# 570 SUPREME COURT REPORTS [1963] SUPP. NIBARAN CHANDRA BAG ETC v. MAHENDRA NATH GHUGHU

- **Citation:** [1963] Supp. 2 S.C.R. 570
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeals Nos. lO!i & 106 of 1960
- **Bench:** S . .J. Imam, N. RA.uonPALA AvvANOAR ancl ]. R. MnnnnJ, Kar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/570-supreme-court-reports-1963-supp-nibaran-chandra-bag-etc-v-mahendra-nath-2789
- **Pages:** 15

## Headnote

Jlif!h C'Mtl'l-I'rnom· of 811.pen•i.•ion-Interfereiice with
concurrent .finding" of Revenue Tribunal.•-Correcti011 of draft
rerord of righf,,-Srttlement O,Oice if should maintai11 recorrl of
oral evidcnce-lVrst Bengal, E.•tate Acquisition Art, 1%3 (IV.R.l
of 1.954), "· 44--Uon.•litution of India Art. 227.
Jn the draft record of rights prepared under s. 44, West
Reng-al Estates Acquisition Act, 1953, the appellant was recorded
as a "raiyat.-'' in respect of 1500 bighas of land. The respondent
filed objections praying that the appellant be recorded as a
tenure holder and the respondent as a lessee under him. The
Settlement Officer held that the appellant was a permanent
tenure holder and that the respondent was a temporary le~•ce
for two years.
On appeal the District Judge affirmed these
findings.
Thereupon the appellant filed a petition under
Art. 227 of the Constitution before the High Court and the
High Court upheld the order of the Settlement Officer relating
to the status of the appellant but reversed the portion in favour
of the respondent.
The appellant c.:intended that the only
party interested in challenging the status of the appellant was
the Government and it not having done so the entry in the draft
record of rights should not have been interfered with. The
respondrnt contended that the High Court had no jurisdiction
in a petition under Art. 227 to interfere with the concurrent
findings of the Settlement Officer and of the District.Judge that
the respondent was a temporary lessee.
n,1,z, that the respondent had raised an objection to the
description of the status of the appellant in the record of rights
and the Settlement Officer had jurisdiction to decide the question of the status of the 1'ppellant.
Held, further, that the High Court was not justified in
interfering with the findings of the Revenue authorities that
the appellant was a tempora•y lessee.
In a petition under
Art. 227 the High Court wa• not sitting as a court of appeal;
it could only consider whether the tribunals had overstepped
2 S.C.R.
SUPREME COURT REPORTS
571
the limits of their jurisdiction and whether the findings were
based on n'> material or were otherwise perverse. The orders of
the revenue authorities did not suffer from any of these defects.
Kagenara Nath Rora v. Commissioner, Hi/l.• Division,
..i,,,,am, [1958] S.C.R. 1240, relied on.
The Settlement Officer was wrong in not maintaining any
record of the oral evidence adduced before him. Thongh tl•c
Rn1es did not require the maintenance of record of the oral
evictence, it "·a• implicit in the provision granting an app<"al
from the order of tlie Settlement Ofncer, that he should maintain so1ne record of the oral evidence so that the right of appeal
\Vas not nullified.
Crvu, APPRLLA'l'E jFRrnnrn'l'ION : Civil Appeals
Nos. lO!i & 106 of 1960.
Appeals by special leave from the judgment and
order dated February 20, 1957 of the Calcutta High
Court. in Civil Revision Case No. 1851 of f!l:ili.
N. C. Chatteijee and D. N .. MuH1e1jre, for the
Appellant (In C. A. No. lOiJ of HWO) am! Respondent (In C. A. No. 106of1960).
K. B. Bagchi, S. N. Mukherjee and Sul:mnar
Ghose for the Respondent (In C. A. No. 105of1960)
and Appellant (In C. A. No. 11)6 of 1960).
1962. November 28.
The Judgment of the
Court was delivered by
AYYANGAR, J.-These two appeals by special
leave arise out of a single judgment of the High
Court at Calcutta.
