Bombay High Court

Ramesh vs Bhaskar on 28 October, 2010

Bench: S. S. Shinde

                             1




                                                           
                                   
                                  
        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   BENCH AT AURANGABAD.




                        
        CIVIL REVISION APPLICATION NO.228 OF 2004.

             
     Ramesh s/o Madhavrao Shelke,
     age 39 years, occu. Business,
     R/o Nava Navyavak Colony,
            
     Plot No.2/B,
     Bhimnagar, Bhavsingpura,
     Aurangabad,
     (Prop.of the firm M/s Swati Kirana
     and General Stores).
      

                                         ..PETITIONER.
                                     ( ORI. PLAINTIFF )
   



                          VERSUS

     Bhaskar s/o Seetaram Pradhan,
     age 30 yrs., Occu. Service,





     r/o H. No.160/NS/48,
     Bhimnagar,
     Bhausingpura,
     Aurangabad.                         ..RESPONDENTS.
                                     ( ORI. DEFENDANT )





                            ...
     Shri H.M. Karwa, Advocate for petitioner.
     Shri A.P. Bhandari, Advocate for Respondent.
                            ...




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                                      2

                                         CORAM: S.S. SHINDE,J.




                                                                   
                           RESERVED ON: 20th OCTOBER, 2010.




                                           
                        PRONOUNCED ON : 28th OCTOBER, 2010.


     JUDGMENT:

1. This revision application has been filed by

the petitioner - plaintiff against the judgment

and decree dated 14th October, 2004 passed by the

5th Joint C.J.J.D., ig Aurangabad in R.C.S. NO.

774/2003.

2. The revision petitioner (hereinafter

referred to as the petitioner) filed R.C.S. NO.

774 of 2003 before the Joint C.J.J.D.,

Aurangabad. The said suit was filed for recovery

of possession of the shop-cum-room, of which

description in detail has been given in paragraph

1 of the plaint. It is the contention o the

petitioner that the petitioner was forcefully

dispossessed from the suit premises. According

to the petitioner, he had obtained plot on which

the suit property is situated from the defendant

on lease @ Rs.600/- per month since 9.9.1998 and

constructed the structure thereon converting it

into the shop and he was running a grocery shop

under the name and style of "M/s Swati Kirana and

General Store" since 27th September, 1999 and for

construction of the premises, he incurred

expenses of Rs.65,000/- and as per agreed terms,

he has been paying the rent regularly up till

September, 2003. It is his contention that the

original defendant - respondent herein, in

collusion with the relatives of the defendant,

with an intention to evict the petitioner from

the suit property, started extending threats to

the plaintiff - petitioner to vacate the suit

shop from 20th August, 2003. It is further case

of the petitioner that he filed complaint before

the Police Commissioner on 20th August, 2003 and

also at Police Station, Cantonment, Aurangabad

but, no action was taken on the said complaints.

Finally on 7.10.2003 at about 9.30 a.m. whilst

the plaintiff was present in the suit shop, the

defendant with the aid of the police person and

other relatives of the defendant started throwing

the general and kirana goods on the street and

locked the shop by defendant and dispossessed the

plaintiff illegally from the suit property

without following due course of law. Therefore,

the petitioner filed civil suit with the

following prayer:

"The suit of the plaintiff may be decreed

with costs and plaintiff be put in possession of the suit shop from the defendant and oblige/"

According to the plaintiff / petitioner, the

said suit was filed under Section 6 of the

Specific Relief Act.

3. The 5th Joint C.J.J.D., Aurangabad by

judgment and order dated 14th October, 2004

dismissed the suit with costs. Aggrieved by the

said judgment and order, this civil revision

application has been filed by the petitioner /

plaintiff.

4. The learned Counsel appearing for the

petitioner invited my attention to paragraphs 1-

(a), 1(b), 2, 3 and 4 of the revision memo and

submitted that the revision petitioner and

respondents are close relatives and respondent

inducted the petitioner in possession on the oral

tenancy basis on the suit land with the monthly

rent of Rs.600/- from 9.9.1998. It is further

submitted that the rent was paid till September,

2003. It is further submitted that the

respondents have admitted that the petitioner is

tenant and it is evident from the para 4 of the

written statement of the respondent that "rent is

not paid after 2001 by the revision petitioner."

It is further argued that the defendant is police

constable and the same has been admitted in para

no.7 of the written statement of the respondent.

