- (1.) THIS is a second appeal under sec. 224 of the Rajasthan Tenancy Act, 1955, directed against the judgment and decree of the Revenue Appellate Authority, Jaipur dated 15-11-1965. The circumstances giving rise to this second appeal are that the plaintiff-respondent Seokaran filed a suit under sec 183 of the Rajasthan Tenancy Act which was dismissed by the trial court on 8-11-1962. Thereupon he preferred an appeal before the Revenue Appellate Authority who on 15-11-65 decreed the suit. The suit land measuring 8 bighas 19-1/2 biswas comprised in khasra Nos. 80, 115, 144 and 190 is situate in village Behror of District Alwar. The plaintiff-respondent claimed to be its khatedar tenant and he alleged that the defendant-appellant Prabhati was a trespasser having taken wrongful possession of the suit land in the year Smt. 2011 and having got his name fraudulently entered in khasra Girdawari for Smt. 2011. The grounds of this second appeal are as follows - (1) The appellant, Parbhati, alleges that he has been cultivating the suit land as a tenant of the respondent, on one half Batai of grain and fodder from Smt. 2010, and that he was wrongfully ejected by the respondent some time in the year 1955 and was reinstated into possession u/sec. 7 of the Rajasthan Protection of Tenants Ordinance by the Sub-Divisional Officer, Behror on 9-7-55, and that this order was upheld by the Revenue Board in a revision filed by the respondent on 14-8-1957 and a review application filed by the respondent against the same was rejected on 31-8-1960. (2) That the judgment and decree of the learned Revenue Appellate Authority is violative of the provisions of Order 41, Rule 31 C. P. C. in asmuch as he has passed his judgment on the decision of only one issue and has completely ignored the others. (3) That the learned Revenue Appellate Authority has misinterpreted the evidence of P. W. 2 Ramswarup who has proved that the suit land was let out to the appellant on one half Batai. (4) That the suit land is admittedly a Biswedari land and consequent upon the abolition of the Biswedari system the land had vested in the State Government and the plaintiff had no legal status to bring a suit under sec. 183 of the Rajasthan Tenancy Act, and therefore, the suit was not maintainable. (5) Lastly, the appellant claims that he is a katedari tenant of the suit land and his entry as such is also available in the revenue records.
(2.) WE have heard the parties and examined the record of this case. The learned counsel for the appellant contended that the suit land was Biswedari land and on the abolition of biswedari, the appellant being a tenant became a khatedar of the said land in terms of sec. 30 of the Rajasthan Abolition of Zamindari & Biswedari Act. He also produced the parcha-settlement issued in favour of the appellant-Parbhati, showing his possession over the disputed land as khatedar tenant. He pleaded that the parcha should be read in evidence as it has a vital bearing on the issues in dispute. The learned counsel further drew our attention to the judgments of the Board of Revenue in cases u/s. 7 of the Rajasthan Protection of Tenants Ordinance and submitted that in accordance with those decisions,the reinstatement of the appellant in the suit land was upheld by the Board. In regard to the admissibility of the parcha-settlement, the learned counsel contended that the court has powers to allow evidence if such evidence is required in the interest of substantial justice. He drew our attention to the provisions of O. 41, R. 27 C. P. C. and cited in support of his argument AIR 1963 S. C. 1526 (K. Venkataramiah vs. A. Seetharama Reddy ). The Supreme Court have laid the rule that the appellate court has power to allow additional evidence not only if it requires the evidence to enable it to pronounce judgment but also for any other substantial cause and if it considers that in the interest of justice something which remains obscure, should be filled up so that it can pronounce its judgment in a more satisfactory manner. It was contended by the learned counsel that the parcha settlement was issued after the filing of the second appeal. He also drew our attention to AIR 1931 P. C. 14 (Porsotim Thakur vs. Lal Mohar, Thakur) wherein it has been held that new evidence may be admitted if it has a direct and important bearing on the main issue. The learned counsel, therefore, prayed that the copies of judgments of the cases under the Rajasthan Protection of Tenants Ordinance and the Board's decision rejecting the review petition which could not be filed before the trial court, may be permitted to be filed now. This review petition was disposed of by the learned Member Shri Kanwar Bahadur on 31-8-1960, while the counsel for Seokaran-respondent admitted that the suit land was a part of biswedari estate which had since vested in the State Government. The appellant's counsel further submitted that the appellant had been in possession since Smt 2010, a fact which was established by oral as well as documentary evidence. It was strongly urged by the learned counsel that the Revenue Appellate Authority's judgment being a reversing one, should have discussed all the issues as well as the evidence on record, but he had violated the provisions of O. 41, r. 31 C. P. C. and disposed of the case by casually discussing only one issue, namely, whether the plaintiff ever entrusted the suit land for cultivation to the defendant ? He cited 1964 RRD 139 (Mavasi vs. Balwant) in support of his contention that the judgment of the first appellate court must be complete and self contained, and that this rule was mandatory On behalf of the appellant it was further argued by learned counsel that the learned Revenue Appellate Authority had not discussed evidence at all. He should have given reasons for discarding his evidence as incredible. Lastly, it was urged on behalf of the appellant that the State Government was a necessary party as the suit land was part of a biswedari estate and after the abolition of biswedari estates under sec. 30 of the Rajasthan Zamindari & Biswedari Abolition Act, the State Government should have been impleaded as a party. He drew our attention to 1962 SC 1230 (Haji Sk. Subhan vs. Madhorao ). The Supreme Court have held in that case that in view of the provisions of M. P. Abolition of Proprietary Rights (Estates, Alienated Mahals Lands) Act, 1950, a suit for possession on the basis of proprietary rights was incompetent and decree passed with costs in ignorance of the Act, is not executable as all such rights vest in