Andhra HC (Pre-Telangana)
Ali Mohamood vs Special Court Under A.P. Land Grabbing ... on 5 July, 2000
Equivalent citations: 2000(5)ALD172, 2000(4)ALT673, 2000 A I H C 4259, (2000) 5 ANDHLD 172, (2000) 4 ANDH LT 673, (2000) 4 CIVLJ 476
Author: Vaman Rao
Bench: Vaman Rao
ORDER
N.Y. Hanumanthappa, J
1. This writ petition is filed seeking a writ of certiorari calling for the records pertaining to the judgment and decree of the 1st respondent-Special Court passed in LGANo.44 of 1996 dated 3-3-1997 and to quash the same as illegal, unconstitutional and contrary to the provisions of the A.P. Land Grabbing (Prohibition) Act.
2. The facts in brief are as follows :
The petitioner herein filed LGOP No.296 of 1990 on the file of the District Judge-cum-Special Court, Land Grabbing, Vizianagaram against respondents 3 and 4 to declare that he is the owner of the petitioner schedule property and to direct the eviction of respondents 3 and 4 and to pay mesne profits of Rs.3,600/- and also for future profits. It was contended by the petitioner herein in the LGOP that he is the owner of the petition schedule property bearing TS No.2/2 situate Vizianagaram comprising of the dilapidated building with the sale. According to the petitioner, he purchased the same under a registered sale deed dated 15-7-1982 Ex.A1 from the legal representatives of one late Abdul Shakur Sahib who in turn had purchased the same under a sale deed dated 30-8-1955 Ex.A5. It is the case of the petitioner that the 3rd respondent herein who is the owner of western portion bearing TS No.2 without any lawful right encroached into the portion of the land belonging to him. It is alleged that the 4tli respondent at the instance of the 3rd respondent encroached into the eastern portion and raised a wall and increased the original space of their old terrace portion of the building. Inspite of repeated protest and demands, respondents 3 and 4 failed to remove the alleged encroachment. Hence the petitioner herein filed the above LGOP. On service of notice respondents 3 and 4 filed their objections. Their case before the Court was that the petitioner has no right over the petition schedule property. According to the 3rd respondent, he is the owner of the property and the 4th respondent is his tenant regularly paying rent to him. It is the case of respondents 3 and 4 that the building is situate in TS No.2/1 which lies east to west 24 meters and north to south 24 meters whereas the petitioner's property lies in TS No.2/2 to the east of TS No.2/1. According to the 3rd respondent, his mother executed Ex.B1 in the year 1973 in his favour. The said area was sub-divided. The 3rd respondent is the original owner and in possession of the property.
3. In support of rival contentions, both the parties let in evidence both oral and documentary. On behalf of the petitioner herein, the petitioner himself was examined as PW1 and two other persons as PWs.2 and 3 and Exs.A1 to A7. Respondents 3 and 4 were examined as RWs.1 and 2 and two others were examined as RWs.3 and 4 and Exs.B1 to B10 were marked on their behalf. During the pendency of the proceedings the Court appointed a Commissioner and his report was marked as Ex.C1. Exs.C2 and C3 are the town survey plan and the enlarged plan respectively. After appreciating the evidence, the Court found that the petitioner proved his case that respondents 3 and 4 encroached the land as alleged and allowed the LGOP filed by the petitioner herein by an order dated 20-9-1996. Aggrieved by the said order, respondents 3 and 4 filed an appeal before the Special Court in LGA No.44 of 1996. The lower appellate Court again considered the entire evidence and by giving reasons allowed the appeal and dismissed the petition filed by the petitioner. Hence this writ petition.
