BALARAM SINGH DEO Vs. MADHU SUDAN SINGH DEO

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution against the judgment of Misra, J. sitting as an appellate Court under Section 27 of the Bihar Land Reforms Act, dismissing the petitioner's appeal against the order of the Compensation Officer apportioning the compensation payable in respect of various tenures within the former State of Seraikella which were taken over by the Government under the provisions of the said Act. The petitioner's case was that he and respondents Nos. 1 to 3 were junior members of the Seraikella Raj family and that their ancestor was given khorposh grant (maintenance grant) by the then Raja of Seraikella in accordance with the custom prevailing in the State for the maintenance of junior members of the Raj family. The petitioner further alleged that by virtue of a special custom the khorposh grant of the junior member of the Seraikella Raj family was also governed by the rule of lineal primogeniture and that the petitioner as a male descendant of the eldest line was entitled to the whole of the compensation payable for the acquisition of the tenures by Government of Bihar. The learned Compensation Officer, however, held, on the evidence adduced before him, that the petitioner was only entitled to two-fifths share and that the remaining three-fifth share should be divided equally amongst the three respondents who are also descended from the original common ancestor, though they belong to a younger branch. In coming to this decision he relied on some evidence, especially the khatian, adduced before him.

(2.) On appeal before Misra, J., on behalf of the petitioner an application was made for admitting as additional evidence under O. 41. R. 27, of the Code of Civil Procedure, several documents, the most important of which was the judgment of the Maharaja of Seraikella (Annexure C) in P. H. No. 131 of 1938-39, disposed of on the 28th December 1939. In that judgment the ruler of Seraikella. sitting as a Court in a dispute between some of the maintenance holders (khorposhdars) of the State, held that the khorposh properties in the State were impartible by custom and that they also descended by the rule of primogeniture. It is true that the judgment was not between the parties in the present dispute or their predecessors in interest, but it might be a valuable piece of evidence as regards the custom of impartibility prevailing in respect of khorposh grants in Seraikella State prior to its merger on the 1st January 1948. The learned Judge, however, refused to allow additional evidence to be taken at the appellate stage, observing that "no sufficient cause has been made out for admitting the documents in question."

(3.) It is now well settled that the power of certiorari against a judicial or quasi judicial order can be exercised only when there is an error of law apparent on the face of the record. I am leaving out of consideration jurisdictional grounds which obviously have no application here. We are unable to find any error of law apparent on the face of the record in the judgment of Misra, J. Merely because he refused to exercise his discretion to admit additional evidence under Order 41, Rule 27, Code of Civil Procedure, it cannot bo said that there is any error of law apparent on the face of the record. The question ultimately depends on whether he was satisfied with the explanation given for not adducing this valuable document before the Compensation Officer at the earliest stage and whether he thought that this document was necessary with a view to enable him to pronounce judgment or for any other substantial cause