- (1.) THIS is a revision under sec. 26 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, against an appellate order of the Divisional Commissioner, Kotah, dated 20-6-54, reversing the concurrent judgments of the trial court and the first appellate court in a suit relating to recovery of arrears of rent.
(2.) PUT briefly the facts of the case are that the opposite party brought a suit against the applicant, Dhannalal and two others, Jai Kishen and Kesra for recovery of Rs. 212/-as arrears of rent for Svt. 2008 with the allegations that Dhanna was admitted to tenancy of the land in dispute in 2007 on an annual rent of Rs. 100/-, that for Svt. 2008 the plaintiff desired enhancement in the rent which was refused by Dhannalal, that thereupon the tenancy was put to auction where in the other two defendants Jai Kishen and Kesra offered Rs. 312/-,that Dhanna did not join the auction proceedings and refused to vacate the land, but subsequently agreed to pay what was offered by others. Dhanna denied the claim in toto and pleaded that he never agreed to pay Rs. 312/- as rent. Jai Kishen and Kesra admitted having offered Rs. 312/- but denied their liability in the suit on the ground that possession was never transferred to them. The trial court came to the conclusion that the plaintiff failed to prove the contract upon which he relied. He, therefore, dismissed the suit but directed that Dhanna shall bear his own cost, whereas Jai Kishen and Kesra will get their costs from the plaintiff. The plaintiff went up in first appeal. In second appeal, the learned Divisional Commissioner held that the contract alleged by the plaintiff was proved clearly in the case and that the award of vexatious or compensatory costs was unjustifiable. He, therefore, set aside the decrees of the lower courts and decreed the suit. Hence this revision. We have heard the learned counsel for the parties and have examined the record as well. We have no hesitation in observing that the learned Commissioner did not approach the case in a right perspective. As provided in sec. 20 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, second appeal can lie only on the following grounds and no others namely : - (a) the decision being contrary to some specific law or usage, having the force of law. (b) the decision having failed to determine some material issue of law or usage having the force of law. (c) a substantial error or defect in the procedure as prescribed by or under this Act, which may have produced an error or defect in the decision of the case on merits. As is apparent from the judgment of the second appellate court, no such ground has been shown to exist in the case. . The only reason advanced is that - "the plaintiff himself and his other witnesses have said that the defendant agreed to pay Rs. 312/- as profit for this land and this statement of theirs was not shaken in cross examination. Further the defendant did not examine himself so as to suggest anything against the evidence of the plaintiff. In the absence of any rebuttal by the defendant and on the basis of the evidence produced by the plaintiff, I am inclined to think that the plaintiff had proved his case. " In the first place, it has to be remembered that in appreciation of oral evidence the findings arrived at by the trial court is not to be disturbed lightly, for the obvious reason that the trial court has an opportunity of observing the demeanour and bearing of witnesses and can therefore make a first hand appraisement of the evidentiary value of each witness. This opportunity is not available to an appellate court. Secondly, if the statement of the plaintiff is examined, it would be evident therefrom that the defendant Dhanna flatly refused to agree to any enhancement of the rent and refused to participate in the auction proceedings. The only thing stated by the plaintiff is that subsequently Dhanna agreed to pay what others would be prepared to pay. This is too vague to mean any specific contract. The "other witnesses have not been pointed out specifically by the learned Divisional Commissioner. On going through the evidence we find that Bhairulal D. W. 2 and Ahamed Hussain D. W. 4 stated nothing on the point. Ratansingh evidently appears to be a chance witness and can hardly be of any credence. Mathuralal is an employee of the plaintiff himself and cannot be expected to depose against the interests of his employer. It is true that the plaintiff did not come in the witness box, but the plaintiff is succeed on his own strength and cannot derive any assistance from the weakness of his adversary. The lower appellate court has acted with grave and material irregularity in the exercise of its jurisdiction in as much as it has reversed the concurrent findings of fact arrived at by two lower courts without any justification or valid reasoning. We would, therefore, allow this revision, set aside the order of the Commissioner, Kotah, dated 21-6-54 and restore that of the first appellate court dated 25-3-54 which upheld the decree of the trial court. .;