MODI, J. - (1.) THIS is a writ application by Indersingh under Article 227 of the Constitution against a judgment of the Board of Revenue dated the 4th March, 1959, reversing the judgments and decrees of the sub-Divisional Officer, Hanumangarh, and the Commissioner, Bikaner, and dismissing the Petitioner's suit for partition of certain agricultural land, which had been decreed by both courts below.
(2.) THE material facts which have led to this application may shortly be stated as follows. THE dispute relates to Khata No. 25 comprising Khasra Nos. 34, 33, 36, 54, 67, 68, 75 and 104 and Khata No. 27 comprising Khasra Nos. 115 and 132 situate in Mouza Chandra, Tehsil Hanumangarh. THE following pedigree table will serve to explain the relationship between the contesting parties: - Buta Singh Nokha Singh Prem Singh Gajjan Singh Lal Singh Ran Singh Karan Singh Shri Chand Sampuransingh Jageirsingh Vichitra Singh Hukam singh (dead) Mst. Dalip Kaur Hazursingh Butasingh Kakasingh Diputsingh Sundersingh THE petitioner Indersingh was the plaintiff, and respondents Nos. 2 to 11 were defendants, in the suit out of which this writ application arises. THE plaintiff's case was that Khata No. 25 measuring 207 Bighas odd was made cultivable by his grandfather Premsingh around S. 1963 (corresponding to 1906 A. D.) and that Khata No. 27 Bighas odd was brought under cultivation for the first time by the said Premsingh and his brother Gajjansingh who is the father of respondents Sampuran Singh and Jagir Singh. Consequently, Khata No. 25 was entered in the revenue records in the name of Premsingh, and Khata No. 27 was recorded in the joint names of Premsingh Gajjansingh upto Smt. 1966 (equal to 1909 A. D.) THE petitioner's case further was that on the 13th June, 1909, these Khatas qua Prem Singh were mutated in the names of Lalsingh (father of the contesting defendant Hazur Singh) and Shri Chand and Karamsingh, being sons of the said Premsingh, in the settlement records and somehow the name of the petitioner's father Ramsingh was left out. THE petitioner's case further was that Lalsing, the eldest son of Premsingh was in charge of the management of the agricultural lands in question and Premsingh and his son Ransingh, grandfather and father respectively of the petitioner Indersingh used mostly to live in village Dhola Tehsil Fazalka, District Ferozpur in the Punjab. It was also alleged that Lalsingh during his life-time continued to give the income of the petitioner's share with respect to the land in dispute to Inder Singh and his father Ransingh deducting thereout the dues payable to the State. Lalsingh died round about the partition of India in 1947, and a few years afterwards, his sons Hazursingh and others declined to give the petitioner his share of the income of the lands in question. Consequently, the petitioner brought the suit, out of which this writ application arises, for possession of his share by partition on the 5th September, 1952 in the court of the Sub-Divisional Officer, Hanumangarh. It is remarkable that Vichitra Singh, son of Karamsingh, who was one of the four sons of Premsingh, and Sampuran Singh son of Gajjansingh who was a brother of Premsingh, filed their written statements admitting the plaintiff's claim. Hazur Singh and his brother Sunder Singh sons of Lalsingh filed a joint written statement resisting the petitioner's suit. THE only other person who contested the suit was Shrichand son of Premsingh. So far as the other defendants belonging to the family of Premsingh and Gajjan Singh are concerned, they did not raise any contest whatsover. THE line of defence of the contesting defendants was briefly this. THEir defence, in effect was that the lands in dispute had been brought under cultivation for the first time by Lalsingh, Karamsingh and Shrichand so far as Khata No. 25 was concerned and by these persons and Gajjansingh so far as Khata No. 27 was concerned, and that neither Premsingh nor Ramsingh took any part in this but as Premsingh being the head of his family was, alive, his name was got entered as Khatedar. It was further contended that subsequently in June, 1909, Premsingh himself had got the names of his sons Lalsingh, Karamsingh and Shrichand mutated in the revenue records in his place and the petitioner's father Ransingh was excluded from both mutation entries. It was further contended that neither the petitioner nor his father was ever in possession of the Khata numbers in question nor had they ever been given any share out of the income of these. Consequently, it was prayed that the plaintiff's suit deserved to be dismissed. THE trial court decreed the plaintiff's suit allowing him 1/4th share in Khata No. 25 and 1/8th in Khata No. 27 which decree was also upheld by the Commissioner, Bikaner. THE contesting defendants then went in appeal to the Board of Revenue. THE Board by its judgment dated the 4th March, 1959, reversed the judgments and decrees of the two courts below, and dismissed the plaintiff's suit with costs throughout. It is against this decision that the petitioner has filed the present writ application and prays that we should set it aside in the exercise of our certiorari jurisdiction as it is vitiated by gross and patent errors of law. Now, before we deal with the judgment of the learned Members of the Board of Revenue, we consider it appropriate to state briefly the salient findings of the Sub-Divisional Officer and the Commissioner, which were concurrent. In the first place, it was found that so far as Premsingh's interest in the two Khatas goes it was Premsingh and his four sons including the petitioner's father Ramsingh who had for the first time brought the lands in question under cultivation and that the defendant's version that these had been so brought under cultivation by the three