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PETITIONER: NATHA SINGH & ORS.

       Vs.

RESPONDENT: THE FINANCIAL COMMISSIONER, TAXATION, PUNJAB & ORS.

DATE OF JUDGMENT11/03/1976

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT GUPTA, A.C.

CITATION:  1976 AIR 1053            1976 SCR  (3) 620  1976 SCC  (3)  28

ACT:      Constitution of  India, Art. 226-Error of law absent in concurrent  decisions   of  Revenue  authorities-High  Court justified in  refraining to  exercise appellate jurisdiction in writ proceedings.      Code of  Civil Procedure,  Order 41, r. 27-Reception of additional  evidence   by  appellate  courts  discretionary- Limitations-Test to be applied.

HEADNOTE:      Appellant Natha  Singh was  recorded as a land owner in revenue records.  Under the  Punjab Security of Land Tenures Act, 1953, the Collector, Ferozepore, declared an area of 63 standard acres  and 4  units, as  surplus land in his hands. The sons  of  Natha  Singh  appealed  to  the  Commissioner, Jullundur  division,   who  remanded   the  case  for  fresh determination of  "surplus area".  On  a  re-examination  of facts, the Collector, Ferozepure, overruled the pleas of the appellants. Their  appeal  to  the  Commissioner,  Jullundur division, and  a further  revision petition to the Financial Commissioner, Taxation,  Punjab, were  also  dismissed.  All these orders  were challenged  before the  High Court  under Art. 226. The High Court dismissed the matter in limine, but granted a certificate under Art. 133(1)(a).      The appellants  contended before this Court that in the facts and  circumstances of  the case,  the High Court could not dismiss  the writ  petition in  limine, as  the  revenue authorities had  wrongly computed  the ’surplus  area’. They further contended  that appellants  No. 2  and  3  were  not afforded proper and adequate opportunity by the Collector to prove  their   claims.  The   appellants  also  applied  for permission to adduce additional documentary evidence.      Dismissing the appeal, the Court, ^      HELD: (1)  In dealing with a petition under Art. 226 of the  Constitution,   the  High  Court  cannot  exercise  the jurisdiction of an appellate court, and cannot re-examine or disturb the findings of fact arrived at by an inferior Court or a tribunal in the absence of an error of law. [622E-F]      (2) In  the instant  case, the  orders  passed  by  the revenue authorities  did not suffer from any error of law so as to  warrant interference in writ proceedings and the High

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Court  was  justified  in  dismissing  in  limine  the  writ petition preferred by the appellants. [623F]      (3) The  application of  the appellants  for additional evidence cannot  be allowed  in view of the well-established principles of law that the discretion given to the appellate court to  receive and  admit additional  evidence is  not an arbitrary one  but is  a judicial  one circumscribed  by the limitations specified  in order  41 rule  27 of  the Code of Civil Procedure. The true test to be applied in dealing with applications  for   additional  evidence   is  whether   the appellate  court  is  able  to  pronounce  judgment  on  the materials before  it, without  taking into consideration the additional evidence sought to be adduced. [623G-H, 624A]      Arjun Singh  alias Puran  v. Kartar Singh & Ors. [1951] SCR 258 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1308 of 1968.      From the  order dated  1st May,  1967 of the Punjab and Haryana High  Court at  Chandigarh in  Civil Writ No. 707 of 1967. 621      Hardyal Hardy,  Naunit Lal  and Miss  Lalita Kohli, for the appellants.      O. P. Sharma and P. N. Puri, for the respondents.      The Judgment of the Court was delivered by      JASWANT SINGH,  J.-This  appeal  by  certificate  under Article 133  (1) (a) of the Constitution of India granted by the High  Court of  Punjab  and  Haryana  at  Chandigarh  is directed against  its order dated May 1, 1967, dismissing in limine the writ petition filed by the appellants herein.      The facts  giving rise to this appeal are: Natha Singh, appellant No.  1 herein,  was recorded in revenue records as land-owner in  respect of  39 standard acres and 9 3/4 units of land in village Malout, 53 standard acres and 5 1/2 units in village  Kanamgarh and  4 standard  acres and  2 units in village Bhagwanpur.  By his  order dated  July 5,  1959, the then Collector,  Ferozepore, acting  under the provisions of the Punjab  Security of  Land Tenures Act, 1953, hereinafter referred to  as ’the  Act’ declared  an area  of 63 standard acres and  1 1/4 units out of the aforesaid land aggregating 93 standard acres and 1 1/4 units as surplus in the hands of Natha Singh.  Rajinder Singh  and Jarnail  Singh, appellants Nos. 2  and 3  herein, who  are the sons of appellant No. 1, went up in appeal against the said order of the Collector to the Commissioner,  Jullundur Division,  who vide  his  order dated July  20, 1965  allowed  the  appeal,  set  aside  the aforesaid order  of the  Collector and remanded the case for fresh  determination   of  the  "Surplus  Area."  After  re- examination  of   the  case   on  remand,   the   Collector, Ferozepore,  vide   his  order   dated  December  20,  1965, overruled the  plea raised  by appellants  Nos. 2 and 3 that the area  comprised in  khasra Nos. 296, 297, 517, 519, 285, 293 and  206 which  was in  their cultivating  possession as tenants under appellant No. 1 before the commencement of the Act  should   be  treated  ’Tenants  Permissible  Area’  and excluded from  the surplus pool and held that the entries in khasra girdawaries on which the claim of the said appellants was grounded  could not  be relied  upon as  they  had  been tampered with.  The Collector  further held that even taking the entries  at their  face value,  appellants Nos.  2 and 3 could not  be treated  tenants as contemplated by the Punjab

