Kaushal Kishore, M.:— This is a defendant's second appeal against the judgment and decree dated 8-6-1977 by the learned Additional Commissioner, Bareilly Division Bareilly, reversing the judgment and decree dated 29-4-1976 dismissing the suit, by the learned trial court in a suit under section 229B of the U.P.Z.A & L.R Act.
2. I have heard the learned counsels for both the parties and have also perused the record.
3. The facts of the case in brief are that Ganga Sahai was the original tenure holder of the land in dispute, after him his widow Phoolwati held the tenure and on her death after a lapse of several years, the plaintiff, Ram Swaroop claimed the tenancy on the ground that Phoolwati had no issues from Ganga Sahai and the latter having died heirless, he as a co-tenant was the survior claimant, on the other hand, Smt. Sukhdei has claimed to be the daughter of Phoolwati and Ganga Sahai, had got mutation in her favour and was in possession as a co-tenant with Ram Swaroop.
4. The learned counsel for the appellant has argued that the finding of the first appellate court that Sukhdei is the daughter of the plaintiff, is perverse because two material documents being the copies of statement given in the mutation case have not been considered at all; He further argued that the learned first appellate court has reversed the finding of the learned trial court on the basis of oral evidence of both the parties and the school certificates without sufficient reasons.
5. These school certificates had been discarded by the learned trial court as not properly proved and no reason was given by the learned first appellate court for relying on them. He has relied upon the ruling reported in 19???5 AWC page 1 and Rules 37 and 38 of the Revenue Court Manual. It was held by the full Bench of the Hon'ble Allahabad High Court that if it appears that a court of fact has in substance based its finding on no evidence or that its finding is perverse in the sense that no reasonable person could possibly come to that conclusion or that it erroneously ignores a vital plea or material evidence which affects the result, a manifest error of law apparent on the face of the record pleading to failure of justice can be said to be established. The learned counsel for the respondent has argued that the finding of fact cannot be challenged in second appeal and so the findings of the learned first appellate court are final. The omissions pointed out or not real short coming and stress on them amounts to insisting on particular mode of writing a judgment. The learned first appellate court did not rely on the KUTUMB. register entries, it relied on the school-certificates, but it could not be said that the statements in the mutation case were not considered because they were not discussed. Further, he cited a ruling reported in RD 1974 (Suppl) 259 to the effect that any consent or admission made in a mutation proceeding has no relevance In regular title proceedings. This really means that the consent for mutation in another's favour would not be relevant and the earlier mutation case would not bar a subsequent claim in a regular suit. Considering this aspect, the learned trial court has rightly decided that the suit was not barred by estoppel and acquiescence. But for this reason the statement does not lose its evidentiary value and cannot be discarded as a whole. In the instant case, it was not just an admission to mutation or possession but that Smt; Sukhdei was the daughter of Ganga Sahai. The statements were public documents and had to be taken into consideration along with further evidence. Just because a statement on oath was recorded in a mutation case, every fact stated therein cannot be discarded as evidence on account of its being construed as a part of admission or consent in a mutation case. A subsequent denial by Ram Swaroop only creates doubt as to his motives.
6. The learned counsel for the respondent has further cited two rulings reported in 1969 ALJ 129 and AIR 1977 Alld. 286 which are both to the same effect that even if a finding is based on some inadmissible evidence, supported by other evidence, it cannot be challenged in the second appeal. While these rulings would not apply to the present case because in the reported oases, the finding was warranted by other evidence and, in addition, some inadmissible evidence had been relied upon, there is no such situation in the present case. Here admissible evidence has been left out of consideration. In the case reported in AIR 1968 SC 466, it has been held that where the lower appellate court in arriving at its conclusion ignores important piece of evidence on record, its conclusion is not binding in second appeal. In the present case two statements one of the plaintiff himself and the other of Gaon Pradhan, in which both affirmed that Sukhdei was the daughter of Ganga Sahai were left out of consideration while school certificates which were rejected by the learned trial court for sound reasons, were relied upon without assigning any reason for differing from the learned trial court. This means a clear prejudice in the mind of the learned first appellate court and it cannot be said the finding would have been the same if all the evidence was considered. As the appellant's counsel has argued, cogent reasons had to be given by the first appellate court if any evidence is rejected to arrive at a different conclusion. This is a case of reversing a finding and Rule 38 of the Revenue Court Manual would apply all the more and it was necessary for the first appellate court to subject the evidence with regard to a fresh examination independently to the appraisement of the evidence by the learned trial court and its judg ment must show that it has done so.