That judgment was rendered in
a petition under Art. 227 filed by the appellant in
Civil Appeal No. 105of1960.
The proceeding out of which the appeals arise
was an application made by Mahenclra Nath Ghu;?;hu
(whom we shall refer to as the respondent) before
the Assistant Settlement Officer,
24,
parganas,
1962
Nihllran Chandra Bag
v.
Maliendra Nath
G'h11gll'I
Ay;·angar, J.
19(;2
.1~'ibarrm (,'!imull'a Bag
v •
.\fuhendra Nath
Uhug!tu
572 SUPREME COURT REPORTS [1903] SUPP.
objecting to certain entries in a draft Rccor<l-ofrights prepared and puulishcd under the West lkngal
Estates Acquis

## Text

1962
570 SUPREME COURT REPORTS [1963] SUPP.
NIBARAN CHANDRA BAG ETC.
v.
MAHENDRA NATH GHUGHU
(S . .J. IMAM, N. RA.uonPALA AvvANOAR ancl ]. R.
MnnnnJ,KAR, .JJ.)
Jlif!h C'Mtl'l-I'rnom· of 811.pen•i.•ion-Interfereiice with
concurrent .finding" of Revenue Tribunal.•-Correcti011 of draft
rerord of righf,,-Srttlement O,Oice if should maintai11 recorrl of
oral evidcnce-lVrst Bengal, E.•tate Acquisition Art, 1%3 (IV.R.l
of 1.954), "· 44--Uon.•litution of India Art. 227.
Jn the draft record of rights prepared under s. 44, West
Reng-al Estates Acquisition Act, 1953, the appellant was recorded
as a "raiyat.-'' in respect of 1500 bighas of land. The respondent
filed objections praying that the appellant be recorded as a
tenure holder and the respondent as a lessee under him. The
Settlement Officer held that the appellant was a permanent
tenure holder and that the respondent was a temporary le~•ce
for two years.
On appeal the District Judge affirmed these
findings.
Thereupon the appellant filed a petition under
Art. 227 of the Constitution before the High Court and the
High Court upheld the order of the Settlement Officer relating
to the status of the appellant but reversed the portion in favour
of the respondent.
The appellant c.:intended that the only
party interested in challenging the status of the appellant was
the Government and it not having done so the entry in the draft
record of rights should not have been interfered with. The
respondrnt contended that the High Court had no jurisdiction
in a petition under Art. 227 to interfere with the concurrent
findings of the Settlement Officer and of the District.Judge that
the respondent was a temporary lessee.
n,1,z, that the respondent had raised an objection to the
description of the status of the appellant in the record of rights
and the Settlement Officer had jurisdiction to decide the question of the status of the 1'ppellant.
Held, further, that the High Court was not justified in
interfering with the findings of the Revenue authorities that
the appellant was a tempora•y lessee.
In a petition under
Art. 227 the High Court wa• not sitting as a court of appeal;
it could only consider whether the tribunals had overstepped
2 S.C.R.
SUPREME COURT REPORTS
571
the limits of their jurisdiction and whether the findings were
based on n'> material or were otherwise perverse. The orders of
the revenue authorities did not suffer from any of these defects.
Kagenara Nath Rora v. Commissioner, Hi/l.• Division,
..i,,,,am, [1958] S.C.R. 1240, relied on.
The Settlement Officer was wrong in not maintaining any
record of the oral evidence adduced before him. Thongh tl•c
Rn1es did not require the maintenance of record of the oral
evictence, it "·a• implicit in the provision granting an app<"al
from the order of tlie Settlement Ofncer, that he should maintain so1ne record of the oral evidence so that the right of appeal
\Vas not nullified.
Crvu, APPRLLA'l'E jFRrnnrn'l'ION : Civil Appeals
Nos. lO!i & 106 of 1960.
Appeals by special leave from the judgment and
order dated February 20, 1957 of the Calcutta High
Court. in Civil Revision Case No. 1851 of f!l:ili.
