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2007 DIGILAW 1459 (RAJ)

Jai Ram S/O Gulla v. State of Rajasthan

2007-08-02

SANGEET LODHA

body2007
JUDGMENT 1. - The instant writ petition is directed against the order dated 17.9.1993 (Annex. 4) passed by the Board of Revenue whereby the second appeal preferred by the respondents Nos. 5 to 7 (hereinafter referred to as "the respondent-plaintiffs") under Section 224 of Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the Act"), against the judgment and decree passed by the Revenue Appellate Authority, Court No. 2, Jodhpur dated 12.6.1984 (Annex. 3), has been allowed and while setting aside the judgment and decree dated 12.6.1984 passed by the Revenue Appellate Authority, the judgment and decree dated 17.8.1964 passed by the Assistant Collector, Balotra in favour of the respondents-plaintiffs and against the petitioner (hereinafter referred to as "the petitioner-defendant"), has been affirmed. 2. Briefly stated the facts of the case are that Serve Shri Jai Ram, Jai Roop, Rama and Ganesh sons of Raja Kalavi (Rama, Jai Roop and Jai Ram since deceased are now represented by their legal representatives) preferred a suit for declaration under Section 89 of the Rajasthan Tenancy Act, 1955 in the Court of Assistant Collector, Balotra alleging therein that they were in possession of the agriculture land ad measuring 10 bighas comprising Khasra No. 375 in village Kanana, Tehsil Pachpadra, District Barmer, since prior to Samvat 2012. It was stated that even at the time of settlement they were in possession and cultivating the land, but inadvertently during the settlement commencing in Samvat 2011 the Parcha Lagan was issued in the name of appellant-defendant as he was name-sake of the plaintiff Jai Ram and his agriculture land is also situated adjoining to the suit land. Accordingly, the respondents-plaintiffs prayed for declaring him as a khatedari tenant of the land in question and for the correction of the entries in the revenue record.The appellant-defendant filed a written statement interalia stating therein that he is old tenant in possession and the land were never in possession and cultivation of the respondents-plaintiffs and the parcha of the land has rightly been issued in his favour. 3. On the basis of the pleading of the parties the learned trial Court framed following issues : (i) Whether the plaintiffs are entitled to be declared khatedari tenant of Khasra No. 375? (ii) Relief? 3. On the basis of the pleading of the parties the learned trial Court framed following issues : (i) Whether the plaintiffs are entitled to be declared khatedari tenant of Khasra No. 375? (ii) Relief? On behalf of the plaintiffs certified copies of Khasra Girdawaris from Samvat 2012 to 2018 were produced and besides the plaintiff Ganesh, witnesses Girdhari, Rupa and Chatra were examined. On behalf of the defendant, the defendant himself, Gewar Chand and Chhagan Lal, were examined as witnesses and documentary evidence rent receipts Ex.A/1 to A/5 were produced. After due consideration, the suit preferred by the respondents-plaintiffs was decreed by the learned trial Court vide judgment and decree dated 17.8.1964 (Annex. 1). 4. Aggrieved by the judgment and decree passed by the learned trial Court, the appellant-defendant preferred an appeal before the Revenue Appellate Authority, Bikaner. The appeal preferred by the appellant-defendant was allowed by the Revenue Appellate Authority vide judgment dated 23.4.1965 (Annex. 2) and the judgment and decree dated 17.8.1964 passed by the Assistant Collector, Balotra was set aside and the suit preferred by the respondents-plaintiffs was dismissed. 5. Assailing the validity of the decree passed in appeal by the Revenue Appellate Authority, the respondents-plaintiffs preferred a second appeal before the Board of Revenue under Section 224 of the Act. The Board of Revenue allowed the appeal preferred by the respondents-appellants vide order dated 27.5.1966 (Annex. 5) and set aside the judgment and decree dated 23.4.1965 passed by the Revenue Appellate Authority. The learned Board remanded the matter to the Revenue Appellate Authority for further enquiry and fresh decision with regard to factum of tenancy of the suit land, in the manner stated in the judgment. It was also directed that the enquiry should be made by recalling the Kamdar or landlord as a State witness and the accounts books of Thikana may also be summoned to prove as to who was actually the tenant prior to commencement of the settlement and who paid the rent for the land in question. 6. After remand the learned Revenue Appellate Authority summoned the record of the Jagirdar from the Jagir Commissioner and also summoned the witnesses as per the directions of the Board of Revenue. The Kamdar of Thikana Shri Chagganlal died and Jagirdar was suffering from paralysis and mental unsoundness, therefore, they could not be examined as witnesses. 6. After remand the learned Revenue Appellate Authority summoned the record of the Jagirdar from the Jagir Commissioner and also summoned the witnesses as per the directions of the Board of Revenue. The Kamdar of Thikana Shri Chagganlal died and Jagirdar was suffering from paralysis and mental unsoundness, therefore, they could not be examined as witnesses. However, the Revenue Appellate Authority later on examined Narpat Karan (brother of Jagirdar) as a Court witness. After hearing the parties and considering the evidence on record, the Revenue Appellate Authority allowed the appeal preferred by the petitioner-defendant and dismissed the suit preferred by the respondents-plaintiffs vide judgment and decree dated 12.6.1984. 7. Aggrieved by the judgment and decree dated 12.6.1984, the respondents-plaintiffs preferred a second appeal before the Board of Revenue, which has been allowed vide impugned judgment dated 17.9.1993. 8. I have heard the learned counsels for the parties and have gone through the record. 