1. The plaintiff-respondent and his brother Gulabchand were the owners of fields bearing survey Nos. 11, 12, 13, 14, 15 and 16 situated within the limits of the village Gota in Sabarkanta district. They sold survey numbers 11, 13, 14, 15 and 16 to deceased Becharbhai Lavjibhai and Patel Becharbhai Nathabhai by the sale deed executed on 18-1-1954. A few years after the execution of the above sale deed plaintiff's brother Gulabchand died. According to the sale deed, survey Nos. 11, 13 and 15 are bagayat lands; whereas the rest of the survey numbers comprised of jirayat lands. According to the plaintiff, the purchasers of the aforesaid lands had no right to draw water from the well situated in survey No. 12 which continued to remain in possession of the plaintiff, In spite of the above position, the purchasers installed a pump on the above well for the purpose of drawing water for irrigating their own lands. They also wanted to make construction near the well. The plaintiff, therefore, filed a suit being civil suit No. 64 of 1968 in the court of the Civil judge, Junior Division, Idar to obtain an injunction restraining the aforesaid persons from drawing water from the suit well and from installing the water pump on the suit well and making any construction near the well.
2. The defendants by their written statement Exh. 31 denied the suit. According to them, they had purchased the lands in question with a right to draw water from the suit well. They had also contended that, the suit was barred by estoppel, laches and acquiescence.
3. The learned trial Judge dismissed the suit in so far as it related to the prayer for permanent injunction, restraining the defendants from taking water from the suit well by means of a Kos or Reuht. The rest of the suit was allowed. Being aggrieved by the decree of the trial Court, the plaintiff preferred an appeal to the court of the Joint Judge, Ahmedabad (Rural) at Himatnagar. The defendants had also filed cross-objections which were dismissed by the learned Judge. The appeal preferred by the plaintiff was allowed and all the reliefs asked for by him in the plaint were granted. Being aggrieved by the decree of the learned joint Judge the defendants have come in appeal. The appellant No. 1 (defendant No. 1) having died during the pendency of the appeal, his legal representatives have been brought on record.
4. The fate of the suit as well as this appeal depends on the construction of the sale deed executed by the respondent and his deceased brother in favour of the defendants. As it has not been specifically stated in the sale deed Exh. 68 that, the defendants had a right to draw water from the suit well, the parties were allowed to adduce evidence to facilitate the construction of the sale deed. It is argued by the learned advocate for the appellants that, the construction of a document raises a question of law and hence, it would be open to the court to consider not only the sale deed but also the relevant evidence on record for the purpose of finding out whether, the defendants; were given any right to draw water from the suit well, The learned advocate for the respondent has, however, relying on the decisions in the case of Gurunath v. Suryakant (AIR 1940 Bom 225) and Basudev Das v. Somenath Das (AIR 1964 Ori 63), argued that, the finding of the learned Joint Judge on the construction of the sale deed on the basis of the evidence an record is a finding of fact and hence, it cannot be interfered with in a Second Appeal.
5. According to the decision of the Supreme Court in the case of Chunilal V. Mehta v. C. S. & M. Co. Ltd. (AIR 1962 SC 1314) it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. In the case of Bhusawal Municipality v. A. E. Co. Ltd, (AIR 1966 SC 1652) it has been laid down that "Misconstruction of a document which is not merely of evidentiary value but is one upon which the claim of a party is based would be an error of law and the High Court in second appeal would be entitled to correct it". In view of the above decisions and other decisions of the Supreme Court, it would be open to construe the sale deed Exh.68 for the purpose of finding out whether, according to the sale deed, any right to draw water was also transferred to the defendants. The learned advocate for the respondent also concedes the above point, but, according to him, in view of the peculiar circumstances of the case mentioned above, the finding of the learned Joint judge on the point based on the interpretation of the sale deed Exh. 68 in the light of the extrinsic evidence on record, is a finding of fact and hence, it cannot be interfered with in a second appeal.
6. Before I proceed to consider the authorities cited by him in support of his above contention, I may point out that, according to proviso (6) to Section 92 of the Indian Evidence Act, it is permissible to construe the sale deed in question in the light of the evidence adduced by the parties on the point. The above position is also not disputed by the learned advocate for the respondent, and if any authority is needed on the point it is provided by the decision of the Supreme Court in the case of Abdulla Ahmed v Animendra Kissen (AIR 1950 SC 15). The proviso (6) to Section 92 of the Indian Evidence Act reads as under:
"Any fact may be proved which shows in what manner the language of a document is related to existing facts."
In the case of Abdulla Ahmed (supra) the Supreme Court has observed:
"Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument."
In view of the clear provisions of Section 92 of the Indian Evidence Act, and the aforesaid decision of the Supreme Court it becomes evident that, extrinsic evidence can be taken into consideration for the purpose of construction of the sale deed Exh. 68 in this case. Now, according to the decisions of the Supreme Court, referred to above, the' construction of a document raises a question of law and hence, in view of Section 100 of the Civil Procedure Code, that question can be considered in a second appeal. Once the above position is accepted, there is no reason as to why, extrinsic evidence as contemplated by Section 92 of the Indian Evidence Act should not be taken into consideration for the purpose of construction of a document of title in a second appeal. In the present case, the learned Joint judge has construed the sale deed Exh. 68 in a articular manner in the light of extrinsic evidence. Under these circumstances, in order to find out whether, his interpretation of the deed is correct or otherwise, it is absolutely necessary for me to construe the sale deed with the aid of extrinsic evidence. It would be extremely difficult to give a correct finding on the point or to take a different view in the matter by construing the sale deed merely on the basis of its recitals especially when, it is essential and there is no legal bar to take the aid of extrinsic evidence for the construction of the deed. As observed above, construction of a document raises a question of law and when, according to the law of evidence, it is permissible to take the aid of extrinsic evidence for the purpose of construction of a document of title, it does not stand to reason to say that, construction of such a document with the aid of extrinsic evidence does not raise a question of law.