N. C. Chatteijee and D. N .. MuH1e1jre, for the
Appellant (In C. A. No. lOiJ of HWO) am! Respondent (In C. A. No. 106of1960).
K. B. Bagchi, S. N. Mukherjee and Sul:mnar
Ghose for the Respondent (In C. A. No. 105of1960)
and Appellant (In C. A. No. 11)6 of 1960).
1962. November 28.
The Judgment of the
Court was delivered by
AYYANGAR, J.-These two appeals by special
leave arise out of a single judgment of the High
Court at Calcutta.
That judgment was rendered in
a petition under Art. 227 filed by the appellant in
Civil Appeal No. 105of1960.
The proceeding out of which the appeals arise
was an application made by Mahenclra Nath Ghu;?;hu
(whom we shall refer to as the respondent) before
the Assistant Settlement Officer,
24,
parganas,
1962
Nihllran Chandra Bag
v.
Maliendra Nath
G'h11gll'I
Ay;·angar, J.
19(;2
.1~'ibarrm (,'!imull'a Bag
v •
.\fuhendra Nath
Uhug!tu
572 SUPREME COURT REPORTS [1903] SUPP.
objecting to certain entries in a draft Rccor<l-ofrights prepared and puulishcd under the West lkngal
Estates Acquisition Act, Hl!i:3 (W. B. I of l!J54) relating to Nibaran Chandra Bag (to be refrned to as the
appellant).
Section 44 ( l) of that Act cnacts:---
4-L
(I) When a record-of-rights has been prepared
or revised, the Revenue Officer
shall
publish a drafr of the record so prepared or
revised in the prescribed manner and for
the prescribed period and shall receive and
'"msider any objections which rnay he
made to any cutry therein or to any
omission therefrom during the period of
s11ch publication.
(:l)
When all such objections have been considered and disposed of according to such
rules as the State Government mav make
in thi~ behalf, the Revenue Officet: shall
finally frame the record and cause s11ch
record to be finally published in the prescribed manner and make a certificate
stating the fact of such final publication
and the date thereof and shall date and
subscribe the same under his name and
official designation.
(:l)
Any person aggrieved by an order passed
by a Revenue Officer on any objection
made under Sub-Setion (l) may appeal
in the prescribed manner to a Tribunal
appointed for the purpose of this section,
~rnd within such period and on paynwnt of
such court fees as may be prescribed.
A draft record-of-rights had been prepared in
n·spcct of lands in the village of Howramari and it
w;is left for public insprction as prcscrihrd by tlir
rnlcs
2 S.C.R.
SUPREMECOlJRTREPORTS
1573
he application of the respondent was concerned with the
entries in relation to Khatian
No. ()2.
Jn the draft as published the name of the
appellant had been recorded as "a raiyat" in respect
of approximately 1500 bighas of land most of which
consisted of a fishery.
On August 2!1, l'l;)5, \vithiu
the time limited for receiving
o]Jjcction~ under
s. +4 ( 1) of the Act, the respondent filed an objection
by which he prayed that in place of the appellant
his own name may be entered as the "raiyat" on the
ground that he himself had been iu cnjoymrnl and
possrssio11 of 1200 bighas of this lai1d as a fohcry and
the rest of the ;{()\) bighas by cultivating it with
paddy etc.
This objection was registered uy the
Assistant Settlement Officer.
Subsequent thereto
and before the petition of objection was disposed of,
the respondent filed an amendment to the petition
and in this he prayed for a modified relief that the
name of the appellant should be recorded as a tenure
holder and his own as a lessee under him. The
appellant raised no objections to this amendment
hcing allowed and the enquiry in regard to the
respondent's petition proceeded before the Assistant
Settlement Ol!icer.
We shall have occasion to refer
to the cktails of the enquiry before this Ofiiccr as
wc)J as of the order that he passed UUt to this WC
~hall lllrn after narrating the history of the proceedings which have led to the appeals before us.
