Madan Singh v. Rata — 1966 DIGILAW 224 (RAJ)

This is a second appeal filed by the appellants Madan Singh and Smt. Lahar Kunwar, against the order of the Revenue Appellate Authority, Udaipur, dated 22-12-1965. The facts of the case, in brief, are that the respondents filed a suit on 26-7 61 for declaration as khatedars on field Nos. 765 and 766 measuring in all 6 bighas and 4 biswas, together with a well viz. Maahdia, located in village Fhila, Tehsil Girwa, District Udaipur, in the court of the Assistant Collector, Udaipur. The case was tried in the court of the Sub-Divisional Officer, who on 30-6-1965 decreed the suit declaring them as khatedars and ordering restoration of possession to them, as also the profits of the cultivation during the interval. An appeal filed in the court of the Revenue Appellate Authority met with no success, and hence this second appeal. The averment in the plaint was that the respondent-plaintiffs were the Khatedars of the land in dispute, but on 26-9-1949, the appellant Madan Singh made an application under sec. 145 of the Criminal Procedure Code in the court of the Extra Magistrate, Salumber, whereupon the land in dispute was attached and entrusted to a receiver. The land was still under attachment of the Court. The income from this land was being deposited with the Extra Magistrate, Salumber, and thereafter with the Naib Tehsildar. It was further alleged in the plaint that during this attachment settlement proceedings took place, and the appellants collusively got this land entered in the name of Mst. Raj Kumar, mother of Madan Singh, appellant, and Mst. Lahar Kunwar, appellant, as Havala Khudkasht. The respondents, therefore, considered it necessary to ask for a declaration of their right as khatedars. The appellant defendants resisted this suit on the ground that the respondents were not the khatedars of the land in dispute; that the entries in the settlement record had been duly made in their favour; the respondents could not therefore, bring the suit. It was further urged that Madan Singh, appellant, was not a party in proceedings under sec. 145 Cr.P.C. It was also alleged that Kana, the father of the respondents 3 to 5, and appellant Lakhma filed a declaratory suit in the court of the Assistant Collector, which was dismissed on 9-10-1957. The present suit was barred on the principle of res judicata. 145 Cr.P.C. It was also alleged that Kana, the father of the respondents 3 to 5, and appellant Lakhma filed a declaratory suit in the court of the Assistant Collector, which was dismissed on 9-10-1957. The present suit was barred on the principle of res judicata. It was also alleged that only half of the portion of the land was in the Bapi of Kana, the father of the plaintiff-respondents, but he had surrendered it in Smt. 1975 Jeth Sudi 9 in favour of the appellants. On the basis of these pleadings, the trial court framed three issued, viz.— (1) whether the land in dispute was in the khatedari of the respondent-plaintiffs. (2) whether on this land the respondent-plaintiffs were in possession until 26-7-1949; and (3) whether the previous suit filed by Kana, father of the respondents 3 to 5, and Lakhrna was dismissed in the court of the Assistant Collector, and its effect on the present suit. The learned Assistant Collector, after discussing all the evidence, decided issue No. (1) in favour of the respondent-plaintiffs. He also held that because of the parties being different in the previous and the present suits and because the previous suit was not decided on merits, the previous suit would not operate as res judicata in the present suit. On appeal, the learned Revenue Appellate Authority endorsed the decision of the Sub-Divisional Officer. The counsel for the appellants has attacked these findings on three grounds— (i) The maintenance of the present suit was barred by law because the previous suit should be deemed to have been dismissed under O. 9, r. 8 of the Civil Procedure Code. (ii) The present suit was barred by limitation as having been presented after six years of the cause of action as required under the old limitation Act. (iii) The judgment of the court below does not conform to the provisions of O. 20, rule 4 of the C.P.C., and cannot be said to be judgment in the eye of law. Besides, both the judgments were perverse, in as much as, they had ignored to take into consideration important evidence adduced by the appellants. We have carefully examined the arguments in favour of the contentions raised above and also heard the counsel for the respondents. So far as his first contention is concerned, an analysis of the point involved would make its incredibility evident. We have carefully examined the arguments in favour of the contentions raised above and also heard the counsel for the respondents. So far as his first contention is concerned, an analysis of the point involved would make its incredibility evident. From a copy of