The learned Counsel invited my attention to the

complaint (Exh.46) dated 20th August, 2003 to the

Police Commissioner and submitted that since the

respondent was giving threats to the petitioner

asking him to vacate the suit premises, the said

complaint came to be filed. In pursuant to the

strained relations, the respondent was abusing

his position in police department and certain

other persons forcefully dispossessed the

petitioner from the suit premises and he forcibly

locked the suit premises. It is further

submitted that on 7.10.2003 i.e. on the date of

the incident itself, the petitioner had filed

complaint with the police station and the

panchanama vide Exh.33 was completed in between

3.30 to 4.30 p.m. whereas, the complaint which

had been received on 7.10.2003 has been

exhibited at Exh.39. According to the learned

Counsel for the petitioner, P.W.4 Dhanraj Namdeo

Pawar, police constable, Police Station, Chhawani

deposed that the police station officer received

the complaint on 7.10.2003 for investigation.

The said deposition remained unchallenged by the

defendant in cross-examination. The learned

Counsel further submitted that the contention of

the respondent that the petitioner vacated the

premises voluntarily and no taba pawati or

panchanama were done in the said matter, is

required to be rejected. It is further submitted

that under Section 6 of the Specific Relief Act,

1963 what is required to inquire by summary

proceeding is whether the person is dispossessed

without his consent of the immovable property

otherwise than in due course of law. There is no

appeal and review permitted against the decision

of the trial Court and the revision is not

prohibited by the legislation after the disposal

of the suit in trial Court. It is further

submitted that the trial Court committed

material irregularities and also exceeded its

jurisdiction while dismissing the suit of the

plaintiff / petitioner. The trial Court while

admitting on record that there is complaint dated

7th October, 2003, misguided itself that no

complaint was filed by the revision petitioner on

7.10.2003 and the said finding is perverse and

required to be interfered with. The further

observations of the trial Court that the articles

which have been thrown out from the shop, are not

thrown but kept to display in the shop is also

perverse finding. It is the case of the

petitioner that while forcefully dispossessing

the petitioner, the shop was locked by the

respondent at 9 a.m. and in ordinary course of

business no shopkeeper will display the goods on

the road out side the shop and nobody would

invite the panchanama for displaying the thrown

article. The fact that in pursuance of the

complaint on 7.10.2003, the panchanama was drawn

itself shows that there was no consent for

vacating the premises. The trial Court ought to

have held that there is no Taba Pawati /

possession receipt produced by the defence to

substantiate the contention that the petitioner

has voluntarily given possession of the suit

premises to the respondent. In certain

circumstances of the case when the relations are

strained, the better and most reliable evidence

would be ig to execute documentary evidence of

possession of the suit premises. In absence of

documentary evidence of the receipt of

possession, it is clear case of the adverse

inference against the defendant and it is

confirmed that forcefully petitioner has been

dispossessed on 7.10.2003. The learned Counsel,

in support of his contention, placed heavy

reliance on the reported judgment of the Supreme

Court in case of S.R. Ejaz v. The Tamil Nadu

Handloom Weavers Co-operative Society Ltd.,

reported in AIR 2002 SC 1152 and submitted that

the Supreme Court has clearly opined the nature

of evidence required in such a case. The facts

were eloquent and no further evidence was

necessary not anything was required to be re-

appreciated. It is to be stated that admittedly

there is no document to indicate that petitioner

willingly handed over the possession of the suit

premises. According to the Counsel for the

petitioner, if the petitioner had willingly

handed over the possession, he would not have

immediately lodged the criminal complaint and

made representation to the higher authorities for

taking action ig nor he would have filed a writ

petition for appropriate directions. The

learned Counsel further submitted that in view of

the aforesaid judgment of the Supreme Court, the

civil revision application deserves to be

allowed. He further invited my attention to the

pleadings in the plaint, the impugned judgment

and order, and other documents on the record and

submitted that the trial Court has travelled

beyond the prayers and pleadings and the issue

fallen for consideration and thereby recorded the

findings which were unwarranted and also some of

the findings are perverse and contrary to the

record. The trial Court has committed

irregularity and exceeded its jurisdiction while

entertaining the suit. He, therefore, submitted

that the civil revision application deserves to

be allowed.