On the material placed before him, the A&~is
taut Settlement Officer recorded two findings:-
(I) That the status of the appellant was not
that of a raiyat but or a permanent l\fokarari tenure
holder and an:.ordingly directed such an entry in
Khat ian No. !,:l being recorclcd.
(::)
He fi•tll!d
th;it
1!1<' respP11cknt
\\'.ts a
tcmpor:1ry les~cc under the aptiellant and accnnlinr:;ly
directed a subordiuatt' Kh<1lian tu
hl' opened ill
1962
.. ~.-iharan Chandra Bag
v.
Ala!tendra .i\'11/h
G1mghu
1962
}/ibaran Chandf<i Bag
v •
.11flhr:wlra JYath
Ulwgku
A_yyangar, J.
574 SUPREME COURT REPORTS [1063] SUPP.
which it would be recorded that the respondent was
a temporary lessee for a period of two years during
the period January 1954 to January 1956 at a rental
of Rs. 25,000/- per year.
Under the powers contained in s. 44(3) the
District Judge having jurisdiction of the area was the
authority to whom appeals could be preferred. The
appellant availed himself of this remedy. The learned District Judge dismissed the appeal affirming both
the above findings of the Assistant Settlement Officer.
The appellant thereafter invoked the jurisdiction of
the High Court under Art. 227 of the Constitution.
The learned Judges by their judgment now under
appeal upheld the order of the Assistant Settlement
Officer in so far as it altered the entry relating to the
status of the appellant from a raiyat to that of a
tenure holder, but they reversed the order of the
Assistant Settlement Officer in so far as he directed
the opening of a sub·khatian and the entry therein of
the name of the respondent as a temporary lessee.
The learned Judges held that there was no material
on the b;Lsis of which it could be held that the respondent was a temporary lessee.
Appeal 105 of HJ()() is
by the appellant and it seeks to question the correctness of the judgment of the High Court affirming the
direction to record the name of the appellant as a
tenure holder, while appeal 106 of 1960 is by the
respondent and calls in question the jurisdiction and
propriety of the High Court's interference with the
concurrent findings of the Revenue Tribunals, which
had held that the respondent was a temporary Jessee
for a period of two years on the rent stated earlier.
Mr. Chatterjee, learned Counsel for the appellant, submitted that the learned Judges of the High
Court should have set aside the entry recording the
appel laul as a tenure hokier, and dismissed in its
entirety the objections filed by the respondent. The
status of the appellant as a raiyat, he urged, lost all
meaning and significance after the amendment of the
. .
. .
. .
.
2 S.C.R.
SUPREME COURT REPORTS·· 575
objection petition filed by the respondent. The
objection originally filed by the respondent sought
the entry of respondent's name in place of the appellant The appellant's name had been entered as a
raiyat under one Bhudeb Sarkar, a· tenure holder
since he . was. in possession under a registered pat ta
dated February 2, 19!4, and his name had continued
as a raiyat from that date and this was repeated in
the published· draft record of rights.
By the amendment
filed in September Hl55, the respondent
abandoned the original objection and was content to
have hi5 name recorded as a lessee. The argument
was that the only party who was ·interested in
challenging the status of the appellant. was the
Government· of \Vest Bengal, since if the appellant
was an· intermediary as a tenure holder, his interest
would vest in them under the Abolition of Estates
Act, but the Government' not having evinced any·
interest in disturbing his title the entry should not
have been interefercd with.
He further submitted that the orders passed by
the High Court allowing the appellant's petition in
part was not logical and that the High Court having
held that the respondent had not established his claim
as a lessee, not therefore deriving any benefit of the
objections that he filed, should have set aside the
order entering the appellant's name as a tenure
holder.
We arc not disposed to agree with these subm1Ss1ons.
In the petition of amendment which he
filed on September 17, Hl55, the respondent had
pleaded : "The status of the opposite party should
have been recorded as that of a tennre holder in
. accordance with the documents on which the opposite
party relies and in accordance with the Khatian of
the last district settlement survey.