9. At the outset, it is contended by Mr. N.S. Acharya the learned counsel for the petitioner that the learned Board of Revenue has misread the remand order and seriously erred in discarding the evidence, which has come on record of the learned trial Court prior to remand order dated 27.5.1966 passed by the Board of Revenue, on the ground that had that evidence been credible the case would not have been remanded by the Board of Revenue for further enquiry to the Revenue Appellate Authority. It is contended by the counsel that the Board of Revenue has relied upon inadmissible evidence i.e. Girdawaries of the Samvat 2012, 2013 and from 2014 to 2017. It is urged on behalf of the petitioner that the Girdawaries are not record of the rights and the petitioner cannot be declared tenant of the suit land on the basis of the entries in the Girdawaries. According to the petitioner, the Board has misread and misinterpreted the statement of Narpat Karan and has ignored the statement of Chhagan Lal (Kamdar), who stated in unequivocal terms that the petitioner-defendant is the tenant of the land comprising khasra No. 375. The learned counsel further contends that the respondents-plaintiffs have failed to discharge their onus of proof and there exists an apparent contradiction in stand taken by the plaintiffs with regard to payment of the Bigodi. The learned counsel further contends that the respondents-plaintiffs have failed to discharge their onus of proof and there exists an apparent contradiction in stand taken by the plaintiffs with regard to payment of the Bigodi. Moreover, the learned Board has assigned no reason for reversal of the findings arrived at by the Revenue Appellate Authority. 10. Per contra, Mr. Jitendra Chopra appearing on behalf of the respondents-plaintiffs has urged that the learned Board of Revenue has rightly arrived at the finding that the petitioner is entitled to be declared as khatedari tenant of suit. The counsel contends that Girdawari is the record of the rights and there is presumption with regard to the entries recorded therein. The learned counsel apprised the Court that the examination of Shri Narpat Karan as Court witness was objected by the petitioner-defendant before the Revenue Appellate Authority, but the objection was overruled vide order dated 8.9.77 and the learned Revenue Appellate Authority ordered that it would be proper to examine the Narpat Khan as witness. The learned counsel while relying upon the statement of Shri Narpat Karan, contended that learned Revenue Appellate Authority had seriously erred in ignoring the statement of Narpat Karan and relying upon the statement of Chhagan Lai Kamdar According to the learned counsel on the basis of oral and documentary evidence it stand proved beyond doubts that the respondents-plaintiffs are the tenants of the suit land and they are entitled for the declaration prayed for. On being pointedly asked about the justification of the findings recorded by the Board of Revenue that the evidence which has come on record prior to passing of the remand order dated 27.5.1966, cannot be relied upon, the learned counsel was not able to support the said finding. 11. Admittedly, by virtue of provisions of Section 208 of the Act, the provisions of Code of Civil Procedure Act, 1908 subject to certain exception and modification apply to all suits and proceedings under the Act. The parties were at issue on the question of law and facts and they were permitted by the learned trial Court to lead evidence in support of their case. After hearing the parties and due consideration of the evidence on record, the learned trial Court pronounced the judgment on the issue framed and decreed the suit preferred by the respondents-plaintiffs. The parties were at issue on the question of law and facts and they were permitted by the learned trial Court to lead evidence in support of their case. After hearing the parties and due consideration of the evidence on record, the learned trial Court pronounced the judgment on the issue framed and decreed the suit preferred by the respondents-plaintiffs. On appeal being preferred by the petitioner-defendant the Appellate Court while re-appreciating the evidence on record reversed the findings recorded by the learned trial Court. The appeal was allowed, the judgment and decree passed by the learned trial Court was set aside and the suit preferred by the respondents-plaintiffs was dismissed. The learned Board of Revenue while deciding the second appeal preferred by the respondents-plaintiffs arrived at the findings that on the basis of material on record the learned Courts below have committed an error of law in coming to the conclusion that possession proved tenancy. The learned Board arrived at the finding that payment of rent prior to commencement of the settlement has neither been proved by the respondents-plaintiffs nor by the appellant-tenant. The learned Board arrived at the finding that mere possession of a person on certain land is not sufficient to cause an entry to be made in the tenancy column of the record of right. Accordingly, the learned Board of Revenue remanded the matter to First Appellate Court for further enquiry and fresh decision with regard to factum of tenancy of the suit land in the manner stated in the judgment by recalling Kamdar or landlord as State witness and summoning the books of accounts of Thikana to prove as to who was the actual tenant prior to the commencement of the settlement and who paid the rent for the land in question.A bare perusal of the aforesaid remand order passed by the learned Board of Revenue reveals that it has nowhere been observed or directed by the learned board that evidence already produced by the parties to the proceedings before the trial Court, has to be excluded from consideration by the First Appellate Court while deciding the appeal afresh. It is also required to be noticed that the matter was remanded by the learned Board of Revenue to the First Appellate Court not for the reason that the evidence already on record were found to be incredible, but for the reason that the evidence adduced by the parties to