PUSHA Vs. PUSHA

JUDGEMENT

(1.) This is a second appeal by the unsuccessful defendants against the concurrent judgment and decree of ejectment and compensation awarded against them by the Assistant Collector Merta on 30.8.57 and the Additional Commissioner, Jodhpur on 14.3.58. We have heard the learned counsel for the parties and examined the record also. The suit was preferred by the respondents with the allegation that the suit land belonged to one Maji Bhanwar Kuwa and was being cultivated by them upto Samvat 2009 continuously from Svt. 2007 (it being under the cultivation of one Bholu before that in Svt. years 2005 and 2006), but that in Svt. 2010 month of Sharavan the appellant had taken forcible possession thereof. It was also averred by them that the land had been cultivated by the appellats in Svt. 2003 and therefore,the settlement Parcha had been issued for Khasra No. 17 in the name of the appellants and Bholu and for Khasra No.20 in the name of Bholu but that the same had been ordered to be cancelled on 7.5.51. The appellants denied the suit and claiming their possession over the disputed land since long contended that Bholu had cultivated the land on their behalf and as their sub -tenant with which the respondents had nothing to do, and that the settlement Parcha still existed in their name and had been upheld even by the Board of Revenue. The learned trial court after framing necessary issues and recording the evidence decreed the suit holding that the land was under the cultivation of the respondents in the Samvat years 2007 -2008 -2009 and the appellants had wrongfully dispossessed them. This was confirmed in appeal by the learned Additional Commissioner also on an additional ground that the Parcha Settlement or the judgment of the Board of Revenue had not been produced by the appellants.

(2.) These concurrent judgments and decrees have been assailed in this second appeal before us on the ground that the findings of the learned courts below had not been based on a proper appreciation of the evidence on record, and on the other hand on a mis -reading of the statement of the appellant Pussa given before A. S.O. on 1.10.50, Ex. P/2, in which he had stated, that he was not in possession of the disputed land during the last four years. The learned counsel for the respondents has urged that a; per observations of their Lordships of the Supreme Court in 1959 S.C. 57 and 1959 S.C. 1204 the concurrent finding of facts by the lower courts cannot be gone behind in the second appeal. No doubt, as held by the Supreme Court in the above referred cases the concurrent findings of facts based on an appreciation of evidence cannot be looked into in a second appeal. But such a finding should not be based on a misreading of evidence on the record. In this case we find that it has been so mis -read. In Ex. 2/2 recorded on 1.10.50, the appellant, Pussa had only deposed that he had not been cultivating the suit land for the last 4 years. On 1.10.50, the Samvat year would be 2007. This deposition would relate therefore, to Samvat years 2003, 2004, 2005 and 2006 and not at all to Svt. yrs. 2007 -2008 and 2009, during which the respondents claimed it to be under their cultivatory possession and as misread and held by the learned lower courts. Besides, the appellant, Pussa, had also deposed therein that during those four years the Jagirdar had given him one Dhaniwalah field of one Kalu Jat in exchange for the suit land, which had been returned that year again to Kalu Jat. He had also deposed therein that in Samvat years 2005 and 2006, the suit land had been cultivated by Bholu and in Samvat 2007 by himself. This deposition, on which the learned lower courts have put so much reliance was thus not at all meant to convey that the suit land was during the Samvat years 2007 -2008 and 2009, as alleged by the respondents, in their possession. Rather, it conveyed otherwise. Another statement Ex. P -2 of Bholu in that very case produced by the respondents themselves too very clearly showed that that disputed land was during the Samvat years 2007,2008, 2009 in the possession of the appellant Pussa who had collected the natural produce thereof, and was before that in Samvat years 2005 and 2006 in the cultivatory possession of Bholu himself. Ex. 1 was another documentary evidence on the record. It was Khasra Girdawari for the Samvat years 2004, 2005 and 2006. This showed the land to be in possession of the appellants or Bholu during these years. Khasra Girdawari for the intervening period had not been produced. Ex. P -4 Khasra Girdawari for the Samvat year 2009, again showed the disputed land Khasra No. 17 to be in the cultivation of the Maji through the appellants and Khasra No. 20 in that of the appellants and respondent both, which alone too could not entitle the respondents to oust the appellants from Khasra No. 20 as trespassers. All this evidence belied the claim of the respondents and on the contrary supported that of the appellants. The respondents have also nowhere proved, as alleged by them in the plaint itself, that the Parcha issued in the name of the appellants had been cancelled. All this goes to show that the respondents had not been able to prove that they were in possession of the suit land in Samvat years 2007, 2008 and 2009 and that the finding of the learned lower courts was not based on an appreciation of the evidence but on a mis -reading thereof. A heavy burden lay on the respondents to prove that the Parcha issued in the name of the appellants had been cancelled. They having failed to prove this, and the entry even in Svt. 2009 on whole of the land under dispute not being in their name, it could not be taken as proved that the land had been in their possession in Svt. years 2007,2008 and 2009. How the land came in their possession in Svt. year 2007 and that it actually did so come, should have also been proved by them by reliable evidence. But they have no where done so. The findings in the case, as we have shown above thus are completely divorced from the evidence on record, and are on the other hand based on a mis -reading thereof. Mis -reading of evidence on record has been held to be a ground of interference in second appeal by the Rajasthan High Court in I. L. R. (Raj) 1951 page 284. In the case, as discussed above at length, we also find that the finding based on statements of appellant Pussa Ex. P -2 is so perverse that no normal person could have arrived at that. The date of the statement has been completely ignored and the period of four years referred to therein has been completely misunderstood and misread. In A. I. R. 1956 Bhopal 22, it has also been held to be a ground for interference in a second appeal notwithstanding the concurrent finding of facts by the lower court.

(3.) The facts of the Supreme Court cases cited above can thus be distinguished from the present case. In 1959 S.C. 57, a suit for possession and profits, the title and possession both wherein to the property in dispute being in issue, the learned High Court Judge deciding the second appeal had been pleased to re -consider and re -examine the entire evidence of the case and dis -agreeing with the lower courts arrived at a decision different from them on the same evidence and it was in that context that their lordships of the Supreme Court were pleased to set aside the decision of the High Court and observe that "The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of sec. 100 are clear and unambiguous......There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, how ever, gross the error may seem to be". In 1959 S.C. 1204, a suit for declaration chat the deed of trust was a sham and fraudulent one and not meant to be acted upon and the properties covered by the said deed belonged to the defendants second party and so liable to be sold in execution of the decree, in which the main point for determination was whether the property had been dedicated to the deity or not, the suit, was dismissed by trial as well as the first appellate court. The second appeal was, however, allowed by the learned Judges of the High Court. This was done by the learned judges of the High Court after an elaborate examination of the evidence, and that also by misplacing the onus of proof and deciding whether it had been discharged by the contesting defendant or not, even though "the onus of proof loses much of its importance where both the parties have adduced their evidence", as observed by the Supreme Court. Their Lordships after examining the case on merits also found that the findings of the High Court were open to serious criticism and must be held to be unsound. It was also held that "the decision of High Court in the second appeal, reversing the findings of facts of the two courts below, is based upon inferences drawn from evidence oral and documentary, after misplacing the onus of proof. This, the High Court was not entitled to do." It was also observed that the High Court proceeded to examine whether the trust deed was a fictitious transaction or not, which was "essentially" a question of fact and not of law as held in 1959 S.C. 57 even when it was an inference from other facts found on evidence, except in certain specified cases. In this very connection it was observed that a High Court on second appeal could not go into questions of fact, however erroneous the finding of fact may be.