"This objector, having been fully aware of the
aforesaid matter during the hearing of the case on the
•
1962
Nibaran Chandra Bag
v.
lvlahendra Nath
Ghughu
Ayyangar, J.
57ti SUPREME COURT REPORTS [l!l63] SUPP.
1962
previous date, raised objection ·to the status of the
Niba'"'' Chandra Bag opposite party and the same is indeed a legal
v.
obicction."
,,fahr111lrn .\"ath
J
,J_lJ'tJll.'.;UI, J.
In his order dated November 25, 1U55, allowing
this ameudmcut, the Assistant Settlement Officer
specifically nolcd that "the opposite party (the
appellant) also gives his consent, i. e., to the amendment being allowed. It would therefore be seen 1hat
one of the items of objection to the record of rights
raised by the respondent related to an error in the
description of the status of the appellant as a raiyat.
It would further appear that the appellant then raised
no objeclion to the examination by the officer to the
correctness of that entry. This apart, the Assistant
Settlement Officer, the District Judge and the learned
judges in the High Court have
adduced several
cogent and convincing reasons for the finding that the
appellant was a tenure holder and not a raiyat.
Mr. Chatterjee made no attempt to attack this conclusion or the reasoning on which it was based.
His
only submission was that the order of the learned
Judges in the High Court in this respect was illogical
since their order in regard to the status of tbe respondent as a lessee they had deprived him of all benefit
arising from his objections under s. 44(1) of the Act.
This last argument about the illogicality in the order
of the High Court has little merit and such as it has,
would depend on the respondent's appeal (C.A.106/60)
being dismissed.
In view however ·of the order we
propose lo pass in that appeal, the submission would
have no force.
W c arc satisfied that the Assistant
Settlement Otlicer had jurisdiction t > decide the
objections raised by the respondent to the draft
rcconl-of-ri3hts in so far as it related to the status of
the appellant. In these eircmnslauce, we du nut
consider that there is any substance in the appeal of
lO:J/UO questioning the correctness uf the entry by
which the appellant was shown as a tenure hokier
instead of as a raiyat.
2 S.C.R. SUPREME COURT REPORTS
577
What remains to be dealt with is Appeal !Oil
of HlGO which raises for consideration the propriety
and correctness of tile interference by the learned
Judges with the concurrent findings of the Assistant
Settlement Officer and the District Judge that the
respondent Ghughu was a temporary ksscc for two
years at a rental of 2G.t100 rupees a year.
Before proceeding further it is necessary to
notice that the matter was brought up before the
High Court by Petition under Art. 227 of the Con·
stitution. The jurisdiction conferred by that Article
is not by any means appellate in its nature for
correcting errors in the <lccisions of Subordinate
Courts or Tribunals bnt is merely a power of super·
intendcnce to be ·nsed to keep them within the
bounds of their authority, vide Nrtgendm Nu.th lJora
1J. Oominissioner.
llill8
Division, A.•.•11.m ('). It
was the submission of the learned counsel for the
respondent (Appellant in C.A. 105/60) that the High
Court exceeded its jurisdiction in interfering what
at the worst was a mere error in the appreciation
of evidence and that in fact there was enough
material for the finding which the Revenue Tri bu -
nals had reached, as regards the lease.
The case of the respondent was that he was
a lessee under the appellant. in respect of the em ire
I 500 bighas of land from] anuary l!l54.
He alleged
that he had paid Rs. 95,000/. as Salami and that the
rent had been fixed at Rs.18 .. 500/· per year. He further
alleged that after he obtained possession under tlie
lease, he had been using 1200 bighas of land as a
fishery and the rest of the 300 bighas for growing
paddy and it was on the basis of these facts that he
claimed the status of a raiyat. That the respondent
was in possession of this area from January l!Jii4 was
not disputed by the appellant but his case was that
the respondent was his · manager on a monthly salary
of Rs. 100/-. Thus, the point of differcnc" !:-P•ween
(I) (1958] S.C.R. mo.
1962
Niboran Chandra Bfl.~
v.
