ALAMSHERKHAN Vs. SUNDERLAL
LAWS(RAJ)-1967-6-1
HIGH COURT OF RAJASTHAN
Decided on June 11,1967

ALAMSHERKHAN Appellant
VERSUS
SUNDERLAL Respondents

JUDGEMENT

- (1.) IS a review petition against the decISion of the Board of Revenue dated the 16th of April, 1964, in a second appeal against the two concurrent judgments and decrees of the Revenue Appellate Authority, Jaipur dated the 6th of March, 1963 and the AssIStant Collector, Jaipur dated the 29th May, 1962, whereby the second appeal was rejected and the suit of the non-petitioner for ejectment of the petitioners under sec. 183 of the Rajasthan Tenancy Act, 1955 was decreed. The facts of the case are that on 26th of September, 1959, the non-petitioner claiming to be a Khudkasht holder of certain muafi land, alleged in hIS plaint that he had sub-let the said land to one Chhotukhan in Smt. 2011 for a period of five years. He further alleged that Chhotukhan had admitted the petitioners and one Ramjeevan Chamar as partners in cultivation, but that in Smt. 2014 the defendants ousted Chhotukhan and Ramjeevan and usurped exclusive possession. Finally he averred that the period of lease of five years had expired, but the defendants had retained unlawful possession thereafter. The petitioners admitted that the land was the muafi of the respondent, but they alleged that they themselves had been admitted as tenants by the respondent in Smt. 2011. They further stated that after the resumption of the muafi the respondent had no right to sue them since they had themselves become khatedar tenants of the land.
(2.) AFTER setting the issues and taking evidence of the parties, the trial Court held that the land in dispute was recorded as khudkast and therefore, the non-petitioner had become a khatedar tenant thereof. The trial Court further found that the non-petitioner had leased out the land to Chhotukhan in Smt. 2011 for a period of five years and the petitioners having been taken into partnership by Chhotukhan, had subsequently ousted him. The trial court also found that the lease originally given to Chhotukhan had expired on the 25th of May, 1959. On the basis of these findings, the trial Court held that the petitioners were retaining possession of the land unlawfully and were liable to be ejected as trespassers. The suit was, thus decreed. In the appeal that followed, the petitioners were unsuccessful. This was followed by a second appeal before the Board of Revenue. Here also the petitioners met with no success and now a review petition has been filed against the order of to the Division Bench of this Board. As the two learned Members who heard this second appeal have ceased to be attached with the Board, the same has come for hearing before us. The main point urged in this review petition is that the Board has committed an error in not considering an application filed by the petitioners under O. 41, r. 27 for the admission of additional evidence. It has also been urged that the legal aspects of the case have not been examined judiciously, insofar as, after resumption, it was competent only for the khudkast Commissioner or the Jagir Commissioner to adjudicate upon the question of khatedari rights and that the lower Courts have thus committed an illegality in clutching jurisdiction in respect thereof and that the learned Division Bench has committed an error apparent on the face of the record in ignoring the same as well as the rule laid down in a Full Bench case of this Board - Umdiram vs. Ramdeo (RRD 1961 page 109) wherein it was held that a person on expiry of term of lease is not a trespasser. In support of the first contention, the learned counsel for the petitioners relied on Moran Mar Basselios Catholics vs. Most Rev. Mar Poulose Athandsios Etc. AIR 1954 Supreme Court 526 for the proposition that it was an error if the court did not look into the documents available on record. This authority is apparently not applicable to the present case as it relates to the documents already available on record. It does not relate to the documents sought to be included under Order 41, Rule 27. For this purpose we will have to examine the scope of Order 41 Rule 27 which reads as follows : - "the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if: (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the appellate Court may allow such evidence or document to be produced or witness to be examined. " It is well settled that no party to an appeal is entitled to produce additional evidence whether oral or documentary in the appellate Court. This is clearly the prerogative of the appellate Court which can admit additional evidence only on two grounds, firstly if it finds that the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or secondly if it requires any documents to be produced or any witnesses to be examined to enable it to pronounced judgment or for any other substantial cause. The case of the petitioners does not fall in the first category as the additional evidence was sought to be introduced before the Board of Revenue and not earlier. As regards the second condition, as stated above, it does not entitle the applicant to claim, as a matter of right, the introduction of additional evidence. The law only empowers the Court to let in additional evidence to remove obscurities but not with a view to pronouncing judgment in a particular way by filling the lacuna in the applicant's case. Sub rule (2) further requires that wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission. It does not mate it incumbent upon the Court to record reasons for not entertaining the application filed by a party. As a matter of f?ct, as the opening sentence shows, the parties to an appeal are not entitled to produce additional evidence. Thus, we find overselves in agreement with the learned counsel for the non-petitioners that in not