by the trial court regarding the purchase of stamps of lower denominations at Barharia. Sinha was, therefore, justified in his submission that there was a complete misapprehension oi the evidence by the Additional District Judge on this point. Then, there is an important admission of D.W. 17 which the learned Judge did not consider in dealing with the inference drawn by the trial court regarding the purchase of stamps of lower denominations at Barharia. In paragraph 13 of the judgment, the learned Judge has referred to the evidence of D.W. 17 that the two sale deeds were taken in order, to avoid complications in future and has accepted this explanation; but he has not considered what those complications might be. Of the two disputed sale deeds one is in the name of Sreekishun, deceased husband of Indrasan Kuer, and the other in the name of Ramsakal. D. W. 17 admits that they were all members of a joint family and he took the sale deeds in the name of Sreekishun and Ramsakal. Hence, his explanation that two sale deeds were taken in the names of two pattidars to avoid "future trouble" is not at all plausible. 17. Regarding the delay of about forty days between the execution of the two sale deeds and their presentation for registration, the learned Judge did not differ from the trial court that the explanation given was not tenable, but he observed: "The long gap between the execution and the registration of the deeds, even if unexplained, only creates a suspicion; but in my opinion, this suspicion is not by itself, sufficient to find that the pale deeds were really antedated." The above facts support the contention of Mr. Sinha, and they are sufficient to justify a remand of the appeal to the court below. 18 The learned Advocate General, however submitted that the decision of the learned Additional District Judge cannot be challenged in second appeal, because it is based on findings of fact. He argued that the finding regarding absence of fraud is based on direct evidence and it does not amount to an inference from circumstances. In this connection, he referred to the discussion of the evidence in paragraph 17 of the judgment of the learned Additional District Judge. He argued that the finding regarding absence of fraud is based on direct evidence and it does not amount to an inference from circumstances. In this connection, he referred to the discussion of the evidence in paragraph 17 of the judgment of the learned Additional District Judge. There the learned Judge has referred to the evidence of Baleshwar Prasad (D. W. 5), scribe of one of the two sale deeds, and the evidence of Jamil Ahmad (D.W. 6) and Zaquir Ali (D. W. 7), the attesting witnesses to both the sale deeds. The learned Judge considered these witnesses to be most competent to speak about the execution of the sale deeds, and, on their evidence, he was of the opinion that the two documents were not antedated. He has referred to the evidence of these witnesses that, as the parties were in a hurry, the two sale deeds were scribed simultaneously by the two scribes who used to sit together particularly when the documents were presented for registration about forty days after the date of the execution. Mr. Sinha submitted that, if there was such a hurry, there was no reason why the executants cr the vendees would go home from Siwan after the execution and not stay on till the next day for presentation of the documents before the Sub- Registrar. It is not desirable for me to express any opinion on this submission of Mr. Sinha at this stage. But it is not possible to accept the contention of the learned Advocate General because the mere fact that the learned Judge acted on the evidence of the aforesaid three witnesses cannot make his conclusion a finding of fact. It is remarkable that, in spite of the challenge by the plaintiff appellant, the stamp-vendor, Ganesh Prasad, or the other scribe was not examined. For obvious reason, the plaintiff appellant could not have examined either of them. He made an attempt to get the register of the stamp-vendor, Ganesh Prasad, to show that the sale of the stamps was antedated; but, as pointed out by the learned Additional Subordinate Judge, he could not succeed, because the register of Ganesh Prasad had already been sent by the Treasury Officer to some Court. He made an attempt to get the register of the stamp-vendor, Ganesh Prasad, to show that the sale of the stamps was antedated; but, as pointed out by the learned Additional Subordinate Judge, he could not succeed, because the register of Ganesh Prasad had already been sent by the Treasury Officer to some Court. Further, a finding based on the evidence of the scribe and the attesting witnesses of a document can be said to be a finding based on direct evidence, In the aforesaid Fatna case of Raja Singh, AIR 1940 Pat 201, there was a dispute regarding a deed of gift, and the plaintiff sued for a declaration that the deed of gift was void on the ground that the donee had fraudulently got it executed by the donor. His Lordship, Meredith, J. while discussing the finding of the first appellate Court said.: "In this case the fraud alleged is a misrepresentation to Titai that he was executing a lease whereas, in fact the document he was executing was a deed of gift. The fraud, if any, therefore, consisted in a direct misrepresentation of fact. Of this there was no direct evidence, no one came forward to prove any misrepresentation and Titai himself was dead. The only direct evidence in the case was the evidence of the scribe and the attesting witness that the document was read over to Titai and that he executed it knowing it to be a deed of gift. A finding of fraud could, therefore, be based only upon an examination of the circumstances; and it is obvious that upon none of the circumstances specified could any direct inference of misrepresentation be based. The finding of misrepresentation, if arrived at all, could only be from a consideration of the circumstances as a whole........ The legal error of the lower Appellate Court in the present case is with regard to the criterion applicable where fraud is attempted to be proved not by direct but by circumstantial evidence". It will be noticed that in that case too the only direct evidence was the evidence of the scribe and the attesting witness, but his Lordship said that the plea of fraud had to be proved by circumstantial evidence. It will be noticed that in that case too the only direct evidence was the evidence of the scribe and the attesting witness, but his Lordship said that the plea of fraud had to be proved by circumstantial evidence. Similarly, in the instant case, the plaintiff appellant could prove fraud by circumstantial evidence, and it was impossible for him to adduce any direct evidence in proof of that plea. The contention of the learned Advocate General must, therefore, fail. 19 Mr. Sinha submitted that this Court should decide the suit finally after considering all the circumstantial evidence on the record and the cumulative effect thereof. In this connection, he referred to several other facts. But in the circumstances of the case, I do not consider it proper to decide the suit finally. 20. In the result, this appeal is allowed and the case is remitted to the Court below for deciding the first appeal in accordance with law, after hearing the parties again. In the circumstances, of the case, the first appeal should be heard either by the District Judge or by any other Additional District Judge. Costs will abide the result.