UMRAO Vs. CHIDALAL

JUDGEMENT

(1.) This is the defendants second appeal against the appellate decree of the Additional Commissioner, Jaipur dated 30 -9 -54 upholding the decree of the trial court where by the respondents suit for recovery of possession over the land in dispute was decreed against them.

(2.) We have heard the learned counsel appearing for the parties and have gone through the record as well. The only contention raised on behalf of the appellants before us is that the appellate court was not justified in recording the evidence of some witnesses on 18 -9 -54 in as much as two of them were called at the instance of the appellants, before their evidence was recorded they had made it clear before the lower appellate court that they did not want to have their evidence recorded. It has also been argued that the lower appellate court was not justified in refusing an opportunity to them to lead evidence by way of rebuttal and more so as it had allowed the same at an early date i.e. 26 -5 -54. It has been replied on behalf of the respondents that the procedure followed by the lower appellate court was fully justified by the provisions contained in 0.41,R,27 C.P.C. We have bestowed our careful consideration on the points raised before us. It is true that the appellate court would have been well advised in recording the reasons which impelled it to record additional evidence, but as held in a number of cases this is only a directory and not a mandatory provision and the failure to record reasons does not make the evidence inadmissible. Where the reasons though not recorded in a separate order are embodied in the judgment of the appellate court then the requirements of law may be deemed to have been fulfilled. (Chitleys C.P.C. 1951 Edition p. 3433). The lower appellate court has given the reasons in para 3 of its judgment. It appears that Ram Dayal and Badri Pershed witnesses stated before the trial court that they were the brothers of deceased Mangla within 8 or 9 decrees. The lower appellate court could not ascertain the decree of relationship and the reasons why inspite of their being entitled to succeed to the deceased Mangla, they did not consider it proper to lay their claims to the holding in dispute These points were made clear in the statement recorded in the lower appellate court. No objection can be taken to this procedure. A reference may be made to A.I.R. 1951 S.C. 1, wherein their lordships were pleased to observe - -

(3.) Leaving aside the additional evidence which was recorded by the first appellate court the evidence which already excised on record is clearly sufficient and patent enough to justify the decree granted in favour of the respondents. The evidence of the village patwari coupled with the entries in the Revenue Record and other oral evidence leaves no room to doubt that the respondents did come in possession of the land in dispute after the demise of the deceased tenant Mangla. Prima facie their relationship with Mangla deceased has been proved in the case. The mutation has been sanctioned in their favour. The appellants pleaded that the deceased Mangla had surrendered the holding in his life time. This has been repelled by both the lower courts and in fact it was not raised before us by the appellants counsel. We have gathered this plea while going through the written statement filed on behalf of the appellants. Thus the position clearly is that the respondents were in possession of the land in dispute and that they were wrongfully dispossessed by the appellants. The concurrent findings and decrees of the lower courts are correct and call for on interference. The appeal is hereby rejected.