JUDGMENT
D.P. Sood, J.
1. In this regular second appeal under Section 41 of the Punjab Courts Act against the judgment and decree dated 18th January, 1985 passed by the learned District Judge, Hamirpur in Civil Appeal No. 2 of 1982, the plaintiffs/appellants have sought the reversal thereof.
2. The bone of contention in between the parties is land measuring one kanal comprised in Khasra No. 236/1 and Khasra No. 233/1 situate in Taka Gauna, Tappa Kohla, Teshil and District Hamirpur (hereinafter shortly referred to as the ‘suit land’). Shri Shambhu Ram, one of the plaintiffs died during the pendency of this appeal and vide order dated 2nd January, 1990 passed in CMP No. 194 of 1988, his legal representative, namely, Shri Sri Kanth has been substituted in his place. Similarly, Sain Dass, one of the defendant also died during the pendency of this appeal and vide order of the even date (2-1-1990), his legal representatives Nos. l(a) to l(e) have also been brought on record. The parties to the instant appeal are being referred hereinafter as the plaintiffs and defendants for appellants and respondents, respectively.
3. The plaintiffs filed a suit for possession of the suit land on the allegations that they are the owners thereof as per the jamabandi for the year 1967-68, but during the consolidation operations commenced in the year 1965, the defendant who is a collateral of the plaintiffs in the third degree, was recorded as a tenant under the plaintiffs and this was done in collusion with the consolidation staff and that defendant had constructed a house thereon. Allegedly, as per the plaintiffs, the opposite party (defendant) had no concern with the suit land and his possession was unlawful.
4. The defendants resisted and contested the suit by raising various preliminary objections with respect to jurisdiction because of existence of relationship of landlord and tenant between the parties, firstly, on the ground that there was relationship of landlord and tenant in between the parties inter se and secondly that the suit land had been allotted in the consolidation proceedings. On merits, it was contended that the defendant has been in possession of the suit land since 1937 when he had constructed a cow-shed on the suit land and since then continuing to be in adverse possession which has matured into title. With regard to entries in the revenue records, he has pleaded ignorance. He further contended that the suit land was contained in old khasra No. 253 measuring 1 kanal 7 marlas. During the consolidation operations also, defendant was found in possession of the suit land due to construction of the cow-shed and plaintiff had gone in appeal to the Consolidation Officer and the Consolidation Officer allotted khasra No. 233/1 to the defendant instead of khasra No. 234. Against this order of the Consolidation Officer, the defendant went in appeal to the Settlement Officer, who remanded the case vide his order dated 30-6-1968, but the Consolidation Officer decided the case against the defendant. Defendant again went in appeal, which was decided on 10-12-1970 and then khasra No. 233/1 was allotted to him and he also got its possession on 7-6-1972. The plaintiffs filed an appeal against the order of Settlement Officer before the Director of Consolidation of Holdings which as per the written statement was still pending and as such had no jurisdiction to try the suit.
5. Initially the trial Court framed two preliminary issues which were disposed of its order dated 12-5-1976 which fact further gave rise to litigation before the higher Courts. Ultimately, vide order of this Court dated 27111 April, 1977, Civil Revision Petition No. 13 of 1977 filed by defendant for recasting and changing the burden of issue No. 1 against the order of the learned Senior Sub-Judge, Hamirpur passed on 2-11-1976 dismissing the application to that effect, was accepted and the Court below was directed to re-cast the issue and place the onus of issue No. 1 on the plaintiffs.
6. The trial Court ultimately decided the entire suit after having framed various issues and partly decreed the suit. The judgment and decree dated 17-11-1981 was successfully appealed against by the contesting defendant. The learned District Judge vide impugned judgment and device passed in Civil Appeal No. 2 of 1982 vide his order dated 18-1-1985 dismissed the suit in its entirely-
7. Aggrieved with the aforesaid judgment and decree, the plaintiffs have come up in this appeal.
8. I have heard the learned counsel for the parties at length and I have also carefully gone through the entire record.
9. Learned counsel appearing on behalf of the appellants has submitted that the first appellate Court committed a grave error in not having considered the effect of the documentary evidence adduced by both the parties in deciding issue No. 2. There is no controversy in between the parties that several documents like Exts. P-3 to P-7 and Ext. D-1 are in Urdu language. Their Hindi transliteration has not been annexed on record of lower Court’s file. The close examination of the impugned judgment on this material issue shows that the learned first appellate Court has merely discussed the oral evidence adduced by the parties. Excepting Ext. D-3, Jamabandi for the year 1967-68, admittedly prepared during the consolidation proceedings and Ext. D-5, copy of order dated 10-12-1970 passed by the Settlement Officer, no reference has been made to any other documentary evidence nor the impact thereof appears to have been considered by the learned District Judge while concluding the issue of adverse possession maturing into title as set up by the defendant.
10. The abovesaid documentary evidence consists of entries in the revenue record and pertaining to the ownership and possession vis-a-vis the suit land. Both the learned counsel have not controverted the fact that this documentary evidence was relevant evidence and consideration thereof was, thus, material for the decision on the issues framed by the trial Court. It is well established that where the findings of the court of facts is vitiated by non-consideration of relevant evidence or by essentially wrong approach to the matter, the High Court is not precluded from recording proper findings. Thus, evidently non-consideration of the material documentary evidence by the court of facts on the respective claims of the parties tantamounts to material illegality which goes to the root of the case. No doubt, this Court can consider the impact of the documentary evidence, yet as the issues involved are mixed questions of law and facts and this Court under Section 100, C.P.C. r.w. Section 41 of the Punjab Courts Act, 1918 has to consider the substantial question of law. It would be in the interest of justice that the first appellate court of facts is allowed to record its findings thereupon. In any case, the impugned judgment and decree are liable to be set aside in view of the above discussion.
11. I need not consider the other submissions of the learned counsel for the parties lest any expression of opinion thereupon might prejudice either of the parties besides the decision to be arrived at by the first’ appellate Court.
12. Accordingly, the impugned judgment and decree are set aside. The parties shall appear before the lower appellate Court on 2-5-1994. Both the learned counsels for the parties have now undertaken to supply the Hindi version of the documents exhibited before the trial Court ,which are as such on record within three weeks from the date of their appearance. The lower appellate Court is directed to decide the case afresh after hearing the parties in accordance with law.
13. In view of the above, the appeal stands disposed of in terms of the above with no orders to costs of this Court.