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2002 DIGILAW 5 (RAJ)

Padma (D) thr. LRs. v. Reshmi

2002-01-03

H.S.PUNIA, PANKAJ

body2002
PANKAJ, Member – This is second appeal filed u/Sec. 224 of the Rajasthan Tenancy Act, 1955 (in short ``the Act) against the judgment and decree passed by Revenue Appellate Authority, Hanumangarh dated 22.8.95, by which the first appeal preferred by the appellants was dismissed, although decree of the trial Court was modified to the extent that area of land in comparison of old Khasra No. 152 and 206 area 102.07 kutcha bighas will be 61 pucca bighas and the lower court and Tehsildar, No ar was directed to enquire into the matter with remaining excess area of 14 bighas. (2). The facts giving rise to this appeal may be briefly stated that the respondents No. 1 to 4 filed a suit for declaration and permanent injunction in the court of S.D.O., Nohar with the averment that the agricultural land, old Khasra No. 152 area 39.15 bighas and khasra No. 206 area 62.13 bigas situated at Vill. Badbirana Tehsil Nohar was in cultivatory possession of Kishna alone. The plaintiffs and defendants No. 2 to 4 are heirs of late Shri Kishna. The above mentioned land was recorded in the recent settlement as khasra No. 364 area 18.18 bighas and Khasra No. 515 area 56.03 bighas. The defendant No. 1 never cultivated the suit land, even then the defendant No.1 got his name entered in the revenue record for the suit land to the extent of half share, therefore, the plaintiffs filed suit for declaration that land Kishna was sole khatedar tenant of the suit land and sought correction of entries by deleting the name of defendant Padma. The defendant contested the suit and alleged that the suit land was in joint cultivatory possession of Kishna and Padma and defendant No. 1 Padma was khatedar tenant of half share of the suits land. It was also stated that Kishna was elder brother of Padma and he was Karta of family, therefore, name of Kishna was entered in Khasra Girdawaries of certain years, whereas the suit land was in joint possession of both the brothers. On the pleadings of the parties, the learned trial Court framed following six issues:- (i) Whether the land situated at Vill. On the pleadings of the parties, the learned trial Court framed following six issues:- (i) Whether the land situated at Vill. Badbirana Teh, Nohar bearing old Khasra No. 152 area 39.15 bighas and khasra No. 206 area 62.13 bighas, new Khasra No. 364 area 18.18 and 515 area 56.03 bighas total area 75.01 bighas is in cultivatory possession and recorded in the name of plaintiffs and defendants No. 2 to 4. (ii) Whether the defendant has no right or share- in the above land and plaintiffs are entitled to get the entries in the name of defendant No. 1 deleted from the revenue record. (iii) Whether the suit land was in joint possession and self- acquired of both Kishna and Padma Ram. (iv) Whether the suit land was in joint cultivation of both the parties and the suit was not maintainable without seeking relief of ejectment. (v) Whether the plaintiffs suit was ambiguous without furnishing better particulars. (vi) Whether the plaintiffs are estopped from bringing the present suit. (3). After recording evidence of both the parties the learned trial Court decreed the suit filed by the respondents-plaintiffs and plaintiffs and defendants No. 2 to were declared khatedar tenants of the suit land and name of defendant was ordered to be deleted from the revenue record. Aggrieved by the judgment and decree of the trial court, the appellants filed first appeal before Revenue Appellate Authority, Hanumangarh which was dismissed by the impugned judgment and decree. Hence this second appeal. (4). We have heard the learned counsel for the both the parties and perused the record. (5). The learned counsel for the appellants has vehemently argued that the appellants filed an application under Order 41 Rule 27 CPC, but the learned first appellate court did not decide the application. The documents produced along with the application have been referred in the judgment but no finding has been recorded on these documents. It is further contended that the learned trial Court has given finding on issue No. 1 in cursory manner and evidence adduced by both the parties have not been analyzed and no spacing finding on evidence has been recorded. The first appellate court did not examine the finding recorded by the trial Court and also did not re-appreciate the evidence adduced by both the parties. The first appellate court did not examine the finding recorded by the trial Court and also did not re-appreciate the evidence adduced by both the parties. It is also submitted that the first appellate court did not give any finding on other issues. The first appellate court also misled itself in entering into the area of land recorded in the recent settlement and directing a fresh enquiry which was out of purview of the appellate court. In the last it was prayed that the case may be remanded back to the first appellate court with the direction that application submitted by the appellants under Order 41 Rule 27 CPC be decided first and thereafter decide the appeal afresh in accordance with the provisions of Order 41 Rule 31 CPC. (6). The learned counsel for the respondents has argued that khatedari rights either u/Sec. 16 or Section 19 of the Act can be conferred on a person who was recorded as tenant or sub-tenant at the commencement of the Act. The appellant-defendant Padma was never recorded as tenant or sub-tenant in the revenue records even then khatedari rights to the extent of half share were conferred upon him during the -settlement operations. The respondents-plaintiffs challenged the entry made in favour of defendant padma and the trial Court as well as the first appellate court have held that Kishna alone was in cultivatory possession of the suit land. Therefore, Kishna was entitled for