4. Sri C. Pratap Reddy, [earned senior Counsel appearing for the petitioner contended that the order passed by the lower appellate Court is arbitrary and illegal. The judgment and decree passed by the lower appellate Court is not in conformity with Order 41, Rule 31 of CPC as no points were framed. Being an appellate authority, the Special Court should have considered the entire evidence and gave its independent findings. In support of the contention that the judgment and decree of the lower appellate Court is vitiated for non-compliance of Order 41, Rule 31 CPC, the learned senior Counsel placed reliance upon a decision of a learned single Judge of this Court rendered in I. Gopinatha Rao (died) per LRs. v. V. Narayana, . Thus contending he sought that the petition be allowed and the matter be remanded to the lower appellate Court for fresh hearing and disposal in accordance with law.
5. As an answer to these contentions, Sri Suresh Kumar learned Counsel appearing for respondents 3 and 4 submitted that the judgment and decree passed by the lower appellate Court is a just one. Mere non-framing of points for consideration by the lower appellate Court does not vitiate the proceedings. Whatever material that was placed before the Court was considered and the lower appellate Court upon considering the material placed before it disagreed with the finding of the trial Court that respondents 3 and 4 herein have grabbed a portion of property of the petitioner. Sri Suresh Kumar submits that the decision reported in Gopinatha Rao's case (supra) has been referred to a Division Bench and the mailer is pending consideration before the said Division Bench.
6. The main attack of the petitioner is that the lower appellate Court should have disposed of the appeal after complying with the provisions of Order 41, Rule 31 CPC. Order 41, Rule 31 CPC reads as under:
"The judgment of the Appellate Court shall be in writing and shall state,-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and,
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
7. It is incumbent on the appellate authority to comply with the provisions of Order 41, Rule 31 CPC. The point to be considered is whether non-compliance of any of the conditions in Order 41, Rule 31 CPC will vitiate the proceedings. The grievance made out in this writ petition is that the order passed by the lower appellate Court is vitiated as it did not frame the points for consideration which is one of the requirements stipulated in Order 41, Rule 31 CPC to render judgment.
8. The learned single Judge in Gopinatha Rao's case (supra) while dealing with Order 41, Rule 31 CPC held as under :
"The point formulated carries no legal meaning. The learned Appellate Judge simply stated whether the judgment and decree of the lower Court is liable to be set aside? If such point is to be formulated, then the same wording can be used by the Appellate Courts in deciding any/all the First Appeals. Whatever may be the subject or issue involved in the litigation, such type of formulation of point for determination is not contemplated under Order 41, Rule 31 CPC. This Court has no hesitation in holding that the learned Judge totally ignored the provisions contained in Order 41, Rule 31 CPC."
9. The idea behind Order 41, Rule 31 CPC is that the Court while passing the judgment shall apply its mind to the evidence made available on record and secondly, whether both the parties did understand on what point they have to submit their case. While in some cases the Courts have held that non compliance of any one of the requirements of Order 41, Rule 31 CPC vitiates the proceedings but in some cases the Courts have taken the view that non-compliance of any one of the requirements of Order 41, Rule 31 CPC does not vitiate the proceedings. The purpose of framing the points for consideration by the lower appellate Court is to clear up the pleading and focus the attention of the Court and of the parties on the specific and rival contentions which arise for determination. Time and again it is said that it is not necessary that the judgment should record all the facts in detail and should deal mechanically with all points. It would be sufficient if the Court renders its independent judgment.
10. A reading of the judgment of the lower appellate Court reflects application of mind on its part and failure to frame points for consideration at best can be said to be only a technical defect or a procedural irregularity which can be cured if the judgment is in substantial compliance of all other requirements. In other words, it is desirable that the first appellate Court should comply with all the requirements of Order 41, Rule 31 CPC but if there is any slight deviation that itself is not a ground to hold that the judgment is vitiated. It would be relevant to refer to the decision of the Privy Council rendered in the case of Gokal Chand Jagannath v. Nand Ram Das Atma Ram, AIR 1938 PC 292, which is as under:
"The failure of a judge of an appellate Court to comply with the provisions of Order XLI, Rule 31 of the Civil Procedure Code requiring him to sign his judgment is merely an irregularity not affecting "the merits of the case or the jurisdiction of the Court" within the meaning of Section 108 of the Code, and accordingly does not affect the rights of the parties to a judgment and decree".
