ORDER R.S. Shukla, Member The applicant-apatwari of Patwari Circle No. 21, tahsil Lakhanadon, district Seoni, was dismissed from service by the Sub-Divisional Officer on the following charges :- The Collector, Seoni, in first appeal, upheld the order of the Sub-Divisional Officer. A second appeal before the Commissioner, Jabalpur Division, was also rejected. The learned Commissioner considered only the question of punishment and did not question the findings on facts. The reason for this may be stated in his own words:- As this is a second appeal with concurrent findings on facts by both the lower Courts, I cannot reopen those findings (see 1954 N.L.J. 320). The only question, therefore, that remains for consideration is the question of punishment. With due respect to the authority cited by the learned Commissioner, it may be pointed out that the pronouncement made in 1954 N. L. J. 320 is limited only to a general proposition derivable from the provisions of section 33 (3) (c) of the Land Revenue Act or section 100 of the CPC referred to in that case. The ruling in question, for instance, did not say that, under no circumstances whatsoever, a finding on facts can be questioned at the stage of second appeal. The learned Judges in that case pointed out that "in a second appeal, where the two Courts below had given a concurrent decision, the Board of Revenue has no jurisdiction to interfere with finding of fact. The Board has, in such a case, to confine itself to the grounds open to it under clause (c) of section 33 (3)". These grounds are, in terms, with the provisions of section 41 (3) (c) of the Land Revenue Code and section 100, Civil Procedure Code, the relevant portion of which is as follows :- 41 (3) (c): (i) that the order is contrary to law or usage having the force of law; Where in the process of arriving at a finding the Court commits an error of law or a substantial error in procedure resulting in error in judgment, the right of interference in second appeal would always be there. It would be an error of law if a Court "bases its decisions on no evidence at all or on mere surmises and conjectures. It would be an error of law if a Court "bases its decisions on no evidence at all or on mere surmises and conjectures. Similarly, it would be an error of law if the Court misreads the evidence and disregards or fails to consider material evidence in arriving at its conclusion". Although in the memo, of second appeal the line of attack by the applicant was not mentioned in exact legal terminology, it is evident that the attention of the learned Commissioner was drawn to certain facts and circumstances which, if looked into, would have shown that substantial errors of law were committed by the trial and the first appellate Courts. The learned Commissioner was, therefore, not justified in declining to go into the facts of the case on the ground that the findings on facts being concurrent he was unable to reopen them. It may not be out of place to observe that the failure on the part of the first appellate Court to examine the trial Court's findings on facts critically, often results in confronting the second appellate Court with the ban that concurrent findings on facts cannot be opened. And the interested parties seldom lose the opportunity of pleading this legal ban. The second appellate Court, therefore, need not be deterred from examining the record carefully so as to avoid the occurrence of injustice simply because one of the lower Courts was not careful enough. In the following paragraphs the finding of the two lower Courts on each charge would be examined to show that they were not at all in accordance with law. I shall begin in reverse order and shall deal with Charge No. 4 first. This charge itself is very vague and does not state exactly what acts of omission and commission on the part of the applicant were referred to. The statement of allegations is equally silent. The statement of the Revenue Inspector recorded by the Sub-Divisional Officer on 1-2-56 shows that the applicant was present with the Tahsildar on the spot during the spot inquiry and was in attendance from 23-10-55 (10 a. m.) to 24-10-55 (6-30 p. m.). Obviously, a patwari could not take leading part in the inquiry when his senior officers, like Tahsildar and Naib-Tahsildar were themselves investigating into the matter. Obviously, a patwari could not take leading part in the inquiry when his senior officers, like Tahsildar and Naib-Tahsildar were themselves investigating into the matter. There is, therefore, no evidence whatsoever to sustain this charge and the decision "of the Courts below is obviously perverse. Charge No. 3 states that the applicant did not comply with the order of the Tahsildar dated 10-10-55 inasmuch as in spite of the order of the Tahsildar to make a spot inquiry and to submit a detailed report the applicant did not do so. A reference to the Tahsildar's order on page 31 of the Sub-Divisional Officer's record shows that no instructions of the kind were given to the applicant. On the other hand, the instructions were addressed to and were meant for the Revenue Inspector. The correct position in this respect is further elucidated from the written report of the Tahsildar dated 26-10-55 (page 1, S. D. O.'s record). The relevant portion may be reproduced:- (Underlines by me) The reference to patwari in the above extract, is of course, wholly unwarranted. It is clear from the above that there was hardly any foundation for this charge. On the other hand, the evidence on record is to the contrary, namely that the applicant made various reports, such as, those dated 7-10-55 (to be discussed later), 10-10-55, 17-10-55 and 19-10-55. All these reports were routed through the Revenue Inspector, applicant's immediate boss, and contained sufficient information to disprove the allegation made in the charge. If the Revenue Inspector suppressed the applicant's reports or submitted them very late to the Tahsildar, obviously, the patwari cannot be held responsible for the same. I say so deliberately because I find that a very detailed report of the patwari dated 19-10-55, was actually submitted to the Tahsildar by the Revenue Inspector as late as 3-11-55 (see page 44 of the S. D. O.'s record). The Revenue Inspector has also submitted this delay in his oral evidence before the Sub-Divisional Officer. It would thus be seen that there was no legal evidence to support the finding of the two lower Courts on this charge. Rather the evidence was to the contrary, namely, that the patwari tried to comply with the orders of the Tahsildar as far as he could. It would thus be seen that there was no legal evidence to support the finding of the two lower Courts on this charge. Rather the evidence was to the contrary, namely, that the patwari tried to comply with the orders of the Tahsildar as far as he could. If his reports did not reach the Tahsildar because of the negligence of the Revenue Inspector he could not be saddled with any responsibility in the matter. It appears that the evidence in favour of the applicant patwari was totally ignored. Charges Nos. 1 and 2 are not