- (1.) THIS is a second appeal against the judgment and decree passed in first appeal by the Revenue Appellate Authority, Kota on 18-8-1965, whereby the trial court's judgment and decree dated 30-5 64 rejecting the suit brought forth by the plaintiff appellant Mathuralal under sec. 53 of the Rajasthan Tenancy Act (hereinafter called the Act) read with secs. 88, 188 and 183 of the Act, for division of holding, declaration, injunction and ejectment was upheld.
(2.) THE facts and circumstances leading to the instant appeal are that plaitiff-appellant and Kanwarlal deceased father of the defendant-respondents were real brothers. THE property and affairs of the family were jointly held and managed. This Kanwarlal died, as averred in the plaint, sometime in 1939 (16 years before the filing of the suit on 8-1-1955 ). THE affairs of the family continued to be managed jointly. THE family's agricultural holding comprised of lands in different villages Digod, Dobdi, Bhoolaheda and Hingi, were allegedly partitioned between the members of the family on 8-6-1951 half and half between the plaintiff on the one hand and the defendants on the other and the parties got possession of their respective share in the lands in accordance with a list drawn (Ex - P-5) for the purpose and cultivated the same. THE plaintiff remained in possession of his share in smt. 2008-2009, but at the close of smt. 2009 (1952 A. D.), respondents forcibly took over possession of some part of plaintiff's share plaintiff continued to hold the remaining lands. Plaintiff had apprehension of these lands also being usurped by the respondents who were allegedly active in attaining this end. Respondent Mangilal despite persuasion was for no ostensible reason harassing the plaintiff and refused to give up possession of lands so illegally and forcibly held. This Mangilal respondent also instituted proceedings against the plaintiff under sec. 145, Cr. P. C. where-under, possession of the suit lands was ordered to be retained by the respondents. Hence the plaintiff's suit which was rejected and decreed in favour of the respondents was sustained by the court of first appeal. We have heard the parties and have also perused the record. The plea taken on behalf of the plaintiff-appellant was that as averred by the defendant respondents, the mutation (Ex. A 2) attested on 12-41933 and the deed of relinquishment (Ex. A-l) registered on 21-5-1934, were of a 'benami' nature to escape from the family's creditors at the behest of Kanwarlal being the elder brother. Thus there was actually no division of holding. It was averred that the lower court's decision entirely rested on the finding on issue 8 framed by the trial court. This issue 8 is whether the 'fehrist Batwara' could be admissible in evidence being unregistered. This 'fehrist Batwara' was wrongly held to be in the nature of a partition deed and its registration, therefore, was also wrongly considered necessary by both the lower courts. This involved a question of law and both courts committed an illegality as the said 'fehrist' only mentions the properties which fell in the shares of Mathuralal plaintiff and does not specify the properties which fell into the share of the defendants and being not in the nature of a partition deed, was not required to be registered. Our attention was also drawn towards the findings of the trial court on Issues 7 and 8 and also towards the paragraph preceding the findings on Issue 1 which substantiated his contention that this 'fehrist Batwara' was 'benami' and did not require registration. Reliance was placed on the following case law ; - (1) Girjanandan Singh vs. Girdhari Singh - AIR 1951 Patna - p. 277. (2) K. Kanna Reddy vs. K. Venkata Reddy - AIR 1965 AP 274, and (3) B. Padmnabhaiah vs. B. Lakshminarayana - AIR 1962 AP 132. This document though unregistered, could be used, it was argued, for a collateral purpose in evidence as held in : - (1) Smt. Zaveria w/o Raehudaya vs. Jitu - AIR 1954 Saurashtra 46, (2) Mareboyina Nagamma vs. Madala & Koranki Nagamma - AIR 1954 Madras 165, (3) Tejraj vs. Mohanlal - AIR 1955 Rajasthan 157, (4) Nanibai vs. Gitabai, AIR 1958 S. C. 706, and (5) Munshiram vs. Thakardass - AIR 1951 Pepsu 87. According to the counsel for the defendant-respondents the crux of the matter was whether the earlier partition effected in 1933-34 (vide Ex. A-l and A-2) was 'numaishi' and 'benami' to thwart the family creditors' efforts and whether there was a subsequent partition in 1951 as based on the 'fehrist Batwara' (Ex. P-5 ). The findings