Ramji Lal vs Gainda Singh and others

D.S. Tewatia, J.—This second appeal arises out of a suit filed by the plaintiff-appellant for joint possession to the extent of one-fourth share in the land measuring 517 Bighas situated in village Bhagal, Tehsil Kaithal, District Karnal. The plaintiff alleged in his plaint that he is a co-sharer of the defendants in the land in question to the extent of one-fourth share and that sometime before 1955, the defendant respondents did not allow the plaintiff to cultivate the land and falsely alleged that instead of the plaintiff they were the owners of the land having purchased the same from the plaintiff in the year 1943 for a sum of Rs 2000/-. That the defendant-respondents fraudulently got an entry made in collusion with the Patwari to the effect that the plaintiff made a statement to the Patwari that he had sold his share in Khewat No. 276 for a sum of Rs 2000/-, which he had received and had delivered the possession of the said land to the defendants. The defendants resisted the suit and denied that the plaintiff had ever been in possession of the land in question since 1943 upto the filing of the suit. It was also pleaded that, in fact, the defendants had purchased the land from Ramji Lal plaintiff for a sum of Rs. 2000/- regarding which he himself had got an entry effected in the Roznamcha of the Patwari which was signed by Margal Singh Lambardar and later on a nutation of sale was sanctioned in their favour. On the basis of the pleadings of the parties, the trial Court framed only the following issue:

Whether mutation No. 1383 sanctioned on 17th November, 1943 in defendants favour has been effected by practising fraud on the plaintiff ?

The trial Court as also the lower appellate Court, dismissed the suit. The plaintiff took the case to the High Court in second appeal and Mahajan, J., who heard the appeal, remanded the case with the direction that the trial Court should frame the fresh issues and decide the case on merits. The operative part of the order of Mahajan, J. reads-

''As a matter of fact this was a case where it was essential to frame an issue on the subject and non-framing of the specific issue has led to miscarriage of Justice, Therefore, in the interest of justice, I set aside the judgments and decree of the Courts below and remand the case to the trial Court for framing proper issues and then to decide the case afresh after giving the parties full opportunity to lead evidence....

On remand, the trial Court framed the following issues:

Whether the plaintiff did not sell the land in dispute to Defendant No. 1 ?

Whether the mutation No. 1383 relating to sale sanctioned on 17th November. 1943 in defendant''s favour has been effected by practising fraud on the plaintiff?

Is the suit within time?

Relief.

The trial Court decided all the issues in favour of the plaintiff and decreed the suit. However, the luck favoured the defendants in appeal and the lower appellate Court reversed the judgment and decree of the trial Court. Hence, this second appeal at the instance of the plaintiff.

Mr. Anand Swaroop, learned counsel for the appellant, has urged that the findings of the lower appellate Court are vitiated on the following grounds-

(1) that the lower appellate Court has not kept in view the correct principles of law regarding appreciation of the evidence;

(2) that the lower appellate Court has raised a presumption regarding truth of the contents of the order of mutation when, in fact, no such presumption under law arises; and

(3) that the lower appellate Court is absolutely wrong, as it misunderstood the real point in issue.

The learned counsel for the respondents, on the contrary has, urged that the lower appellate Court has correctly arrived at its findings of fact and the said findings being the findings of fact cannot be interfered with in second appeal.

I have given the matter my careful consideration and am of the opinion that this appeal must fail. The first argument advanced by the learned counsel for the appellant, in support of his first submission that the lower appellate Court has not kept in view the correct principles of law regarding appreciation of the evidence, is that the evidence of the plaintiff has been discredited merely on the ground that it is opposed to the documentary evidence such as the Report Roznamcha Exhibit P.X and Mutation Exhibit P. 1 on the record when, in fact, it is that documentary evidence itself which has been disputed by the plaintiff as having been brought into existence by practising fraud on the plaintiff. This argument of the learned counsel is not wholly true because the lower appellate Court has taken into consideration an additional fact that the plaintiff has not succeeded in showing himself to be in possession of the land from 1943 to 1969. What the learned counsel for the appellant has tried to make out, and that in fact, in substance, was the position taken up by the plaintiff in his plaint, is that surreptitiously and fraudulently the defendants got the Roznamcha entry effected in their favour in collusion with the Patwari in a clan destiane manner and also got a mutation sanctioned to that effect and they in fact did not disturb the plaintiff''s possession over the land in suit to avoid any suspicion arising in the rind of the plaintiff and only when sufficient time had elapsed that they took steps to disallow the plaintiff from cultivating the land in dispute in the year 1955. If in fact, this had been the correct position the plaintiff would positively have claimed an issue regarding possession. The evidence on the record shows that the land has been in cultivating possession of the tenants some of whom have stated that they were the tenants under the defendants and the others have deposed that they were the tenants under the plaintiff. The Courts below have not placed any reliance on the evidence of those witnesses who have deposed that they were the tenants under the plaintiff. This assessment of their evidence has not been challenged before me by the counsel appearing for the appellant.

The second argument in support of his first contention advanced by the learned counsel for the appellant is that the Roznamcha report has not been proved in accordance with law and so the same cannot be used for the purpose of contradicting either the evidence of Mangal Singh Lambardar or that of the plaintiff. The learned counsel for the respondent has tried to counter this argument by saying that, in fact, the Roznamcha report in question has been duly proved on the record by Ganda Singh defendant who was present when the Roznamcha report was dictated to the Patwari by Ramji Lal within his hearing. Section 67 of the Evidence Act deals with the proof of the document which reads-

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand writing of so much of the document as is alleged to be in that person''s handwriting must be proved to be in his handwriting.