7. The above position does not seem to have been considered by the Division Bench of the Orissa High Court in the case of Basudev Das AIR 1964 On 63 (supra). In that case, there was a question of construction of a sale certificate. The two lower courts relying on the relevant evidence on the record, took the view that, the sale certificate actually related to survey No. 185 and that there was a misdiscription of the plot by giving the wrong survey number 186. The learned Single Judge of that court however, took a contrary view and reversed the Judgments of the two lower courts. In appeal the Division Bench observed:
"The limitations of the High Court in second appeal have been reiterated in several decisions of the Supreme Court including the latest, unreported decision in Ramchandra Iyer v. Ramalingam Chettiar, Civil Appeal No. 284 of 19-59, D/- 10-8-1962 = (AIR 1963 SC 302). It has been laid down that a mere finding of fact cannot be interfered with however gross and inexcusable it may be. It is true that the sale certificate (Exh. B) is a document of title and the construction of a document of title has always been held to be a question of law. But in the present case, the question is not merely one of construction of a document of title, it is a case of construing a document in the light of extrinsic evidence adduced by the parties, namely the evidence of D. W. 1. Appreciation of the evidence of D. W. 1 will be a simple question of fact. It is true that he is the husband of defendant No. 2 and is a highly interested party but once the two courts of fact have believed the testimony and construed the sale certificate in the light of his evidence, it is difficult to say that any question of law arises."
It will appear from the above observations that, even though, according to the learned Judges, the construction of a document of title was a question of law, they took the view that, when a document is to be construed in the light of extrinsic evidence, it is not a question of law. They have not given any reasons as to why the construction of a document in the light of extrinsic evidence is not a question of law. In this connection, I have already pointed out that, according to the provisions of Section 92 of the Indian Evidence Act, extrinsic evidence can be looked into for the purpose of construction of a document of title. In view of the above clear provisions of the law, there is no reason to take the view that, the construction of a document of title would cease to be a question of law, if for the purpose of construction of that document aid of extrinsic evidence is taken. It should further be remembered that, if the above view of the Orissa High Court is accepted, the High Court would never be in a position to determine the correctness or otherwise of a finding of the lower appellate court in a case like the present one and this would lead to absurd results. According to me, for the purpose of attracting the provisions of Section 100 of the Civil Procedure Code, no distinction can be made in the construction of a document merely on the basis of its contents and the construction of that document with the aid of extrinsic evidence. I am, therefore, unable with respect to the learned Judges of the Division Bench, of the High Court of Orissa, to agree with their view in the case of Vasudev Das (supra).
8. The decision of a Single Judge of the Bombay High Court in the case of Gurunath v. Suryakant (Second Appeal No. 713 of 1934 (Bom.)) (supra) on which reliance is placed by the learned advocate for the respondent does not support his above argument on the point. In the above case the dispute related to the right of the plaintiff-respondents to redeem certain mortgages created over certain properties which at one time formed part of their joint family property. It was the case of the plaintiff that, the right to redeem the mortgages subsisted in them alone in as much as the properties comprised in the documents had been allotted to their share upon a family division, evidenced by certain awards of September 1877. The counter-version was that those awards were ineffective to create a title to those properties in the plaintiffs exclusively inasmuch as they were not made decrees of the court and not acted upon and that the right to redemption was barred by the adverse possession. Both the courts below found that the awards were acted upon as far as practicable, except where the claim founded upon them had in one or two instances not been recognized in a suit to enforce those awards and that the parties were divided since the date of the awards, that is, in September 1877. When the matter went to the High Court in second appeal, it took the view:
"That finding, if it were based purely upon the legal effect of the awards, could be questioned in second appeal. But it was based upon certain admissions and other evidence of contemporaneous acts suggesting that the awards synchronized with the date of the actual separation. That finding being a finding of fact must therefore be accepted in these appeals." It does not appear from the judgment in the above case that, it involved the question of construction of any document. There is no reference to Section 92 of the Indian Evidence Act in the judgment of Wassoodev J. It appears that, the particular finding that was challenged was based not only upon the legal effect of the awards but, also on certain admissions and other evidence of contemporaneous acts suggesting that the awards synchronized with the date of the actual separation. Thus, in view of the peculiar circumstances of the case, it was held that, the finding of the lower appellate court on the above point was a finding of fact and hence, it must be accepted in a second appeal. This shows that, the above decision is not applicable to the point raised in this appeal as regards the construction of the document in the light of extrinsic evidence. For the reasons already mentioned I am of the view that, it is open to this court in a second appeal to construe the document of title in the light of extrinsic evidence as it involves a question of law as contemplated by Section 100 of the Civil Procedure Code.
9. Appeal allowed.