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2011 DIGILAW 888 (RAJ)

Halia v. State of Rajasthan

2011-05-03

PRAMIL KUMAR MATHUR

body2011
MATHUR, M.—This matter has been placed before me on account of a difference of opinion rendered by the Division Bench of this Court comprising of Hon'ble Member Shri Pankaj and Hon'ble Member Shri H.S. Punia in D.B. Appeal No. 84/2001 on 5.7.2002. 2. Thumb nail sketch of the facts of the case is as under: That plaintiff deceased Shri Amir Ali filed a suit under Section 88 & 188 of the Rajasthan Tenancy Act, 1955 (in short to be referred as `the Act') against the present respondents/defendants with the averment that he is in cultivatory possession of 150 bighas of land at Village Janpalia Tehsil Chauhatan District Barmer but the land in cultivation of plaintiff was wrongly recorded in khasra No. 255 instead of khasra No. 258 which belongs to plaintiff himself. Therefore, plaintiff be declared khatedar-tenant of the land bearing khasra No. 258 measuring 150 bighas and permanent injunction be granted against defendants not to interfere in cultivatory possession of the plaintiff on the said land. 3. Defendant/respondents contested the plaint by filing the written statement with allegations that land does not belong to plaintiff. Atai S/o Gafur, who is the khatedar-tenant of the disputed land, is not impleaded party in the suit; so due to non-joinder of necessary party, plaint is liable to be dismissed. 4. On the basis of pleadings submitted by both the parties, five issues were framed by the trial Court. The plaintiff adduced oral as well as documentary evidence in support of his case. After hearing both the parties, learned trial court dismissed the suit on 10.7.2000 filed by the plaintiff against which plaintiff/appellants preferred appeal before the learned Settlement Officer-cum-Revenue Appellate Authority (Barmer-Jaisalmer), Headquarter Jodhpur which was rejected by impugned judgment & decree dated 23.2.2001. Being aggrieved by the judgment & decree dated 23.2.2001, second appeal was filed in the Board of Revenue. 5. The Division Bench comprising of Hon'ble Member Shri Pankaj and Hon'ble Shri H.S. Punia heard the second appeal. Since there was a difference of opinion between the Hon'ble Members of the Division Bench, the matter has been referred to a Third Member by the Hon'ble Chairman, thus has been placed before me. 6. I have heard the arguments of learned counsel for the rival parties and perused the record. 7. Since there was a difference of opinion between the Hon'ble Members of the Division Bench, the matter has been referred to a Third Member by the Hon'ble Chairman, thus has been placed before me. 6. I have heard the arguments of learned counsel for the rival parties and perused the record. 7. Learned counsel for the appellants has submitted that it is true that learned trial Court did not comply with the provisions of Order 20 Rule 5 of the Code of Civil Procedure in writing the judgment and did not consider the material available on record. Therefore, suitable order be passed in deciding this appeal. 8. On the contrary, learned Dy.Govt. Advocate has controverted the arguments advanced by the learned counsel for appellants. 9. I have given my thoughtful consideration to the rival contentions and scanned the matter carefully. 10. As per the opinion of Hon'ble Member Shri H.S. Punia, learned trial Court has passed the judgment against the provisions of Order 20 Rule 5 C.P.C. Learned trial Court also failed to give any finding with regard to the evidence led by the plaintiff, even oral evidence produced by the plaintiff has not been discussed in the judgment. The learned trial Court passed the judgment without recording any finding on each issue and without analytical discussion on the evidence led by the plaintiff/appellants. The judgment passed by the first appellate court is mere endorsement of the findings recorded by the trial Court. The first appellate court has not assessed evidence independently. Therefore, while setting aside the judgment of both the subordinate courts, the case is remanded back to the trial Court to decide the case afresh in accordance with law. 11. In the opinion of Hon'ble Member Shri Pankaj, second appeal is liable to be dismissed on the ground that as per Rule 55 of the Rajasthan Revenue Court Manual: Part-II, learned trial Court should not have Regis-tered this case and it should be dismissed at the threshold. Atai S/o Gafur was not impleaded as a party and the analytical discussion of the produced documents is wrong. Therefore, being the concurrent judgments of the subordinate courts, second appeal be dismissed and no purpose will be served if the matter will be remanded to the trial Court for disposal afresh. 12. Atai S/o Gafur was not impleaded as a party and the analytical discussion of the produced documents is wrong. Therefore, being the concurrent judgments of the subordinate courts, second appeal be dismissed and no purpose will be served if the matter will be remanded to the trial Court for disposal afresh. 12. This fact is not disputed that for the proper adjudication of the case, trial Court had framed five issues on 22.7.1997. As per the Order 20 Rule 5 Code of Civil Procedure, it is obligatory that court should state its finding with the reasons upon each separate issue unless the finding upon any one or more of the issues is sufficient for the decision of the suit. For the sake of convenience, relevant provision is reproduced as under:- Order 20 Rule 5 Civil Procedure Code- "Court to state its decision on each issue- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit." 13. Hon'ble Rajasthan High Court in the case of `Shanti Lal vs. Board of Revenue & Ors.' reported in AIR 2011 Rajasthan Page 72 = RLW 2011(1) RJ 496 has also observed that court has to state its decision on each issue. In the light of the aforementioned parameters, bare perusal of the judgment & decree dated 10.7.2000 passed by the trial Court makes it abundantly clear that learned trial court has not passed the judgment issuewise. 14. Judgment delivered by the trial court also reflects that it has not referred any evidence produced by the plaintiff. It is mandatory upon the trial court to independently weight the evidence of the parties and consider the relevant points which arise for adjudication and bearing of the evidence on relevant points. 15. On these points, I am in full agreement with the opinion rendered by the Hon'ble Member Shri H.S. Punia. 16. On the contrary, I do not agree with the opinion of the Hon'ble Member Shri Pankaj because at the time of the presentation of the suit, no such type of report as opined by the Hon'ble Member Shri Pankaj has been marked on the plaint by the concerned reader. 16. On the contrary, I do not agree with the opinion of the Hon'ble Member Shri Pankaj because at the time of the presentation of the suit, no such type of report as opined by the Hon'ble Member Shri Pankaj has been marked on the plaint by the concerned reader. Moreover, trial Court has not framed any issue about non-joinder of khatdar of khasra No. 255 Shri Atai S/o Gafur. This is again pertinent to mention that if trial Court considered Atai S/o Gafur as necessary party, then non-joinder of necessary party is the matter of the mixed question of fact & law which could be decided only after framing of issues and recording evidence. Alternatively the view expressed by Hon'ble Member Shri Pankaj may be factually correct, but as per established legal proposition, trial Court should have decided the matter with regard to the evidence led by the parties and in consonance with the mandate envisaged under Order 20 Rule 5 of the Code of Civil Procedure. 17. In the light of the aforesaid discussions, I have no hesitation to hold that there is no legal error in remanding the matter by the Hon'ble Member Shri H.S. Punia to the trial Court. Therefore, in the context of the settled legal position while agreeing with the Hon'ble Member Shri H.S. Punia, the appeal filed by the appellants deserves to be partially accepted and the judgment & decree by both the subordinate courts are liable to be set aside. 18. Hence, the appeal is partially accepted and the judgment & decree passed by the learned Settlement Officer-cum-Revenue Appellate Authority (Barmer-Jaisalmer), Headquarter Jodhpur dated 23.2.2001 and that of learned trial court dated 10.7.2000 are hereby set aside; and the matter is remanded back to the trial court to decide the case afresh in accordance with law. Pronounced in open court.