Research › Browse › Judgment

Rajasthan High Court · body

1964 DIGILAW 38 (RAJ)

Mavasi v. Balwant

1964-02-24

BALWANT SINGH, S.D.UJWAL

body1964
The brief facts of the case are that Balwant filed a suit under sec. 183 of Rajas-than Tenancy Act against Mavasi alleging unlawful possession of khasra No. 147 and 150 comprising an area of 5 bighas and 19 biswas situated in village Ghichana Tehsil Bharatpur. Mavasis contention was that he is in lawful possession of the aforesaid khasra numbers from Smt. 2012 to 2015 and that he is not a trespasser. He further contended that he is a Shikmi Kastkar of the disputed khasra numbers. The trial court framed as many as 7 issues. Issue No. 1 was regarding the factum of trespass vis a vis Mavasi. Issue No. 2, 3, 4, 5 and 6 were legal issues. The trial court after careful consideration and appreciation of the evidence decreed the suit in favour of Balwant. Mavasi went in appeal before the learned Revenue Appellate Authority who also upheld the judgment of the lower court. Aggrieved by the findings of both the lower courts Mavasi has preferred a second appeal before the Board of Revenue which has come up for hearing before us. The main contention of the appellant is that the Revenue Appellate Authority has not at all discussed the legal issues which have a very important bearing on the entire case. The learned counsel for the appellant has vehemently argued before us that the entire evidence has been misread by the learned trial and appellate courts and has also quoted the relevant extracts of the evidence to establish his contention. The counsel for the appellant has brought to our notice and quoted from the evidence of Balwant plaintiff which reads as follows : ^^ghjk pekj ds [ksr ij QkStnkjh gqbZ Fkh vkSj eSaus tsy esa lquk fd blesa rstk o :ik ekjs x;s gSaA Both the lower courts have misread the evidence and have given a finding in their judgment that the alleged murders took place while the dispute arose on the disputed khasra numbers i.e., 147 and 150 which the learned counsel further contended is clear misreading of evidence and changes the entire complexion of the suit. He also quoted from the evidence of Mavasi which reads as follows : Hkhek vkSj eqíbZ ¼cyoar½ ds [ksr ds Åij >xM+k gqvk Fkk vkSj ml yM+kbZ esa nks vknfe;ksa dk ejuk lquk gSA The counsel for the appellant argued that it has nowhere been mentioned in the entire evidence that any murder took place over the disputed khasra numbers which are the subject matter of second appeal before us. The learned counsel also brought to our notice that the learned Revenue Appellate Authority has very seriously erred in not discussing issue No. 2,3,4,5 and 6 which are the legal issues and has cited R.R.D. 1952 p. 283 in support of his contention. The learned counsel has further contended that a suit of his client regarding these very khasra numbers is still pending in the court of the Sub-Divisional Officer for correction of entries for Smt. 2012, 2013 and 2014. The counsel for the appellant also brought to our notice sec. 224 of the Rajasthan Tenancy Act which he requests may be complied with. The learned counsel for the respondent stated in reply that the trial court has discussed all the issues threadbare and it was not at all necessary for the appellate court to have discussed the issues. He quoted R.R.D. 1962 p. 136 in support of his contention. He further pointed out that Mavasi had taken the plea that he was a sub-tenant and he has not been able to substantiate that he was ever a sub-tenant. We have carefully heard the learned counsel for the parties and have also gone through the entire record. It appears from the record that the disputed land was an evacuee land and the custodian for the evacuee property at no stage has been made a party in this case. It is also not borne out from the record as to who was the actual tenant of these disputed khasra numbers. O. 41, r. 31 of the Civil Procedure Code clearly stipulates that the judgment of the first Appellate Court must be complete and self contained and must contain the points for determination, the decision thereon and the reasons for the decision. The present case is a judgment of affirmance. O. 41, r. 31 of the Civil Procedure Code clearly stipulates that the judgment of the first Appellate Court must be complete and self contained and must contain the points for determination, the decision thereon and the reasons for the decision. The present case is a judgment of affirmance. The rule makes no distinction between affirming judgment and reversing judgments, and in either case it is obligatory on the appellate court to comply with the requirements of the rule, hence, where an appellate court affirms the decision of the trial