Decided on March 05,1960

CHHOGA Respondents


- (1.)THIS revision under sec. 187 of the Ajmer Tenancy and Land Records Act, 1950, has been filed against an order of confirmation passed by the Additional Collector, Ajmer dated 10.6.59 whereby the original order of the S.D.O. Ajmer under S. 104 of the aforesaid Act passed in favour of the opposite party was confirmed. THIS revision petition was heard by a Division Bench of the Board consisting of Sarva Shri Kanwar Bahadur and R.N. Hawa.[ See 1960 RLW (Revenue Supplement) 101.] These learned Members being enqually divided in opinion as to the order to be made in the case it has come up before me under Sec. 13(2) of Rajasthan Land Revenue Act.
(2.)I have heard the learned counsel for the parties and have examined the record as well The grounds upon which a revisional court can interfere under sec. 187 of the Ajmer Tenancy and Land Records Act are completely identical with those laid in sec. 115 C. P. C. This section has been the subject of a number of decisions of the highest Tribunals of the land. The learned counsel for the parties have cited a number of them. I would, however, refer only to the important ones as the law enunciated in them is to a great extent similar. In A.I.R. 1951 Rajasthan 58 it was observed that revision lies where a subordinate court commits an illegality or material irregularity, but it does not lie where there is a mere mistake of law howsoever gross it may be. In A.I.R. 1956 Bombay 323 it was held that where the division of the lower Court is based upon what is substantially appreciation of evidence and inferences have been drawn therefrom then they are binding upon the High Court and are not liable to be challenged in an application under sec. 115 C. P. C. In A.I.R. 1956 Allahabad 232 it was laid down that the finding of the court may be right or wrong but if the court has considered the evidence and come to a conclusion, that finding is binding upon the revisional court. In AIR 1959 Privy Council 156 the scope of revisional jurisdiction was examined at great length. It was observed that the High Court is empowered by sec. 115 C.P.C. to satisfy upon three matters (1) that the order of the subordinate court is within its jurisdiction, (b) that the case is one in which the court ought to exercise jurisdiction (c) that in exercising jurisdiction the court has not acted illegally, i.e. in breach of some provision of law or with material irregularity i.e. by committing some error of procedure in the course of the trial which immaterial in that it may have affected the ultimate decision. "If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate court upon questions of fact or law. There can be no justification whatsoever for the view that sec. 115(c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate courts'. In AIR 1956 Patna 290 it was held that there can be no justification for the High Court to interfere under sec. 115 with the order of the court below even if it has committed an error of law, because it cannot correct even gross and palpable errors of subordinate courts. In A. T. R. 1959 Allahabad 463 it was held that the powers of the High Court in revision are not available for correction of errors of law however gross those errors on the merits of the case. "This power of the High Court is only available where the High Court could legitimately hold that the court below............... acted illegally or with material irregularity in the exercise of its jurisdiction, namely, committed such an error of procedure, a mandatory procedure, and the error had resulted in failure of justice or some such thing". In A.I R. 1953 S. C. 23 the observations of their Lordships of the Privy Council referred to above were quoted with approval and it was observed that the errors contemplated in sec. 115 C.P.C. related to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.
The present case is, therefore, to be examined in the light of these authoritative pronouncements on the exposition of the relevant law. Interference with the concurrent findings of the lower court would be justified if some material defect of procedure can be shown to exist in the case.

The learned counsel for the applicants has argued that in original application presented by the opposite party possession as landlord was not mentioned, instead the word Khudkasht alone was used.. It has also been argued that the mortgage and its redemption were not included in the original application but were introduced at a belated stage with the collusion of the Jagirdar. Similarly it has been contended that the theory of voluntary surrender was conspicuous by its absence from the original application and was inducted as a product of afterthought. It was also argued that the evidence led by the opposite party failed to establish its possession over the land in dispute whereas the evidence led by the applicants was perfectly cogent and convincing and that the lower courts in arriving at their findings resorted to untenable and perverse line of reasoning. Shri Kanwar Bahadur has in his judgment also observed that the findings arrived at by the lower courts cannot be supported by the evidence on record.

I have bestowed my careful consideration upon all the aspects of this case. The only question to be determined is as to whether there has been any illegality or material irregularity in the exercise of jurisdiction by the subordinate courts. In other words, it has to be determined as to whether there has been any material defect of procedure as distinct from errors of law or fact. To this answer to my mind is bound to be in the negative. The reasons which have been responsible for this inference may be stated as below - (1) The omission of the word landlord from the original application is not of any significance for the word Khudkasht can to a great extent convey the connotation of the term landlord. The word Khudkasht obviously implies self cultivation by a landlord Biswedar, Zamindar, Jagirdar or an intermediary and definitely is not used of cultivation of a tenant on his own holding. There can be no doubt that the use of the word landlord would have been more appropriate in accordance with the requirements of the prescribed form. But a mere omission of the same cannot be held to be fatal or prejudicial to the opposite party. (2) The theory of mortgage may have been introduced in the case at a belated stage. But the very fact that the mortgage over the land in dispute finds a clear entry in the Record of Rights prepared during the Settlement operations of 1359 and 1369 Fasli corresponding to 1942 and 1952 A.D. leaves no room to doubt that the mortgage version is not a product of afterthought though it may have been omitted from the initial application. (3) The redemption of the mortgage is not directly connected with the claim of the opposite party and hence it can be argued that it was not considered advisable to incorporate the same in it. To determine as to whether the mortgage has or has not been redeemed is not within the scope of these proceedings. But nevertheless the fact that it has been redeemed cannot be lost sight of for it would always be there to estop them from taking a different attitude. (4) The question as to whether the land in dispute was voluntarily surrendered by the applicant in favour of the opposite party or not is obviously a question of fact. As observed by their Lordships of the Supreme Court in A.I.R. 1952 SC 57 even in second appeal the findings of fact given by the first appellate court upon an appreciation of the relevant evidence cannot be reversed or interfered with. (5) The judgments of the Assistant Collector and Additional Collector make it abundantly clear that the court subjected the entire evidence led fey the parties to a careful examination, Cogent and convincing grounds have been stated in support of the inferences drawn by them. It cannot be argued with any fairness that the inferences of the lower courts are based on no evidence whatsoever. On the contrary it is abundantly clear that both the lower courts have substantially and impartially appreciated the evidence. There can thus be no scope of interference in revision. (6) There ought to exist some illegality or material irregularity to justify interference in revision. The learned counsel for the applicants has argued that the trial court on 31.3.58 amended issue No. 1 whereby the word "tenant" was struck out and was substituted by the "landlord". The contention is that this led to a breach against the applicants. The proceedings dated 31.3.58 clearly show that the parties were given an opportunity to have their say with regard to this amendment and on their answering the question in the negative, the case was fixed up for judgment. It was open to the applicants to lead any further evidence if they so desired and considered essential in consequence of the amendment. The provisions of Order 14, Rule 5 C.P.C. are perfectly clear on the point. The court may at any time before passing a decree amend the issues on such terms as it thinks fit. In fact, it is the duty of the court to order such amendments as may be necessary for determining the matters in controversy between the parties. This power can be exercised even after the close of the arguments. No doubt it is the duty of the court to give opportunity to the parties and adduce additional evidence on the amended issues. But where the parties have refused to take advantage of this opportunity it cannot be held that the court acted with any illegality or material irregularity.

The result, therefore, is that the applicants have failed to show any illegality or material irregularity as may justify an interference in revision. I would, therefore, direct that this revision should be rejected. By the Court. As the majority view is that the revision shall stand dismissed, it is hereby ordered accordingly.


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