- (1.) THIS is a revision against a judgment and decree of the Commissioner, Bikaner, dated 30. 5. 1956 which confirmed a judgment and decree of the Assistant Collector, Raisinghnagar, dated 7. 7. 1955 dismissing the suit of the applicant with costs.
(2.) WE have heard the learned counsel appearing for the parties and have also examined the record. The material facts of the case are that Banta Ram applicant brought a suit against Deedar Singh and Balbeer Singh, non-applicants, under item No. 25 of Group B of the First Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 on 4. 12. 1954, in the court of the Assistant Collector, Raisinghnagar, alleging that he had purchased square No. 16, situated in chak No. 13 P. S. and in order to obtain an easy access to the square in question he had submitted an application, for opening a new path which would run through the corner of the square owned by the non-applicants. The application was rejected and the applicant was directed to pursue his proper remedy in a court of law. He, therefore, instituted a suit against the non-applicants as mentioned above. The defendants in their written statement controverted the allegations of the plaintiff and made out that the plaintiff could have access to his square by going along the path which ran close to the back of the canal. His predeeessor-in-interest had also filed a similar application which was dismissed The suit of the plaintiff was barred by res judicata. The trial court framed as many as three issues which were based upon the pleadings of the parties. Issues Nos. 1 and 2 were confined entirely to point of law. As the learned counsel for the defendants failed to adduce any authority in support of his contention that the suit instituted by the plaintiff was either barred by limitation or could not be tried on the ground of res judicata, both the issues were decided against the defendants. Issue No. 3 which hinged on the crucial point that was in controversy was decided against the plaintiff and his suit was dismissed. The plaintiff filed an appeal from the judgment and decree of the Assistant Collector in the court of the learned Commissioner, Bikaner. The learned Commissioner after gathering information on certain points which had been apparently left in obscurity by the trial court came to the conclusion that the appeal filed by the plaintiff was devoid of substance. He, therefore, dismissed it. Aggrieved by the decision of the learned Commissioner, Bantaram has come up in revision to the Board. It was contended on behalf of the applicant that the learned Commissioner had no jurisdiction to hear the appeal, his decision could, therefore, be impugned and set aside in revision on the ground that he had assumed a jurisdiction which did not vest in him. The learned counsel for the applicant based his argument on the ground that during the pendency of the appeal before the learned Commissioner the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, had been repealed by the Rajasthan Tenancy Act, which came into force on 15th Oct , 1955. The subject-matter of the suit was covered by sec. 25 of the Rajasthan Tenancy Act. Under section 206 (I) and (2) of the said Act appeals which were pending relating to matters dealt with in the Act shall be deemed to have been commenced under the Act and the shall be tried, heard and determined in the manner prescribed by or under the Act. Such appeals which according to the provisions of the Act did not lie to or were not triable by a revenue court before whom they were pending shall be transferred to and be heard and determined by the revenue court to which they lay or by which they were triable in accordance with the provisions of the Act. Under sec. 251 of the said Act a dispute about the right of way could be dealt with by the Tehsildar on an application. An appeal from his order would lie to the Collector. The appeal which was pending before the learned Commissioner should, therefore, have been transferred by him under sec. 206 (2) for disposal to the Collector. It was further contended that the learned Commissioner was not justified in taking into consideration a certified copy of the previous order relating to right of way which was passed on the application of Atarchand as the issue of res judicata had been decided against the defendants on their failure to substantiate their contention that the matter which was in issue between the parties had been decided on a previous occasion. The decision of the learned Commissioner was also attacked on the ground that he had violated the provisions of Order 41, Rule 27 as he allowed one of the parties to lead additional documentary evidence without there being justification for it. On behalf on the non-applicants reliance was placed on two decisions of the Board, reported on page 1 R. R. D. 1954 and page 174 R. R. D 1956 It was urged on the strength of the first decision that even if it be assumed for the sake of argument that the learned Commissioner had decided an appeal which could be heard and determined by the Collector his decision could not be impugned on the ground that he had exercised a jurisdiction which did not vest in him. The Commissioner had all the powers of a Collector in addition to the powers specified in sec. 217 of the Rajasthan Tenancy Act. The second decision laid down that sec. 206 of the Rajasthan Tenancy Act would not affect the substantive rights which had accrued to the parties earlier. It was a provision which was intended to deal with procedural matters only. As an appeal against a decree passed by the Assistant Collector lay to the Commissioner under sec. 19 of the Rajsathan Revenue Courts (Procedure and Jurisdiction) Act 1951, he had, therefore, exercised a jurisdiction which vested in him and his decision could not be impugned in revision. It was further, urged that the provisions of sec. 251 of the Rajasthan Tenancy Act would not apply to a suit instituted by the applicant in the court of the Assistant Collector, Raisinghnagar. These provisions came into play only when there was a dispute between two parties about a right of way which was in existence. One party alleged that in having access to his field he had been using that route and the other party disputed his right over that route. Section 251 did not deal with the opening of a new path in order to afford facility to a party to have access to his filed by a shorter route. It was also contended that the learned Commissioner had not based his decision in the appeal on the ground that the matter in controversy between the