5. On the other hand, the learned Counsel for

the respondent / defendant submitted that it is

the plaintiff who has claimed ownership of the

construction, though he has admitted ownership of

the defendant over the land. The Counsel for

respondent invited my attention to the paragraphs

3 to 6 of the plaint and submitted that such a

claim is beyond the scope of section 6 of the

Specific Relief Act and, therefore, the plaintiff

has prayed and pleaded beyond the scope of

section 6 of the said Act and the Court being a

competent court to try other issues, was not left

with any alternative but to give findings on the

issues raised by the petitioner and, therefore,

the stand of the petitioner that the trial Court

has travelled beyond the scope and pleadings is

required to be rejected. The petitioner has

failed to prove the contents and execution of the

complaint dated 20.8.2003 and has led contrary

evidence, showing the complaint was made on

7.10.2003. There is no averment in the plaint

that, on 7.10.2003, complaint was filed. The

learned Counsel invited my attention to the

written statement filed by the defendant and

submitted that the defendant has specifically

denied the forceful dispossession. It has been

stated in the written statement that as the

defendant was in arrears of rent and as the

parties are relatives, it was mutually agreed

that the plaintiff would vacate the premises and

defendant ig would not claim any rent. It is

pertinent to note that the parties to the

proceeding are relatives. Even, as per the

plaint there is no written agreement of tenancy,

no rent receipts are on record so as to establish

payment of the rent. The fact that rent was not

paid and it was mutually agreed to relinquish the

possession and arrears of rent has been stated.

The petitioner has not established payment of

rent on record.

The learned Counsel invited my attention to

the evidence of P.W.1 Ramesh s/o Madhavrao Shelke

and submitted that the petitioner has admitted

that the defendant is owner of the suit premises.

Though the petitioner has claimed ownership of

construction, no evidence in that regard was

produced on the record. If the petitioner claims

or desires to claim ownership, he is at liberty

to file separate suit for establishing title, if

so advised, in view of section 6(4) of the

Specific Relief Act, 1963. In para 6 of the

revision application, though it is stated that

the complaint was made on 20.8.2003 to Chhawani

Police Station, however, in plaint it is stated

that it was also made to the Commissioner. But,

the same is not established on record. In cross-

examination, P.W.1 has admitted that the parties

are relatives. The ownership of construction is

further agitated. However, the same is beyond the

scope of Section 6 of the Specific Relief Act.

The learned Counsel further invited my attention

to the evidence of P.W.4 Dhanraj Namdeo Pawar.

According to the learned Counsel for respndent,

this witness has proved the panchanama (Exh.35).

In cross-examination, this witness has admitted

that he did not find any damages to the articles

of the complainant as alleged by him. He further

deposed that he did not find truth in the

allegations of the complainant in the complaint

dated 7.10.2003. He further invited my attention

to the evidence of P.W.5 Kacharu Chavan and P.W.6

Kailas Khambat. It is stated that the

plaintiff's witness Kacharu Ambadas Thorat

stepped in the witness box and he has stated

that, on 20.8.2003 no complaint was filed by the

plaintiff in the police station. He further

admitted that as the said document was not there,

the same could not be produced.

ig The learned

Counsel also invited my attention to the evidence

of P.W.8 Digambar Shamrao Pagare and submitted

that this witness stated that the original of

complaint dated 20.8.2003 was not found. Digambar

stated that only the receipt of the same i.e.

endorsement was identified and it was the same

endorsement which was exhibited. The learned

Counsel further invited my attention to the

witnesses of the defendant and submitted that

they have established that the possession was

voluntarily delivered. The learned Counsel

further invited my attention to alleged

complaints at Exh.33 and 46, panchanama below

Exh.35 and submitted that these documents have

been considered properly by the trial Court and

the Court has arrived at the correct conclusion.

The learned Counsel referring to the

judgment of the Supreme Court in the case of

S.R. Ejaz (supra), submitted that there are

distinguishable factors in the case in hand and

in that case. In the case of S.R. Ejaz (supra),

the parties were not relatives, as is the case in

the present ig case. There the proceedings for

eviction were lodged and the evidence was

collected. Even writ petition was filed before

the High Court seeking directions for enquiry. In

the present case, no criminal case is pending. No

record was produced before the trial Court,

regarding such complaint. In that case, plea of

surrender on one hand and relinquishment of right

to claim arrears of rent was not taken and

established on record, as is done in the present

case. In the said case, on considering the facts

and circumstances of case, the High Court has

quashed impugned order and remitted the

proceedings back to the trial Court. It is

further submitted that it is settled position of

law that it is the plaintiff who has to prove his

case as per his evidence. He cannot rely upon

the alleged weakness in the defence. Here the

plaintiff himself has failed to prove the

forceful dispossession. The learned Counsel

invited my attention to para 4 of the reported

judgment in the case of Ramdas vs. Salim Ahmed,

reported in 1998(9) SCC 719. He further

submitted that the trial Court had the advantage

to see the conduct of the witnesses and normally

even the Court of Appeal would not interfere in

the appreciation of evidence by the trial Court.