the suit was not found sufficient to determine the issues involved in the matter. As a matter of fact, no such direction could have been issued by the Board to exclude the evidence adduced by the parties before the learned trial Court from consideration.The provisions of Order 41 Rule 23 and 23A of CPC which govern the remand of the case by the Appellate Court, are not covered by the exceptions and modifications set out in Section 208 of the Act and the List-I and List-II of the IV Scheme attached thereto, therefore, the same are fully applicable to all suits and proceedings under the Act. Order 41 Rule 23 deals with the remand of the case by the Appellate Court, where the Court from whose decree an appeal is preferred as disposed of the suit upon a preliminary point and the decree is reversed in appeal. While exercising the power conferred under Order 41 Rule 23 the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded. It has been specifically provided that on remand to the Court, from whose decree the appeal is preferred,. the Court shall readmit the suit to its original number and proceed to determine the suit; and the evidence recorded during the trial shall, subject to all just exceptions, by evidence during the trial after remand. Similarly, Order 41 Rule 23-A deals with remand in other cases, where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary. While exercising the power of remand under Order 41 Rule 23-A CPC the Appellate Court shall have the same power as it has under Rule 23. While exercising the power of remand under Order 41 Rule 23-A CPC the Appellate Court shall have the same power as it has under Rule 23. Order 41 Rule 25 deals with remand of the case by the Appellate Court where the Court from whose decree an appeal is preferred has omitted to frame or try any issue or to determine any question of fact.In the instant case, the matter has been remanded by the Board of Revenue on second appeal to the First Appellate Court for further enquiry and fresh decision in the manner stated in the judgment. It appears to be debatable question as to whether the remand order passed by the learned Board of Revenue strictly falls within the parameter laid down for the remand in Order 41 Rule 23 or 23-A of CPC, but the said order has already attained finality and this Court is not called upon to examine the validity of the remand order passed by the Board of Revenue. That apart, the Appellate Court has inherent powers to remand a case irrespective of the said Rules, if necessary for ends of justice. However, the fact remains that from none of the provisions referred to hereinabove governing the remand of the case by the Appellate Court it can be inferred that while passing the remand order the Appellate Court may exclude the evidence, which has come on record during the original trial from consideration, unless the same is held to be inadmissible for the reasons recognised by the law. To the contrary, subject to the just exceptions, the evidence which has already come on record during the trial shall be considered to be evidence during the trial even after remand. As a matter of fact, while deciding the appeal afresh, after taking additional evidence on record, exclusion from consideration of the evidence adduced by the parties during the trial altogether, defeats the ends of justice. Thus the view taken by the Board excluding the consideration of the evidence which has come on record prior to passing of the remand order during the original trial cannot be countenanced. Thus the view taken by the Board excluding the consideration of the evidence which has come on record prior to passing of the remand order during the original trial cannot be countenanced. As noticed above, no such directions were issued by the Board while passing the remand order.In view of the discussion above, I am of the considered opinion that the learned Board could not have based its decision solely on the consideration of the evidence, which has come on record after passing of the remand order dated 27.5.1966, holding that the evidence adduced by the parties has already been held to be incredible by the Board of Revenue while passing the remand order. The Board was under an obligation to consider the entire evidence on record objectively. Of course, while deciding the appeal the Board was required to keep in view the findings recorded by it earlier while passing the remand order.For the aforesaid reasons, the findings recorded by the Board of Revenue ignoring the relevant evidence on record are not sustainable in the eye of law. The illegality committed by the Board of Revenue in exercise of its jurisdiction has resulted in failure of justice. The impugned judgment, 'therefore, stands vitiated on this count alone. The matter deserves to be remanded to the Board of Revenue for the decision of appeal afresh and, therefore, other contentions raised by the parties are not required to be considered at this stage. 12. In the result, the writ petition succeeds and it is hereby allowed with no order as to costs. The matter is remanded to the Board of Revenue for decision afresh after hearing the parties and considering the entire evidence, which has come on record, before or after passing of the remand order dated 27.5.196 by the Board and keeping in view the findings recorded by the Board while passing the remand order.The parties are locked up in the litigious battle for last more than 4 decades, therefore, in the interest of justice I considered it appropriate to direct the learned Board to decide the appeal expeditiously, in any case within a period of six months from the date of this order. The Registry is directed to send certified copy of the order along with the record of the learned Courts below to the Board of Revenue forthwith. The Registry is directed to send certified copy of the order along with the record of the learned Courts below to the Board of Revenue forthwith. The parties are directed to appear before the Board of Revenue on 16.8.2007.Writ petition allowed. *******