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1957 DIGILAW 71 (RAJ)

Gopibai v. Mangilal

1957-04-17

KANWAR BAHADUR, S.L.AHUJA

body1957
This revision is directed against an appellate order of the Additional Collector, Kotah, dated 27.2.56 which reversed an order of the Teshildar Antah, dated 13.11.54, in a case relating to the ownership of a bair tree situated in this area of village Tham Khera to which both the parties laid a claim. We have heard the learned counsel appearing for the parties and have also gone through the record. 2. The material facts of the case are that on 9.1.53 Mangilal opposite party submitted an application to the Tehsildar Antath alleging that his possession of a bair tree was being interfered with by the Daroga of Borahram Chandra. This application was apparently made under Art. 2, Group-E, Schedule I of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. Mangilal requested the Tehsildar to decided the question whether the tree belonged to him or to Shrimati Dakhabai and Shrimati Gopibai. This application was sent through the Inspector Land Records to the Patwari concerned in order to take measurements on the spot and to find out in whose field the tree in dispute was standing. In the presence of a large number of persons the Patwari measured the strip of the land in which the tree was standing and came to the conclusion that it belonged to Mangilal in whose field it was situated. 3. The Tehsildar issued a notice to the applicants and after recording the evidence adduced by the parties held that the tree in question belonged to the applicants. His decision was based on the ground that the applicants had adduced documentary proof from which it was abundantly clear that the tree in question had been purchased by a relation of theirs along with land measuring 15 bighas which was knocked down in his favour in the year 1934 at a public auction. A copy of the certificate relating to the sale of land and two bair trees was put in by the applicants in order to establish that the tree in question belonged to them. The learned Tehsildar did not discuss the evidence of the Patwari who was a material witness and who had measured the land at the spot in order to determine in whose land the tree in question was situated. 4. Aggrieved by the decision of the learned Tehsildar Mangilal went in appeal against it to the learned Additional Collector. The learned Tehsildar did not discuss the evidence of the Patwari who was a material witness and who had measured the land at the spot in order to determine in whose land the tree in question was situated. 4. Aggrieved by the decision of the learned Tehsildar Mangilal went in appeal against it to the learned Additional Collector. After going through the matter carefully and scrutinizing the evidence which was adduced by the parties the learned Additional Collector reversed the finding of the learned Tehsildar, mainly on two grounds, (1) the documentary evidence adduced by the applicants did not point to the conclusion that the tree in question belonged to them. A copy of the certificate which they had furnished did not relate to the tree in question nor did it specifically refer to khasra No. 98 in which the bair tree in dispute was located, (2) the evidence of the Patwari who had inspected the spot established clearly that the tree was located in the field of the opposite party. This field was not purchased by the applicants as the khasra numbers which were put in the sale certificate were entirely different and did not: tally with the khasra number of the field. 5. As the decision of the learned Additional Collector went against the applicants they have come up in revision to the Board impugning its validity, chiefly on the ground that in reaching a decision on the point at issue between the parties the learned Additional Collector had not properly weighed the documentary evidence adduced by them. 6. The learned counsel for the applicants in the course of argument invited our attention to a number of procedural mistakes which had been committed by the learned Tehsildar while dealing with the matter. They are (1) failure on his part to require the applicants to file a written statement; (2) omission on his part to require Mangilal to step into the witness-box in order to disclose the facts which were within his knowledge ; (3) the irregularity committed by the Patwari in taking measurements in the absence of the applicants ; and (4) failure on the part of Mangilal to furnish documentary proof on the point that the tree in question had been purchased by one of his fathers relations at an auction as was contended by his father in his statement before the learned Tehsildar. These mistakes did not affect the merits of the decision of the learned Tehsildar. The applicants did not make any attempt to question the correctness of the decision because it went in their favour. These mistakes cannot be raked up now in order to call in question the correctness of the order of the learned Additional Collector. It is against that order that the present revision is directed. 7. The contention of the learned counsel for the applicants that the learned Additional Collector had based his decision on conjecture and had not made any attempt to weigh the evidence adduced by the parties properly is clearly devoid of force. As is clear from the decision of the learned Additional Collector, the documentary evidence which had been adduced by the applicants and on which they had based their claim, could not be construed in their favour. This circumstance taken in conjunction with the evidence of the Patwari titled the balance against them. 8. On behalf of the opposite party it was urged that the grounds set fourth in the revision were exclusively directed against the correctness of the decision and not against the manner in which it was reached. The learned counsel for the opposite-party cited A.I.R. 1947 Calcutta page 28 in support of his contention that as the applicants had not been quite candid with the court inasmuch as they had not disclosed in the application of revision some of the essential matters upon which the decision of the case turned they were not entitled 10 pay indulgence. It was also pointed out that it was settled law that where a court had jurisdiction to determine a question and had determined that question it could not be said that it had acted with illegality or material irregularity merely because it had come to an erroneous decision on a question of fact or even of law Reliance was placed on Amar Hasan Khan vs. Shiv Bux Singh decided by their Lordships of the Privy Council in 1884. In the course of judgment their Lordships observed "the question then is, did the judges of the lower courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them (namely, whether the suit was barred by res judicata) and they did decide it. It appears that they had perfect jurisdiction to decide the question which was before them (namely, whether the suit was barred by res judicata) and they did decide it. Whether they decided it rightly or wrongly, they had jurisdiction to decide the case; and even if they decided it wrongly, they did not exercise their jurisdiction illegally or with material irregularity." 9. It was also contended that in the exercise of the revisional powers it was not within the province of the Board to enter into the merits of the evidence ; it had only to see whether the requirements of the law had been duly and properly obeyed by the court whose order was the subject of revision and whether the irregularity as to failure or exercise of jurisdiction was such as would justify interference with the order. A.I.R. 1951 Supreme Court, page 23, A.I.R. 1955 Ajmer, page 2b, A.I.R. 1955 Allahabad, page 666 were cited in support of the proposition that the words illegally or with material irregularity did not cover either errors of fact or law. They did not refer to the decision arrived at but to the manner in which it was reached. The errors contemplated related to material defects of procedure and not to errors either of law or facts, after the formalities that the law prescribed had been complied with. 10. Applying these principles to the facts of the present case we are clearly of opinion that the learned Additional Collector did not commit any illegality or material irregularity in reaching a decision that the ownership of the tree did not vest in the applicants. The revision is clearly without substance and is, therefore, rejected. In the result the order of the learned Additional Collector is confirmed.