Judgment Case ID: 3446

Judgment:
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 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 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 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 vs 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.

Summary:
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 article 226. The High Court dismissed the matter in limine	 but granted a certificate under article 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 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 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 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 vs Kartar Singh & Ors. ; referred to.