Ram Swarup v. Board of Revenue, U. P. , Allahabad — 1983 DIGILAW 396 (ALL)

ORDER K.P. Singh, J. - By means of this writ petition the defendant petitioner has prayed for quashing the judgment of the second appellate court dated 13-1-1981. 2. Shorn of unnecessary details the plaintiffs opposite parties had claimed right in the disputed land being nephews of Deepi and Kaushilya whereas the defendant petitioner had claimed right in the disputed land being daughter's son of Kaushilya. The trial court and the first appellate court had given judgments for the defendant petitioner but in second appeal the judgments of the first two courts were set aside and the cases were sent back to the trial court for retrial in the light of the observations made in the impugned judgment. 3. The learned counsel for the petitioner has contended before me that the second appellate court has patently erred in disturbing the findings of fact recorded by the first appellate court. According to him the second appellate court exceeded its jurisdiction in setting aside the judgment of the first appellate court whereby the petitioner's claim had been accepted. 4. Second contention raised on behalf of the petitioner is that in the circumstances of the present case the second appellate court has patently erred in sending the case back to the trial court. On comments made by the second appellate court if the first appellate court had failed to perform its duty, the second appellate court should have sent the cases back to the first appellate court but it acted illegally in sending the cases back to the trial court. 5. During the course of arguments the learned counsel for the petitioner has stressed that the second appellate court has acted illegally in not following the decisions cited on behalf of the petitioner. According to him the second appellate court has wrongly relied upon paras 37 and 38 of the Revenue Court Manual and has patently erred in not following the decisions of the High Court and the Supreme Court. 6. The learned counsel for the contesting opposite parties has submitted in reply that the second appellate court has correctly placed reliance on paras 37 and 38 of the Revenue Court Manual and it is well known that if the findings of facts have been arrived at by a court of fact through placing burden on wrong shoulder, its findings stand vitiated in law and could be interfered with by the second appellate court. The learned counsel had no serious objection to the claim of the petitioner that the cases should have been sent back to the first appellate court in the circumstances of the present case. He referred the cases reported in AIR 1921 Oudh 42, Jagmohan Singh v. Ram Dayal Singh, AIR 1927 All 767(2), Javitri v. Gendan Singh; AIR 1940 PC 93 . Nand Kishwar Bux v. Gopal Bux and AIR 1958 Pat 600 , Mt. Jasoda Kuer v. Dulhin Phul Kuer, in support of his submission that the defendant petitioner had claimed right in the disputed land on the basis of being daughter's son of Kaushilya and it was for him to prove his claim. 7. I have considered the contentions raised on behalf of the parties, and I have gone through the judgments of revenue courts attached with the writ petition. In my opinion the second appellate court has patently erred in sending the cases back to the trial court. It should have sent the cases back to the first appellate court for deciding the questions in the light of the observations made by it. The second appellate court had failed to observe the rule of shortening the litigation between the parties by sending the cases back to the trial court. 8. As regards the petitioner's first contention I think that in the circumstances of the present case the second appellate court has rightly interfered with the findings recorded by the first appellate court. The suits giving rise to the present writ petition are under S. 229B U. P. Zamindari Abolition and Land Reforms Act. Rule 182, U. P. Z. A. and L. R. Rules, provides as below : "In hearing and deciding suits, applications and other proceedings under this Chapter, revenue courts shall follow mutatis mutandis and subject to the following amendment, the procedure laid down in Parts I and IV of the Revenue Court Manual." Paras 37 and 38 of the Revenue Court Manual occur in Part I of the Revenue Court Manual, hence the second appellate court was fully justified in referring to the aforesaid paragraphs. The decisions of this Court and those of the Supreme Court did not deal with Paras 37 and 38 of the Revenue Court Manual, hence the contention of the learned counsel for the petitioner that the second appellate court has acted illegally in not following the rulings cited on behalf of the petitioner does not appear to me as correct. 9. Para 37, Revenue Court Manual reads as below : - "37. The judgment of an appellate court should after giving a general narrative of the case state the particular points raised before the court in appeal. It should then contain the appellate court's findings on each point separately after considering (1) the views of the lower courts: (2) the arguments of the counsel appearing before the appellate court and (3) the evidence on record. The judgment should then state in clear term whether the appeal is dismissed or allowed and where the decree appealed from is reversed or varied it should also state clearly the relief which is to be given to the appellant." Note: - Bare and long summaries of the arguments of counsel and depositions of witnesses should not be given in the body of the judgment. Para 38, Revenue Court Manual reads as below : - "38. A court of first appeal must subject the evidence on record regarding the points raised before it in appeal to a fresh examination independently of the appraisement of the evidence by the trial court and its judgment must show that it has done so. (emphasis is mine.) 10. The second appellate court has rightly emphasised the importance of R. 38, Revenue Court Manual, in para 5 of its judgment. 