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Tenancy Act,  1887 (Act XVI of 1887) as they were not paying any rent  to appellant  No. 1.  The Collector also overruled the plea  raised by  appellant No.  1 that  there  was  some ’banjar’ land  which had  to be excluded while reckoning the permissible  area.   Dissatisfied  with   this  order,   the appellants  preferred   an  appeal   to  the   Commissioner, Jullundur Division,  who by his order dated November 7, 1966 dismissed the  same and  upheld the  aforesaid order  of the Collector,  Ferozepore.   Aggrieved  by  these  orders,  the appellants took  the matter  in revision  to  the  Financial Commissioner, Taxation,  Punjab, who also by his order dated March  3,   1967,  affirmed  the  aforesaid  orders  of  the Collector, Ferozepore, and Commissioner, Jullundur Division. All these  orders were  challenged by  the appellants before the High  Court of Punjab and Haryana by means of a petition under Article  226 of  the Constitution  but  the  same,  as already stated,  was dismissed  in limine.  The High  Court, however, granted  a  certificate  to  the  appellants  under Article 133(1) (a) of the Constitution. 622      Appearing in  support of the appeal, Mr. Hardayal Hardy has contended that the writ petition filed by the appellants could not,  in the  facts and  circumstances of the case, be dismissed in  limine by  the High  Court. Elaborating by his submission, the  learned counsel  has urged  that the orders passed by  the revenue authorities could not be sustained as they did  not, while computing the ’Surplus Area’, leave out the permissible  area which  even according  to  the  khasra girdawaries and  Roznamcha Waqaiti  which is  maintained for the purpose  of recording  changes in  cultivation was being cultivated by  appellants  Nos.  2  and  3,  as  tenants  of appellant No.  1 since 1951-52; that 30 bighas of land which was recorded  as ’banjar’ at the time of the commencement of the Act  and did  not fall  within the definition of land as contained in section 2(8) of the Act had not been taken into account while  evaluating and  assessing the "Surplus Area", and that  appellants Nos.  2 and  3 were not afforded proper and adequate opportunity by the Collector to prove the claim put forth by them.      Mr.  Hardayal  Hardy  has,  in  conclusion,  drawn  our attention to  the application  made by  the  appellants  for permission to  adduce additional documentary evidence in the form of  khasra girdawaries  for the years 1952 to 1960, the grounds of  appeal preferred  by the  appellants before  the Commissioner, the  grounds of  revision filed by them before the Financial Commissioner, the depositions of appellant No. 1 and  Gurcharan Singh, Patwari, and forms A.D.E. and F. and its inclusion  in the  record and  has emphasized  that  the aforesaid documents  which are  relevant and  necessary  for disposal of the appeal should be allowed to be produced.      With regard  to the first contention advanced on behalf of the  appellants, it  is sufficient to observe that it has been time  and again  observed by this Court that in dealing with a  petition under  Article 226 of the Constitution, the High Court  cannot exercise the jurisdiction of an appellate court and  cannot re-examine or disturb the findings of fact arrived at by an inferior court or a tribunal in the absence of any error of law.      So far as the contention of the learned counsel for the appellants based  on the revenue record is concerned, it may be remarked  that it  has been  concurrently  found  by  the Collector and  the Commissioner  who examined  the  original khasra girdawaries  that they  had been tampered with by the revenue staff  in collusion  with  the  appellants.  In  the circumstances, it would not be safe to place any reliance on

