- (1.) THIS is a second appeal against the concurrent judgments of the two lower courts filed by the defendants Nand Kishore and others. The facts of this case are that the plaintiffs respondents filed a suit for possession of land measuring 25 bighas 10 biswas (kham) known as Khusalwali Kothi situated in village Mataji-ki-Dhani, Nawalgarh. The plaintiffs respondents sought declaration of Khatedari rights together with damages during the period of their dispossession from the suit land. The trial court decreed the suit on the basis of misal haqiqat Ex. P. 11 and entries of the Khasra Girdawari Smt. 2008 Ex. P. 16. The learned Revenue Appellate Authority confirmed the judgment of the trial court.
(2.) THE learned counsel appearing for the defendant appellant Nand Kishore has attacked the judgment of the learned Revenue Appellate Authority as perverse, mainly, on the following grounds - (1) He did not apply his mind to the facts and evidence on record, because he has failed to discuss the same. (2) He has relied upon rent receipts Ex. P. 1, Ex. P. 10 and again Ex. P. 12 to Ex. P. 15, even though (rial court had found the rent receipts to be unproved. THE learned Revenue Appellate Authority has not given any reasons why he has chosen to differ from the finding of the trial court and why he considered the rent receipts as reliable. THErefore, it was contended that the judgment of the Revenue Appellate Authority is in conflict with the finding of the Sub Divisional Officer and hence is perverse. (3) Khasra Girdawari Ex. P. 16 is no evidence. It is a report of the patwari as to who was in possession and who had committed trespass. As regards the evidentiary value of the Ex. P. 11 misal haqiqat the learned counsel contended that the document is alleged to have been prepared in Smt. 1999 i. e. 1942 A. D. and as during the relevant period there was no law or Act under which this document was prepared it is not a public document. The learned counsel argued that the State Grants Land Tenure Act of the former Jaipur State was brought on the Statute Book in the year 1947 and as this document was prepared much earlier it could not be deemed to be a public document. In support of this contention the learned counsel cited R. R. D. 1957 page 15 (Shri Mangya vs. Mst. Bhuli) wherein a Division Bench of the Board have held that the record of rights prepared without the sanction of law lacks legal validity. He also cited 1945 Revenue Decisions Allahabad page 395 (Faquir Kurmi vs. Sahadeo.) It was. therefore, submitted that this is not a public document and no evidence had been led to prove this document. To sum up, the submission made on behalf of the appellant is that the lower courts had grossly erred in placing reliance on the so called misal haqiqat Ex. P. 11 as it was not a public document prepared under any Act. Another contention strongly urged on behalf of the appellant is that the judgment of the Revenue Appellate Authority is perfunctory and perverse as he had not applied his judicial mind to the evidence on record and also because he had placed reliance on rent receipts Ex. P. 1 to Ex. P. 10 Ex. P. 12 to Ex. P. 15 in conflict with the finding of the trial court without giving reasons of his own. The learned counsel for the respondents controverted the appellant's case by making the following submissions : - 1. There is a concurrent finding of fact by both the lower courts and in a second appeal this court should be reluctant to interfere with the same. 3. The judgment of the Revenue Appellate Authority was an affirming one and therefore it was not necessary for him to restate the evidence and reasonings given by the trial court. In support of this he cited A. I. R. 1967 Supreme Court 11 2-A Girijandini vs. Bijendra Narain. It has been held in this judgment that in an affirming judgment expression of general agreement with the reasons by the trial court would ordinarily suffice. It was, urged that the judgment of the trial court is very elaborate and the Revenue Appellate Authority had concurred with this finding without restating the reasonings and this was quite in order. As regards the validity of Ex. P. 11 Misal Haqiqat, it was contended that the appellant could not challenge the validity of the same at this late stage because this plea was not raised either before the trial court or before the first appellate court. It was contended by the learned counsel for the respondent that the concurrent finding of fact of two