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2000 DIGILAW 273 (RAJ)

Gyan Prakash v. State of Rajasthan

2000-02-29

B.S.CHAUHAN

body2000
Honble CHAUHAN, J.–The instant writ petition has been filed for setting-aside the judgment and order of the Board of Revenue dated 26.12.1998 (Annexure 3), by which the appeal No. 107/1995 filed by respondent No. 5 has been allowed setting-aside the judgments and decrees of the Revenue Appellate Authority, Hanumangarh, dated 31.5.1995 (Annexure 2) and of the Assistant Collector, Sangaria, dated 3.8.1994 (Annexure 1). (2). The facts and circumstances giving rise to this case are that petitioner had executed an agreement to sell of twelve Bighas of land in favour of respondent No. 5 and others on 30.6.1978. Subsequently, a second agreement to sale dated 30.12.1980 was executed for the purpose of sale of the said land into.pieces and the present controversy is in respect of an agreement to sell to the extent of one Bigha, thirteen Biswas and six Bishansis. Petitioner filed revenue suit No. 73/93 in the Court of the Assistant Collector u/S. 183 of the Rajasthan Tenancy Act, 1955 (for short ``the Act, 1955) for eviction of respondent No.5, alleging that the later failed to pay the balance amount as per the terms of the said agreement and, thus, had no right to retain the possession of the land which had been handed over to him after taking the earnest money at the time of entering into the agreement to sell. Moreso, the agreement was in contradiction of the provisions of Sec. 42(a) of the Act, 1955, which did not permit the sale in fragments. Some other reliefs were also sought. Respondent No. 5 defendant contested the suit. However, vide impugned judgment dated 3.8.1994 (Annex. 1), the suit was decreed. Being aggrieved and dissatisfied, respondent No. 5 preferred an appeal before the Revenue Appellate Authority, which was dismissed vide judgment and order dated 31.5.1995 (Annx. 2). The respondents appeal No. 107/95/TA/Hanumangarh, has been allowed by the Board of Revenue vide judgment and order dated 26.12.1998 (Annx. 3). Hence this writ petition. (3). It is not only most unfortunate but astonishing also that the Courts below have dealt with the case in a very caviller manner and all the Courts below failed to consider the case in correct perspective. This Court, though fully aware of its powers in a limited jurisdiction u/Art. 227 of the Constitution, would fail in its duty if does not consider the case in totality. This Court, though fully aware of its powers in a limited jurisdiction u/Art. 227 of the Constitution, would fail in its duty if does not consider the case in totality. (Vide M/s. Savita Chemicals (Pvt.) Ltd. vs. Dyes & Chemical Workers Union & Anr. (1). It may be necessary to deal with the judgments and orders of the Courts below separately. TRIAL COURTS JUDGMENT AND DECREE : (4). The suit filed by the petitioner-plaintiff u/S. 183 of the Act, 1955, was based on the averments that respondent No. 5 had been put in possession of the land in dispute after taking earnest money and executing an agreement to sell dated 30.12.80. The amount, as agreed as per the said agreement, was not paid, there-fore, he lost the right to retain possession of the land and became liable for ejectment. The suit was contested by respondent No. 5 and the trial Court framed seven issues, namely:- (1) Whether the agreement to sell dated 30.10.1988 was in contravention of the provisions of Sec. 42(a) of the Act, 1955, and if yes, whether the same can be declared inconsequential? (2) Whether the said agreement to sell could be declared unenforceable as the party did not comply with its terms and conditions? (3) Whether the plaintiff was Khatedar of the land in dispute? (4) Whether defendant was trespasser on the land in dispute and liable to be ejected? (5) Whether there was any cause of action for the plaintiff to file a suit? (6) Whether the Court had jurisdiction to entertain the suit, or it should have been filed before the Civil Court? (7) To what relief the plaintiff was entitled for ? (5). While deciding the first issue, the trial Court held that the agreement to sell did not confer any title on the respondent-defendant and Sec. 42(a) of the Act, 1955 dealt with the case of transfer, therefore, the said provisions were not attracted at all. (6). While dealing with Issue No. 2, the trial Court held that as the respondent-defendant had been put in possession by the petitioner-plaintiff himself, the question of declaring the respondent-defendant trespasser did not arise. However, it held that as the respondent-defendant did not put the copy of the agreement on record, the issue was decided against him. (7). (6). While dealing with Issue No. 2, the trial Court held that as the respondent-defendant had been put in possession by the petitioner-plaintiff himself, the question of declaring the respondent-defendant trespasser did not arise. However, it held that as the respondent-defendant did not put the copy of the agreement on record, the issue was decided against him. (7). It is strange that the first sentence, while deciding Issue No. 2, started that the burden of proof was on the petitioner-plaintiff and in the conclusion it has been decided against the respondent-defendant as he failed to produce the copy of the said agreement to sell. The trial Court has gravely erred while shifting the onus of proof from plaintiff to the defendant without giving any reason