JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the decree and judgment of Sri Saiyid Husain, Additional Commissioner, Jhansi Division dated December 5, 1968 in Revenue Appeal No. 69 of 1966-67 against the judgment and decree dated December 9, 1966 passed by the Judicial Officer Assistant Collector First Class, Jalaun in suit No. 352 of 1966 under Sections 229-B/209, U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties and have gone through the record. 3. Respondent No. 1 Shanker had filed a suit seeking declaration of his Sirdari rights in plots Nos. 360 and 362 in the village Kashirampur, and the ejectment of the defendant Moonga Lal as a trespasser. Moonga Lal had contested the suit claiming that he was a co-tenant of the land in suit. The trial court dismissed the suit holding that the plaintiff-respondent was not the sole Sirdar. The learned Additional Commissioner has however, set aside the trial court's order and decreed the suit. Moonga Lal has now come up in second appeal before this Court. 4. The learned counsel for the appellant has contended that the lower appellate court erred in law in holding that no adverse inference can be drawn against the plaintiff-respondent for not producing the patta in the circumstances of the case. He has also contended that the lower appellate court erred in law in holding that the burden of proving the joint tenancy was on the appellant inasmuch as the plaintiff-respondent failed to discharge the burden of proving himself to be the sole tenant of the land in dispute. According to the learned counsel, the findings of the lower appellate court scanty, perverse and against the weight of evidence on record. 5. It is a well settled principle of law that a plaintiff must in a suit for declaration of rights and ejectment prove his case and the suit must fail if the plaintiff does not discharge this burden irrespective of any weakness in the case of the defendant. In the present case, the plaintiff-respondent claimed to be the sole Sirdar and alleged the defendant-appellant to be only a trespasser. The defendant-appellant, on the other hand, claimed to be a co-sirdar of the land along with the plaintiff-respondent. We have, therefore to see how far the plaintiff-respondent has succeeded in proving his status as the sole Sirdar. In the present case, the plaintiff-respondent claimed to be the sole Sirdar and alleged the defendant-appellant to be only a trespasser. The defendant-appellant, on the other hand, claimed to be a co-sirdar of the land along with the plaintiff-respondent. We have, therefore to see how far the plaintiff-respondent has succeeded in proving his status as the sole Sirdar. The plaintiff-respondent appeared as his own witness and stated that he took the land in dispute from the Zamindar some twenty-five years back and that he alone had gone to the Zamindar to take the lease of the land in dispute. He says that he has lost the lease deed in question. Now, it is significant to note that the plaintiff-respondent gave his age as thirty years at the time of the statement. Thus, the trial court has rightly observed that the plaintiff-respondent would have been only five years of age when he, according to his statement, went to the Zamindar all alone to take the lease of the land in question. This statement of the plaintiff-respondent makes his case extremely unreliable. His witness Lachhiram says that he was present at the time when the Zamindar granted the lease of the land in question to the plaintiff-respondent, and that at the time of grant of lease the plaintiff-respondent was thirty years of age. It is really surprising that the plaintiff-respondent was thirty years of age twenty-five years back when he took the lease from the Zamindar and he continues to be thirty years of age twenty five years later. The patent contradictions in the statements of these two witnesses and the absurdity of a boy of five years of age going alone to the Zamindar to take the lease of the land even when his father was alive exposes the un-creditworthiness of both these persons. The plaintiff-respondent did not produce the lease deed in question alleging that it has been lost by him. To a question whether the lease deed was granted jointly in his and Moonga's name he replied that he could not say whether this was so, but later amended himself by saying that lease did not contain the name of Moonga Lal. To another question whether Moonga Lal had paid rent jointly with him, he said that he could not say for how long did he pay rent jointly. To another question whether Moonga Lal had paid rent jointly with him, he said that he could not say for how long did he pay rent jointly. He has admitted that the defendant-appellant Moonga Lal is his father's sister's son. The defendant-appellant has produced three witnesses. Moonga Lal