Wanchoo, C. J. - (1.) THIS is an appeal by Kamdar of Thikana Kantalia against the judgment of a learned single Judge of the High Court of the former State of Jodhpur. It was filed in the Ijlas-i-Khas of the former State and has been transferred to this court for disposal after coming into existence of the State of Rajasthan.
(2.) THE appellant was a defendant in a suit brought by Heer Singh and others for possession of two wells viz. , Bijoria and Lichhmansingh-ki-Dair and twelve Bighas of Sawnu land. THE plaintiffs-respondents claimed to be the Chhut-Bhais of "thikana Kantalia and said that the property in dispute along with one more well and some Sawnu land had been granted to their ancestors by the Thikana for their maintenance. THEir case was that they had been dispossessed from the two wells in Smt. 1935 and from the Sawnu land in Smt. 1993. THEy prayed, therefore, for a decree of possession against the Thikana. The case of the Thikana was that the plaintiffs were not Chhut-Bhais but only tenants at will and that they had no right to claim possession of the suit property. It was also pleaded that, in any case, the suit of the plaintiffs was barred by time. Two main issues, therefore, arose for a decision in this case viz. , (1) whether the plaintiffs were Chhut-Bhais and had been granted the land in dispute for maintenance and (2) whether they had been in possession within the period of limitation viz. , 20 years according to the Jodhpur Limitation Act. The trial court came to the conclusion that the plaintiffs were Chhut-Bhais and that their ancestors were granted three wells and some Sawnu land for maintenance. So far as the property in dispute was concerned, it also held that the suit with respect to Bijoria well was barred by time. It decreed that suit with respect to one well Lichhmansingh-ki-Dair and 12 Bighas of Sawnu land. There was an appeal by the Thikana and a cross-objection by the plaintiffs. The cross-objection was dismissed and the appellate court allowed the appeal of the Thikana with respect to Lichhmansingh-ki-Dair and Sawnu land. It held that so far as the Sawnu land was concerned, the plaintiffs had been out of possession for more than 20 years and the suit was barred by limitation. So far as Lichhmansingh-ki-Dair is concerned, it held that the title of the plaintiffs to this well bad not been proved. It also held that the plaintiffs had been out of possession of this well for more than 20 years and the suit was, there -fore, barred by time. The plaintiffs then came in second appeal to the High Court of the former State of Jodhpur. This appeal was heard by a learned single Judge of that court. He upheld the findings of the first appellate court as to Bijoria well and the Sawnu land but so far as Lichhmansingh-ki-Dair was concerned, he reversed the finding of first appellate court and held that the plaintiffs had proved that this well had been granted to their ancestors for maintenance and that they were in possession within the period of limitation. He, therefore, gave a decree with respect to this well to the plaintiffs. The present appeal is, therefore, from that decree. The main contention of the learned counsel for the appellants is that the learned single Judge of the High Court of the former State of Jodhpur was not entitled to disturb the findings of fact on both the points arrived at by the first appellate court in second appeal unless it could be said that the first appellate court had either mis-read the evidence or overlooked important evidence which was on the record. His contention is that the first appellate court had considered all the evidence and did not mis-read any part of the evidence or overlook any important evidence on the record in arriving at this conclusion. He relies on a series of cases of their Lordships of the Privy Council which undoubtedly support the contention which he has put forward. These cases are : Basiram Sahan Ray vs. Ram Ratan Roy (A. I. R. 1927 P. C. 117), Tejpal Jamna Das vs. Earnest V. David (A. I. R. 1928 P. C. 219), Ramji Patel vs. Rao Kishore Singh (A. I. R. 1929 P. C. 190) and Misri Lal vs. Surji (A. I. R. 1950 P. C. 28 ). Learned counsel for the respondents has not been able to controvert this proposition advanced on behalf of the appellant. The law as laid down in these cases is well established that in second appeal, findings of fact arrived at by the first appellate court, cannot be disturbed unless it is shown that the first appellate court has either mis-read the evidence or overlooked important evidence on the record. The law in former Jodhpur State, we are told, was the same as in British India. Learned counsel, therefore, argues that the learned single Judge of the former Jodhpur State High Court was not justified in this State of the law to interfere with the findings of fact arrived at by the first appellate court. We have gone through the judgment of the learned single Judge and we find that the argument before him was that the first appellate court had mis-read the evidence on the record. He seems to have accepted this argument but we have been unable to find that the first appellate court either mis-read the evidence on the record or overlooked any important part of it. The learned single Judge particularly referred to the evidence of three witnesses vis. , Nawla, D. W. 8, Bakhtawar Mal, D. W. 11 and Dalia, D. W. 14. The last two witnesses related to the question whether Lichhmansingh-ki-Dair had been granted to the plaintiffs' ancestors as maintenance. The lower appellate court held that the Parwana in favour of the plaintiffs' ancestors did not mention Lichhmansingh-ki-Dair but another well viz. , Ugunia and it had not been proved from any evidence that Ugunia well mentioned in the Parwana was the same as Lichhmansingh-ki-Dair. The learned single Judge set aside that finding holding that the first appellate court had overlooked the evidence of these two witnesses viz. , Bakhtawar Mal and Dalia, which proved that Lichhmansingh-ki-Dair was the same as Ugunia. The statements of these two witnesses on this point have been read to us and these two witnesses stated that Lichhmansingh-ki-Dair was the same as Ugunia Matawa. Their evidence, therefore, did not establish that Lichhmansingh-ki-Dair was the same as Ugunia and that is why the first appellate court did not rely on them. Before this evidence can be said to establish a case of the plaintiffs, it had to be proved further that Ugunia was the same as Ugunia Matawa which was, however, never proved in this case. It could not, therefore, be said that the first appellate court had come to a finding of fact on this issue without looking into certain important evidence and as such there was no jurisdiction in second appeal to set aside that finding. The third witness Nawla was with respect to question of possession. The first appellate court came to conclusion on consideration of the entire evidence led on the point of possession that the plaintiffs' possession within 20 years had not been proved. The learned single Judge thought that the evidence of Nawla had been overlooked and that that evidence established possession of the plaintiffs within 20 years. That evidence has also been read to us. We do not find anywhere in that evidence any statement to the effect that Lichhman Singh was in possession of Lichhmansingh-ki-Dair up to the time of his death. In the absence of such a statement it could not possibly be held that the first appellate court made a mistake in overlooking the evidence of an important witness. As a matter of fact, the first appellate court was perhaps justified in overlooking this evidence altogether because there was a statement of one Ramnarain D. W. 2 to the effect that Lichhman Singh had died in Smt. 1974. If that statement was correct and were to be accepted and it may very well have been accepted on this point by the first appellate court, there was no proof on the record that the plaintiffs had been in possession within 20 years. It cannot, therefore, be said that the finding of the first appellate court on the question of possession and limitation is vitiated by mis-reading the evidence or by overlooking important evidence on the record. In the circumstances, the learned single Judge had no justification in second appeal to disturb these findings of fact. Learned counsel for the respondents has also not been able to point out to us any instance of misreading the evidence or of overlooking important evidence on the record by the first appellate court. In the circumstances, the judgment and decree of the first appellate court must be restored. We, therefore, allow the appeal, set aside the judgment and decree of the High Court of the former State of Jodhpur and restore in its place the decree of the Judicial Superintendent of Sojat dated the 7th of July, 1947. The appellant will get his costs of all the courts from the plaintiffs-respondents. . ;