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2013 DIGILAW 610 (GUJ)

Savitaben Jamabhai Gohil v. Kantilal Ambalal Patel Thro’ His Power of Attorney

2013-10-07

JAYANT PATEL

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Judgment Jayant Patel, J.—The only question to be considered in the present proceeding is whether the Tribunal could reappreciate the entire evidence on record and arrive at a finding other than recorded by the lower authority or not. 2. The short facts of the case are that one Jamabhai Somabhai Gohil (hereinafter referred as ‘the alleged tenant’) filed an application under Section 70(b) of the Gujarat Bombay Tenancy & Agriculture Lands Act (hereinafter referred to as ‘the Act’) for declaring him as the tenant. The aforesaid application came to be filed on 6.6.1969. The Mamlatdar & ALT examined the matter and found that the alleged tenant was cultivating the land on the relevant date and, therefore, entitled to purchase the land. The matter was carried in appeal by the Respondent No. 1 herein before the Dy. Collector under Section 74 of the Act. The Dy. Collector after reappreciation of the evidence recorded the findings of fact and concurred with the ultimate decision taken by the Mamlatdar & ALT and dismissed the appeal. The matter was carried in revision before the Gujarat Revenue Tribunal and the Tribunal upon reappreciation of the evidence found that the findings of fact by both the authorities were without proper application of mind and ultimately allowed the revision and set aside the order. Under the circumstances, present petition before this Court. 3. I have heard Mr. Munshi for the petitioner and Mr. Shah for the Respondent No. 1 and Mr. Patel for the Respondent No. 2. 4. The learned advocates appearing for both the sides have taken the Court to the entire order of the Tribunal and it appears to me that the Tribunal has undertaken the reappreciation of the entire evidence and has recorded the finding other than as was recorded by the lower authority, namely, Mamlatdar & Dy. Collector and, thereafter, the Tribunal has also recorded that the findings were perverse and hence has set aside both the orders of the lower authority. 5. In my view the Tribunal has committed error in interpreting the words “finding perverse to the record of the case” or the words “perverse finding”. In legal terminology when any quasi-judicial authority or judicial authority uses the word “finding perverse to the record”, such would mean that a finding recorded without there being any evidence on record or a finding arrived at without any evidence on record. In legal terminology when any quasi-judicial authority or judicial authority uses the word “finding perverse to the record”, such would mean that a finding recorded without there being any evidence on record or a finding arrived at without any evidence on record. If a finding is recorded after considering the evidence, and if there is nexus available to such finding, the higher authority cannot say that such finding is perverse to record. Be it recorded that after interpreting document or the evidence a different conclusion to be recorded cannot be considered at par with the finding as perverse to the record. It appears from the decision made by the Tribunal that the Tribunal has proceeded on the basis that the evidence as led by the parties if considered and interpreted would go to show that the status as that of the tenant of the petitioner was not established and on that basis the Tribunal has found that the finding was perverse to record. In my view, the approach on the part of the Tribunal could be said as erroneous inasmuch as the Tribunal has not found that the conclusion of the Mamlatdar or Dy. Collector is not supported by evidence and, therefore, perverse to the record, but the Tribunal after reappreciating the very evidence has recorded a different conclusion and, therefore, titled as perverse to the record. At this stage reference be made to the meaning of the word perverse finding as per Law Lexicon 3rd Edition as under:— Perverse finding. “Perverse finding” means a finding which is not only against the wright of evidence but is altogether against the evidence itself. Parys (Cal) Employees’ Union vs. Parry & Co., AIR 1966 Cal 31 , 42. [Constitution of India] No reasonable person should have arrived at those findings. (Triveni Rubber & Plastics vs. Collector, AIR 1994 SC 1341 ).” 6. It is hardly required to be stated that the revisional authority while exercising the power of revision can examine the aspect of finding perverse to the record, but cannot reach a different conclusion after reappreciation of the evidence which can only be undertaken in exercise of appellate power. (Triveni Rubber & Plastics vs. Collector, AIR 1994 SC 1341 ).” 6. It is hardly required to be stated that the revisional authority while exercising the power of revision can examine the aspect of finding perverse to the record, but cannot reach a different conclusion after reappreciation of the evidence which can only be undertaken in exercise of appellate power. The only exception if upon perusal of any document no person with reasonable prudence by any stretch of imagination would reach to a particular conclusion and in spite of the same it has been so reached by any authority one may say that such finding is perverse to the record, but not the error apparent on the face of the record can be equated with perverse finding. While exercising power the revisional jurisdiction, after reappreciation of the evidence a different conclusion of finding of fact cannot be recorded by the revisional authority. 7. The learned advocate for the respondent is not in a position to support the finding as if perverse to the record or by committing error apparent on the face of the record, but his contention was that the Tribunal after considering the entire evidence has found that the case of the petitioner herein was unacceptable to prove as tenant of the land in question. 8. In view of the aforesaid it can be said that the Tribunal while exercising revisional jurisdiction has exceeded in its power of revisional jurisdiction by undertaking the reappreciation of the evidence and by recording a different conclusion for finding of fact, hence it would be a case for interference in exercise of powers under Article 227 of the Constitution of the India. 9. In view of the aforesaid observations and discussion, the impugned order passed by the Tribunal deserves to be quashed and set aside. Hence, the same is quashed and set aside with the further direction that the revision shall stand restored to the file of the Tribunal. The Tribunal shall examine the revision in light of its jurisdiction available under Section 76 of the Act and shall decide the same as early as possible, preferably within a period of six months from the receipt of the order of this Court. The petition is allowed to the aforesaid extent. Considering the facts and circumstances no order as to costs.