Patna High Court
Ramadhar Thakur vs Kalawati Devi & Ors on 7 March, 2013
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.408 of 1993
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1. Parwati Devi wife of Late Ramadhar Thakur
2. Samer Thakur
3. Ashok Thakur
4. Dharmendra Thakur all sons of Ramadhar Thakur, resident of
village Chitakhal, Post Office Chitakhal, Police Station-
Guthani, District-Siwan.
5. Shiv Lodhana Devi daughter of Late Ramadhar Thakur
6. 6. Shakuntala Devi, daughter of Late Ramadhar Thakur.
.... .... Appellant/s
Versus
1. Kalawati Devi
2. Lilawati Devi both daughters of Ranglal Thakur
3. Nathuni Thakur
4. Jawahar Thakur
5. Matter Hazam
6. Ganesh Hazam
7. Dhanesh Hazam
All sons of Ranglal Thakur, resident of village-Chitakhal, post
Office-Chitakhal, Police Station-Guthani District Siwan
8. Neur Thakur, son of Balkhila Thakur, resident of village
Chitakhal, Post Office-Chitakhal, Police Station-Guthani,
District-Siwan
Defendant
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Shashi Shekhar Dwivedi, Senior Advocate
Mr. Satya Nand Shukla
For the Respondent/s : Mr. Binod Kumar Singh, Advocate
With Mr. Raghaw Prasad, Advocate
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL JUDGMENT
Date: 07-03-2013
1. A question has arisen in the present second
appeal as to what are the duties and obligations of the first
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appellate Court being the final Court of facts in exercise of
power under Section 96 of the Code of Civil Procedure:-
"i) Whether the first appellate Court in exercise of
such appellate power can mechanically dismiss the appeal
without adverting to the points raised and the issues involved
in the case?
ii) Whether even while affirming the order of the
trial Court the first appellate Court was required to scan
through and re-appreciate the evidence?"
2. The appellants in the present appeal are the legal
heirs of the original defendant Ramadhar Thakur, whereas
Respondent nos. 1 to 7 are legal heirs of the original plaintiff
Ranglal Hazam. Respondent no.8 was one of the defendants in
the trial Court.
3. Plaintiffs filed the suit seeking partition of the suit
property as mentioned in Schedule I of the plaint as also
Schedule II of the plaint and declaration that they had half
share in the suit property. Plaintiffs claimed that one Bikarma
Hazam had two sons, namely, Ranglal Hazam ( Plaintiff) and
Raj Bali Thakur. Raj Bali Thakur had one son Bal Khila Thakur
3 Patna High Court SA No.408 of 1993 dt.07-03-2013
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who had two sons, namely, Ramadhar Thakur (Defendant no.1)
and Neur Thakur (Defendant no.2). The suit land was
recorded in the name of Bikarma Hazam and the plaintiffs and
defendants were in joint possession over the suit property and
they had been cultivating the suit land separately according to
their choice for the sake of convenience. The plaintiffs further
pleaded that in an earlier suit between the parties, the plaintiff
was granted a decree and out of vengeance, the defendants
had been misappropriating the proceeds of the suit land which
compelled the plaintiffs to bring the suit for partition.
4. The defendants in their written statement, on the
other hand, denied unity of title and possession over the suit
land and denied that the plaintiff was son of Bikrama Hazam
as claimed by him. The specific case of the defendants before
the trial Court was that Bikarma Hazam had no son in the
name of Ranglal Thakur ( Plaintiff). The defendants asserted
that Bikrama Hazam had two sons, namely, Raj Bali Thakur
and Rajdhari Thakur and there was no question of plaintiffs
being in joint possession with the defendants with respect to
half share over the suit land according to their convenience as
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alleged in the plaint. The defendants pleaded that Raj Dhari
died leaving behind Shyam Lal Hazam and Raj Bali Hazam
died leaving behind two sons ( as against one as pleaded by
the plaintiff) Bal Khila Hazam and Murat Hazam. It was thus,
pleaded that Bal Khila and Murat had half share in the suit
property on the one hand and on the other Shyam Lal had half
share in the suit property. They further claimed that Murat
brother of Bal Khila sold away his interest in suit property by
registered sale deed dated 28.1.1961 in favour of the
defendants and put him in possession over the suit property.
Accordingly, Shyam Lal also sold away his interest in favour
of the defendants and thus the defendants had been coming in
possession over the entire suit land. As regards the plaintiffs,
the defendants made out a case that one Suraj Mal Hazam
died leaving behind his widow who in course of wandering
came to their ( defendants') village-Chitakhal and in course of
that a son was born who figured as plaintiff No.1 in the suit.
