RAJA RAM Vs. BOARD OF REVENUE

JUDGEMENT

(1.) SHITLA Pd. Srivastava, J. This peti tion under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order passed by respondent Nos. 1 and 2 dated 14-2-72 and 23-10-75 respectively.

(2.) THE brief facts for the purposes of. this petition are that Smt. Sarswati Devi, who is dead now filed a suit Nos. 163 and 165 under Section 229-B of U. P. Zamindari Abolition and Land Revenue Act for declaration of co-bhumidhari and co-sirdari rights. Suit No. 163 relates to village Mitha Mai. She claimed co-tenancy with the petitioner and the opposite party No. 10 (Tota Ram ). Suit No. 165 relates to village Sitapur. She claimed co-tenancy with other opposite parties and the petitioner as well, on the basis of being daughter of Smt. Champa Devi whom she alleged to be a co-tenant with the petitioner and opposite party No. 10.

(3.) HEARD learned counsel for the par ties and perused the record. Sri Sidheshwari Prasad, learned counsel for the petitioner has submitted that the applica tion which was filed by the petitioner under Order XLI, Rule 27 was not proper ly construed and if the document which was filed alongwith the application would have taken into consideration then that would have been sufficient to hold that Champa Devi, alleged mother of respon dent No. 4 Sawitri Devi had admitted that her husband died issueless, therefore, this admission was sufficient to hold that Smt. Sawitri Devi is not the daughter of Smt. Champa Devi. He was placed reliance on 1951 S. C. 125, that while considering the application under Order XLI, Rule 27 question of time is not to be seen for moving, the application but the question of knowledge is to be seen. He placed before the Court the entire Order XLI, Rule 27 specially sub-clause (a-a) which was inserted on 1-2-1977 in the Civil Pro cedure Code. He has submitted that the court below while deciding Issue No. 4 on the point as to whether the plaintiff was daughter of Smt. Champa Devi or not has considered the revenue extract, order of Supervisor Qanoongo and give a finding that she was not daughter of Champa Devi. His contention is that the appellate court has taken into consideration all the evidence of other village i. e. Alampur whereas the dispute was in respect of vil lage Maitha Mal, therefore, the docu ments of village Alampur were irrelevant. His submission is that word nawasa' has been not properly interpreted. His further submission is that when the trial court has given judgment after appreciation of the evidence and has given reasons to arrive at the conclusion the appellate court should give a cogent reason while deferring with the finding of fact arrived at by the trial court. For that purpose he has placed reliance on AIR 1972 S. C. 1716, T. D. Gopalan v. Commissioner Regional Charitable Endowments. He has placed reliance on 1978 S. C. 114 6. His contention on the basis of these judgments is that when the trial court had occasion to record oral evidence, observed demanure of the witnesses then general rule is that the appellate court should fol low the reasoning given by the trial court. In this connection he has placed/before the Court the affidavit of Raja Ram. He has further submitted that Smt. Saraswati Devi has admitted that the suit was filed by Smt. Champa Devi in 1954, therefore, the document which was proposed to be filed by the petitioner should have been ad mitted. For that purpose he has placed reliance on 1997 A. L. R. 402, Mukesh Kumar and other v. XI Addl. District Judge and others. 7. Sri G. N. Varma learned counsel for the contesting respondent has urged that the application which was filed under Order XLI, Rule 27 was rightly rejected by the Board of Revenue and the order was a discretionary order, therefore, no inter ference should be made by the High Court. For that purpose he has placed reliance on 1969 A. L. J. 1060, Ram Agyan Singh v. . Murlidhar Agarwal, l990 AWC 66l, Kuber v. Dy. Director of Consolidation; A. I. R. 1965 S. C. 1008, Municipal Corp. v. Lala Paneham; A. I. R. 1931 PC. 143; Parsotim Thakur v. Lal Mohar. Sri Verma has sub mitted that the application under Order XLI, Rule 27 was rightly rejected by the Board of Revenue as it was filed much after the decision of trial court and the appellate court though the document was in exist ence since 1954 and the petitioner had knowledge that the suit was filed, there fore, the document was rightly rejected. He has placed reliance on 1951 S. C. 193, Arjun Singh v, Kartar Singh. He has further submitted that in the proceeding under Section 240 of U. P. Zamindari Abolition and Land Reforms Act it has been proved that the contesting respondent Smt. Sarswati Devi was daughter of Komil. Apart from that Kutumb register was their to prove that the petitioner was daughter of Champa Devi and finding of fact has been recorded by the two courts below which requires no interference under Ar ticle 226of the Constitution of India. 8. From perusal of the judgment of the trial court it is apparent that Issue No. 4 was framed as to whether the plaintiff was daughter of Smt. Champa Devi and Komil. The trial court considered the extract of Khatauni of 1356 Fasli in which there is endorsement of Supervisor Qanoongo dated 3-1-48 in which the names of Bhag-wan Swaroop and Ved Prakash Champa's daughter's sons (Nawasa) were ordered to be recorded with the consent of the Zamindar and it was held that there was no other document to show that Smt. Sarswati Devi was daughter of Champa and her husband Komil. The Trial Court further considered the oral evidence of Smt. Sarswati Devi and discussed her statement and came to the conclusion that she is not daughter of Champa Devi. 1st appellate Court took into consideration the property of village Alampur where Smt, Champa Devi get the names of Bhagwan Swaroop and Ved Prakash added alongwith her with the consent of the Zamindar and there was order of Super visor Qanoongo dated 3-1 -48 to this effect. Bhagwan Swaroop and Ved Prakash