The scope of revisional jurisdiction is further

limited. He placed reliance on the reported

judgment in the case of Madhusudandas Vs.

Narayanibai & others, reported in 1983 Mh.L.J.

402, wherein it is held that if there is a

conflict of oral evidence on the matter in issue

and its resolution turns upon the credibility of

the witnesses, the general rule is that, the

appellate Court should permit the finding of fact

of the trial Court to prevail. The learned

Counsel in order to support his contention that

there is very limited scope for exercising

revisional jurisdiction, relied on various

judgments of the Supreme Court as well as this

Court. He invited my attention to the

observations of the Apex Court in case of

Madhusudandas (supra) that, `the High Court

should also have reminded itself that the

witnesses had given their evidence before the

trial court which had the opportunity of seeing

their demeanour in the witness box and tho

appreciation of their evidence by the trial court

had to be given due consideration in the light of

that fact.' The learned Counsel invited my

attention to the reported judgment of the Supreme

Court in the case of Ramdas (supra) and more

particularly, para 4 of the said judgment. The

learned Counsel for the respondent, therefore,

would submit that once the finding of fact is

recorded by the Court below that there is no

forceful dispossession of the petitioner, this

Court may not interfere in revisional

jurisdiction in the findings of fact arrived at

by the Court below.

8. I have given due consideration to the

submissions of the learned Counsel for the

parties, perused the entire record made available

and also the civil revision application,

annexures thereto and various judgments cited on

behalf of the parties.

7. At the outset, it would be relevant to refer

some of the findings of facts recorded by the

trial Court. In para 4, trial Court framed the

following ig issues for its consideration /

determination:

" ISSUES FINDINGS.

I. Whether defendant proves

the surrender of possession and tenancy right by plaintiff in his favour? In affirmative.

II. Whether the plaintiff

proves that he has been illegally dispossessed by the defendant? In negative.

III. Whether the plaintiff is entitled to the relief

of possession? In negative.

IV. What order and decree? Suit is dismissed."

While answering Issue No.I, the trial Court

held that the defendant proves surrender of

possession and tenancy rights by the plaintiff in

his favour. While answering Issues No.II & III,

the Court held that the plaintiff failed to prove

that he has been illegally dispossessed by the

defendant and plaintiff is not entitled to the

relief of possession. In para 7, the trial Court

has recorded ig admitted facts; firstly, the

plaintiff and defendant are relatives; secondly,

description of the suit property, boundaries and

area thereof are not disputed by both parties;