5. On the basis of such pleadings, learned trial
Court i.e. the Court of 6th Subordinate Judge, Siwan framed
seven issues which read thus:-
"(i) Whether the suit is barred by law of
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estoppel, acquiescence and limitation?
(ii) Whether the plaintiffs have paid
requisite court fee?
(iii) Whether the suit is barred by res-judicata
in view of decision in title suit no. 135 of 1979 that Ran
Lal was the son of Bikaram Hazam?
(iv) Whether late Bikaram Hazam had two
sons, namely, Raj Bali and Rang Lal or whether he had
two sons Raj Bali and Raj Dhari?
(v) Whether there is unity of title and
possession between the parties?
(vi) Whether the defendant have perfected
their title over the suit land by adverse possession and
ouster?
(vii) Whether the plaintiffs are entitled to a
decree for partition as prayed for?"
6. After having issues been framed the trial
commenced; evidence, both oral and documentary were
adduced. While deciding issue no.3, learned trial Court
dealt with the evidence on record in detail and came to the
finding that principle of res-judicata would not apply in
the said suit as the previous suit did not come within the
purview of Explanation viii to Section 11 of the Code of
civil Procedure.
7. Issue No.4 was the most crucial issue before
the trial Court on the point as to whether Late Bikarma
Hazam had two sons, namely, Rang Lal and Raj Bali or
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whether he had two sons, namely, Raj Bali and Raj Dhari.
This issue is most crucial in the sense that very birth of the
plaintiff in the family was questioned by the defendants in
suit for partition. From the judgment of the learned trial
Court, it will appear that the evidence of the witnesses were
dealt in detail. The learned trial Court considered the
depositions of P.W.1, P.W.2, P.W.3, P.W.4, P.W.6, P.W.7,
P.W.8 as also the defendants' witnesses i.e. D.W.1, D.W.2,
D.W.3, D.W.4 and D.W.6. On consideration of such oral
evidence as also some documentary evidence including
exhibit-1, which was registered sale deed dated 30.9.1997
executed by Narayan Nath Tiwari in favour of Rang Lal,
wherein Rang Lal had been shown as son of Bikarma
Hazam; Exhibit-3 R.S. Khatiyan and other exhibits, came to
the finding that Bikrama Hazam had no son in the name of
Raj Dhari Hazam and that Rang Lal Hazam ( Plaintiff) was
the son of Bikrama Hazam and that Bikarama Hazam had
two sons, namely, Rang Lal Hazam and Raj Bali Hazam.
8. Similarly, learned trial Court, dealing with issue
no. 5 held that there was unity of title and possession and
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negatived the plea of adverse possession raised on behalf of
the defendants with respect to which issue no.6 was framed. In
view of the above, the trial Court decreed the suit in favour of
the plaintiffs vide judgment dated 30.4.1991 and decree dated
18.5.1991. The appellants thereafter challenged the legality of the judgment and decree passed by the learned 6 th Subordinate Judge, Siwan by filing Title Appeal No. 29 of 1991/31 of 1992 in the file of learned 2nd Additional District Judge, Siwan. Learned 2nd Additional District Judge, Siwan vide impugned judgment and decree under appeal dismissed the appeal which has been challenged in the present second appeal. The second appeal has been placed before me for final hearing.
9. While admitting the present second appeal, following substantial question of law were framed for consideration vide order dated 25.2.1994:-
"(i) Whether the appellate Court was not required to consider the evidence on record and makes it own appraisal of the evidence before recording a finding?
(ii) Whether as first appellate Court, the court below was not required to consider the evidence on record in some detail after framing the questions which arose for consideration in the appeal?
(iii) Whether the findings recorded by the first appellate Court are not perverse, in as much as 8 Patna High Court SA No.408 of 1993 dt.07-03-2013 8 / 18 it has held Rang Lal to be son of Bikrama after recording a finding that Rang Lal was born to the widow of one Surajmal after his death, though she lived with Bikrama?"
10. I have heard Mr. Shashi Shekhar Dwivedi, learned Senior Counsel for the appellants and Mr. Binod Kumar Singh, learned counsel appearing on behalf of the respondents at length.
11. On perusal of the judgment and decree of the first appellate Court, it would appear that it contains altogether seven paragraphs. The first paragraph refers to the judgment and decree against which the first appeal was preferred. The second paragraph refers to the relief sought by the plaintiffs in this suit. Paragraph 3 briefly refers to the case of the plaintiffs. Paragraph 4 refers in short to the case of the defendants. Paragraph 5 refers to the submissions made on behalf of the appellants and on behalf of the respondents. There is no paragraph numbered as 6. After noting the submissions made on behalf of the appellants and respondents in paragraph 5 learned first appellate Court made the following observations (Two sentences):-
"I agree with the submissions of the learned counsel for the respondents on this point. No other 9 Patna High Court SA No.408 of 1993 dt.07-03-2013 9 / 18 point was raised in this appeal."