lower courts is binding on this court while hearing the second appeal and it is not open to this court to question the adequacy or sufficiency of evidence. The following rulings were cited to support this point : - A. I. R. 1963 Supreme Court 1633 (Ramappa vs. Bojjappa) A. I. R. 1959 Supreme Court 1204 (Paras Nath vs. Mohani Dasi) A. I R. 1963 Supreme Court 1203 (Kharbuja Kuer vs. Jangbahadur Raj) A. I. R. 1966 Supreme Court 1718 (Abdul Waheed Khan vs. Bhawani) To sum up, it was strongly argued on behalf of the respondent that the question of validity of Misal Haqiqat Ex. P. 11 could not be raised in the second appeal as it had neither been raised before the trial court nor before the first appellate court and nor even in the memo of appeal before this court. The validity of this document could not be questioned because it was prepared by the Settlement Department of the Jaipur State and maintained by a Thikana which exercised jurisdictional powers and was prepared in accordance with the provisions of Chapter V of Jaipur State Grants and Lands Tenure Act, R. R. D. 1955 page 114 (Champalal vs. Shri Baiji Nath) and R. R. D. 1963 p. 333 (State of Rajasthan vs. Sardar Singh) were cited in support of this and it was further submitted that under Sec. 22 A of the Rajasthan Land Reforms and Resumption of Jagirs Act a duty has been cast on the Jagirdar to deliver the records of the Thikana and the same is treated as a part of revenue records subsequent to the resumption of the jagir. We have heard the parties and examined the record. The validity of Misal Haqiqat Ex. P. 11 has been challenged mainly on the ground that there was no law or Act in force in the former Jaipur State in the year 1942 under which this document was prepared. We have perused 1945 Revenue Decisions 395 and 1957 RRD 15 cited on behalf of the appellant and 1955 RRD 114 and 1961 RRD 333 on behalf of the respondents. It is a very pertinent question whether the Misal Haqiqat Ex. P. 11 has any legal validity and whether it was prepared under the sanction of any law in force in Thikana Nawalgarh. It has to be examined whether as a jurisdictional Thikana it was empowered to have survey operations conducted under the authority of any law and if no law was in force, what is the legal validity of this document. As regards the legal infirmity pointed out in the judgment of the learned Revenue Appellate Authority we are inclined to agree with the view of the learned counsel for the appellant that he has not applied his judicial mind to the facts and evidence on record. The charge of perversity in his judgment is proved by the fact that he has held rent receipts Ex. P. 1 to Ex. P. 10, Ex. P. 12 to Ex. P. 15 as reliable in spite of the fact that the trial court had held the same as unproved. The Revenue Appellate Authority does not appear to have taken pains to examine the facts on record carefully. While we agree that in an affirming judgment the first appellate court may express general agreement with the finding of the lower court but in the present case he has given a finding quite contrary to the finding of the trial court, without giving reasons of his own to justify the same. Ex. P. 16 also appears to be a report of the patwari reflecting on possession and the fact of harvesting of the crop by the mafidars and cannot be deemed to be an authentic girda-wari record. We cannot accept the view that this court should not examine the legal validity of documents where the same is strongly challenged. We do not find much of substance in evidentiary value of Ex. P. 16. As regards the awarding of compensation by the trial court, the learned Revenue Appellate Authority found fault with the same on the ground that Shanker had failed to establish the rental assessment of the land in dispute and further that he was put in possession by a court of law as a result of proceedings under sec. 145 Cr. P. C. He therefore, held that damages were not granted rightly by the learned Sub-Divisional Officer. It is, however, amazing that in spite of this finding the learned Revenue Appellate Authority did not modify the decree of the trial court accordingly. This is another serious defect in the judgment of the Revenue Appellate Authority. The result is that we accept this appeal, set aside the order of the Revenue Appellate Authority and remand this case to him for hearing the parties again and passing a proper judgment in the case, in the light of the observations made above. . ;