7. The question whether Ganga Sahai or Phoolwati died heirless and Ram Swaroop is the successor by survivorship being a cotenant has not been decided by the learned Additional Commissioner. The finding of the learned trial court that Shivdei was the nearest heir after Sukhdei has been over-looked by the first appellate court just because it was no party's case. But the claim of Ram Swaroop is not automatically established because Shivdei remains an heir although she might not choose to contest the claim in favour of Sukhdei. Ram Swaroop did not establish that no other heirs of Ganga Sahai are left while he himself has admitted that Shivdei, sister of Ganga Sahai is alive. Hence the plaintiff. Ram Swaroop as sole survivor is not established. It is a settled principle that the plaintiff's case must be proved on its own merits, just disproving the defendant's case cannot help him.
8. It has not been proved from the evidence produced by the plaintiff that. Phoolwati had married Ram Swaroop a second time. Since it was not shown to be a customary legal marriage, the entries of school register and KUTUMB Register showing Sukhdei as the daughter of Ram Swaroop lose importance as a reliable evidence. Thus inference that Sukhdei is not the daughter of Ganga Sahai could not logically be derived from the unestablished allegation that Phoolwati contracted a second marriage with Ram Swaroop and Sukhdei daughter was born to them. The only question that remains to be determined is whether Sukhdei is the daughter of Ganga Sahai and Phoolwati or not. The approach to the question taken by the learned Additional Commissioner has not been correct and his finding is vitiated on account of leaving out relevant evidence from consideration and also relying on surmises.
9. It will be useful to notice the peculiar nature of contest in this case. The plaintiff's case is that Sukhdei and Rajeshwari are his daughters. The defendant, Sukhdei does not contest the parentage of Rajeshwari but only contests her parentage and affirms that she is the daughter of Ganga Sahai. The other defendant who contested the claim of the plaintiff included Bhag-wan Das who is the plaintiff's own son. In fact, the statement of Sukhdei clarifies the whole position much better. According to her, she is the daughter of Ganga Sahai and at the time of mutation in her favour and also when she sold a share to her husband Daya Ram the plaintiff's son Bhagwan Das, the plaintiff had not objected and everything was done with his consent. The best way to arrive at an inference whether Sukhdei is or is not the daughter of Ganga Sahai would have been to check the dates or years when Ganga Sahai died. Sukhdei was born and their ages, from the statements of the witnesses from both sides rather than discarding the witnesses of one side and relying on the others without any scrutiny; Daya Ram and sukhdei DWs. both indicated the year of death of Ganga Sahai as about 1948. Even the P.W Ram Swaroop who alone from P. Ws gives any indication of time, says in the examination in chief that Ganga Sahai died forty years ago but in the cross examination admits that Phoolwati married him 25 years ago and she came to him in marriage about 1 ½ years after the death of Ganga Sahai. This places the years of death of Ganga Sahai as about 1949. Even the date of death of Sukhdei as given by the P.W 4 being 1-6-1945 conclusively settles that she is the daughter of Ganga Sahai.
10. The judgment of the learned trial court is a very well reasoned judgment, considering all the evidence on record and for the reasons discussed above, the judgment of the learned first appellate court which discusses the evidence only partly, cannot be upheld.
11. In the result, the appeal is allowed, the judgment and decree by the learned Additional Commissioner is hereby set aside and the judgment and decree of the learned trial court is confirmed.
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