of the trial court on Issue 7 were clear on the point. The court held that the plaintiff had failed in proving that the partition effected in 1933 34 was 'numoishi' This obviously changed the very complexion of the plaintiff's case as the partition of 1933-34 held real and valid, would render the subsequent partition allegedly to have been made in 1951, ineffective. Ex. P-5 the 'fehrist Batwara' had never been produced in original. Not even its certified copy had been produced, nor any reasons were given for plaintiff's inability to do so. Thus this Ex. P. 5 was inadmissible in evidence and the subsequent partition of 1951 could not be proved before the trial court. Besides respondent Kedarlal's statements before the criminal court and exhibited (Ex. P. 6 & 7)were inadmissible in evidence in civil and revenue proceedings on the one hand and on the other could not be given cognizance as Kedarlal was not produced by the plaintiff as a witness so as to confront him with these statements before the trial court. Further this Ex P-5 was of a unilateral nature, specifying the properties supposed to have been retained with the plaintiff only and ought to have been signed by both the parties involved to be used in evidence to prove the subsequent partition. The case law cited on behalf of the plaintiff appellant, therefore, did not apply to the instant point at issue. It was of course conceded that this unregistered document could be used in evidence for collateral purpose but sec. 49 of the Indian Registration Act read with sec. 53 of the Transfer of Property Act made such a stipulation only as a shield and not as a sword. In other words, such a document could be relied upon only as a measure of defence and not offence. The plaintiff-appellant, therefore, could not availd of it. The ruling of the Supreme Court in Narayan Bhagwant Rao Gosavi Balajiwale vs. Gopal Vinayak Goswavi (AIR 1960 S. G. 100),was cited in support It was further averred that the plea of the plaintiff-appellant about this involving a question of law and which having not been tackled by the lower court, a serious illegality had been committed, was baseless as the question whether Ex P. 5 was in the nature of a partition deed, as the facts and circumstances of the matter warrant, was a ques-tion of fact and not of law and the findings of the two lower courts on this point would be deemed as final. The above discussion had also amply proved the plaintiff's failure on the basis of his own pleadings and that he could not stand on his legs i. e. he should have succeeded on his own strength- (Brahmanand Puri vs. Neki Puri represented by Mathurapuri and another - AIR 1965 S. C. 1506 ). The second ground on which the lower court's decision has been assalied is another failure of the Revenue Appellate Authority, while passing the impugned order, in following the express provisions of O. 41, R. 31, C. P. C. The trial court's findings were not discussed, weighed, analysed and adjudicated on each issue separately. Having suffered with this defect, the lower court's judgment was not a legal one as enunciated by the Rajasthan High Court in Dhanaraj vs. Hirachand (1963 R. L. W. 316 ). The first appellate court's duty was not lightened to lead him to write a slipshod and disorganised judgment on the pretext of the judgment being an affirming one. O. 41, R. 31, C. P. C. made no difference between an affirming or reversing judgment. The rule was imperative that the court was to make its judgment independently of the trial court's judgment, whether it was going to affirm or reverse (Mavasi vs. Balwant 1964 R. R. D. page 139 ). The provisions of O. 41, R. 31, C. P. C. were of a mandatory nature- (Narayan Singh vs. Beerbal - 1970 R. R. D. 379) The judgment was required to be given on each issue- (Motishanker vs. Ganeshlal - 1969 R. R. D. 231 ). If the first appellant court confined itself to a solitary issue, to the exclusion of other issues involved and framed or given a cursary and casual treatment, such a judgment would be perverse (Parbhati vs. Sheokarn 1970 R. R. D. 38) In holding Ex. P. 5 as a partition deed although Ex. P-5 was a document drawn unilaterally, an elementary principle been ignored and thus decision so of law had made, could be nothing but perverse. It also committed a serious error in having failed to distinguish between a mere list and a deed of partition. Another grievous error was committed in completely discarding Ex. P-5 as a piece of evidence merely on the ground of its having been unregistered, without