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them.  The  reliance  sought  to  be  placed  on  ’Roznamcha Waqaiti’ is  also an after thought. No authenticated copy of the ’Roznamcha  Waqaiti’ with  reference  to  which  we  are invited to  verify the entries in the khasra girdawaries has been included  in the record. It is also significant that no reliance  either   before  the   Collector  or   before  the Commissioner or even before the Financial Commissioner seems to have been placed upon the ’Roznamcha Waqaiti’. It is also to be noted that even in the application for leave to adduce additional evidence,  no mention  has been made of any entry in ’Roznamcha  Waqaiti’.  Even  if  the  entries  in  khasra girdawaries are treated as genuine, they can be of little 623 assistance to  the appellants  as they  do not  at  all,  as observed by  the Collector, appear to show that any rent was being paid  by the  appellants Nos. 2 and 3 to appellant No. 1. In  the absence  of payment  of rent or in the absence of material to show that there was a contract between appellant No. 1  and appellants  Nos. 2  and 3 absolving the latter of the liability  to pay  rent, it  is difficult  to uphold the claim of  appellants Nos.  2 and 3 that they were tenants of appellant No. 1.      So  far   as  the  claim  regarding  ’banjar’  land  is concerned, it  would suffice  to say  that the Collector who examined the  revenue record  found that  there was  no land which fell  within that category. It cannot be disputed that a  land-owner  who  wishes  to  claim  the  benefit  of  the exclusion of  ’banjar qadim’ or ’banjar jadid’ land from the purview of land has to prove that it was not at the relevant date being  put to  any agricultural  purpose or  a  purpose subservient to  agriculture or  used for  pasture.  No  such proof seems  to have been adduced in the instant case. It is also important  to note  that even  before the Commissioner, the appellant  did not  plead that any ’banjar’ land was not left out  of  consideration  while  assessing  the  ’Surplus Area’. All  that was  urged before the Commissioner was that the land  comprised in  khasra No. 864 of village Malout had not been  left out  of account  although it  was banjar. The Commissioner  repelled  this  plea  as  he  found  from  the examination of  the record  that the  area comprised  in the said khasra  number was  ’Chair Pumkin  Sarak’ which had not been taken into account while assessing the ’Surplus Area of appellant No. 1.      The contention  raised on behalf of the appellants that they were  not allowed  an opportunity of establishing their claim cannot  also be  countenanced. There is nothing on the record  to   indicate  that   the  appellants   were  denied opportunity to  prove their case. The Financial Commissioner has categorically  found that  appellants Nos.  1 and  2 had full opportunity  to  place  on  record  their  evidence  to establish that  they were  cultivating  the  land  of  their father as  his tenants  and that  they did not avail of that opportunity by  placing any  material on  the record to show that, or  that there was a private partition as sought to be urged by them before him.      In view  of the foregoing reasons we are satisfied that the orders  passed by the revenue authorities did not suffer from any  error of law so as to warrant interference in writ proceedings and  the High  Court was justified in dismissing in limine that writ petition preferred by the appellants.      So  far  as  the  application  of  the  appellants  for additional evidence  is concerned,  it cannot  be allowed in view  of  the  well  settled  principles  of  law  that  the discretion given to the appellate court to receive and admit additional evidence  is  not  an  arbitrary  one  but  is  a

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judicial one  circumscribed by  the limitations specified in Order 41,  Rule 27  of the  Code of  Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a  case  of  improper  exercise  of  discretion  and  the additional evidence so brought on the record will have to be ignored. The  true  test  to  be  applied  in  dealing  with applications for additional 624 evidence is whether the appellate court is able to pronounce judgment on  the materials  before it,  without taking  into consideration the  additional evidence sought to be adduced. (See Arjun Singh Alias Puran v. Kartar Singh and Ors.(1). In the instant  case, we  have not  been able to experience any difficulty in rendering the judgment on the material already before us.  Instead we  feel that  the prayer  for  adducing additional evidence  has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to the spurious.      We also  do not  find any  other substantial  reason to accede to  the request  of the  appellants to  allow them to adduce additional  evidence. There  is no inherent lacuna or obscurity which  we require to be filled up or removed to be able  to   pronounce  judgment.   The  application   of  the appellants is accordingly rejected.      In the  result we  do not find any merit in this appeal which is  also hereby  dismissed but in the circumstances of the case without any order as to costs. M.R.                                       Appeal dismissed. 625