the order (Ex. D.3) of the Assistant Collector, Udaipur, dated 9-10-1957, it will be clear that on 9-10-1957 both the plaintiffs and the defendants were absent. The evidence of the plaintiff was also not available. The court dismissed the suit on the ground of default of its prosecution. It appears that the case was in the process of being heard and therefore O. 17, r. 2 would be applicable in the matter. This rule says that when on any day, to which the hearing of the suit is adjourned, the parties or any of them fail to appear the court may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX, or make such other order as it thinks fit. O. 9, r. 3 says where, neither party appears when the suit is called on for hearing the Court may make an order that the suit be dismissed. In this case, as we have seen above, both the parties were absent on the date of the hearing, and by virtue of Sec. 17(2) the suit had to be dismissed under Order 9, Rule 3. The contention of the learned counsel for the appellants that the suit was dismissed under Order 9 Rule 8 is apparently groundless, because Order 9 Rule 8 will apply only where the plaintiff appears and the defendant does not appear. In this case, as the defendant was also absent, it was Order 9, Rule 3 that was applicable. With regard to the question of limitation, the contention of the learned counsel for the appellants was that under Article 120 of the old Limitation Act, which corresponds to Article 113 of the new Limitation Act, the limitation for an action, for which no period of limitation is provided will be six years, running from the time when the right to sue accrues. In the Third Schedule to the Rajas-than Tenancy Act, against Sec. 88 under which this suit was brought, the period of limitation prescribed is none as also the time from which the period begins to run. In the Third Schedule to the Rajas-than Tenancy Act, against Sec. 88 under which this suit was brought, the period of limitation prescribed is none as also the time from which the period begins to run. It was contended that none should be construed to mean no period prescribed/ and therefore by virtue of Sec. 214(3) of the Tenancy Act, it should be reckoned as three years as given in Article 113 of the new Indian Limitation Act. The scope of Article 113(old 120) according to R. Mitra in his commenturies on Limitation Act is that it is the combined reproduction of the residuary Arts. 22, 36 and 120 of the repealed Limitation Act, 1908, and it will govern all these suits for which there is prescribed no period of limitation in this Act. The Article being residuary in nature, will apply only if a suit does not come within the purview of any other provisions in the Act. The Law Commission of India observed on the scope of Sec. 120 of the repealed Indian Limitation Act that Article 120 (old) was a residuary Article for suits. This was intended to provide for the omission of any other kind of suit. It is therefore clear to us that as held in Mastan Singh vs. Santa Singh, A.I.R. 1933 Lahore 705 (Full Bench), and Manickavasagam vs. Muthuveorasami, A.I.R. 1963 Madras 362, that Art. 113 (old 120) will of course apply if the suit does not come within the purview of any other Article in the Limitation Act. Before Art. 113 can be held applicable, it must be shown that the case is not covered by any other provisions in the Act. The question for determination boils down to whether the intention of the Legislature in using the phrase none against a number of suits and applications as the period of limitation was that it did not make any specific provision against them or whether this none has to be interpreted as "at any time" or without limit or time. Article 133 of the Limitation Act makes provision only for suits for which no period of Limitation is prescribed in the Schedule or in other words, there is no mention made in the Schedule at all of the type of the suit or that it is unspecified. Article 133 of the Limitation Act makes provision only for suits for which no period of Limitation is prescribed in the Schedule or in other words, there is no mention made in the Schedule at all of the type of the suit or that it is unspecified. The Third Schedule of the Rajasthan Tenancy Act, however, makes a mention of a number of suits and applications against which the word none is used. In our opinion,, it will be straining the language too far to interpret that such types of suits and applications should be held to be unspecified while they have actually been specified. That the Legislature in its wisdom could prescribe for bringing a particular type of suits at "any time or without limit of time" admits of no doubt. This, in our opinion, too is a time specified. The limitation period in such cases is not left in the lurch by not mentioning these types of suits, but it has been actually specified. Such types of suits could in no sense be called residuary. If the Legislature