SAMBHU MALLIK Vs. RUSI MALLIK AND TWO ORS.

JUDGEMENT

(1.) RUSI Mallik, opposite party No. 1 filed an application before the Collector under the Orissa Tenants Relief Act, Darpan, that he was the bhag tenant in respect of the disputed land, 0.70 acre in area, long since and that the Petitioner Sambhu Mallik was trying to disturb his possession. He accordingly sought necessary relief under the said Act. Sambhu Mallik did not file any written statement, but opposite parties and 3 who are the owners of the land, filed a written statement stating that the land belonged to them and that they transferred the same to Sambhu Mallik in 1960 under a registered sale deed, and before - that Sambhu was in bhag cultivation of the same land. The matter was enquired into; the O.T.R. Collector did not accept the case of Rusi Mallik rejected his application. An appeal against that order was also dismissed by the Additional District Magistrate. Cuttack. A second appeal was carried to the Revenue Divisional Commissioner).under Section 11 -A(5) of the Act. The Revenue Divisional Commissioner took a contrary view and accepted the version of Rusi Mallik. He accordingly set aside the confirming judgment and allowed the reliefs claimed by Rusi Mallik. Against this order this revision has been filed under Section 11 -A(6).

(2.) MR . G.S. Mohanty for the Petitioner contends that the judgment passed by the Revenue Divisional Commissioner is not a judgment in accordance with law and must be set aside. This argument necessitates a close examination of the powers of the Revenue Divisional Commissioner and the High Court.

(3.) IT would thus appear that in exercise of his powers in second appeal the Revenue Divisional Commissioner is not restricted by any provision corresponding to Section 100 of the Code of Civil Procedure. The revisional power of the High Court shows that it can interfere only on a question of law, but the same restriction is not applied to the second appellate jurisdiction of the Revenue Divisional Commissioner. The Revenue Divisional Commissioner is, therefore, fully competent to go into questions of fact in second appeal, as he could have done in a first appeal. This is, however, always subject to the paramount consideration that an appellate Court must be cautious in disturbing the findings of the trial Court who had the full opportunity of observing the demeanour of the witnesses.