the State. It was argued that the provisions of Rajasthan Zamindari & Biswedari Abolition Act are in peri materia with those of the M. P. Abolition of Proprietary Rights (Estates Mahals, Alienated Lands) Act and any decree for possession is not executable. AIR 1965 SC 524 (Ramran Bijaisingh vs. Beharisingh) was also cited in support of the same contention, namely, that a proprietor of an estate which has vested in the State is not entitled to decree for possession. On behalf of the respondent, his learned counsel strongly contested the aforementioned contentions. It was submitted that the contentions now urged were not pleaded earlier before the first appellate court and no new plea can be raised beyond the grounds of appeal. In regard to the factum of the suit land being biswedari before the abolition of biswedari estate, it was contended that the appellant had never made this aser-tion and that there was no evidence on record that the land in dispute constituted a part of the biswedari estate. This plea had not been taken in the pleadings and, therefore, could not be taken up in the second appellate court. As regards the question of admission by the respondent's counsel in a review petition before the Board of Revenue, it was argued that this could not be read against the party. He drew our attention to Sec. 31 of the Evidence Act and urged that an admission does not constitute a proof of fact. Our attention was also drawn to AIR 1941 Bombay 144 (Ramabai Shriniwas Nadgir vs. Government of Bombay ). It has been held therein that a party may plead an entirely different case and admission by a party in a pleading in one suit is not binding on him in the other suit. It was further contested that in accordance with the provisions of S. 41 of the Evidence Act only those judgments could be admitted which have the effect of res judicata and that in view of the provisions of Secs. 41 and 42 of the same Act, the judgment of the Board of Revenue in review petition is not admissible, the same being irrelevant. In regard to the parcha-settlement, it was submitted that the parcha was issued in 1963 and was in the possession of the appellant but it had not been produced before the lower courts and he had by his negligence forfeited his right to produce it at this belated stage. The learned counsel also strongly pleaded that in case the parcha settlement is admitted opportunity for rebuttal should be afforded to the respondent. As regards the maintainability of the suit, it was averred that the land was khudkasht of the respondent because he had been in continuous possession before Smt. 2011 and the plea that the land was biswedari, was not raised in the trial court. It was strongly pleaded on behalf of the respondent that oral evidence had been led in the first appellate court and it has been held by the learned Revenue Appellate Authority that the appellant is a trespasser and a trespasser's possession is no possession. It was submitted that the State Government need not have been impleaded as a party in view of the provisions of R. 5 of the Rajasthan Zamindari & Biswedari Abolition Rules. It was contended that in view of R. 5, the State Government has to be impleaded as a party only in those cases which were pending on the date of abolition of Biswedari system and it was further submitted that S. 31 is not applicable as the instant case is not one under the Abolition of Zamindari & Biswedari Act, but under the Raj. Tenancy Act, It was also argued that this objection had not been raised at the time the issues were framed. Lastly, it was contended that a finding of fact of the first appellate court is binding on the second appellate court, and in support of this he cited AIR 1959 SC 57 (Deity Pattabhir-amaswamy vs. S. Hanymayya and others) and 1962 RLW 478 (Indersingh vs. The Board of Revenue, Rajasthan ). We have given our careful consideration to the contentions of the parties and examined the record of this case. It appears to us that the contention made on behalf of the appellant that the learned Revenue Appellate Authority has disposed of the case before him in a very cursory and casual manner, has considerable force. He has not cared to discuss the issues framed by the trial court and has based his judgment only on a solitary issue namely whether the plaintiff ever entrusted the suit land for cultivation to the defendant. For this issue also all the evidence on record has not been discussed, The evidence of DW 2 Ramswarup had a direct bearing on this issue, but this was not even alluded to by the Revenue Appellate Authority. The credibility of the testimony of this witness has not been examined and discussed by the learned Revenue Appellate Authority. The irresistible conclusion is that the mandatory provisions of O. 41, r. 31 C. P. C. have been grossly violated by the first appellate court. The parcha settlement produced by the appellant before us is a document of great significance and is vitally important for a correct and just decision of this case, and we place reliance on AIR 1963 SC 1526 and maintain that this document as well as copy of judgment of the Board dated 31-8-1960, should be admitted in the interest of justice. There is no proof on record that the parcha was issued in 1963 as contended by the respondent. Another question which has a very important bearing for a proper decision of this case, is whether the suit land was part of the biswedari estate and whether the right of the plaintiff-respondent as a proprietor had been extinguished and, therefore, he had no right to bring this suit under sec. 183 of the Rajasthan Tenancy Act. This aspect of the matter has been very casually disposed of by the first appellate court. We find considerable force in the contention of the appellant that the State Government should have been impleaded as a necessary party in the present proceedings. In view of the foregoing discussions, we hold that the judgment of the Revenue Appellate Authority dated 15-11-1965 is violative of O. 41 r. 31 C. P. C and is perverse, and therefore liable to be set aside. We are also of the opinion that the parcha settlement as well as the judgment of the Board dated 31-8-1960, has a great and important bearing for a proper decision of this case and should be admitted in evidence on a payment of cost of Rs. 50/ -. The result is that we accept this appeal, set aside the impugned judgment and decree of the Revenue Appellate Authority and remand the case to the lower court for a proper decision in the light of the observations made by us as above. .;