Mahndra Nath
Ghuth•
A1J0ngar, J,
1962
Nib•rari Chandra Rag
v.
At .. fundrll J\'ath
f,'/mt!tu
Ayy•nzr.r, J.
578 SUPREME COURT REPORTS [1063] SUPP.
the appellant and the respondent was only as regards
thr title under which the respondent was in possession.
T n >11pport of the respondent's ca.~e he examined tlu- l'rrsirknt awl ilw Vice-President of Saranga·
had, U. P. to prove payment of tax in his name,
and he produced the records of certain criminal
proceedings between him and third parties in which
he had been described as a lessee both by the other
parties as well as in the reports submitted by police
officers. Besides, he produced copies of proceedings
under s. 144 Criminal Procedure Code,
between
himself and the appellant in which there had been
a compromise which according to him resulted in
or confirmed
his
possession as a lessee.
It also
appears that both the appellant and the respondent
examined themselves before the Settlement Officer.
The reasoning upon which the
Settlement Officer proceeded to arrive at
was shortly this :
Assistant
his rinding'
That possession of the land with the respondent
from l!J;j4 being admitted
the only question for
consideration was whether he was a lessee as was
sought to be proved b)' him or whether he
was
mere! y a manager and caretaker in the employ of
the appellant in receipt of a monthly salary.
The
appellant produced his accounts for a period anterior
to I !)54 disclosing payments of salary to one
])hirandra Nath Pramanik his then Manager but he
produced no accounts covering the period when the
respondent was in possession, which would establish,
it' the appellant's case was true, that the respondent
was his
manager.
From
the non·production of
thcs1~ accounts, the Assistant Settlement Officer drew
an inference adverse to the appellant.
This conduct of the appellant was certainly
a relevant
material which the
offic~r could bave taken into
account.
Secondly,
in a criminal case between
these very parties under s. l44 Code of Criminal
2 S.C.R.
SUPREME COURT REPORTS
579
Procedure (Case No. P. T. 1925), a joint statement
was made that the respondent had some time anterior
thereto paid the appellant a sum of Rs. 3000/- "as
advance". The receipt of this sum was admitted.
It was the case of the respondent that this was a payment towards rent under a lease, but this was denied
by the appellant, who urged that this was in part
the damages or means profitS due to him. The produrtion of the appellant's accounts which recited
t11e receipt of this sum might have
cleared the
matter, but he chose not to produce them. From
this again the Officer drew an inference adverse to
the appellant.
Besides these pieces of evidence
theFe were descriptions of the respondent as lessee in
several criminal proceedings between the respondent
and third parties.
Lastly, there were criminal
proceedings between the appellant and the respondent in regard to the possession of these very lands
and this dispute was agreed to be referred to the
arbitration of the Sub-Divisional Officer. We do
not have the award, but the two parties agreed to
it and embodied the terms thereof in a signed
memorandum of compromise and this provided
inter alia, "that the respondent would pay the appellant Rs. 50,000/- in four instalments ending with
] anuary 1956" specifying the dates on which these
instalments had to be paid, and it added : "The
men of the first party (Appellant) will be entitled
to inspect the two granaries
containing paddy
belonging to the first party standing on the said
Bhori for the purpose of looking after them," and
finally wound
up saying : "the second party
(Respondent) will no longer have title and concern
of any sort in respect of the said Bhori."
The Assistant Settlement Officer construed
this compromise as meaning that the respondent was
to be in possession for two . years as lessee, i. e.,
during the period during which the four instalment~ were to he paid and to relinquish possessio!l
1962
Niboran Chandra flt1g
v.
Mahindra Nath
Glw1hu
.Nila1an Chandra B•z
v.
M,/wu/,. Nath
Ghughu
A1yanzar, J.