himself, Derua and Govinda to prove that the land in suit was obtained jointly and has been under joint cultivatory possession of the parties. Moonga Lal says that he and the plaintiff-respondent had gone to the Zamindar for the lease. The trial court has rightly observed that Lachhiram, the witness of the plaintiff-respondent, could not deny whether Moonga Lal and had accompanied Shanker when the Patta had been executed but merely stated that he could not tell whether Moonga Lal had accompanied Shanker when he took the lease from the Zamindar. This reluctance of a witness to answer a relevant question particularly when he says that he was present at the time of execution of the lease makes him unreliable. The trial court has rightly observed that the plaintiff-respondent failed to produce the Patta to prove that the land was let out by the Zamindar only to him and also could not produce anybody from the house of the Zamindar if he was dead. It the Patta is alleged to have been lost by the plaintiff-respondent, he should have produced the oral evidence of the person executing the patta. The learned Additional Commissioner has completely ignored all these contradictions and lacunae in the plaintiff-respondent's claim. He has declared that the tenancy of the two disputed plots was acquired two different periods of time. This of course is entirely a new case. The learned Additional Commissioner has declared that the plaintiff's rights as Sirdar were not in dispute completely ignoring the written statement of the defendant-appellant and the evidence produced by him. The learned Additional Commissioner has also erroneously shifted the burden of proving his case to the defendant without considering whether the plaintiff-respondent had succeeded in discharging the burden of proving his case. The learned Additional Commissioner has without examining the contents of the evidence of the defence witnesses brushed aside this evidence in one sentence saving that the statements of the three defence witnesses have not the weight of the paper on which they have been scribed. The learned Additional Commissioner has without examining the contents of the evidence of the defence witnesses brushed aside this evidence in one sentence saving that the statements of the three defence witnesses have not the weight of the paper on which they have been scribed. It would appear that the learned Additional Commissioner was pre-determined to decide the case against the defendant-appellant without looking into his evidence. He has turned a blind eye on the repeated assertion of the plaintiff-respondent that his age is thirty years and has refused to consider the various alarming contradictions arising out of this. The plaintiff-respondent, Shanker gave his age as thirty years while the oath was being administered to him. Again in cross-examination he asserted that his age was thirty years. The learned Additional Commissioner has also taken a wrong view of law in holding that if the plaintiff did not file the Patta, no adverse inference could be drawn from this fact. 6. The learned counsel for the respondent has taken a plea that the findings of fact recorded by the Additional Commissioner however erroneous or perverse they cannot be interfered with in second appeal. The learned counsel for the appellant has on the other hand contended that if the findings of the Additional Commissioner are based on misreading of evidence, omission of material evidence or erroneous shifting of burden of proof, they can be set aside in second appeal. He has referred to Shikhar Chand v. Digambar Jain Prabhandhkarini Sabha, AIR 1974 S.C. 1178 , in which a learned Full Bench of the Supreme Court has held as follows: 'In the result, we are of opinion that the first appellate court was wholly wrong in discarding the Khasra entries on the solitary statement in para 2 of her plaint. The High Court could, therefore, interfere with its finding under Section 100(1)(c)'. In the same judgment the Supreme Court has re-affirmed the decision in Ram Chandran Ayyar v. Ramlingam Chettiar, AIR 1963 S.C. 302 , laying down the maxim 'If in dealing with' a question of fact the first appellate court has placed the onus on a wrong party and its finding of fact is the result, substantially of this wrong approach that may be regarded as a defect in procedure under Section 100(1)(c)'. The same view has been taken in Ladli Parshad v. Karnal Distillery Co., AIR 1963 S.C. 1279 . The same view has been taken in Ladli Parshad v. Karnal Distillery Co., AIR 1963 S.C. 1279 . The Supreme Court has in that case observed that a decision of the first appellate court reached after placing the onus wrongly or based on no evidence, or where there has been substantial error or defect in the decision of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision. The