12. In paragraph 7 of the judgment under appeal learned 2nd Additional District Judge, Siwan has dismissed the appeal in following terms:-
"7. From perusal of the impugned judgment I find that the learned Sub-Judge has considered the case of both the parties. He has discussed the evidence and has given cogent reasons for decreeing the plaintiffs' case. Accordingly, the impugned judgment is upheld and this appeal is dismissed. There will be no cost of the appeal."
13. Mr. Shashi Shekhar Dwivedi, learned Senior Counsel appearing on behalf of the appellants has submitted that the first appellate Court miserably failed to discharge its obligation cast upon it under Section 96 of the Code of Civil Procedure. He submits that it was mandatory upon the first appellate Court to abide by the mandate of Order 41 Rule 31 of the Code of Civil Procedure. According to him, even while affirming the judgment of the trial Court, the first appellate Court was obliged to formulate the points for determination and state the decision on such points and further, assign reasons for the decision. Thus, the mandatory requirements 10 Patna High Court SA No.408 of 1993 dt.07-03-2013 10 / 18 having not been fulfilled by the First appellate Court, the judgment under appeal would vitiate and is liable to be set aside. He has placed reliance on a judgment of the Supreme Court reported in (2001) 4 SCC 756 ( Madhukar Vs. Sangram) in order to contend that sitting a Court of First appeal it was the duty of the learned Additional District Judge to deal with all the issues and the evidence led by the parties before recording its findings. He has also placed reliance on a judgment reported in ( 2009) 4 SCC 791 ( Nicholas V. Menezes Vs. Joseph M. Menezes and others) to contend that the first appellate Court ought to have considered the evidence on record it failed to do. Reliance has also been placed on another judgment of the Supreme Court reported in ( 2010) 13 SCC 530 ( B.V. Nagesh and another vs. H.V. Sreenivasa Murthy), wherein the duties of the Courts while adjudicating the first appeal have been considered with reference to the provision under Order 41 Rule 31 of the Code of Civil Procedure.
14. Mr. Binod Kumar Singh, learned counsel appearing on behalf of the respondents, on the other hand, would contend that the judgment of the trial Court is quite in detail and the 11 Patna High Court SA No.408 of 1993 dt.07-03-2013 11 / 18 learned trial Court has discussed and taken into account the entire evidence both oral and documentary available on record and findings of the trial Court are based on the evidence available and cannot be said to be contrary to any evidence available on record. In such view of the matter, he submits that if the First appellate Court concurred with the findings of fact arrived at by the learned trial Court, the same cannot be said to be perverse even if it does not deal in detail by repeating the evidence already taken into consideration by the trial Court and the reasons assigned by the trial Court. He would submit that in a judgment of affirmance by First appellate Court, it is not essential that the first appellate Court assigned reasons for agreement with the judgment of the trial Court.
15. After having heard learned counsel for both the parties and having perused the judgment of the first appellate Court, operative portion of which has been quoted hereinabove, I am of the view that the submission made by Mr. Shashi Shekhar Dwivedi, learned Senior Counsel has substance. Learned first appellate Court had a duty in view of repeated pronouncements of the Supreme Court to 12 Patna High Court SA No.408 of 1993 dt.07-03-2013 12 / 18 conform to the requirements as laid down under order 41 Rule 31 of the Code of Civil Procedure which is being quoted hereinbelow for ready reference:-
"31. Contents, date and signature of judgment- 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 there."
16. In case of Madhukar Vs. Sangram ( supra) dealing with the similar issue the Supreme Court relied upon another judgment reported in (2001) 3 SCC 179( Santosh Hazari V. Purushottam Tiwari), and observed that judgment of the appellate Court must reflect its conscious application of mind and it must record its findings supported by reasons, on all the issues along with the contentions put- forth and pressed by the parties for decision before the appellate Court.
17. Similarly in case of Nicholas Vs. Joseph M. Menezes ( supra) also the Supreme Court has held in paragraphs 3 and 4 as follows:-
13 Patna High Court SA No.408 of 1993 dt.07-03-2013 13 / 18 "3. It is well settled that while deciding a first appeal, the High Court must consider the evidence on record, oral and documentary and also the questions of law raised before it and at the same time it was the duty of the Court to consider the reasons given by the trial Court against which the first appeal was filed and thereafter dispose of the same after passing a speaking and reasoned order in accordance with law.
4. In the present case, having gone through the judgment of the High Court, we find that this procedure was not adopted by the High Court. That being the position, we set aside the judgment of the High Court and send the case back to it for consideration of the appeal on merits."