In the present case, the Patwari who scribed the document, has not been examined, he being a Mohammedan and alleged to have migrated to Pakistan. Mangal Singh, who allegedly thumb marked the document, is another person who could have proved the document, but he has denied that any such document was written in his presence or that he thumb marked the said document, Ramji Lal. whose statement stands incorporated in that document, has also denied that he made any such statement. Evidence of any other person in the position of Ganda Singh, in may opinion, is not envisaged by the above noticed provision of Section 67 to prove a document. Accordingly I hold that this document, Exhibit P X. has not been legally proved and is inadmissible in evidence and cannot be taken into consideration either to support the parties'' case or to contradict the statement of a witness running counter to the facts recorded in such a document But, unfortunately for the plaintiff, there is the other document i e the mutation, which has been correctly proved on the record by the Tehsildar who sanctioned the mutation and has been examined as one of the witnesses i. e. D.W. 2. He has deposed that Mangal Singh Lambardar identified Ramji Lal before him and Ramji Lal made a statement to the effect that ha had sold the land or a sum of Rs. 2,000/-, to Ganda Singh defendant though Mangal Singh Lambardar has again denied that he thumb-marked the said mutation; but it is for the Court to weigh the evidence of the witnesses and since the Court below his attached more weight and value to the evidence of Nirbhey Singh, D.W, who had sanctioned the mutation and who had neither any interest in the defendant, nor was he inimical towards the plaintiff, so it cannot be said that the lower appellate Court ignored the correct principles of law in appreciating the evidence of the plaintiff.

As regards the second submission that the lower appellate Court wrongly raised a presumption of truth regarding the entries in the mutation I am of the view that it merits consideration The lower appellate Court has made an observation that the presumption of truth also attaches to all the documents prepared in the office routine and it was for the plaintiff to rebut the entries in the revenue records. Since neither the report of the Roznamcha of the Patwari nor the mutation is part of the record of rights, so u/s 44 of the Punjab Land Revenue Act, no presumption of truth attaches to such documents. and I agree with the learned counsel for the appellant that the lower appellate Court was not right in holding that the presumption of truth attaches to such a document. However, such a document can be treated as a piece of evidence and when supported by independent testimony like that of D.W. 2, an officer, who has no axe to grind then such a documentary evidence, no doubt, can be treated as a strong piece of evidence and it is in that light that the documentary evidence has to be considered and when seen in that light, the lower appellate Court, in my opinion, is not wrong to say that in view of this documentary evidence i.e. the mutation, statements of Mangal Singh and the plaintiff Cannot be believed.

As regards the third submission of the learned counsel for the plaintiff that the approach of the lower appellate Court to this case is not correct, I am of the opinion that there is no merit in this contention at all. The learned counsel in this connection has urged that the case was remanded by the High Court for the reason that it must be found out as to whether there was sale preceding the sanction of the mutation and the lower appellate Court''s emphasis again has been on the mutation rather than on the factum of sale. In my view that is not so. The onus of the said issue was on the plaintiff himself and he never objected to the onus of that issue being placed on hi a and the Court has believed Ganda Singh''s evidence that, in fact, he had paid Rs 2,000/ as consideration for the sale of the suit land to the plaintiff who delivered to the defendant the possession thereof. Learned counsel for the appellant has merely criticised his evidence by saying that he did not produce the receipt, or did he produce the Patwari before whom the money had been paid and the lower appellate Court disbelieved that part of Ganda Singh''s evidence where he stated that when the money was paid to the plaintiff in the presence of the Patwari, Mangal Singh was not, present. As this relates to the appreciation of his evidence, it is not open to me to reapraise the same. The lower appellate Court has believed the statement of this witness and I can do nothing about in second appeal, as it was open to the lower appellate Court to believe the evidence of one witness and disbelieve that of the other, also it was open to the Court below to behave one part of the statement of a particular witness and vet disbelieve another part of the statement of the same witness. Since in this transaction Maneal Singh Lambardar proved a vital role, as he is alleged to have than marked the Roznamcha a report as well as the mutation, so it was considered necessary to have his thumb-marks in question compared with his admitted thumb-mark from the Finger Print Bureau at Phillaur and for this reason, when the case came up for hearing before me on 18th March. 1970, I called for a report for this purpose from the trial Court. Its report shows that the plaintiff''s side expressed its inability to secure any admitted thumb impression of Mangal Singh with which the thumb-impression of Mangal Singh on the report of the Roznamcha of the Patwari and on the mutation could have been compared. The defendant''s party did not bother at all to assist the Court in that respect, with the result that it remained a mystery as to whether, in fact Mangal Singh made a. truthful statement or toll a lie in the Court. Learned counsel for the defendant-respondents wanted another opportunity to have, the thumb-impression of Mangal Singh compared from Phillaur saying that he has got hold of one document, on which the thumb-impression of Mangal Singh appears The case has already been delayed considerably and thumb-impression on that document cannot be considered as being admitted and so no useful purpose would be served by comparing his thumb-impression on the Roznamch a report and on the mutation with another thumb-impression, which is not admitted to be that of Mangal Singh Lambardar, he being dead.

By now it has been firmly established by a string of authoritative decisions of their Lordships of the Supreme Court that the High Court, in second appeal, has no jurisdiction to disturb the findings of fact, even if the lower appellate Court has grossly erred in appreciating the evidence, on the record.

In view of what is stated above, this appeal fails and is dismissed, but there is no order as to costs.