learned counsel Sir R.B. Mehrotra has also referred to Chameli Devi v. Purusottam Singh, AIR 1974 Calcutta 316, in which a learned Bench of the Calcutta High Court has observed as follows: "It is well established that failure to consider important evidence or important surrounding circumstances would constitute an error of law and it would be open to this Court in that situation to interfere in second appeal." In Smt. Sham Kaur v. Hari Singh, AIR 1973 Punj. & Har. 71-73 a learned Judge of Punjab and Haryana High Court has observed as follows: "The whole case hinged around the question whether or not the suit land was ancestral qua Karam Singh and the deceased. Ordinarily, a decision on this question is one of fact and cannot be assailed in second appeal. Where, however, such a finding is based on no evidence or is the result of a misreading of material evidence, it would amount to an error of law, warranting an interference in second appeal. In Guljan Bibi v. Nazirud-din Mia, AIR 1975 Gauhati 30, it has been held that 'the legal effect of proved facts as well as the application of the correct principles of law is a mixed question of law and fact and can be interfered with in a second appeal. Similarly a perverse finding of fact can also be upset, in second appeal. In this case the judgment of the Supreme Court in Sree Meenakshi Mills Ltd. Madurai v. Commissioner of Income-tax, Madras, AIR 1957 S.C. 49 has been relied upon. 7. Similarly a perverse finding of fact can also be upset, in second appeal. In this case the judgment of the Supreme Court in Sree Meenakshi Mills Ltd. Madurai v. Commissioner of Income-tax, Madras, AIR 1957 S.C. 49 has been relied upon. 7. On the question of burden of proof, in the present case, the learned counsel for the appellant has referred to Raghavamma v. Chenchamma, AIR 1964 S.C. 136 -143, in which a learned Bench of the Supreme Court has observed as follows: "There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidents of the burden of proof." 8. The learned counsel for the respondent has referred to Bithal Das Khanna v. Hafiz Abdul Hai, 1969 R.D. 295, 296-297 in which a learned Bench of the Supreme Court has observed as follows: "The learned District Judge did not believe the evidence led by the plaintiffs and arrived at a conclusion which was clear and unequivocal, namely, that the Mukbtar-i-am had not been authorised by defendant No. 1 to execute the lease deed in favour of the plaintiffs. Such a finding could not have been reopened and reversed in a second appeal in the absence of grounds which are well settled by now which justify interference under Section 100, Civil Procedure Code. It is unnecessary to refer to the authorities on the point that even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact is grossly wrong, that cannot be said to introduce a substantial error or defect in the procedure which would justify interference under Section 100(1)(c) of the Code." 9. To my mind, the above observations have to be read along with other pronouncements of the Hon'ble Supreme Court both before and after 1969. To my mind, the above observations have to be read along with other pronouncements of the Hon'ble Supreme Court both before and after 1969. It will not be correct to say that all erroneous findings of fact recorded by the lower appellate court are protected even if they violate the principles laid down by the Supreme Court in Shikhar Chand v. Digambar Jain Prabandhkarini Sabha, AIR 1974 S.C. 1178 and in other cases cited above. 10. As regards the question of burden of proof, Sections 101 and 102 of the Indian Evidence Act read as follows: 101. Burden of proof-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that these facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 102. On whom burden of proof lies-The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." As we have seen, above is the plaintiff whose suit would fail if no evidence at all is given on either side as to the question whether the plaintiff is the Sirdar of the land in suit or whether both the parties are co-tenants. The burden of proof cannot be shifted to the defendant. I, therefore, hold that the learned Additional Commissioner has erred in law in holding that the burden of proving that the land in question was not a sole Sirdari but a co-tenancy of both the parties had shifted to the defendant. 11. After scrutinising the evidence in accordance with the legal principles discussed above, I come to the conclusion that the findings of fact recorded by the trial court are based on a proper appreciation of the evidence on record and are sound in law. The learned Additional Commissioner has erred in law in reversing these findings. I, therefore, allow the appeal, set aside the order of the learned lower appellate court and the order of the trial court.