whatsoever. The trial Court also failed to make a distinction between ``burden of proof and ``onus to prove. The suit as specifically filed on allegation that the respondent-defendant did not pay the amount as per the terms of the agreement. Therefore, it was the duty of the petitioner-plaintiff to file a copy of the agreement and prove its contents and further to prove that as per the agreement, the amount had not been paid. The trial Court was never aware of : what were the terms and conditions of the agreement; what was the due date on which the amount was to be paid; and whether the respondent-defendant had failed to make the payment thereof on the due date. It simply referred to the pleadings that the money had not been paid by the respondent-defendant, and that too without considering the pleadings of the respondent-defendant that for executing the sale deed, prior permission of the Collector was mandatory which had to be obtained by the petitioner-plaintiff as per the agreement and as he could not obtain the said permission, there had been no fault on their part and his suit for specific performance was pending before the civil Court. (8). So far as the first part of the judgment on this issue is concerned, as the petitioner-plaintiff himself had admitted that he had put the respondent-defendant in possession after taking the earnest money and executing the agreement to sell, on mere admission of the petitioner-plaintiff, there was no need to lead any evidence on this issue as it is settled proposition of law that the facts admitted by the parties need not to be proved. (9). In Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi & Ors. (2), the Honble Apex Court observed as under:- ``An admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. The same view had been reiterated in Avadh Kishore Dass vs. Ram Gopal & Ors. (3). (10). In Nagubai Ammal & Ors. vs. B. Sharma Rao & Ors. (4), the Apex Court had taken the same view holding that the statements admitting the factual position must be given full effect and while deciding the same, the Honble Supreme Court placed reliance on the decision in Slatterie vs. Pooley (5), wherein the Court had observed that ``what a party must admit to be true, may reasonably presumed to be so. (11). The provisions of Sec. 5(44) of the Act, 1955, define the ``trespasser as under:- ```Trespasser means a person who take or retains possession of land without authority, or who prevents some another person from occupying the land duly let out to him. (12). So far as the first part of the definition is concerned, it is abundant clear that the petitioner himself authorised the respondent-defendant to take possession of the land after executing the agreement to sell in his favour. Thus, it was the solemn duty of the trial Court to examine: whether under the law, he was authorised to retain the possession of the land and for that purpose it was necessary to examine the terms and conditions incorporated in the agreement to sell and if the petitioner-plaintiff had alleged for non-compliance of the terms and condition incorporated in the agreement, burden of proof was on him to prove the said facts by putting the agreement on record and proving its contents. It is nobodys case that petitioner-plaintiff had not been in possession of the copy of the said agreement. (13). In J.P. Ravidas & Ors. vs. Navyuvakharijan Utthapan Multi Unit Industrial Co-operative Society Ltd. & Ors. (6), the Honble Apex Court has categorically held that the first question, to which the Court has to address itself, is : whether the plaintiff has discharged the burden of proving the allegations made by him? (13). In J.P. Ravidas & Ors. vs. Navyuvakharijan Utthapan Multi Unit Industrial Co-operative Society Ltd. & Ors. (6), the Honble Apex Court has categorically held that the first question, to which the Court has to address itself, is : whether the plaintiff has discharged the burden of proving the allegations made by him? Similarly, in H.M.M. Ltd. vs. Director General, Monopolies and Restrictive Trade Practices Commission (7), the Apex Court held that the party which makes an allegation, has to establish it for the reason that the burden of proving the same is on him and in case the said party has not done it, the Court has no option but to reject the case. (14). Similarly, in Kala & Anr. vs. Madho Prashad Vaidya (8), while deciding the controversy between the landlord and tenant regarding the sub-letting, the Apex Court held as under:- ``The onus to prove sub-letting is on the landlord and if he establishes parting with the possession in favour of a third party, the onus would shift to the tenant to explain. In the instant case, however, the landlord did not discharge the initial onus and although it was not required, yet the tenant explained how appellant No. 2 had the permissive possession of the shop as its manager. On the established facts and circumstances of the case, the plea of sub-letting was not established. (15). In Moran Mar Basselios Catholicos & Anr. vs. Most. Rev. Mar Poulose Atanasius & Ors. (9), the Apex Court held that the plaintiff, in ejectment suit, must succeed on the strength of his own case and it must be proved by adducing sufficient evidence to discharge the onus that is on him, irrespective of : whether the defendant has proved his case or not. A mere destruction of the defendants case in the absence of establishment of his own case, carries the petitioner no where. (16). Similarly, a