reference to any law on the point. It was also averred that the trial court having failed to discuss the evidence on the credibility of Ex. P. 5 as a mere list and the court of first appeal having done so for the first time, this court of second appeal was relegated to the position of court of first appeal in respect of the findings of the lower court on the issue. This court should, now therefore, undertake proper appreciation of evidence. Attention was drawn towards the statement made by respondent Kedarlal before the criminal court on 14 7 1953 (Ex. P-6) and the written statement filed by him on 8-9-1953 (Ex. P 7) which confirm the division having been effected in 1951. This amounted to an admission by respondent and this was the strongest evidence (Narayan Bhagwant Rao vs. Gopal Vinayak - A. I. R. 1960 SC 100 ). This also found confirmation, it was averred, from the statement of respondent Kedarlal made before the Gram Panchayat, Kamolar, Tehsil Sangod, on 17-9 1952, available on record in Part C of the trial court's file and produced in evidence by the plaintiff Mathuralal (on verification from the record it was found that this document was not admitted in evidence ). It was alleged that this very vital and relevant piece of evidence was ignored both by the trial court and the court of first appeal. The lower court had also erred materially in placing reliance on Exs. A-l and A-2 which were of a 'benami' nature and were actuated by the anxiety of the parties to protect the family property from falling into the hands of their creditors. Documents of such nature do not affect right and title. The case law cited in support was - (1) Jeevan Khatoon vs. Mehtab Khatoon (A I. R. 1953 Hyderabad 77 ). (2) Ishwardass Hemraj vs. M/s. Radhamal Arjandass (A. I R. 1960 Punjab page 417 ). (3) Miss. Sailabaladass vs. Jitendrakumar Hazra (A. I. R. 1962 Orissa 74 ). The two lower courts had failed in reading and construing the effect of these documents in their correct perspective. They were mistaken in construing these documents as having succeeded in proving the factum of partition or as basic documents proving defendant-respondent's title. The testimony of P. W.- 7, 8, 9 and 10 led in evidence by plaintiff to prove the 'benami' nature of these documents, was not at all well considered and amply discussed. Plaintiff had produced as many as 33 documents in evidence. They were not considered. Their probative value and total impact on the suit and pleadings was overlooked and ignored. Witnesses Badrilal P. W.- 2 and Devilal P. W.- 7 had been examined on behalf of the plaintiff to prove that the joint family existed till the 'batwara' in 1951. Exhibit P-8 executed in Smt. 1979 on Stamp No. 49952 (nearly canceling with Kanwarlal's demise) was produced to establish the joint nature and management of the family affairs. Exhibits P. 9 to 11 were receipts of loans jointly advanced. Exhibits P-12 to 19 were rent receipts of 'shamlati' holding. Exhibits P-20 and 21 were receipts of notice of 'shamlati' loans. Ex. P-22 was Chithi stating supply of wheat to patwari Anandilal. Exhibit P-23 was Hali Chanda's application. Ex. P-24 was application for recovering seed from cultivators. Norse of these documents, produced in evidence, were either discussed if admitted or ignored by not so admitting them. To these averments and the plea that the express and mandatory provisions of O. 41, R. 31, CPC were ignored by the Revenue Appellate Authority by not discussing, weighing, analysing and deciding upon the trial court's findings on each issue, the counsel for the defendant respondents replied that since the lower court's judgment was one of affirmance, it was not necessary to discuss and adjudicate upon each issue. The trial court's judgment which the court of first appeal. upheld, was an elaborate judgment in which both oral and documentary evidence had been fully discussed, marshalled, weighed and analysed and findings on each individual issue were thus arrived at. Therefore it was neither necessary nor incumbent upon the lower court to have dwelt upon at length and repeat the process already undergone by the trial court. There was a limited role of the court of first appeal inherent in a judgment of affirmance and the scope of a second appeal was further limited - (The Lords Krishna Sugar Mills Ltd. vs. the Union of India) AIR 1959 SC 1124; and Girijnandini Devi vs. Bijendra Narain Choudhary) A I. R. 1967 S. C. 1124. The crux of the matter was whether the alleged partition had been effected in 1951 or earlier in 