in their wisdom thought that a suit for declaration of a right could be brought at any time, or without any limitation of time, they could not have used any other word. Secondly, the use of the word none under the head time from which the period begins to run* reinforces the view that such a suit can be brought at any time; and thirdly, looking to the various other types of suits, against which period specified is none it will be apparent that the intention of the Legislature was to specify that such types of suits could be instituted without any bar of limitation. As stated above, it will be straining the language too far that the Legislature had not specified the time and they, therefore, would be governed by Article 113 of the Indian Limitation Act. We, therefore, hold that the second contention of the learned counsel for the appellants also has no force. As stated above, it will be straining the language too far that the Legislature had not specified the time and they, therefore, would be governed by Article 113 of the Indian Limitation Act. We, therefore, hold that the second contention of the learned counsel for the appellants also has no force. The learned counsel for the appellants also pointed out that in accordance with Sec. 23 (old) of the Indian Limitation Act, in the case of continuing breach of contract and in the case of a continuing wrong, independent of contract, a fresh period of limitation begins to run at every moment of the time during which the wrong or breach, as the case may be, continues. The question for determination is whether when an order is passed under Sec. 146 of the Cr.P.C. it creates a continuing wrong or not. The learned counsel for the respondents drew our attention to Calcutta High Court ruling (A.I.R. 1912 Calcutta page 319), wherein it was held that where, by reason of the defendants act in attempting to interfere with the plaintiffs possession, the Magistrate is compelled to intervene and attach the property, the act of the defendant must be taken to have created a state of affairs, every moments continuance of which is a new wrong against the plaintiff for which the defendant is responsible. The wrong is, therefore, continuing one and the limitation, for a suit for a declaration of time, begins to run at every moment of the time, during which the wrong continues. Our attention was also drawn to A.I.R. 1939 Patna page 212, AIR.1933 Patna page 224, wherein a similar view has been taken. In this case as we have seen, the proceedings under Sec. 146 were taken on an application made by the appellant-defendants. The rule cited in the aforesaid authorities, therefore, is applicable to the facts of the present case. On this ground also, the suit filed by the respondents cannot be held to be time-barred. As regards the merits of the appeal, the learned counsel for the appellants has attacked the concurrent judgments of the courts below on a number of grounds. Before we consider those grounds, it will be worth-while to reiterate the scope of second appeal in a case where both the first appellate court and the trial court had arrived at the same conclusions of fact. Before we consider those grounds, it will be worth-while to reiterate the scope of second appeal in a case where both the first appellate court and the trial court had arrived at the same conclusions of fact. The scope of Sec. 100 of the Civil Procedure Code was considered by the Supreme Court in Ramchandra Ayyar and another vs. Ramalingam Chettiar and another (A.I.R. 1963 Supreme Court page 302). Sec. 100 of the C.P.C. is analogous to Sec. 224 of the Rajasthan Tenancy Act, 1955, except clause (iv) of Sec 224 of the Tenancy Act. This clause (iv) makes an appeal to the Board competent from a decree passed in appeal by a Revenue Appellate Authority when the decision is contrary to the weight of evidence on record and where the lower appellate court has varied or reversed any finding of the trial court on a question of fact. This enables the Board of Revenue to go into findings of fact if the first appellate court and the trial court have differed in their appraisal of evidence. Such a provision does not exist in Sec. 100 of the C.P.C. So far as the concurrent finding of fact by both the trial court and the first appellate court is concerned, the rule laid down by the Supreme Court in the aforesaid authority would be clearly applicable to the hearing of appeals under sec. 224 of the Rajasthan Tenancy Act. This authority of the Supreme Court has cleared the welter of conflicting argument and opinions on the point. On the basis of the aforesaid authority, the scope of appeal under sec. 224 of the Tenancy Act, where there is concurrent finding of fact by the courts below would be limited to the following conditions: (1) Where the decision is contrary to law or some usage having the force of law. (2) Where the decision had failed to determine some material fact of law Or having