Constitution Bench of the Honble Apex Court in Moran Mar Basselios Catholicos vs. Thukalan Paulo Avira & Ors. (10), has held that in a suit if the plaintiffs are to succeed, they must do it on the strength of their own case and not on the weakness of the defendants case. (17). In A. Raghavarmma & Anr. vs. A. Chechamma & Anr. (10), has held that in a suit if the plaintiffs are to succeed, they must do it on the strength of their own case and not on the weakness of the defendants case. (17). In A. Raghavarmma & Anr. vs. A. Chechamma & Anr. (11), the Apex Court has explained the distinction between ``burden of proof and ``onus to prove observing as under:- ``There is an essential distinction between burden of proof and onus to prove: 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, no doubt, lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of the particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence...... It is well settled that a person, who seeks to displace the natural succession to property by alleging an adoption, must discharge the burden that lies upon him by proof of factum of adoption and its validity. (18). In Kalwa Devadattam & Ors. vs. Union of India &, Ors. (12), the Apex Court has observed as under :- ``The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence, at all, is led on the question in dispute by either side; in such a contingency, the party on whom the onus lies to prove a certain fact, must fail. Wherever, however, evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, truth or otherwise of the case must always be adjudged on the evidence led by the parties. (19). Similar view has been reiterated by the Supreme Court in Kundan Lal vs. Custodian, Evacuee Property, Bombay (13); and C. Abdul Shakoor Saheb vs. Arji Papa Rao (14). (20). In the instant case, the trial Court failed miserably to address itself as to which was the party on whom the burden of proof lie as there was no evidence on the issue as what were the terms and conditions of the agreement. (20). In the instant case, the trial Court failed miserably to address itself as to which was the party on whom the burden of proof lie as there was no evidence on the issue as what were the terms and conditions of the agreement. If the burden of proof was on the petitioner-plaintiff to put the agreement on record and further to prove that respondent-defendant failed to comply with the terms of the same and had he discharged his burden, the onus could have been shifted on respondent-defendant to prove further facts or justify non-observance of those conditions and in that situation, he could not have been made liable to be evicted. The trial Court did not consider it appropriate to analyse the provisions of Secs. 101 & 102 of the Evidence Act, 1872. Contradictions in respect of Issue No. 2 could not be explained as the Court started with the observation that burden of proof was the petitioner-plaintiff and concluded that as the defendant did not produce the copy of the agreement, the issue was decided against him without giving any reason whatsoever, as how the same could be shifted to respondent-defendant. The other issues have been decided against the respondent-defendant only on the basis that he did not file the copy of the agreement. FIRST APPELLATE COURTS JUDGMENT: (21). The first appellate Court rejected the application filed by respondent-defendant u/O. 41, R. 27 of the Code of Civil Procedure (for short, ``CPC) for asking the additional evidence on record. However, while deciding the said appeal, the first appellate Court merely referred to the averments made on behalf of the parties very precisely. The true translation of the judgment reads as under :- ``I have considered the rival submissions made on behalf of the parties. Perused the record and considered the legal provisions. In respect of the land in dispute, there is no interim order in the suit for specific performance. The agreement to sell, though in possession of the appellant-defendant, had not been filed before the Court below. Therefore, the application u/O. 41, R. 27 has been rejected and the same has not been taken on record. As per the law laid down in RRD 1994 page 770, the amendment removing the embargo on fragment did not apply with retrospective effect. Therefore, the application u/O. 41, R. 27 has been rejected and the same has not been taken on record. As per the law laid down in RRD 1994 page 770, the amendment removing the embargo on fragment did not apply with retrospective effect. In view of this, the judgment of the trial Court seems to be correct and does not require any interference. The appeals are rejected. (22). The first appellate Court misled itself in entering into the provisions of Sec. 42(a) of the Act, 1955 as it deals with transfer and an agreement to sell does not alienate the immovable property. The said provisions were not attracted at all. Moreso, the first appellate Court failed to make any reference to the trial Courts judgment in considering what had been the fact before it and what issues had been framed by the trial Court and whether the trial Court was right in deciding the said issues on the basis of the evidence led before it by the parties. I have no hesitation in holding that the said judgment cannot be termed as a judgment in consonance with the law enshrined under Order 41, Rule 31, CPC. (23). Order 41, R. 31 CPC provides that the judgment of the Appellate Court shall be in