11. How the procedure has to be followed by the first appellate Court was discussed by the Supreme Court in the case of Girijanandini Devi v. Binjendra Narain Choudhary, . At Para 12 judgment the Supreme Court observed thus:
".....We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the Appellate Court when it agrees with the view of the trial Court on the evidence either to restate the reasons given by the trial Court. Expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice."
12. The first appellate Court gave its findings in support of its judgment at Paras 5, 6 and 7 which is as follows:
"On the other hand, the learned Counsel for the respondent contended that though the document Ex.A1 in favour of the respondent originally mentioned TS No. 15, the same was corrected as TS No.2 subsequently by way of a rectification deed and that the entire TS No.2 belongs to the respondent.
We have perused the Commissioner's report Ex.C1 and the sketch attached to the report. It is very clear from the sketch that the encroached portion falls within TS No.2/1, and does not form part of TS No.2/2. The evidence on record shows that there was a sub-division of TS No.2 by carbing TS No.2/1. Admittedly, TS No.2/1 belongs to the appellants by virtue of Ex.A6 which is a certified copy of the sale deed filed by the respondent himself and it is of the year 1939. It is therefore, clear that the appellants are the owners of TS No.2/1. According to the sale deed Ex.A1 in favour of the respondent, the width of the site conveyed was 48 feet, whereas in the Town Survey, the width is confined to only 38 feet and therefore, it is clear that an excess extent of 10 feet in width was mentioned in Ex.A1. The recital in Ex.A1 also shows that the vendee namely the respondent had to recover possession of the land from the appellants. His vendor under Ex.A1 had no title to convey so far as the portion belonging to the appellants is concerned, and no title passed to the respondent in respect of the petition schedule land.
On a perusal of the entire evidence on record along with the Commissioner's report and sketch in Ex.C1, we are fully convinced that the learned Tribunal was in error in allowing the petition. We have therefore, no hesitation in setting aside the judgment of the learned Tribunal."
13. The above discussion is sufficient to hold that the appellate Court applied its mind to all the contentions. Apart from this, since the proceedings before us are under Article 226 of the Constitution of India, this Court can only consider the orders of the Courts below by exercising power conferred under Article 226 of the Constitution of India. The contention of Sri Pratap Reddy, learned senior advocate that the Special Court being an appellate Court, the provisions of CPC are applicable and non-compliance of one of the requirements of Order 41, Rule 31 CPC viz., i.e., failure to frame the points for consideration vitiate the proceedings is difficult to concede. We are of the view that failure to frame the points for consideration does not suggest that the appellate Court did not consider the points of both the sides. On the other hand, a reading of paras 5, 6 and 7 of the judgment of the lower appellate Court it is clear that there was adequate discussion of points in controversy. Thus there was implied compliance of one of the requirements of Order 41, Rule 31 CPC viz., framing the points for consideration. The appellate Court basing on the report of the Commissioner held that the dispute is with regard to property situate in TS No.2/1 and not with regard to the property situate in TS No.2/2 claimed by the petitioner.
14. It is relevant to mention here that we are not supposed to discuss about the factual aspects which in fact were discussed by the appellate Court because under Article 226 of the Constitution of India scope to interfere in findings of facts is very much limited. This Court in Mohd. Iqbal v. N. Prabhakar, , held that the scope of this Court under Article is very much limited in respect of findings of fact. This Court can interfere with the findings of fact only when there is an error apparent on the face of the order or when there is violation of principles of natural justice or any of the statutory provisions.
15. In view of the findings reached, the contention of the learned senior Counsel that the matter be remanded to the first appellate Court for fresh appraisal of the evidence and disposal keeping in view the requirements of Order 41, Rule 31 CPC cannot be accepted. Hence there are no merits in the writ petition and the same shall accordingly stand dismissed.