recording an order on the application of the petitioners under O. 41, r. 27 the Division Bench has committed no error apparent on the face of the record. It will bear repetition to say that under the law if the Court can pronounce a judgment without additional evidence, the same may not be let in. However, in a case where the Court consider it necessary to let in additional evidence, it is required to record its reason for the same, but the law does not require the Court to some recovery if it does not consider it necessary to entertain additional evidence. Discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, may be a good ground for a review petition, but this is not the case of the petitioners so far as the present review petition is concerned. Their case is that the Division Bench has committed an error apparent on the face of the record in ignoring the evidence sought to be produced by them at this stage. As stated above, the petitioners could not claim it as a matter of right to have the additional evidence considered and if the Division Bench declined to entertain the same, as it apparently did in the present case, we are unable to hold that it was necessary for it to advance reasons for rejecting the evidence so sought to be introduced by the petitioners. In this view of the matter, we find no force in the first objection of the learned counsel for the petitioners and hereby reject the same. As regards the second objection, we find that this is also not tenable. The Jagir Commissioner clutches jurisdiction under Sec. 23 of the Rajasthan Land Reforms and Resumption of Jagirs Act, if a question arises whether any property is of the nature referred to in sub-Sec. (1) thereof. If no dispute is raised, the properties of the nature referred to in Sec, 23 (1) do not vest in the State on the resumption of the Jagir and continue to belong to and held by the Jagirdar or other person as provided in the Act. See Full Bench ruling of this Board in State of Rajasthan versus Sardar Singh (RRD 1964 page 143 ). In this connection our attention has also been drawn to the view taken by the Division Bench of this Board in Moorandan versus Nanga (case No. 21/jaipur of 1958, decided on the 14th of April, 1959) wherein a similar plea was taken by the respondent, who urged that the question whether a particular piece of land was in the khudkast of the Jagirdar could only be decided by the Jagir Commissioner and the jurisdiction of any other revenue Court was barred by Sec. 46 of the said Act. Having examined the relevant provisions of law and the definition of the term Khudkast under Sec. 5 (23) and Sec. 2 (i) of the Rajasthan Tenancy Act and the Rajasthan Land Reforms & Resumption of Jagirs Act, respectively, and the impact of Sec. 13 of the Rajasthan Tenancy Act read with Sec. 10 of the Rajasthan Land Reforms & Resumption of Jagirs Act, the learned Members came to the conclusion that the learned Additional Commissioner was not right in directing that the matter be referred for an enquiry to the Jagir Commissioner under Sec. 23 (2) of the Rajasthan Land Reforms & Resumption of Jagirs Act, as admittedly the question did not arise under this Act. The Division Bench, therefore, set aside the order of the learned Additional Commissioner and directed that appeal may be heard and decided on merits according to law. We respectfully agree with this view and thus find no force in the contention of the learned counsel for the petitioners that the Division Bench of this Board has committed an error apparent on the face of the record in upholding the judgments and decrees of the lower Courts and has failed to examine the legal aspects of the case judiciously. It may be observed here that an error to be construed as an error apparent on the face of record must be an evident error which does not require any extraneous matter to show its incorrectness. It should be an error so manifest and clear that no Court would allow such an error to remain on record. An error which requires to be demonstrated by a process of rationalization does not fall in this category. It has been held that an erroneous view of law on a debatable point or on a wrong exposition of law, or a wrong exposition at law, cannot be considered a mistake or an error apparent on the face of the record, since a Court has jurisdiction to decide wrongfully and no review lies if the decision of the Court is erroneous, if the Court was aware of what it was doing. To attract this provision of law, the error must be an error of inadvertency. We are satisfied that this is not the case with the impugned judgment. It is based on a due process of conscious reasoning and full consideration of the legal arguments preferred by the learned counsel for the petitioners, as would appear from a perusal of the impugned order. We find that the learned counsel for the petitioners was called upon to show if the concurrent findings had been arrived at illegally or if any illegality had been committed. The learned counsel sought to show that certain documents produced in defence had been ignored. The learned Division Bench duly went through these documents with the learned counsel, and held that these documents even if read in evidence, would not effect the finding of the fact that the petitioners had never been admitted as tenants by the non-petitioner. The Division Bench next examined the legal propositions set out by the learned counsel for the petitioners and rejected the same after due consideration. It cannot, therefore, be said that the judgment of the Division Bench suffers from an error of inadvertency or any other defect which could be defined as an error apparent on the face of the record. As a result, we find no force in this review petition and hereby reject the same with costs. .;


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