sons of Premsingh excluding the petitioner's father was not established. In the second place, it was found that there was evidence on the record to prove that the petitioner and his father had received their share of the income of the lands in question upto 1947 A. D. or about that and that that evidence was worthy of belief. In the third place,both courts felt disposed to hold that the mutation entries of 1909 were not properly proved to have been made at the instance of Premsingh and that in any case such entries only raised a presumption as to possession of the persons in whose favour they stood but could not be treated as a conclusive proof of the rights of the parties concerned. Lastly, it was found that the defendants had failed to prove adverse possession of the lands in question for there was no evidence whatsover of ouster, and, therefore, the petitioner's suit could not be thrown out as barred by time. This brings us to the judgment of the learned Members of the Revenue Board which is assailed before us. We may state at once by way of clearing the ground that there seems to have been considerable discussion as to the applicability of S. 90 of the Evidence Act in order to prove the mutation entries of 1909. The Sub-Divisional Officer was clearly of the opinion that as the said entries did not bear the signature of Premsingh, they were not admissible in evidence and no presumption with respect to their genuineness could be raised on account of this defect ; whereas the learned Member of the Revenue Board seem to us to have entertained the opinion that S. 90 was attracted into application whether the entries bore the signature or thumb- mark of Premsingh or not because the said entries were more than thirty years old and were produced from proper custody. So far as the view of the Board goes, it should be enough to state that there is abundant authority for the proposition that a seal does not amount to a signature and that Sec. 90 cannot be rightly held to be applicable to prove unsigned documents which merely bear the seal of the executant. Reference may be made in support of this view to Special Manager, Court of Wards, Balrampur V. Tribeni Prasad (1) in which it was laid down that S. 90 makes no provision for any presumption in regard to seals, and, further, that a seal cannot be regarded as a signature under the definition of that expression under the General Clauses Act. We are in respectful agreement with this view. That apart however, we would further like to point out that it was not at all necessary for the courts below to invoke S. 90 of the Evidence Act as a mode of proof of the entries in question, and we should like to point out in this connection that such entries would be perfectly admissible as evidence under S. 35 of the Evidence Act, inasmuch as, these entries were made in an official record by a public servant in the discharge of his official duties. Be that as it may, the principal question which has been raised before us on behalf of the petitioner is that the learned Members of the Board dismissed his suit by making out an entirely new case for the contesting respondents which they had never put forward in the courts below. As we have stated above, the case of the latter in their written statements was that the lands in question had for the first time been brought into cultivation by the three sons of Premsing excluding the petitioner's father Ransingh and that Premsingh's name had been got recorded as Khatedar in the revenue records merely as a matter courtesy as he was the head of the family, and, therefore, these three sons of Premsingh only had a right or title with respect to them and Ransingh had none. This case was rejected concurrently by the first two courts inasmuch as they categorically found that Premsingh as well as his four sons had made the lands cultivable and that the lands had, therefore, been recorded in the name of Premsingh, as the head of his family. Now, let us see what is the finding of Board on this vital issue in the case. We cannot do better than to quote this in their own words: - "entries in the Revenue Record from Smt. 1960 are available on record. Till Svt. 1960 to 1963 the name of Mohammed Deen appears and in Svt. 1964 appears the name of Premsingh as Khatedar. In subsequent years i. e. , in 1909 A. D. Premsingh got the land mutated in the name of his three sons, the name of the plaintiff's father being excluded from it. There can be no valid objection to this transaction. Premsingh had acquired the tenancy himself and he voluntarily passed it on to his three sons to which he had a perfect title. " In other words, the view of the Board was that although Premsing had acquired the tenancy himself with respect to the lands in question, he had voluntarily made, as it were, a gift of these to his three sons, which he had every right to do as the property was his self-acquired. The point to note is that it was never the case of the contesting respondents in the courts below that Premsing had transferred his rights with respect to the property in question by any act of voluntary transfer such as a gift or similar other transaction. Their case, on the other hand, was that they had reclaimed the lands themselves, and, therefore, they were entitled to it in their own right even though they had got the lands recorded in the name of their father Premsingh who was alive at that time. The case, therefore, on which the learned Members of the Board based their decision was entirely new. We have no hesitation in saying that it is not for the courts to make out a new case for a party which is not to be found in its pleading and certainly that cannot be done in second appeal. If this finding", therefore, of the learned Members of the Board that Premsingh having acquired the Khata