1933-34 The decision on Issues 2, 7 and 8 would have a deciding influence over the overall adjudication of the suit and both the lower courts had concentrated and focused their attention on giving their considered findings on these issues. The alleged 'benami' and 'numaishi' nature of the partition deed of 1933-34 were relevant to the factum of the subsequent partition allegedly effected in 1951 and from the findings of both the lower courts, plaintiff had failed to establish that the earlier partition of 1933 34 was not a reality. Issues 3 to 6 weirenterconnected with Issue 2 and so were issues 7, 8 and 10 and were decided on the strength of the findings on Issues 2, 7, and 8 respectively. Besides. , these were all questions of fact which could not be investigated by the second appellate court. It was too late in the day. This appeal, therefore, deserved dismissal. We have given anxious and careful consideration and thought to these arguments. The averments made by the learned counsel for the appellant, though argumentative and replete with case law, we find it difficult to get swayed by the wright and vehemence of there arguments and by the sheer volume of the case law marshalled in support of the appellant's case. A close scrutiny of the finding on Issue 8 by the lower courts would squarely settle the ineffectiveness of Ex. P. 5 to prove and establish the plaintiff appellant's pleadings in support of his right and title over the suit lands. This 'fehrist Batwara' was held by the two court below, having fully discussed its nature and implications to be in the nature of a deed of partition and being unregistered as unreliable and inadmissible in evidence even for collateral purposes. We find force in the plea of the learned counsel for the defendant-respondents that though the provisions of sec. 49 of the Registration Act read with sec. 53 of the Transfer of Property Act, rendered an unregistered document permissible for collateral purposes, it can be weilded as a sword or weapon of offence or as a shield or weapon of defence It could, therefore, be of no avail to the plaintiff. The plaintiff's suit in its entirety hinged on the question whether the alleged partition of the joint holding was effected in 1933-34 or in 1951. Exhibits A 1 and A-2 produced in defence supported the factum of partition having been effected much prior to the subsequent partition of 1951. Ex. P-5, which was held unreliable and inadmissible in evidence and the lower courts having given concurrent findings after proper examination of the evidence on record, we find ourselves unable to interfere with the same. The other line of offence taken on behalf of the plaintiff appellant was the impugned judgment of the court of first appeal being inconsistent with the provisions of O. 41, R. 31, CPC and its failure to follow the rule laid down by the Rajasthan High Court in Dhanraj vs. Hirachand (1963 RLW 316) by not properly discussing, marshalling, weighing and analysing the evidence on record. We have perused the impugned Judgment and the judgment of the trial court and we tend to agree with the averment made on behalf of the defendant-respondent that when the first appellate court's findings and judgment, were concurrent and affirmative of the trial court's findings and judgment the ingredients of O. 41, R. 31 and the rule enunciated by the Rajasthan High Court in Dhanraj vs. Hirachand (1963 RLW. 316), need not be followed assiduously and to the hilt. Exploration of the sum and substance of pleadings advanced by the parties and arrival at well reasoned out and congruous finding? of both law and fact would suffice. This court as a court of second appeal is endowed with a very limited field and scope of enquiry under section 224 of the Rajasthan Tenancy Act and we find ourselves tied down by it, disenabling us to expand our role and function to probe into and question the validity of the findings of fact concurrently arrived by the two courts down below, however erroneous or disjointed they might have been. The factum of the previous partition coming into effect in 1933-34 and that of the subsequent partition in 1951, having a vital influence on the decision in the suit, as covered by the findings on Issues 2, 7 and 8 and as adjudicated by the two lower courts, cannot be reversed by us here, and once these findings come to stay, plaintiff-appellant is left with no case to challenge the lower court's judgment in second appeal, there being no material irregularity or illegality, discrimble in the impugned order. . ;