- (1.) THESE are seven appeals filed by the Government Advocate on behalf of the State against the various respondents and arise out of the orders passed by the Sub-Divisional, Officer, Ganganagar on various dates. Since all these appeals relate to the correction of girdawari entries and raise a common point of law and there is a common memo in all these appeals, they were heard together and this single judgment disposes off all these appeals.
(2.) THE learned Government Advocate contended that as a result of the enforcement of the Zamindari and Biswedari Abolition Act in November, 1959, all holdings other than Khudkasht were to vest in the State and therefore the Zamindars in Ganganagar District made an attempt to get as much land entered into their Khudkasht. For this reason they filed applications for correction of girdawari entries in which cultivation was entered into the name of other persons. THE applicant Zamindars and the non-applicant tenants entered into a collusive engagement by which the non-applicants accepted the application of the Zamindars and agreed to get the entry corrected in their favour in order to defeat the provisions of the Zamindari and Biswedari Abolition Act. The second contention of the learned Government Advocate was that inspite of the fact that the State Government was made a party to these proceedings and resisted the attempt of the applicants Zamindars to get the entries corrected against the record in their favour the trial court wrongly accepted the application of the respondents. The learned Government Advocate further urged that during the enquiry the Sub-Divisional Officer based his finding on the mere affidavits of the respondents and his witnesses and thus deprived the State appellant of the opportunity of cross-examining the witnesses. The Sub-Divisional Officer who enquired into the matter adopted a novel procedure of introducing affidavits in this enquiry which is contrary to the provisions of Order 19, Rule 3 of the Code of Civil Procedure, whereby affidavits could only be admitted for limited purposes. The third contention of the learned Government Advocate was that the appellant was denied the opportunity of leading his rebuttal evidence in these proceedings and he was not called upon to do so. The fourth contention of the learned Government Advocate was that the trial court before deciding these applications did not frame any issues. The counsel for the respondent's reply to the first contention was that in most of these cases where the correction of girdawari entries were involved the respondents were in possession of the land, either through the members of the family or through the servants and the land was cultivated by them on their behalf. So the provisions of the Zamindari and Biswedari Abolition Act do not affect them materially. The learned counsel for the respondent's reply to the second contention was that under sec. 125 of the Rajasthan Land Revenue Act, a summary enquiry for correction of these entries was contemplated and if the trial court accepted the affidavit for proof of certain facts he committed no procedural error. As regards the third contention it was urged on behalf of the counsel for the respondents that at the time of the hearing. the Naib Tehsildar was present on behalf of the Government and he did not ask the Court for allowing him to produce rebuttal evidence on behalf of the State. He cannot be given this opportunity now. We have considered the arguments advanced from both the sides and have examined the record. As regards the first contention of the Government Advocate it is apparent that by the introduction of the Zamindari and Biswedari Abolition Act all such lands which were not in the possession of the Zamindars as Khudkasht lands were to vest in the State. It was natural therefore for any Zamindar to save as much land as he could from being transferred to the State. The very fact that the respondents who actually cultivated the land as shown by the Khasra girdawari entries filed a written statement admitting the claim of the applicants against their own interest leads to an inference that there was a collusion between the parties. Normally no person would make an admission of fact against his own interest. Therefore these transactions have raised a substantial doubt in our mind and the trial court should have made a fuller enquiry before it accepted the application of the respondents. As regards his second contention that the trial court based his finding on mere affidavits filed by the applicant and their witnesses in support of their application to our mind is a novel procedure. Sec. 125 of the Revenue Act, no doubt provides a summary enquiry but that enquiry could be conducted under Chapter VII of the Rajasthan Land Revenue Act during the survey and record operations and for that reason has to be summary in nature because the entire record being reprapared and the entries are to be made on the basis of legal possession whereas the correction of girdawari entries according to the present practice falls under sec. 136 of the Land Revenue Act, where record is to be maintained after the survey operations are closed and there is no scope for having a summary enquiry into these matters. This enquiry has to be in proper form and the provisions of sec. 125 are to be read together with sec. 136 of the Rajasthan Land Revenue Act for this purpose. Further, Order 19 of the Code of Civil Procedure fully lays down various rules in accordance with which affidavits may be used in the courts. It is for the court to decide after recording sufficient reasons whether any particular fact or facts may be proved by affidavit. Here no reasons were recorded by the court for allowing a party to prove the fact of possession of the holding by means of affidavits and hence the introduction of an affidavit in these proceedings was illegal. This novel procedure of allowing facts to be proved by affidavit naturally deprived the State appellant a valuable right of cross examining the witnesses of the applicant to elicit certain facts. We, therefore, uphold this contention of the learned Government Advocate. As regards the third and fourth contention of the Government Advocate there is no doubt he was never called upon to lead any evidence in support of his claim by the trial court and the evidence was closed without first ascertaining from the appellant whether he would like to lead any evidence in rebuttal of the applicant's claim. It is also clear that the trial court committed an error of law in not framing a proper issue between the parties. For the reasons stated above the appeals of the State Government against all the respondents are accepted and the order of the Sub-Divisional Officer is set aside and the case is remanded to the trial court for fresh enquiry and giving full opportunity to both the parties to lead fresh evidence with regard to the factum of the lawful possession of the holding in dispute. The Sub-Divisional Officer is directed not to substitute the statement of witnesses on oath by their affidavits without following the procedure as laid down in Order 19 of the Code of Civil Procedure. . ;