were shown as Nawasa of Smt. Champa Devi. 1st appellate court also considered the entry of Z. A. Form No. 110 prepared under Section 240 of the Zamindari Aboli tion Act where the names of Bhagwan Swaroop and Ved Prakash were entered in the record of Alampur and on the basis of this, the appellate court interpreted that as there were two daughter's sons of Smt. Champa Devi, therefore, Champa Devi had a daughter and Smt. Sarswati Devi is proved to be daughter of Smt. Champa Devi. Board of Revenue also confirmed the same finding. He has referred the case reported in A. I. R. 1957 Supreme Court 912 in which it was held that it is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at the proper stage and to fill in gaps. Board of Revenue held that there was sufficient op portunity for the appellant to place all the relevant materials before the Trial Court and latter in the lower appellate court and it cannot be accepted in the Board of Revenue. On the point of reappraisal of the evidence by the lower appellate court on question of fact, it has been held by the Board of Revenue that duty of appellate court in all such cases would be to consider the evidence as a whole and whether the conclusion of the trial court can be reasonably justified and in case there is an element of improbability then the findings of fact can always be looked into, and, if necessary, upset. He accordingly held that the finding given by the lower appellate court cannot be held to be erroneous. 9. From the arguments of learned counsel for the parties and from the judg ments passed by all the three courts it is apparent that the only question was with regard to parentage of Smt. Sarswati Devi. Though it is question of fact but neverthe less it was a fact to be decided by the courts on the basis of evidence available on the record. Here it is apparent that the Trial Court decided the question on the basis of the evidence which was available at trial stage, the lower appellate court decided the case on the basis of evidence which was discussed by the trial court and took into consideration the documents relating to property of village Alampur (not in suit ). The second appellate court also placed reliance on the same evidence which was considered by the Trial Court as well as by the appellate court and refused to accept the document which was certified copy of document of judicial record which was in shape of admission made by Smt. Champa Devi to the effect that she had no issue. Therefore, the question for consideration before this Court is as to whether the ap pellate court has! committed error in law in rejecting the application filed under Order XLI, Rule 27. The Board of Revenue has held that as the petitioner had knowledge of earlier suit, therefore he should have filed the same before the trial court. The appellate court I has rejected the applica tion only on the (of basis that the petitioner had knowledge or earlier suit of 1954, therefore, the question is as to whether the document should have been admitted by the second appellate court or not. To ap preciate the point in controversy it is necessary to see the relevant provisions of Order XLI, Rule 27, C. P. C. which is reproduced herein as below: 27" Production of additional evidence in appellate court:- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if- (a) the Court from whose decree the ap peal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce addi tional evidence establishes that not with standing the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or, (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced, or wit ness to be examined. (2) Wherever additional evidence is al lowed to be produced by an Appellate Court, the Court shall record the reason for its admis sion. " 10. The application which was filed by the petitioner before the second appellate court has been filed as Annexures-5 to the writ petition. In this application it is men tioned on the point as to whether Komil Ram and Smt. Champa Devi died issue-less or that Smt. Saraswati Devi was their daughter. The oral evidence had only been tendered by the parties in the present case, but the plaintiff had now come into posses sion of a certified copy of the plaint in suit No. 25 of 1954 filed in the court of Civil Judge, Badaun, (Raja Ram v. Laturi and others ). In the plaint it is stated by Smt. Champa Devi herself that her hus band had died issueless and this statement was an important piece of admission of a deceased person. 11. From the perusal of the state ment contained in the application under Order XLI, Rule 27 it is apparent that ingredients of sub-clause (aa) of Order XLI, Rule 27, C. P. C. were there: There fore, the Board of Revenue has not legally rejected the application. It was duty of the Board of Revenue to have allowed the application and placed the document on record and should have given opportunity to the plaintiff to file document in rebuttal and should have considered its evidentiary value in accordance with law. Since it has not been done and a valuable document which could have turned the situation has been refused, I am of the view that the writ petition should be allowed and the judg ment of the Board of Revenue should be quashed and the matter should be sent back to the Board of Revenue to allow the application under Order XLI, Rule 27, admit the papers filed alongwith the ap plication giving an opportunity to the con testing respondents in the appeal to file document in rebuttal and decide the ap peal afresh after considering all evidence available on the record including the documents filed alongwith the application under Order XLI, Rule 27 and any docu ment filed in rebuttal. 12. 1 accordingly allow the writ peti tion and quash the judgment of the Board of Revenue dated 23-10- 75 and remand the case to the Board of Revenue to re store the appeal to its original number and decide it afresh in accordance with the observations made in the body of judg ment. Petition allowed. .