580 SUPREME COURT REPORTS [1963J SUPP.
after January 1956 when the last instalment. would
have been due and paid, and .it was on this basis
that he held that the tramaction amounted to a
temporary lease for 2 years on an annual rental of
Rs. 25,000/.. The learned Diltrict Judge upheld
these findings and considered that all the above pieces
of evidence justified the .onclusion reached by the
Assistant Settlement Officer. When the matter was
before the High Court, the learned Judges analysed
the evidence and held that the statements in the
criminal proceedings in which the respondent had
been described by third parties as lessee were inadmissible in evidence and irrclevcnt for the purpose of
proving his status and also that the Assistant Sctt'lement Officer and the District.Judge had misconstrued
the l'ompromis<'.
The lcarn<'d Judge further pointed
out :
(I.} that the respondent had set up a case of a
lease on a rental of Rs. 18,500/-per year and that the
temporary lease for two years found by the officer
was inconsistent with such a pleading, and (2) that
the compromise on
it~ proper construction did not
constitute the respondent a lessee temporary or other·
wise and the courts below had misinterpreted the
terms of that document.
On reaching these conclusions the learned Judges set aside the entry of the
respondent's name in the sub·Khatian as a temporary
lrssee. We consider that the learned Judges were not
justified in the course they took in interfering with
findings of the Rcvc1rne authorities. They were not
sitting as a court of appeal and had merely to consider, firstly, whether the tribunals had out-stepped the
limits or their jurisdiction, or secondly, whether the
findings recorded were based on no material, or were
otherwise perverse. \Ve are clearly of the opinion that
the orders of the Revenue authorities did not suffer
from any of these infirmities. In the first place no
significance can be attached to the fact that the
finding recorded is not in li11e with the pleading or
2 S.C.R. SUPRE1-fE COURT REPORTS
581
the case set up by the respondent. It is true that the
respondent had prayed for a more favourable relief,
namely, a longer tenure and on a lesser rental but if
the evidence placed before the tribunal justified the
granting of a lesser relief, there was no reason why
such relief should be denied.
Nothing therefore
turns on the fact than the relief granted was different
from that claimed by the respondent. The more
substantial point is whether the learned Judges were
right in holding that there was no material on which
the authorities could find that the respondent was a
temporary lessee. The respondent having admittedly
been in actual possession of the property, the only
controversy related the character in which he was in
possession.
Even if the description of the respondent
as lessee by third parties in the several criminal
proceedings be discarded as res inter alios acta, it was
certainly within the jurisdiction of a Settlement
Officer to appraise the truth of the story of the appellant who claimed that the respondent was his
Manager on a salary of Rs. 100/- a month.
No just
exception would be taken to the action of the Olficcr
in drawing an inference adverse to the appellant from
the non·production of his accounts to prove the payment of salary to the rcspoudcnt, or that relating to
the receipt of Rs. 3000/- referred to as "an advance''.
If so, the Officer could leglilly accept the respondent's case that he was a lessee and not a Paid
Manager and that his possession was attributable to
that character.
The next question would be as to the terms of
that lease-as rcg;\rds the duration and rent. The
evidence disclosed
by the compromise and the
<:riminal procccrlings bcLwccn :the parties militated
ag;iinsl the complete acccplancc or the respondent's
rnse.
The cri1ninal procccdiugs arose bcc<u1sc ol' the
dispute raised by the respondent that he was a lessee,
but under the compromise following the award by
the S.D.O. he agreed to give up possession at the end
1962
JViharan Cliaidra Bag
v.
Mah~t1d1a .Vath
Ghu1hu
.4yy11ng•r, J,
582 SUPREME COURT REPORTS [1963] SUPP.
1962
Nibaran Chandra Bai
of 2 years and to have nothing more to do with the
property after that date.
From these circumstances,
the Settlement Officer inferred that the title as lessee
which was put forward by the respondent had been
conceded to a limited extent, namely, that he was to
remain in possession only till January 1956. Taken
in conjunction with the antecedent history, it would
not be an unreasonable inference to draw that the
character in which the respondent was lo remain in
possession till he undertook to quit was as a lessee.
It would therefore be not correct tu say that there
was no material to support the finding. If the order
could be sustained to that extent, the fixation of
the rent at Rs. 25,000 a year is not of much significance, because that was arrived at merely on the basis
of the figure mentioned in the memo of compromise.
v.
