1981 Supreme(MP) 689

R. C. Shrivastava, J.
Batulbi v. Munnawarkhan.
S. A. No. 123 of 1971 (G); Decided on 7-12-1981.

Headnote:(1) Civil P. C., 1908 -- S. 100 -- finding of fact -- cannot be agitated in second appeal.

        (2) Civil P. C., 1908 -- S. 100 -- mixed question of fact and law, not raised in Courts below -- nor even mentioned in memo of second appeal -- cannot be allowed to be urged during arguments.

        (3) Land Revenue Code, 1959 -- Ss. 115 and 257 (z-2) -- Civil Court cannot direct correction of entries in revenue record.

        The respondent sued the appellants for declaration of his alleged Bhumiswami rights in certain agricultural land and for a direction for recording him as Bhumiswami thereof. The claim was decreed by the trial Court and the trial Courts decree was upheld by the first appellate Court. Being aggrieved the defendants filed this second appeal.

        Held : The contention of the learned counsel for the appellants is that the respondent did not deLi"Ver possession of 4 biswas of land to Kanizbi and, that being so, he is not entitled to the land in question in view of section 54 of the Indian Contract Act. Both the lower Courts have concurrently held that possession of that 4 bighas and 10 biswas of land was deLi"Vered to Kanizbi. That is a finding of fact based on appreciation of the evidence on record. The finding is not such as cannot be arrived at by any reasonable per· son on the basis of the evidence on record. Therefore, there is no cause for interference in second appeal with that finding. Thus, the said contention of the learned counsel for the appellants fails.

        Another contention of the learned counsel for the appellants is that the land in question having vested in the State on coming into force of the Madhya Bharat Zamindari Abolition Act (Act No. 13 of 1951), the respondent is not entitled to any relief. That was never the case of the appellants either in the trial Court or in the first appellate Court. In the memorandum of this second appeal also, such a contention was not been raised. It is not a pure question of law. It is a mixed question of law and fact. Therefore, it cannot be agitated for the first time in second appeal.

        The only other contention of the learned counsel for the appellants is that, under section 257 (z-2) read with section 115 of the M. P. Land Revenue Code whereof direction to correct entries in revenue papers cannot be given by the civil Court. The learned counsel for the respondent has conceded to this point.

        In the result, therefore. the appeal is .partly allowed. The decree directing correction of revenue papers is set aside. the test of the decree is confirmed. Appeal partly allowed.