writing and shall state: (a) the point for determination, (b) the decision thereon, (c) the reason for the decision; (d) where the decree under appeal is reversed or varied, the relief to which the appellant is entitled; and shall, at the time of pronouncement, be signed and dated by the Judge or by the Judges concurring therein. (24). The issue involved herein has been considered time and again. In Moran Mar Basselios Catholicos & Anr. (supra), the Honble Apex Court held that it must be evident from the judgment of the Appellate Court that the Court has properly appreciated the case, applied his mind and decided on considering the evidence on record. (25). In Thakur Sukhpal Singh vs. Thakur Kalyan Singh & Ors. (15), the Supreme Court held that the provisions of R. 31 of O. 41 CPC should be reasonably construed and should be held to require the various particulars mentioned u/R. 31 to take into consideration. (25). In Thakur Sukhpal Singh vs. Thakur Kalyan Singh & Ors. (15), the Supreme Court held that the provisions of R. 31 of O. 41 CPC should be reasonably construed and should be held to require the various particulars mentioned u/R. 31 to take into consideration. The Court placed reliance upon its earlier judgment in Sangram Singh vs. Election Tribunal, Kota (16), wherein the Court had observed that the procedural law has been designed to facilitate justice and too technical consideration of the Section that leave no room for reasonable elasticity of interpretation should, therefore, be guarded against as the same may frustrate the case of justice. (26). In Girijanandini Devi vs. Bijendra Narain Choudhary (17), the Honble Apex Court has observed that when the Appellate Court agrees with the view of the trial Court in evidence, it did not re-state the effect of evidence or reiterate reasons given by the trial Court. The expression of general agreement with reasons given by the Courts decision, of which is under appeal, would ordinarily be suffice. (27). In Balaji Mohaprabhu & Anr. vs. Narasingha Kar and Ors. (18), the Orissa High Court held that it would amount to substantial compliance of the provisions of O. 41, R. 31 CPC if the Appellate Courts judgment is based on independent assessment of the relevant evidence on all important aspects of the matter and the findings by the Appellate Court are well-founded and quite convincing. (28). In Nihal Chand Agrawal vs. Gopal Sahai Bhartiya & Ors. (19) the Delhi High Court held that u/O. 41 R. 31 of the Code of Civil Procedure, it is mandatory upon the Appellate Court to independently weight the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. As the first appellate Court is the final Court of facts, it must not record a mere general expression of concurrence with the trial Courts judgment. Similar view has been expressed in Bogamal Gohain & Ors. vs. Lakhinath Kalita & Ors. (20). (29). In Samir Kumar Chatterjee vs. Hirendra Nath Ghosh (21), the Calcutta High Court held that the Court of first appeal should not merely endorse the findings of the trial Court. Similar view has been expressed in Bogamal Gohain & Ors. vs. Lakhinath Kalita & Ors. (20). (29). In Samir Kumar Chatterjee vs. Hirendra Nath Ghosh (21), the Calcutta High Court held that the Court of first appeal should not merely endorse the findings of the trial Court. In order to meet the requirement of O. 41, R. 31 CPC, the Appellate Court must give reasons for its decision independently of that of the trial Court. (30). Recently, this Court, in Kuldeep Singh & Anr. vs. Chandra Singh (22), has held that in order to meet the requirement of substantial compliance of the provisions of O. 41 R. 31 CPC, the first appellate Court must deal all the points agitated before it and it must record reasons in support of its findings and if the provisions have substantially been complied with, the judgment would not vitiate. Similar view was taken in Smt. Tulchhi & Ors. vs. Board of Revenue & Ors. (23). (31). If the judgment of the first appellate Court is examined in view of the law referred to above, it cannot be said that the judgment is self-contained or speaking one or it contains decision on each and every point arising for consideration before the Court or the appellate Court had recorded the reasons on the findings arrived at. Even by stretch of imagination, it cannot be held that the first appellate Courts judgment is something more than an endorsement of the findings of facts recorded by the trial Court without making any reference to them. The first appellate Court failed to consider any important aspect of the matter. There has been no independent assessment of the relevant evidence on any of the material points and the findings recorded by the trial Court, nor the appellate Courts judgment can be said to be convincing, based on any reason what to talk of cogent reasons. There has been no compliance, at all, what to talk of the substantial compliance of the provisions of O. 41, R. 31 CPC. Thus, the said judgment and order stood vitiated. BOARD OF REVENUES JUDGMENT: (32). Undoubtedly, the second appellate Court cannot examine the facts in details as second appeal lies on pure questions of law. But in a case like the instant, the Board also failed to consider the legal aspects involved in the case. Thus, the said judgment and order stood vitiated. BOARD OF REVENUES JUDGMENT: (32). Undoubtedly, the second appellate Court cannot examine the facts in details as second appeal lies on pure questions