court, a mere general expression of concurrence with the trial courts judgment without giving any reasons, is not a sufficient judgment under the law. Even when affirming the decision of the court below, the appellate court which is the final court of facts must independently weigh the evidence of the parties and must do so with a clear consciousness of the relevant point which arises for adjudication and the bearing of the evidence on those points. This rule is imperative and a jugdment which is not in accordance with it is not according to law. But a substantial compliance of the rule is enough. What is substantial compliance depends on the facts and circumstances of each case. The important point is that it must be evident from the judgment of the appellate court that it has properly appreciated the case, has applied its mind to it and has decided it after considering the evidence on the record. In order to arrive at the correct decision it would be extremely important to see whether O. 41, r. 31 has been complied with by the learned Revenue Appellate Authority or not. Both the lower courts in their learned judgment have held that the dispute arose over the said khasra numbers and 2 murders took place. This fact is completely missing from the entire evidence and appears to be a complete fiction. It appears that both the lower courts have not carefully gone through the evidence on record. The learned Revenue Appellate Authority in his judgment has not at all discussed issues 2 to 6 which undoubtedly have a very important bearing on the entire case. This fact is completely missing from the entire evidence and appears to be a complete fiction. It appears that both the lower courts have not carefully gone through the evidence on record. The learned Revenue Appellate Authority in his judgment has not at all discussed issues 2 to 6 which undoubtedly have a very important bearing on the entire case. The learned Revenue Appellate Authority in the last para of his judgment dated 11.2.63 has mentioned as follows : ^^vnkyr ekrgr dh QkbZf.Max ls ge iw.kZr;k bÙkQkd djrs gSa] blesa ge fdlh gLr{ksi dh vko;drk ugha le>rsA** It is therefore clear that the learned Revenue Appellate Authority has followed on the dotted lines and has not at all applied his mind to these issues. It was the duty of the learned Revenue Appellate Authority to have stated some reasons about affirming the findings of the trial court. The mere expression that he is in complete agreement with the findings of the lower court vitiates the entire judgment. We, however, agree as held by the High Court and the Supreme Court that the concurrent finding of fact passed on appreciation of evidence cannot be looked in second appeal but such a finding should not be based on a misreading of evidence on the record. In this case we find that it has been completely misread which is clear from the evidence of the plaintiff P. W. 1 and from the evidence of Bhima D.W. 2 Mavasi D. W. 1. None of them have ever stated anywhere that any dispute or murder took place over khasra No. 147 and 150. One therefore fails to understand how the lower courts have given a finding in their judgments which is clearly against the record. Perhaps the learned lower courts have been led away by the alleged murder on another field of Heera Chamar which has no bearing with the present khasra numbers. Misreading of evidence on record has been held to be a ground of interference in second appeal by the Rajasthan High Court in I. L. R. Raj. 1951 p. 284. In this case we also find that certain facts have been introduced by the learned lower courts which do not exist on record and have been completely misread. Misreading of evidence on record has been held to be a ground of interference in second appeal by the Rajasthan High Court in I. L. R. Raj. 1951 p. 284. In this case we also find that certain facts have been introduced by the learned lower courts which do not exist on record and have been completely misread. In A.I.R. 1956 Bhopal, p. 22 it has also been held to be a ground for interference in second appeal notwithstanding the concurrent findings of the facts by the lower courts. It is an important legal maxim that justice should not only be done but should appear to have been done. In this case when the learned lower courts have introduced certain facts which do not exist on record and When the learned Revenue Appellate Authority has not at all discussed the issues in the learned judgment, we feel, that justice has not been done and we feel that it is a fit case which warrants our interference. We, therefore, set aside the judgment of the Revenue Appellate Authority and remand the case for further appreciation of evidence on record and writing judgment afresh.