Back
2011 Supreme(Raj) 413
[Citation : RLW 2011(2) RJ 1208]
(Board of Revenue for Rajasthan)
Halia (Smt.) & Ors. Vs. State of Raj. & Anr. (Mathur, M.)
PRAMIL KUMAR MATHUR, MEMBER
Halia (Smt.) & Ors.
Versus
State of Rajasthan & Anr.
Appeal Decree/TA/3196/2001/Barmer, decided on 03.05.2011
N.K. Goyal, for Appellants;
Mukesh Dadhich, Dy. Govt. Advocate, for Respondents
Headnote:C.P.C., Order 20 Rule 5 — Giving judgement without recording finding on each issue — Plaintiff Appellant filed suit u/S. 88 and 188 of the Tenancy Act for declaration and permanent injunction — Trial Court framed five issues — Plaintiffs adduced oral as well documentary evidence in support of his case — The trial Court passed judgement without recording any finding on each issue and without analytical discussion on the evidence led by plaintiff appellants and dismissed the suit — Held — Non compliance of provisions of Order 20 Rule 5 CPC — Trial Court was bond to give issue wise finding after discussing the evidence adduced by plaintiff — It is mandatory upon trial Court to independently weight the evidence of the parties and consider the relevant points which arise for adjudication and bearing of the evidence on relevant points — Order set aside — Matter remanded. (Paras 10, 12, 14, 16 to 18)
Appeal partly allowed.
fl-iz-la-] vkns'k 20 fu;e 5 & izR;sd fook|d ij fu"d"kZ ntZ fd;s fcuk fu.kZ; nsuk & oknh vihykFkhZ us ?kks"k.kk ,oa LFkk;h fu"ks/kkKk gsrq dk'rdkjh vf/kfu;e dh /kkjk 88 ,oa 188 ds rgr okn nk;j fd;k & fopkj.k U;k;ky; us ikap fook|d fojfpr fd;s & oknh us vius ekeys ds i{k esa ekSf[kd lk{; ds lkFk lkFk nLrkosth lk{; Hkh is'k fd;s & fopkj.k U;k;ky; us izR;sd fook|d ij fcuk dksbZ fu"d"kZ ntZ fd;s vkSj oknh vihykFkhZ }kjk is'k fd;s lk{; ij fo'ys"k.kkRd foospu fd;s fcuk okn [kkfjt fd;k & vfHkfu/kkZfjr & fl-iz-la- ds vkns'k 20 fu;e 5 ds izko/kkuksa dh vuuqikyuk gS & fopkj.k U;k;ky; oknh }kjk is'k fd;s x;s lk{; ds foospu ds ckn fook|d okj fu.kZ; nsus gsrq ck/; Fkk & fopkj.k U;k;ky; gsrq ;g vkKkid gksrk gS fd og i{kdkjksa ds lk{; ij fu"i{k otu nsa rFkk U;k; fu.kZ;kFkZ mRiUu gksus okys lqlaxr fcUnqvksa ij fopkj djs & vkns'k vikLr fd;k & ekeyk izfr izsf"kr fd;kA ¼in la[;k 10] 12] 14] 16 ls 18½
vihy va'kr% Lohdkj dhA
2. Thumb nail sketch of the facts of the case is as under:
That plaintiff deceased Shri Amir Ali filed a suit under Section 88 & 188 of the Rajasthan Tenancy Act, 1955 (in short to be referred as `the Act') against the present respondents/defendants with the averment that he is in cultivatory possession of 150 bighas of land at Village Janpalia Tehsil Chauhatan District Barmer but the land in cultivation of plaintiff was wrongly recorded in khasra No. 255 instead of khasra No. 258 which belongs to plaintiff himself. Therefore, plaintiff be declared khatedar-tenant of the land bearing khasra No. 258 measuring 150 bighas and permanent injunction be granted against defendants not to interfere in cultivatory possession of the plaintiff on the said land.
3. Defendant/respondents contested the plaint by filing the written statement with allegations that land does not belong to plaintiff. Atai S/o Gafur, who is the khatedar-tenant of the disputed land, is not impleaded party in the suit; so due to non-joinder of necessary party, plaint is liable to be dismissed.
4. On the basis of pleadings submitted by both the parties, five issues were framed by the trial Court. The plaintiff adduced oral as well as documentary evidence in support of his case. After hearing both the parties, learned trial court dismissed the suit on 10.7.2000 filed by the plaintiff against which plaintiff/appellants preferred appeal before the learned Settlement Officer-cum-Revenue Appellate Authority (Barmer-Jaisalmer), Headquarter Jodhpur which was rejected by impugned judgment & decree dated 23.2.2001. Being aggrieved by the judgment & decree dated 23.2.2001, second appeal was filed in the Board of Revenue.
5. The Division Bench comprising of Hon'ble Member Shri Pankaj and Hon'ble Shri H.S. Punia heard the second appeal. Since there was a difference of opinion between the Hon'ble Members of the Division Bench, the matter has been referred to a Third Member by the Hon'ble Chairman, thus has been placed before me.
6. I have heard the arguments of learned counsel for the rival parties and perused the record.
7. Learned counsel for the appellants has submitted that it is true that learned trial Court did not comply with the provisions of Order 20 Rule 5 of the Code of Civil Procedure in writing the judgment and did not consider the material available on record. Therefore, suitable order be passed in deciding this appeal.
8. On the contrary, learned Dy.Govt. Advocate has controverted the arguments advanced by the learned counsel for appellants.
9. I have given my thoughtful consideration to the rival contentions and scanned the matter carefully.
10. As per the opinion of Hon'ble Member Shri H.S. Punia, learned trial Court has passed the judgment against the provisions of Order 20 Rule 5 C.P.C. Learned trial Court also failed to give any finding with regard to the evidence led by the plaintiff, even oral evidence produced by the plaintiff has not been discussed in the judgment. The learned trial Court passed the judgment without recording any finding on each issue and without analytical discussion on the evidence led by the plaintiff/appellants. The judgment passed by the first appellate court is mere endorsement of the findings recorded by the trial Court. The first appellate court has not assessed evidence independently. Therefore, while setting aside the judgment of both the subordinate courts, the case is remanded back to the trial Court to decide the case afresh in accordance with law.
11. In the opinion of Hon'ble Member Shri Pankaj, second appeal is liable to be dismissed on the ground that as per Rule 55 of the Rajasthan Revenue Court Manual: Part-II, learned trial Court should not have Regis-tered this case and it should be di