11. In para 6 of the impugned judgment the second appellate court has correctly made the following observations : - "The correct position in respect of issue number 2-kha is that the burden lay on both the parties and it was necessary for the learned trial court to appraise the evidence produced by the defendant as well and in its absence, the first appellate court should have performed this duty. A wrong approach with regard to onus of proof vitiates a finding of fact. This is obvious from the fact that the findings on issue number 2-kha in favour of the defendant is not based on any appraisal of evidence adduced by the defendant positively proving his case. A wrong approach with regard to onus of proof vitiates a finding of fact. This is obvious from the fact that the findings on issue number 2-kha in favour of the defendant is not based on any appraisal of evidence adduced by the defendant positively proving his case. The bias created by a wrong approach with regard to onus of proof also affects the reasoning and conclusion derived from the evidence. If the burden was correctly placed, it is quite possible that the appraisal of both the parties evidence would have been different and the findings could also be other than reached by the learned trial court and later by the first appellate court." 12. In para 7 of the impugned judgment also the second appellate court has correctly emphasised the following : - "........Then the observation of the learned Additional Commissioner that it was the duty of the plaintiff to prove that Ram Swarup was not born of Dipi and Kaushalya, is not correct as negative aspects cannot be conclusively proved, in such cases the alternative parentage must be proved by the respective claimants and the court has to derive its conclusion after weighing both sides evidence and its reliability. The learned trial court after discussing the oral evidence of the plaintiffs witnesses has jumped to the conclusion that Smt. Mathuria was the daughter of Dipi and Kaushilya. The evidence of the defendants' witnesses has not been discussed at all and it has been considered sufficient to say that from the evidence of D. Ws. Ganga Ram, Sita Ramand Narain, it is proved that Ram Swaroop is the son of Smt. Mathuria Of the five P. Ws. none has been considered worthy of reliance, just because some minor discrepancies occur, particularly in respect of a witness of 80 years of age, it was too much to except him to correctly remember events taken place 65 years age and with such passage of time a certain amount of approximation and weakness of memory as to the dates should be deemed likely. There is no doubt that misplaced burden of proof has biased the findings of the courts below, which must, therefore, be deemed to be perverse and vitiated." 13. There is no doubt that misplaced burden of proof has biased the findings of the courts below, which must, therefore, be deemed to be perverse and vitiated." 13. To my mind in view of the quoted extracts from the impugned judgment the second appellate court had jurisdiction to interfere with the so called findings of fact recorded by the first appellate court. 14. The perusal of the judgment of the first appellate court indicates that the first appellate court has not kept in view the provisions of Para 38, Revenue Court Manual. It has not applied its mind to the evidence on record nor has it examined afresh the evidence on record regarding the claim of the defendant petitioner yet it has accepted the claim of the defendant petitioner and has agreed with the appraisal of evidence by the trial court. It is noteworthy that the trial court has also not examined the worth of defendant's evidence in relation to what they have deposed in the case. Only mentioning the names of the witnesses and saying that the defendant's claim has been established is not appraisal of evidence in the eye of law. Since the first appellate court has failed to examine the evidence on record afresh it was proper on the part of the second appellate court to have sent the cases back to the first appellate court in the circumstances of the present case. 15. In view of what has been stated above, I think that the second appellate court has correctly placed reliance upon para 38 of the Revenue Court Manual and the contention of the learned counsel for the petitioner that the second appellate court acted illegally in not following the decisions of this Court or those of the Highest Court does not appear to me as correct in the circumstances of the present case. 16. Since both the parties are claiming right from Smt. Kaushalya being her heirs and they are setting up a particular relationship, the burden lay upon each party to prove relationship alleged with Smt. Kaushalya. The approach of the trial court and the appellate court that the plaintiff should also prove that there did not exist the relationship alleged by the defendant with Smt. Kaushlaya is not a correct approach in my opinion. Negative evidence cannot be given by the plaintiff in the circumstances of the present case. The approach of the trial court and the appellate court that the plaintiff should also prove that there did not exist the relationship alleged by the defendant with Smt. Kaushlaya is not a correct approach in my opinion. Negative evidence cannot be given by the plaintiff in the circumstances of the present case. Even if the plaintiff did not succeed to indicate the defendant was son of Narayan and Smt. Triveni, it would not lead to an inference that the defendant was daughter's son of Smt. Kaushalya. When the defendant had set up that claim that he was daughter's son of Kaushalya, his evidence on the aforesaid point deserves to be examined by the first appellate court in view of para 38, Revenue Court Manual Even the trial court has not appraised the evidence of the defendant on this point from correct angle. But the appellate court ha., co-extensive power with the trial court, hence keeping in view the rule of shortening litigation between the parties, it was required of the second appellate court to have sent the cases back to the first appellate court alone. 17. In the result, the writ petition succeeds in part and the impugned judgment of the second appellate court is quashed and the second appellate court is directed to pass suitable final order in the light of the observations made above (i.e. the second appellate court should send the cases back to the first appellate court only). Parties are directed to bear their own costs.