thirdly, the existence of tenancy between

plaintiff and landlord and defendant qua-tenant

in the suit property as plaintiff in his

examination-in-chief has deposed that he is doing

business in the shop which is owned by the

defendant. Therefore, the petitioner - plaintiff

has admitted ownership of the defendant over the

suit property. In para 7, the Court has reached

to the conclusion that the petitioner - plaintiff

was monthly tenant of defendant in suit property

@ Rs.600/- per month. In the same para, the

Court has also reached to the conclusion that the

agreement of tenancy between plaintiff and

defendant was an oral one. The trial Court has

referred to Exhs.36, 39, 20 and reached to the

conclusion that the defendant has never issued

any rent receipt at all at any point of time in

favour of the plaintiff. The trial Court has

observed that the contention of the defendant

that there was mutual confidence and trust and

everything between the parties to the suit being

oral one and without complaint until the alleged

suit incident dated 7.10.2003. In such

circumstances, the trial Court agreed with the

defence submission that the facts and

circumstances are to be viewed with preponderance

of probability as it is a civil dispute and not

for strict proof as all the conduct of plaintiff

supports the defence theory. The trial Court, in

para 8 has dealt with Issues No.I and II after

appreciating the evidence brought on record by

the respective parties. The trial Court has

referred the evidence of plaintiff and observed

that in the deposition of plaintiff he has added

name of other persons along with defendant and

also referred to the assault by the defendant and

others to him. However, he has not stated that

the defendant / accompanying persons had put lock

to his said shop, though he has stated in his

plaint. The trial Court has also taken note that

no where in the plaint the plaintiff has

mentioned that he lodged complaint on 7.10.2003

itself. The trial Court has referred to the

evidence of P.W.4 Dhanraj from Chhawani Police

Station, ig who has deposed about receiving the

complaint of the petitioner on 7.10.2003. He in

his evidence has stated that he visited the spot

and drew spot panchanama in the presence of two

panchas i.e. Eknath Dnyandeo Wakhare and Shivaji

Gire. However, the panchanama prepared by the

P.W.4 in presence of two panchas, does not

support the case of the plaintiff that the

articles from the shop were thrown out by the

defendant and other persons. The defence

examined panch witness namely Eknath who stated

that the plaintiff voluntarily removed all

articles and put the defendant in possession of

the suit shop. The trial Court has extracted the

passage from the evidence of defence witness

Eknath Dnyandeo Wakhare D.W.2. He has fully

supported the case of the defendant that the

plaintiff has voluntarily removed his own

articles from the grocery shop and kept outside,

waited for transportation and thus, voluntarily

handed over possession of the suit premises

because of his inability to pay rent since

January, 2002. The trial Court has observed that

the evidence of D.W.2 remained un-shattered, both

in his cross-examination and that of defendant as

well. The Court has also observed about the

evidence of D.W.3 Santosh Paraji Lokhande, who

has stated, "I have correctly stated in my

affidavit (Ex.18) that on 7/10/2003 plaintiff

told to the defendant that he is in arrears of

rent and could not pay it. Not true to say that

myself and defendant have forcibly dispossessed

the suit property by throwing plaintiff's

articles outside it. Not true to say that out of

friendly relations I helped defendant for

illegally dispossessing the plaintiff from suit

property." The trial Court has also referred to

the evidence of other witnesses. The trial

Court, while appreciating the arguments of the

Counsel for the defence, observed that the case

in hand is required to be considered from the

angle that the parties were relatives, tenancy

was oral, payment of rent oral, mutual confidence

and trust, there was no rule of law, or a

straight jacket formula that pavti/possession was

just and necessary to be executed, and therefore,

this case stands on different footings than the

cases in which there is a written agreement, rent

is paid and receipts are given.

ig The trial Court,

ultimately, reached to the conclusion that D.W.2

Eknath Dnyandeo Vakhre and D.W.3 Santosh Paraji

Lokhande reside and carry business in same suit

locality and their presence in said locality is

very natural, probable and trustworthy and

knowing both plaintiff and defendant (all traders

are of same community), have not supported the

case of the plaintiff and deposed in favour of

the defendant. They are independent witnesses of

the locality whose presence is very natural,

probable and proved, whereas, P.W.4 Dhanraj who

is witness of plaintiff has not brought anything

on record to show that D.Ws.2 and 3 are not

trustworthy witnesses. The trial Court has also

referred to the examination-in-chief and cross-

examination of the P.W.4 Dhanraj and observed

that in his examination-in-chief (Exh.32), page

1, last two lines, he deposed, "I had observed

the spot of the incident as well as place

surrounding to the place of incident and also

interrogated the neighbourer of the place of the

incident." In his cross-examination Exh.32, page

2, para no.2, admitted that, "I did not find

truth in the allegations of the complainant (here

present plaintiff) as alleged by him. I did not

find any truth in the allegations of the

complaint in the complaint dtd. 7-10-2003." P.W.4

was witness called by the plaintiff and hence his

evidence has to be acted and relied upon since

the report / complaint was lodged with him at

Exh.33 and recording of spot panchanama was done

by him.