the force of law. (3) Where the error or defect as contemplated under clause (iii) of sec.224 clearly and unambiguously relates to the procedure and not to an error or defect in the appreciation of evidence adduced by the parties on the merit. (2) Where the decision had failed to determine some material fact of law Or having the force of law. (3) Where the error or defect as contemplated under clause (iii) of sec.224 clearly and unambiguously relates to the procedure and not to an error or defect in the appreciation of evidence adduced by the parties on the merit. (4) Even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence is grossly incorrect that cannot be said to introduce a substantial error or defect in the procedure. Accordingly no interference is contemplated in law by the second appellate court with the conclusions of fact recorded by the lower appellate court, however, erroneous the said conclusions may appear to be to the second appellate court. (5) The second appellate courts conclusion that the evidence accepted as the basis for the same by the lower appellate court could not have been reasonably accepted would not be a ground of interference with the decision of the lower appellate court. The second appellate court would only be justified in interfering with a finding of fact under the following conditions: (i) Where a finding of fact recorded by the first appellate court is without any evidence. (ii) Where the evidence which is accepted by the courts below is such that no reasonable person could have accepted it which would amount to saying that there was no evidence at all. (iii) Where the courts below have placed the onus on a worng party; this will be a defect in procedure calling for interference in second appeal. (iv) Where in dealing with the question of fact the courts below have discarded evidence on the ground that the evidence was inadmissible though it was admissible, or have based their decision on the evidence which was inadmissible. (v) Where the courts below have failed to consider an issue which was an essential issue in the case. (vi) Where the decision is based on a point of fact not taken in the pleadings. (v) Where the courts below have failed to consider an issue which was an essential issue in the case. (vi) Where the decision is based on a point of fact not taken in the pleadings. These guidelines will reduce the meaning of the phrase perverse judgment of the two concurrent courts, which is often used to question the concurrent finding of facts by the trial court and the appellate court, to only such cases where the conclusions arrived at were without any evidence or where no reasonable person could have accepted the evidence in support of these conclusions or where the conclusions arrived at were based on inadmissible evidence discarding admissible evidence, or where a material issue has not been considered, or where a decision is based on a point not raised in the pleadings. We shall now proceed to examine the argument of the learned counsel for the appellant attacking the concurrent findings of fact of the courts below in the light of the aforesaid guiding principles. It was contended that the judgments of the courts below were not judgments in accordance with the Order XX, Rule 4. We have carefully gone through the judgments of both the courts below. There were only three substantial issues in this case— (i) whether the plaintiff-respondents were khatedars of the land; (ii) whether they were in possession till 26-7-1949 when the land was attached under sec. 146 of the Criminal Procedure Code; and (iii) What was the effect of the previous suit. These issue, were duly framed and discussed. A question about the surrender deed was included in issue No (2). The onus had also been properly placed. It was never contested that it was wrongly placed. The learned trial court referred to the evidence of all the witnesses, both for the plaintiffs and the defendants, though it must be said that the discussion of the evidence of the witnesses could have been a little more in detail. The first appellate court has discussed the evidence in greater detail and also given reason why he would believe the plaintiffs witnesses who were neighbours and not the witnesses of the defendant appellants who were mostly his servants. Even though, admitting that the evidence should have been discussed in more detail by both the courts, it cannot be said that their findings of fact can be attacked in second appeal on this ground alone. Even though, admitting that the evidence should have been discussed in more detail by both the courts, it cannot be said that their findings of fact can be attacked in second appeal on this ground alone. As stated above, according to the guiding principles laid down by the Supreme Court for examining the evidence of fact, this can never be a ground contemplated in sec. 224(iii) of the Rajasthan Tenancy Act-We, therefore, cannot