Pandurang Namdeo Mulande vs Arjun Krishnaji Araj
2003 Latest Caselaw 918 Bom

JUDGMENT

S. T. Kharche, J.

1.This is a Second Appeal filed by the appellant / original defendant under Section 100 of Code of Civil Procedure, challenging the decree and judgment dated 16.04.1987 passed by the Appellate Court in Regular Civil Appeal No. 208 of 1984, who set aside the order of dismissal of Regular Civil Suit No. 30 of 1983 passed by the trial Court. The Appellate Court allowed the appeal and directed the plaintiff to recover a sum of Rs. 3660.65 together with proportionate cost and future interest at 6% per annum on Rs. 3240.40 from the date of the suit till realization. While admitting the appeal on 23.01.1989, this Court did not formulate the substantial question of law for consideration, and therefore, on hearing the learned Counsel for the parties, the substantial question of law is formulated which is as under:

"Whether there was misconstruing of evidence by the Appellate Court and acting without evidence, the decree passed by the Appellate Court is bad in law."

2. Brief facts are required to be stated as under :

The plaintiff instituted a suit for recovery of Rs. 4300/- being the price of Cotton together with interest. The defendant was the son of the sister of the plaintiff. He was brought up by the later. The plaintiff owns agricultural lands bearing Survey No. 26/1-B and Survey No.50 and he had grown the crop of Cotton in the said field in the year 1974-75. The defendant was asked to sell the crop of Cotton to the Cotton Federation, and accordingly, the cotton was sold and the sale proceeds were taken by the defendant. It is the case of the plaintiff that he is entitled to receive the sale price of the cotton from the defendant, as he was acting as his agent.

3. The contention of the defendant is that he also owns agricultural land bearing survey no.22/1-A and survey no.19/3 and he had grown cotton in his own lands and the said cotton crop was sold to the Cotton Federation.

4. The trial Court on considering the pleadings had framed 4 issues and negatived the contentions of the plaintiff that, the cotton is from his own lands was sold to the Cotton Federation. Consistent with the findings he dismissed the suit of the plaintiff. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff carried the appeal to the District Court. The First Appeal was allowed by the Appellate Court who set aside the order of dismissal of the suit passed by the trial Court, and directed the plaintiff to recover a sum of Rs. 3660.65 ps, together with future interest @ 6% per annum on Rs. 3234.40 ps, from the date of suit till realization with proportionate cost to be paid by the defendant. It is this judgment and decree that has been challenged in this appeal.

5. Mr.S.V.Sohoni, the learned Counsel for the defendant contended that the Appellate Court has committed an error by misconstruing the evidence and acting upon the said evidence, the judgment and decree passed is bad in law and in consequence of the error committed by it, the second appeal deserves to be allowed. He further contended that this is a substantial question of law involved in this appeal. In support of this submission, he relied on the decision of the Single Judge of Madras High Court in Secretary to the Government Home Department and another ..vrs.. T.V.Hari Rao , where in it has been observed in para no.13 that "misconstruing the evidence and acting without evidence is certainly a substantial question of law as between the parties. The Second Appeal is therefore allowed, the judgment and decree of the lower appellate Court is set aside and that of the trial Court is restored. I make no order as to cost in the second appeal. Appeal allowed."

6. Mr. V.K.Paliwal, the learned Counsel for the plaintiff fully supports the impugned judgment and decree passed by the Appellate Court and he contended that no substantial question of law is involved in the appeal. He further contended that the decree passed by the Appellate Court is based upon the appreciation of documentary and oral evidence and no error of law has been committed by it.

7. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for both the parties. It is not disputed that on 01.05.1975 the defendant sold 12 quintals 44 kgs of cotton at Amdapur Centre of the Cotton Federation and received an amount of Rs. 3234.40 ps. It is also not disputed that the cotton crop grown in the land in the year 1974-75 was sold to the Cotton Federation. The plaintiff relied on the crop statements Exh. 33 and Exh. 34 for the year 1974-75 pertaining to the land survey no.50 and survey no.26/1-B and these lands are owned by him. The entries recorded in the crop statement revealed that the cotton crop of the variety 277 was sown in the land.

8. Similarly the defendant has also produced the crop statement Exh. 36 to 38 of the lands owned by him and it is not disputed that the defendant is the owner of the agricultural land bearing survey no.22/1-A and Survey no.19/3. A perusal of the crop statement produced by the defendant revealed that no crop of cotton was grown in his lands in the year 1974-75 at all.

9. The Appellate Court has considered this documentary evidence as well as the oral evidence. He recorded the findings that there was implied admission on the part of the defendant that he did not grow cotton crop in his land in the year 1974-75, and therefore, the question of selling the cotton crop from his own lands does not arise. Similarly there was variance between the versions of the defendant and his witness regarding the area of the land owned by the defendant, in which the cotton crop is said to have been grown in the year 1974-75.

10. It is settled law that entries in the crop statement which is a Revenue Record are admissible in evidence, and in the present case not only the entries recorded in the crop statement reveals that the cotton crop was grown in the land of the plaintiff, there is implied admission by the defendant that no cotton crop was grown in his own land. In that view of the matter, it would emerge that there was no misconstruing of the evidence by the Appellate Court and there is no apparent error of law in the judgment and consequently there is absolutely no reason for this Court for interference.

11. Mr. Sohoni, the learned Counsel appearing for the defendant pointed out that he has raised a ground in para no. (v) of the appeal memo, that the Appellate Court has misread the evidence in respect of the crop statement regarding survey no.22/1-A and 19/3. Exhs. 33 and 34 - Crop statements for the year 1974-75 pertains to the land survey no.50 and survey nos. 26/1-B is the land which the plaintiff has given in exchange to the defendant, and there is a registered exchange deed, and therefore, the plaintiff could not rely on this survey numbers. What is pertinent to note that this ground has been raised for the first time in the second appeal and it is not disputed that the defendant even did not raise this point in his written statement filed in the Regular Civil Suit, that there was some kind of exchange of lands by virtue of the registered exchange deed. It is therefore, clear that the defendant cannot allowed to raise the said ground for the first time in the Second Appeal.

12. In the result, since there is no misconstruing of evidence and acting without evidence by the Appellate Court, I am of the considered view that there is no merits in this Second Appeal, and no substantial question of law is involved in this appeal and thus it stands dismissed with costs throughout.