1. These two Letters Patent appeals are against the judgment of Mr. Justice Falshaw given on the 19th of February, 1948, in two appeals. Regular Second Appeals Nos. 89 and 99 of 1946. The appellants in the two appeals before Mr. Justice Falshaw were one Rania and the heirs of one Sucheta Rania and Sucheta had been adjudicated insolvents in the year 1926. They had obtained their discharges in the year 1929 on the condition that the Receiver should be entitled to dispose of certain land belonging to them upon alienations of that land being set aside. In fur-their proceedings the alienations were set aside at the instance of the Official Receiver and consequent on the order vesting lands in the Official Receiver, the Official Receiver is said to have held an auction for the leases of the lands for a period of 20 years, this auction being held on the 4th of May 1937. The respondent in the appeals before Mr. Justice Falshaw was Nanak Bakhsh, who was the auction-purchaser at the auctions held. In June 1940, registered documents of lease were obtained by Nanak Bakhsh from the Official Receiver but Nanak Bakhsh did not obtain possession until the year 1943. Following the possession taken by Nanak Bakhsh separate suits were filed by the two sets of appellants before Mr. Justice Falshaw claiming that the leases granted by the Official Receiver were inoperative. The grounds taken were two, firstly, that the consent of the Court had not been obtained to the grantin of the leases and secondly, that by reason of the Punjab Act III of 1939 amending Section 60 of the Provincial Insolvency Act, the Official Receiver was not competent after the date of the corning into force of that Act, namely, 20th of April 1939, to grant leases of agricultural land. It was maintained by the plaintiffs that the leases of the suit lands had not been auctioned in the year 1937, but that the leases were created by the registered documents executed in June 1940.
2. At the trial on behalf of the lessees the oral evidence of the Official Receiver was led and the Official Receiver supported the case of the Lessees that oral leases had been made in their favour immediately following the auction on the 4th of May 1937. The Official Receiver produced no documents evidencing that the auction had been held and that following it leases had been granted to Nanak Bakhsh. The trial Court decreed the suits holding that the case of the auction and leases having been held and granted in the year 1937 could not be held proved in the absence of the official records of the Official Receiver relating to the auction and grant of oral leases. Two appeals were filed in the District Court and the District Court allowed both appeals holding that the oral evidence of the Official Receiver established the oral leases made in the year 1937. The plaintiffs in the two suits then came in second appeal and the only material question before Mr. Justice Falshaw was that of the application of Act III of 1939. There was and is no dispute that If the lands had been leased in the year 1931, the Act would have no application-and the leases would be valid, while on the other hand if the leases were effected in 1940 the Act had application and the leases would be invalid.
3. These second appeals were, resisted mainly on the ground that the finding of the District Judge that the leases were effected in the year 1937 was a question of fact which could not be reagitated in second appeal. Mr. Justice Falshaw in his judgment while stating that 'prima facie' this appeared a good ground for the incompetency of the second appeals held that the absence of the official records of the Official Receiver brought the case within Section 100 of the Code of Civil Procedure and he held that the finding that oral leases were given in the year 1937 could not possibly be justified on the evidence led. He allowed the appeals and restored the findings of the trial Court in each case.
4. The leading case on the scope of second appeals under Section 100 of the Code is 'Mt. Durga Choudhrain v. Jawahir Singh, 17 Ind App-122 (PC). In this case their Lordships of the Privy Council rejected a contention which had found favour with certain Courts that a clear misappreciation of evidence by a lower appellate Court brought the case within Clause (c) of Section 100 of the Code as a substantial error or defect in the procedure provided by the Code. The rule laid down by the Board appears at page 127 of the report where it was said:
'It is enough in the present case to say that an erroneous finding of fact is a different thing from an error or defect in procedure, and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Where there is no error or defect in the procedure, the finding of the First Appellate Court upon a question of fact is final, 'if that Court had before it evidence proper for its consideration in support of the finding'.'
I have underlined (here in single quotation) what appear to me the material words of the rule is applicable to the present case.
5. In Volume II of the Rules and Orders of this Court in Chapter 5-B it is laid down that the amounts received each day by the Official Receiver shall be paid into the Treasury on the day of receipt or at the latest on the next working day. These remittances are to be accompanied by a challan in triplicate and the Treasury Receipts for the amount paid are required to be filed in what is called a Guard Pile. The Official Receiver is also directed to keep a receipt book 'in foil and counter-foil for the money received by him from each depositor, the foil being a depositor's receipts for the money paid. In the same Chapter It is laid down that when a property is sold by public auction the bids must be recorded in a register or sale list to be kept in certain form. In the present case, there is no suggestion by the Official Receiver that he had not complied with the Rules and Orders of this Court which I have just described. He was asked about the record prepared at the auction of the leases and his reply was that the file was not available. He also gave a very indefinite statement of the actual holding of the auction. The ordinary rule of proof is that the best evidence should be produced. When that best evidence consists of official records and those records are not produced and no satisfactory explanation for their non-production is given. It is plain that this rule has been wilfully disregarded. It seems to me, therefore, that the first appellate Court had not before it the evidence proper for its consideration in support of the finding which it gave. The first appellate Court in fact obviously erred in law in holding as it did at least impliedly that the lessees were entitled to avoid production of documentary evidence, not alleged to be nonexistent, which if existent would be conclusive on the point. In my opinion, therefore. Mr. Justice Falshaw had jurisdiction to interfere in the manner he did in second appeal, and I would dismiss both the Letters Patent appeals with costs in each case.
Harnam Singh, J.
6. I agree.