question the concurrent finding of fact of both the courts below that the respondents were in possession of the land as cultivating tenants till it was attached. Coming to the surrender deed, which is recorded in a Bahi produced by the appellant before us, after the arguments were heard (it was not produced in the first court of appeal) we find that the trial court rejected this surrender deed on the ground that one of the conditions mentioned there in was impossible of acceptance and cast a doubt on its credibility. The first appellate court before whom the surrender deed in original or its certified copy was not produced refused to admit the same in evidence on this ground. He also refused to rely on it on the ground that Madan Singh, appellant, had denied that it was executed in his presence in the case under sec. 145 Cr.P.C., whereas he admits its execution in his presence in the present case. We have ourselves examined the surrender deed and the evidence produced to prove it. It is recorded in a Bahi in the custody of the appellant. Except for the two thumb impressions of Kana and Kikori there is no attesting witness. The witneses produced to prove the execution of the surrender deed were one Shankar Lal, D.W. Inderlal, D.W. 2, and Madansingh appellant himself. It may be noted that all these witnesses are connected with the jagirdar and cannot be said to be independent. Shankerlal, who is practically illiterate, says that the deed was executed by his grand-father whose hand-writing he recognised. He is aged 32 and this deed is alleged to have been written in 1975 Smt. that is 48 years ago. The second witness is Inderlal who states that he recognised the hand-writing of Devji, the alleged scribe of the deed. He had seen him writing it. The third witness is Madan Singh himself. He admits that the deed was written in his presence. The second witness is Inderlal who states that he recognised the hand-writing of Devji, the alleged scribe of the deed. He had seen him writing it. The third witness is Madan Singh himself. He admits that the deed was written in his presence. In his previous statement, in the case under sec. 145, he admitted that it was not written in his presence. No doubt, the witness should have been confronted with his previous statement in the trial court, and we find that the counsel for the respondents had submitted an application that the witness be recalled for this confrontation. Presumably, no order was passed therein. From the copy of the statement which Madan Singh, appellant, gave in the Extra Magistrates court however, it is clear that there he had made a different statement. The surrender deed, this can not be said to have been proved on this evidence, when its execution was stoutly denied by Kanain the previous proceedings. Boni Kana and Kika are now dead. A surrender deed under sec. 55 of the Rajasthan Tenancy Act, 1955 now must comply with the prescribed formalities. It must be accompanied by a writing attested by the Tehsildar having jurisdiction, though at the time this surrender deed was written sec. 55 was not applicable, yet it must be observed that utmost care is to be exercised in relying upon such deeds. Another important ingredient is that it should not only be witnessed by a document, but it must accompany the delivery of possession. This delivery of possession, as we have seen, and as has been held by the courts below, never took place. We have, therefore, no hesitation in holding that on the evidence on record this surrender deed cannot be said to have been proved at all nor can it be said that any possession passed from the respondents to the appellants. The counsel for the appellants urged that the courts below had not considered the settlement parcha in favour of his clients. The settlement parcha was made when the disputed land was custodia regis. As observed in the plaint, it was this parcha which has given rise to the cause of action for a declaratory suit. Obviously, the document which is being attacked in the declaratory suit cannot be made a basis for title in favour of the appellants. The settlement parcha was made when the disputed land was custodia regis. As observed in the plaint, it was this parcha which has given rise to the cause of action for a declaratory suit. Obviously, the document which is being attacked in the declaratory suit cannot be made a basis for title in favour of the appellants. The parcha shall be corrected in accordance with the decision of the suit. The other argument urged by the counsel for the appellants that no rent receipt had been produced cannot stand any ground in view of the fact that there is weighty evidence in favour of the fact that the jagirdar took share (lata) of the produce and there was no custom to give any receipt. For the reasons given above, we see no ground to interfere in the order passed by the Revenue Appellate Authority. We, therefore, dismiss the appeal.