different in substance except that in charge No. 2 the applicant has been accused of complicity in the illegal cutting of the forest. The gist of these two charges is that the patwari having had knowledge, of the forest cutting did not make the prescribed preliminary report because he was interested. Turning to the evidence on record I have again to observe that the findings on these two charges are also not based on recorded evidence. On the other hand, the officers below completely overlooked the evidence in favour of the applicant. According to the charges although the fact of cutting was made known to the patwari by 7-10-55, he did not make any report till such time as the Tahsildar personally asked him to do so. The patwari, on the other hand, produced his Dak-Book to show that a report on the subject was despatched by him through the Kotwar on 7-10-55. He also submitted his Diary to show that on 4, 5 and 6-10-55, when the cutting is said to have taken place, he had been away from his headquarters and received the first oral information of the cutting through the Kotwar on 7-10-55. The Sub-Divisional Officer disbelieved the Dak-Book entry on the ground that it was over-written. He conceded that the report was acknowledged by the Kotwar but disbelieved the applicant because there was no evidence to show that the Revenue Inspector had received the report from the Kotwar. I examined the Dak-Book very carefully and find that the said over-writing consists of either writing 8 for 7 or 7 for 8. In any case, the original date could not be in two digits. It follows that the entry in question could not be ante-dated, if at all, by more than one day. I examined the Dak-Book very carefully and find that the said over-writing consists of either writing 8 for 7 or 7 for 8. In any case, the original date could not be in two digits. It follows that the entry in question could not be ante-dated, if at all, by more than one day. That would really make little difference to the case inasmuch as information received on the 7th would then be taken to have been communicated on the next day i. e. 8-10-55. As the time of Kotwar's report on 7-10-55 is not known, its despatch on 8-10-55, may not, in point of fact, be a case of delay at all, much less a serious delay. The Kotwar in his statement has not denied his signatures nor has he denied that he used to carry communications from the patwari to the Revenue Inspector and vice versa. There is no suggestion that the Diary of the applicant showing that he received the first information on 7-10-55 was tampered with or otherwise unreliable. As the entire record shows, the Revenue Inspector was himself involved in this case and a departmental inquiry was also instituted against him. As such, denial of applicant's report dated 7-10-55 by the Revenue Inspector should not have been accepted without convincing proof. In view of the fact that the Revenue Inspector did not present applicant's subsequent reports dated 17-10-55 and 19-10-55 within reasonable time the Revenue Inspector's denial was not sufficient to overlook the positive evidence furnished by the applicant's Dak-Book and his Diary. It is significant to note in this connection that the Revenue Inspector was himself suspended on 7-11-55 and it was only on this date that he made a report against the applicant. His failure to report against the patwari earlier than 7-11-55 should have been duly considered in assessing his testimony. There is sufficient oral and documentary evidence on record to show that the patwari was, in fact, away from his headquarters from 4 to 6-10-55. Entries in his Diary in this respect have been fully corroborated by the defence witnesses produced by him. All this definite evidence was, it seems, ignored from consideration in preference to a mere surmise that the Dak-Book entry was not correct and that the report dated 7-10-55 did not reach the Revenue Inspector. Entries in his Diary in this respect have been fully corroborated by the defence witnesses produced by him. All this definite evidence was, it seems, ignored from consideration in preference to a mere surmise that the Dak-Book entry was not correct and that the report dated 7-10-55 did not reach the Revenue Inspector. With regard to the complicity of the applicant (Charge No. 2) there is hardly any evidence to sustain the charge. This charge is, more or less, an inference drawn from Charge No. 1. It may be that the patwari did not show more energy and expedition and took the matter almost in a routine fashion but that cannot necessarily mean that he was in collusion with the forest-cutters. The evidence shows that from the moment he was made aware of the cutting he made several reports consecutively, and made inquiries on the spot although he obtained no assistance from the Mukkadam and others. In this connection it may be stated that the oral evidence of persons other than the officials, should not have been considered against the applicant as they or some of them were the very persons whose names he had mentioned in his report dated 17-10-55 and who were ultimately found guilty of illegal cutting. There is, therefore, no evidence to support the charge of complicity; on the other hand, there is evidence to show that the depositions of witnesses against him were made mala fide. To summarise, an examination of the record shows that finding on Charges Nos. 3 and 4 were based on no evidence at all. On the contrary, the evidence in favour of the applicant was totally ignored by the lower Courts in arriving at their findings. With regard to Charges Nos. 1 and 2, again, there was no evidence to show the complicity of the applicant. All that can be said, at best, is that the applicant did not take more energetic action in the matter. He took things leisurely as if nothing serious had happened. To this extent, no doubt, he displayed a dereliction of his duties. Under the circumstances, the findings on facts cannot be said to have been arrived at in accordance with law. The evidence against the applicant was misread and the material evidence in his favour was mostly ignored by the lower Courts in reaching their conclusions. To this extent, no doubt, he displayed a dereliction of his duties. Under the circumstances, the findings on facts cannot be said to have been arrived at in accordance with law. The evidence against the applicant was misread and the material evidence in his favour was mostly ignored by the lower Courts in reaching their conclusions. Such perverse findings can, no doubt, be interfered with in second appeal or in revision as contrary to law. This view is not opposed to the dictum of the High Court in 1954 N. L. J. 320 but is rather in line with it. In view of what has been said above, the punishment of dismissal inflicted on the applicant would appear to be far too heavy. Bearing in mind the totality of circumstances, it would be sufficient punishment if the applicant's annual increment is withheld for 3 years without cumulative effect. I would, therefore, quash the order of dismissal and modify the punishment as above. The revision application is allowed accordingly.