of law. But in a case like the instant, the Board also failed to consider the legal aspects involved in the case. Placing reliance upon the judgment of this Court, in Lal Chand vs. Nathi (24), in which this Court has held that by deletion of the provisions of Sec. 42(a) of the Act, 1955 with effect from 11.11.1992, the disqualification of fragment by transfer disappears and the amendment applies to all the pending cases. At the cost of repetition, it is reiterated that the said provisions are not attracted in this case as there was no case of sale involved herein. Moreso, Sec. 41-B, inserted by subsequent amendment with effect from 23.3.1995, provides for regularisation of sales in contravention of the provisions of Sec. 42(a) of the Act. The Board allowed the appeal of the respondent-defendant on a wrong premise. The Board also failed to address itself that the judgment of the trial Court was contradictory in its contents and further did not consider the issue of burden of proof correctly and the first appellate Court did not deliver the judgment in compliance with the provisions of O. 41, R. 31 CPC and the judgment and order stood vitiated., Therefore, the Board of Revenue also mis-directed itself while deciding the second appeal and decided the same on wrong premises. (33). It is apparent that the issue before the trial Court was only : whether respondent-defendant was a trespasser and was liable to be evicted in the proceedings u/S. 183 of the Act, 1955 ? The word ``trespasser not only includes the unlawful entry but also retention of possession against law or will of the land-holder. A person who is not able to justify his possession or of retention of land under any law for the time-being in force, may be a trespasser being in possession otherwise than in accordance with law. There may be a case where a person enters upon the land under some title on authorisation or otherwise but subsequently loses the said right and may not vacate the land. There may be a case where a person enters upon the land under some title on authorisation or otherwise but subsequently loses the said right and may not vacate the land. Whether such a person is trespasser and liable to be evicted, would depend upon various facts and circumstances, which have to be determined by the trial Court. In the instant case, the agreement to sell was executed on 30.12.1988. In absence of any finding by the trial Court that petitioner-plaintiff was not in possession of the copy of the agreement to sell, the issue has been decided against the respondent-defendant and that too without considering as on whom the burden of proof lied. Moreso, the trial Court did not even consider it proper to frame issue on limitation for the reason that the suit was filed after thirteen years of the execution of the agreement. Period limitation is provided under Third Schedule of the Act, 1955 and the suit can be filed within the period stipulated therein from the date of cause of action. Thus, the party on whom the burden of proof lied had to prove as on what date the cause of action had arisen and for that purpose also, it was necessary for the trial court to examine the terms and conditions incorporated in the agreement to sell. Instead of proceeding in a proper manner, the trial Court, without giving any explanation, shifted the burden of proof on the respondent-defendant. The trial Court failed to appreciate the distinction between ``the burden of proof and ``onus of proving. It is the later which can be shifted provided the party, on whom the burden of proof lied, discharged the former. Thus, the judgment of the trial Court required a thorough examination by the first Appellate Court. (34). The first Appellate Court has delivered the judgment in flagrant violation of the mandatory provisions of O. 41, R. 23 CPC and, thus, the Court miserably failed to perform the obligation upon it to decide the case in the manner prescribed by the law and the same is not sustainable in law and stood vitiated. (35). (34). The first Appellate Court has delivered the judgment in flagrant violation of the mandatory provisions of O. 41, R. 23 CPC and, thus, the Court miserably failed to perform the obligation upon it to decide the case in the manner prescribed by the law and the same is not sustainable in law and stood vitiated. (35). The Board of Revenue has also misdirected itself and without making any reference to the real issues involved in the case, unnecessarily attracted the provisions of the Amendment Act by which the provision of Sec. 42(a) was deleted and by subsequent amendment incorporated in Sec. 42-B of the Act, 1955, the invalid sales etc. were directed to be regularised. Thus, the judgment cannot be sustained in the eyes of law. In the factual matrix of the case, there is no option with this Court except to set-aside the judgments and orders of the Board and the first Appellate Authority, and remand the case to the first Appellate Authority to decide the first appeal afresh strictly in accordance with law, as explained above. (36). Thus, in view of the above, the judgments and orders of the Board of Revenue dated 26.12.1998 (Annex. 3) and of the First Appellate Court in Appeal No. 107/1995 dated 31.5.1995 (Annex. 2) are hereby set-aside and the case is remanded to the Revenue Appellate Authority to decide afresh the first appeal strictly in accordance with law. In the facts and circumstances of the case, there shall be no order as to costs.