8. The relevant facts, which are required to be

mentioned, are that the plaintiff has pleaded and

tried to establish that the ownership of the

construction lies with him. However, he has not

produced any evidence on record and it was not

within the scope of section 6 of the Specific

Relief Act. On perusal of the entire material on

record, it clearly emerges that the parties are

relatives, there is no written agreement of

tenancy, no written rent receipts. It also

emerges from the judgment of the trial Court and

from the evidence brought on record that the

plaintiff has failed to prove his complaint dated

20th August, 2003 which he claims to have been

filed with ig the Commissioner of Police. It

further emerges that the plaintiff has failed to

prove forcible dispossession through witnesses,

panchanama or any other evidence. The trial

Court, after appreciating the entire evidence

brought on record, has reached to the findings of

fact that there was no forcible dispossession of

the plaintiff from the suit premises by the

respondent and other persons. As discussed herein

above, the trial Court has elaborately discussed

the evidence of the witnesses of both sides and

found that the P.W.4 who was examined on behalf

of the plaintiff did not support the case of the

plaintiff, inasmuch as, while recording the

pancnahama the P.W.4 has categorically stated

that he did not find that the articles from the

suit shop were forcibly thrown out. Rather, those

were displayed outside the shop properly. The

D.Ws.2 and 3, who are panch witnesses and natural

witnesses at the spot since they are from the

same vicinity, have deposed against the

plaintiff. Therefore, the trial Court, after

framing necessary issues, has reached to definite

finding of fact that there was no forcible

dispossession of the plaintiff by respondent and

others, as alleged by the plaintiff.

9. As far as the contention of the learned

Counsel for the petitioner that the trial Court

has travelled beyond the issue involved in the

suit is concerned, on perusal of the pleadings in

the plaint, it appears that the plaintiff claimed

that he is owner of the suit premises since he

has spent money for construction of the suit

premises. Therefore, the plaintiff has invited

the findings on the said issues and for that, he

cannot blame the defendant or the court. While

exercising revisional jurisdiction, this Court

has to keep in mind the scope of Section 115 of

the Code of Civil Procedure.

In case of M.L. Sethi v/s Shri R.P. Kapoor,

reported in A.I.R. 1972 SC 2379, the Supreme

Court has observed that even gross errors of

facts and law cannot be gone into in revisional

jurisdiction. Yet, in another judgment in case

of DLF Housing & Constructions Co. (P) Ltd. v/s

Saroopsing and others, reported in AIR 1971 SC

2324, the ig Supreme Court held that while

exercising revisional jurisdiction under Section

115, it is not competent to the High Court to

correct errors of fact however gross or even

errors of law unless the errors have relation to

the jurisdiction of the Court to try the dispute

itself. Yet in another judgment in the case of

Managing Director (MIG) Hindustan Aeronautics

Ltd., Balanagar Hyderabad and another v/s Ajit

Prasad Tarway, Manager (Purchase and Stores)

Hindustan Aeronautics Ltd., Balanagar Hyderabad,

reported in AIR 1973 SC 76, the Honourable

Supreme Court held that revisional Court can only

see whether the Court below had jurisdiction. If

it had jurisdiction to entertain the proceedings,

the High Court cannot interfere. In the case of

Harishankar and others vs. Rao Giridhari Lal

Chowdhary, reported in AIR 1963 SC 698, the

Supreme Court has distinguished between right of

appeal and right of revision and held that, scope

of revisional jurisdiction is limited. Yet in

another judgment in the case of Faijulbee Hajeel

& others vs. Yadali Amir Shaikh Ansari, reported

in 1984(2) Bom.C.R. 253, the Division Bench of

this Court held that the decision on question of

facts is not amenable to revisional jurisdiction

of the High Court. In the judgment in case of

Sanjay Kumar Pandey and others v/s Gulabhar

Sheikh and others, reported in AIR 2004 SC 3354,

the Supreme Court held that the revisional court

cannot refer to part of the evidence and reverse

the findings of the fact. In paragraphs 4 and 5

, the Court has clarified that the revisional

jurisdiction would be exercised in exceptional

circumstances and normally the party should file

independent suit to establish title.

10. In the important judgment of the Honourable

Supreme Court in case of Madhusudandas (supra),

in para 18, it is observed, thus:

"18 The High Court disagreed with the trial court and held that the adoption

had not been established. In doing so, it adopted an approach which, to our mind, is plainly erroneous. It

proceeded to judge the credibility of the witnesses mainly with reference to their relationship with the parties

without placing adequate weight on the nature ig of the evidence and the probability of its truth in the context of the surrounding circumstances. It

rejected the testimony of the appellant's witnesses substantially on the ground that they were related to

the appellant or out of favour with Narsinghdas. This consideration, in our

opinion, cannot by itself constitute a sufficient basis for discrediting the witnesses. We think the proper rule to

be that when a witness holds a position of relationship favouring the party producing him or of possible prejudice against the contesting party, it is

incumbent on the court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record. It is not open to the court to reject the evidence without anything