parties had been decided on a previous occasion. He had gone into the facts discovered by the learned Assistant Collector, after inspecting the spot, and had come to the conclusion that the appellant was not entitled to have a new path opened up so that he might not have access to his field by a longer route which ran along the bank of the canal. It was also pointed out that even if documentary evidence, which the learned Commissioner had allowed to be adduced before him was ignored there was sufficient material which would enable him to come to the conclusion that the appellant before him was not entitled to succeed. For a just decision of the matter in issue between the parties it is necessary to deal with their contentions separately. Dealing with the first contention which was rai?ed on behalf of the applicant we may observe that it is too late in the day to contend that Sec. 206 of the Rajasthan Tenancy Act would affect the substantive rights of the parties. In order to attract the application of sec. 206 it was incumbent upon the applicant to show that the appeal which was pending before the learned Commissioner related to a matter that was dealt with in the Rajasthan Tenancy Act The learned counsel for the applicant relied on the provisions of sec. 251 of the said Act, which runs as follows: " (1) In the event of a dispute arising as to the route by which a holder of land shall have access to his fields or as to the waste or pasture lands of the village, otherwise than by the recognised roads, paths or common land including roads and paths mentioned as such in the settlement records or as to the course or source by which he is entitled from a tank, well or other source, the Tehsildar, may, on application, after local enquiry decide the matter with reference to the previous custom in each case and with due regard to the convenience of all parties concerned. " This section contemplates an application to be tried by a Tehsildar and can be clearly distinguished from the provisions of item 25 of Group B. Schedule 1 of the Revenue courts (Procedure and Jurisdiction) Act under which a suit had to be filed to an Asstt. Collector. It is not intended to apply to the opening of a new path which would run through the field of another. This section does not apply to the case of the applicant, as is clear from the allegations set out in his plaint and the applicant could not therefore invoke the provisions of section 206 of the Rajasthan Tenancy Act in order to urge that the appeal should have been transferred by the Commissioner to be heard by the Collector. Again even if we assums for the sake of argument that the learned Commissioner had no jurisdiction to hear the appeal because it lay to the learned Collector the Full Bench decision reported on p. 1 R. R. D. 1954 would apply and it could not be said that there was lack of inherent jurisdiction on the part of the learned Commissioner. The authorities on which the learned counsel for the applicant has relied in support of his contention that the appeal should have been transferred to the Collector who alone could deal with it turn on the construction of Sec. 6 (2) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, which is similar to the provisions contained in sec. 206 of the Rajasthan Tenancy Act. These authorities are A. I. R 1955 N. U. C. 2196, A I. R. 1955 N. U. C. 4073, and would not apply to a case to which the provisions of sec 6 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act or 206 of the Rajasthan Tenancy Act, did not extend. This contention is obviously devoid of force and is ruled out. The second contention of the applicant about the matter being barred by res Judtcata also does not hold water as we find that the learned Commissioner had sufficient material before him to come to decision that the appeal filed by the applicant was without substance. He incidently referred to the point that on a previous occasion of similar request for opening a path which had emanated from Atarchand was turned down for sufficient reasons. He did not base his decision entirely on the ground that as a similar request had been previously turned down the applicant could not put forward a claim for having a new path opened which would give him access to the fields more quickly. The third contention is directed against the procedure adopted by the learned Commissioner in allowing one of the parties to adduce additional documentary evidence without recording any reasons therefor, and without pointing out that on the basis of the existing material it was difficult for him to come to a decision in the matter. Under clause (b), sub-rule (1) of Rule 27, Order 41 it is only when the court requires it, :i. e. finds it needful, that additional evidence can be admitted. It may be required to enable the court to pronounce a judgment or for any other substantial cause, but in either case it must be the court that requires it upon its appreciation of the evidence as it stands. It should be remembered, however, that this power of admitting additional evidence should be exercised cautiously and sparingly and only in exceptional cases. An appellate court should as a rule refrain from admitting additional evidence where a party on whom the onus of proving a certain point lay failed to discharge the onus. As we have pointed out above even if we exclude from our consideration the documentary evidence, which was admitted by the learned Commissioner, there is sufficient material on the file which would point to the conclusion that the applicant was not entitled to have a new path opened up when there was a path in existence which gave him an access to his field. This contention would not, therefore, go the root of the matter even if it were allowed to prevail. Dealing with the contentions raised on behalf of the non-applicants we may observe that we have dealt with these contentions in great detail while considering the contentions which were raised on behalf of the applicant. These contentions have a great deal of substance in them. Taking them individually or collectively they would lead to the conclusion arrived at by the learned Assistant Collector, Raisinghnagar. In this view of the matter we are clearly of opinion that the learned Commissioner did not commit any illegality or material irregularity in the exercise of his jurisdiction. On the material before him it was difficult to reach any other conclusion than the one at which he had arrived As there is no force in the application for revision we have not the least hesitation in dismissing it. . ;