MiW.dra Nath
Ghughu
A.11a11gar, J.
Even assuming that the Revenue Tribunals
erred in their interpretation of the compromise, it
could not be a ground on which their finding could
be set aside under Art. 227, in view of the fact that
the compromise was but one of the several items of
evidence on which the finding was based. If thus
their was material, the order could not be characterised as perverse to permit of interference. We,
therefore, consider that there was no justification to
interfere with this concurrent finding of the revenue
Tribunal.
Before concluding it is necessary to deal with
one matter which has also been adverted to by the
learned Judges of the High Court. It concerns the
method adopted by the. Assista.11t
Settleme~t Offi~r
in the conduct of th!S enquiry. From hlS order it
would appear that the two
parties before him
adduced oral evidence by examining witnesses. He
however made no record of this evidence, so that one
is nol iu a position to ascertain ~ith exactness what
each witness deposed-except m so far as any
reference is made to· it in the order. The learned
2 s.c.R.
SUPR£ME COURT REPORTS
583
Judges an inadverted on this feature and we concur
with them that this is far from satisfactory. Learned
Counsel for the respondent drew to our attention the
rules which have been framed under s. 5!! of the Act
which lay down the procedure· to I.Jc followed by
Revenue
Officers conducting
these
inquiries,
(Rule 30 (2) read with Rule 17 (2)) and pointed out
that these rules did not require any record being
kept of the evidence adduced and that in the absence
of any such statutory provision there was no need for
these tribunals to follow the procedure adopted by
regular courts and that it could not be said that any
principle of natural justice wa& violated by such a
record not being kept. We agree that the maintenance of a record of the oral evidence adduced is
not the requirement of any specific rule. It should
· not however be forgotton that the order passed in an
enquiry into an objection filed under s. 44 (1) of the
Act is subject to an appeal under s. 44 (3) to a
prescribed Tribunal as authority. That appeal lies
both on the facts as well as on any legal question>
which might arise and be decided and is not confined
to any particular grounds. It is therefore, manifest
that the appeal is intended to be a real remedy,
affording full relief to the party aggrieved. For
such an appeal to be effective, the party aggrieved
must be in a position to canvass the P.ropriety and
correctness of the reasoning of the tnbunal of first
instance before the appellate authority and it would
be obvious that it could not be done satisfactorily
unless the party is in possession of the materials on
which the conclusions of the first tribunal are based
and reasons are recorded for the order. In fact the
order of the tribunal cannot normally be successfully impugned unless the materials on whicl1 that
order is
based is placed ucfore
the appellate
authority. It is therefore apparent that a record of
the evidence would be as necessary as a reasoned
order-for a statutory right of appeal to be of any
real value. We therefore consider that it is implicit
1962
.Nibarafl Chandra B•1
•·
M(1htt1dro .. \".th
Glmgh"
Ayyangari J,
1962
Nibaran Chandra Bag
v.
Mahmdra Ji/ath
Ghu:hu
Ay,..gar, I.
\
58-1
SUPREME COURT REPORTS [1963] SUPP.
in the provision granting an appeal from the order
of the revenue officer that even if the rules do not
so provide, he should so conduct it that the right of
appeal granted by the statute is not nullified. In
saying this we should not be understood to mean that
he is bound to follow the procedure prescribed for
civil courts for the recording. of evidence. Only he
should · maintain some
rrcord
from which the
appellate authority would be able to gather the
materials which the officer had before him in arriving
at the decision which is the subject of the appeal.
The result is that Civil Appeal 105/UO fails and
is dismissed, while Civil Appeal 106/60 succeeds and
is allowed.
As a result of the orders passed in these
two appca ls the revision under Art. 2::!7 preferred
by
the appellant to the High Court will stand
dismii,scd.
The respondent will lie entitled to his costs in
this Court (one hearing fee).
C.A. No./fl:j 1:( l!JliO dismissed.
C.A. No. JOG of 1!160 allowed.