numbers in question for himself had transferred them to his three sons to the exclusion of the petitioner's father, and, therefore, the latter could not have any cause for grievance be held to be inadmissible, then we see no escape from the conclusion that the concurrent finding of the two courts below to the effect that the lands in question had been brought under cultivation by Premsingh along with his four sons and that the petitioner's father Ransingh was also one of them, re-asserts itself with full force, and the latter could not be held to be disentitled from his share in these lands on any such score. We should like to point out in this connection that we fail to see any cogent justification for the criticism of the Board that the findings of the courts below in this respect were absurd or perverse. On the other hand, we feel bound to point out in this connection that there was evidence before the courts below to prove that Premsingh and all his sons had reclaimed the lands in question and that the petitioner and his father were allowed their share of income of the lands in question up to two or three years prior to the institution of the present suit. This evidence consists of the statement of P. Ws. Sampuran Singh and Gyansingh apart from the plaintiff himself. These witnesses had been believed both by the court of first instance and the first court of appeal, and we are constrained to point out that the learned Members of the Board went too far in rejecting their evidence without giving any reasons for doing so. Nay, even the names of these witnesses have not been mentioned in the judgment which is impugned before us, much less has evidence been discussed, and all that is said was that "there is no reliable evidence to show that the plaintiff or his father was ever allowed any share of the produce of the land in recognition of his right in the tenancy. " It is well established law that a finding of fact, based on evidence of the first court of appeal is binding on a court in a second appeal. The more so when such a finding happens to have been given concurrently by both courts below. This view has been upheld by a number of decisions of this Court as well as of the Supreme Court, and we would refer in this connection to Kamdar Kantalia Thikana V. Heersingh (2) and Paras Nath V. Mohani Dasi (3 ). The observation of the learned Members of the Board, therefore, that in the last-mentioned respect, the findings of the lower courts, though concurrent, were manifestly absurd and perverse cannot be accepted as correct for the question of re-appraisement of that evidence in the absence of an error of law hardly arose. It is also a matter of surprise to us, if we may say so with all respect, that it completely escaped the attention of the learned Members that defendant Vichitra Singh son of Karamsingh and another defendant Jangirsingh son of Gajjansingh had filed written statements in the trial court in which they had completely supported petitioner's case. We should like to draw particular attention to the stand taken by Vichitrasing because by acting in the manner he did his own pecuniary interests were substantially adversely affected, and this he need not have done if the petitioner's case was untrue. There is yet another circumstance which was taken into consideration by the Commissioner and that was that Prem Singh had under his tenancy certain agricultural land in village Dhola in Tehsil Fazalka, District Ferozpur in the Punjab and that on the death of Prem Singh some time in 1937, these lands were mutated in the name of all his four sons including Ran Singh the petitioner's father. This, to our mind, is a strong circumstance to show that Prem Singh could not possibly have had any motive for disinheriting one of his son Ran Singh with respect to the agricultural property he held in the State of Bikaner as it then was, now a part of this State. This circumstance was rightly taken into account by the Commissioner; but unfortunately the learned Members of the Board completely brushed it aside and failed to give it the weight which it deserved. The next point to which it now becomes necessary to address ourselves is as respects the value which was attached by the Board to the mutation entries. In fact, these entries from which the name of petitioner's father Ransingh happens to be excluded seem to have made a very great impression on the learned Members of the Board. It is true that these entries were made as early as 1909 and the petitioner filed his present suit some time in 1952 so that they stood, as they were, for about 43 years. The question, however, is whether these entries can be treated as a complete or conclusive disproof of the petitioner's case that he was entitled in law to his due share in the lands which had been recorded in the name of his grandfather Prem Singh. What seems to have particularly weighed with the Board was that no objection was ever raised by the petitioner or his father to these mutations and no attempt was made by them to have them corrected. When the petitioner came into the witness-box, he clearly stated that he was not aware of the said mutations which had been obtained by his uncle Lal Singh as the former mostly lived in the Punjab and that he did not give his attention to the matter because he and his father had continued to receive their due share of the income from Lal Singh throughout his lief-time and for one or two years even thereafter. This explanation cannot be discarded in the circumstances of the case as fanciful or imaginary; so that, here again, we feel constrained to point out that the learned Members of the Board were not right when they came to the conclusion that there was no evidence in rebuttal of the presumption which arose on account of the mutation entries. We may here take the opportunity of inviting attention to secs. 41 and 42 of the Bikaner State Land Revenue Act, 1945, (Act No. IV of 1945 ). These sections read as follows: "41 - An entry made in a record-of-rights in accordance with the law for the time being in force, or in an annual record in accordance with the provisions of this chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. 