khatedari rights. Both the courts have given concurrent findings on this issue. Hence the first appeal preferred by the appellants was liable to be dismissed and the first, appellate court has committed no illegality or error in rejecting the first appeal. (7). We have given our thoughtful consideration to the rival submissions of the parties and perused the impugned judgment. (8). The crucial issue for consideration in this case was whether Kishna, predecessor in title of the plaintiffs and defendants No. 2 to 4 was alone in cultivatory possession of the suit land and the name of Padma was wrongly entered in the revenue records or whether the land in dispute was in joint cultivatory possession of both Kishna and padma. Both the parties adduced oral evidence as well as documentary evidence before the trial Court. Both the parties adduced oral evidence as well as documentary evidence before the trial Court. But the learned trial Court failed to make an analytical discussion of the evidence on record and has given finding on the basis of Jamabandi Smt. 2012-15, Exhibit P-1, and it has been observed that the documents produced by the defendants came into existence after the settlement operations although the first appellate court has referred ``Dhalbach for Smt. 2013 which contains an entry in the name of Padma and rent receipt is also in the name of Padma, but it was not considered by the learned trial Court. The appellants filed an application under Order 41 Rule 27 CPC on 12.7.95 along with an affidavit and certain rent receipts and certified copy of ``Dhalbach was produced. The first appellate Court failed to decide this application, although reference to the documents produced by the appellants has been given in the judgment but no finding has been given on these documents. Apart from this the first appellate court has also failed to re- appreciate evidence produced before the trial Court. It is unfortunate that both the lower courts have dealt with the case in a very cavalier manner and failed to consider the case in correct perspective. The first appellate court entered into the controversy which was not raised by either party and the main discussion in the judgment was pertaining to the conversion of land from Kutcha to Pucca bigha and pointed out a discrepancy and further ordered an enquiry for excess area of 14 bighas. The first appellate court has given a cursory finding on issue No. 1 without discussing the findings recorded by the learned trial Court and the evidence available on record. The learned first appellate court did not give any specific finding on other issues. (9). Order 41 Rule 31 CPC provides that judgment of the appellate court shall be in writing and shall state the point for determination the decision there on and the reasons for the decision. The learned first appellate court did not give any specific finding on other issues. (9). Order 41 Rule 31 CPC provides that judgment of the appellate court shall be in writing and shall state the point for determination the decision there on and the reasons for the decision. In the case of ``Kuldeep Singh vs. Chander Singh" (1), the Honble High Court has held that in order to meet the requirements of substantial compliance of the provisions of Order 41 Rule 31 CPC, the first appellate court must deal all the points agitated before it and it must record reasons in support of its finding and if the provisions have substantially been complied with the judgment would not vitiate. If we examine the judgment of the first appellate court it cannot be said that judgment is self-contained or speaking one because the first appellate court has not recorded cogent reasons for the finding arrived at on issue No. 1 and no findings have been recorded on other issues. The points agitated before the first appellate court are mentioned in more than two pages whereas finding on issue No. 1 has been recorded in few lines. The first appellate court failed to consider any important aspect of the matter and there has been no independent assessment of the relevant evidence on any of the crucial points as well as finding recorded by the trial Court. Therefore, the judgment of the first appellate court cannot be said to be convincing based on any reason, therefore, the first appellate court has failed to comply with the provisions of Order 41 Rule 31 CPC and the judgment has been passed without deciding application under Order 41 Rule 27 CPC. (10). Thus, the judgment and decree passed by the first appellate court is vitiated by non-compliance of the legal provisions as stated above. The first appellate court also unnecessarily attracted the discrepancy regarding area of land by converting kutcha into pucca bigha. Therefore, the judgment and decree passed by the first appellate court cannot be sustained in the eye of law. (11). The first appellate court also unnecessarily attracted the discrepancy regarding area of land by converting kutcha into pucca bigha. Therefore, the judgment and decree passed by the first appellate court cannot be sustained in the eye of law. (11). In view of the above discussions, there is no option with this court except to set-aside the judgment and decree passed by the first appellate court and remand the case to the first appellate court to decide the application submitted by the appellants under Order 41 Rule 27 CPC and thereafter decide the appeal afresh strictly in accordance with law. (12). Thus, in view of the above discussions, the judgment and decree passed by Revenue Appellate Authority, Hanumangarh dated 22.8.95 are hereby set-aside and the case is remanded to Revenue Appellate Authority, Hanumangarh with the direction to decide the application submitted by the appellants on 12.7.95 and thereafter decide the first appeal afresh strictly in accordance with law. In the facts and circumstances of the case, there shall be no order as to costs. Pronounced in the open court.