42. If any person considers himself aggrie ved as to any right of which he is in possession by any entry in a record-of-rights or in an annual record he may institute a suit for a declaration of his rights under Chapter VI of the Bikaner State Specific Relief Act of 1923. " It is obvious from a bare perusal of these sections that an entry made in a record-of-rights or in an annual record, must be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. But quite clearly, the presumption is not irrebuttable, and it is further provided by Sec. 42 that whoever is aggrieved as to his rights on account of the entry in a record-of-rights or in an annual record would be perfectly free to institute a suit for a declaration of his rights. To our mind, the present suit was a suit of this character. The only question which then arises is whether the presumption raised by the mutation entries has been successfully rebutted by the petitioner in the circumstances of the present case. We are quite clearly of the opinion that this has been so. We have already pointed out above that the case of the contesting defendants that the land in question had been brought under cultivation not by Prem Singh or Ran Singh but by the other three sons of Prem Singh only his been held to be false. Even the learned Members of the Board of Revenue were not prepared to give a different finding on this aspect of the case which indeed it should have been difficult for them to do. The defendants then came forward with a new case before the Board (and in accepting this it fell into a grave and a manifest error) that even if the property be held to be self acquired by Prem Singh, he had perfectly good authority in law to pass it on to whichever of his sons he liked and that if he had obtained a mutation in favour of some of his sons to the exclusion of one of them, this would be sufficient proof of the fact that Prem Singh had intended to exclude such son from the enjoyment of his self-acquired property. It is not even the defendants' case, there is any other proof oral or documentary, on this record to prove that Premsingh had intended to do anything of the kind. We have also pointed out above that there is evidence which was believed by the court of first instance and the court of first appeal that the petitioner and his father had continued to receive their share of the income of the lands in question right up to 1947 or so. We have also drawn attention to the circumstance that so far as the property of Prem Singh in village Dhola in the Punjab is concerned, mutation came to be recorded after Prem Singh's death in favour of his sons including the petitioner's father. In these circumstances, we find it extremely difficult to accept the view of the Board that the presumption which was available to the contesting defendant on account of the mutation entries in question has not been successfully rebutted. And much less, do we find it possible for us to accept the conclusion of the Board that the story put forward by the petitioner about the payment of produce or a share of the income of the lands in question to the petitioner's father or to him was a pure concoction not based on any tenable evidence", or, that, as stated earlier in its judgment the findings of the lower courts, though concurrent, are manifestly absurd or perverse. With all respect, we cannot help pointing out that the judgment of the Board before us sutler from manifest and palpable errors of law, and in the exercise of our supervisory jurisdiction, we cannot help quashing it. It only remains for us to deal briefly with the question of adverse possession, which the learned Members of the Revenue Board apparently did not consider it necessary to deal with in view of the conclusion to which they eventually came. As we have found ourselves unable to accept that conclusion, it would be proper to say just a few words on that aspect of the case. On our findings mentioned above, it is clear that the petitioner is a coshaier of the lands in question along with the contesting defendants. Now, in order to prove adverse possession as against a co-sharer the party relying on this plea has a very heavy onus discharge, and it becomes his duty to prove by unimpeachable evidence that there was complete ouster of the cosharer who is sought to be excluded, and that such ouster had been brought to his knowledge in an open and unambiguous manner, and thereafter he chose to sleep on his rights for the full statutory period without doing anything to vindicate right. It is enough to say that there is not an iota of evidence on this record to prove ouster. The contesting respondents, therefore, could not resist the petitioner's claim on ground either. The position to which we thus come is that the judgment of the Revenue Board which is assailed before us, stands vitiated by grave and palpable errors of law as discussed above, errors which are manifest on the face of the record, and therefore, we feel we have no alternative but to interfere in the exercise of our certiorari jurisdiction and set things rigth as indeed it becomes our duty to do so in circumstances of this character. The result is that we must allow this application, set aside the judgment and decree of the Revenue Board and restore the judgment and decree of the Commissioner. The petitioner will have his costs throughout. Leave for appeal to the Supreme Court is refused. . ;