18. In case of Nicholas V. Menezes ( supra), the Apex Courtreiterated that first appeal was a valuable right of the parties and the judgment of the appellate Court must reflect its conscious application of mind and record findings supported by reasons on all the issues.
19. This has been consistent endeavour of superior Courts to ensure that the judicial orders are supported by reasons as the reasons are the link between the mind of the judge and decisions in a case. Reference may also be made in this regard to the Apex court judgment reported in (2004) 5 SCC 573, ( State of Rajashtan v. Sohan Lal and others), wherein while dealing with provision of appeal Section 378 14 Patna High Court SA No.408 of 1993 dt.07-03-2013 14 / 18 of the Code of Criminal Procedure, 1973 it held that affirming of the judgment/order in exercise of judicial power by a judicial forum is to disclose reasons for its decisions and giving all reasons had been insisted upon as one of the fundamentals of sound justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court. Any judicial power has to be exercised judicially. Reference may also be made to the Apex Court judgment reported in ( 2011) 7 SCC 289 (Chandna Impex Private Limited vs. Commissioner of Customs, New Delhi), wherein emphasizing the need for recording reasons in judicial orders, the Court held that every litigant who approaches Court for relief is entitled to know reasons of reflection his prayer, particularly when either of the parties to the lis has a right of further appeal. The Supreme Court went to hold that unless the litigant was made aware of the reasons which weighed with the Court in denying him the relief prayed for, the remedy of appeal will not be meaningful.
20. Similarly in ( 2010) 13 SCC 336 ( Sant Lal Gupta 15 Patna High Court SA No.408 of 1993 dt.07-03-2013 15 / 18 and others vs. Modern Cooperative Group Housing Society ltd.), the Supreme Court reiterated its earlier view holding that not only administrative but also judicial orders must be supported by reasons recorded and while deciding an issue the Court is bound to give reasons for its conclusion. Paragraph 27 of the said judgment is being quoted hereinbelow for the benefit of quick reference:-
"27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has already been insisted upon as one of the fundamentals of sound administration of justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice.
"3........... The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken as also the fact that the Court concerned had really applied its mind."* The reasons is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity.
16 Patna High Court SA No.408 of 1993 dt.07-03-2013 16 / 18 The absence of reasons renders an order inbdefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. ( Vide State of Orissa V. Dhaniram Luhar 16, State of Rajasthan Vs. Sohan Lal 17, Vishnu Devi Sharma V. State of U.P. 18, Sail V. STO 19, State of Uttaranchal V. Sunil Kumar Singh Negi 20, U.P. SRTC V. Jagdish Prasad Gupta 21, Ram Phal V. State of Haryana,22, State of H.P. V. Sada Ram 23 and Victroria Memorial Hall V. Howrah Ganatantrik Nagrik Samity24)."
21. Further in recent judgment reported in (2012) 4 SCC 407 (Ravi Yashwant Bhoir V. Collector) the Supreme Court reiterated the requirement of assigning reasons for conclusion by the Courts. The Court reiterated that reason was heartbeat of every conclusion and clarity in the order and without reasons the order would become lifeless.
22. From the judgment of the first appellate Court in the present appeal, I find that there is absolutely no discussion on the issue raised by the appellants before the Court. There is no independent appreciation of the evidence and material available on record, by the first appellate Court. 17 Patna High Court SA No.408 of 1993 dt.07-03-2013 17 / 18 The manner in which the learned first appellate Court passed the judgment cannot be said to be more than mere ritual of disposing of an appeal with general observation that he was in agreement with the findings of fact arrived at by the learned trial Court. The judgment under appeal does not deal at all as to why the issues raised on behalf of the appellants were not acceptable to it.
23. In view of the above discussions, I am of the view as regards the substantial questions of law Nos. 1 and 2 that the appellate Court was required to consider the evidence on record and make its own appraisal of the evidence in some detail after framing the questions which arose for consideration in the appeal and in the absence of such consideration and re-appraisal of evidence, I find the judgment and decree passed by the first appellate Court dated 28.6.1993 in Title Appeal No. 29 of 1991/31/1992 cannot be sustained and is, accordingly, set aside.
24. The appeal is remanded back to the first appellate Court for consideration afresh in accordance with law. This is to be noted that as the judgment and decree under appeal 18 Patna High Court SA No.408 of 1993 dt.07-03-2013 18 / 18 has been set aside on the ground of absence of consideration. I have not gone into the third substantial question of law as framed by this Court while admitting the present second appeal and I have not gone into other merits of the appeal. The present second appeal is, accordingly, allowed. There shall, however, be no order as to costs.
25. Taking note of the fact that the suit for partition and the parties are litigating since, 1989, I direct learned District Judge, Siwan to ensure that the appeal is expeditiously heard and finally decided and if the Court learned second Additional District Judge is vacant, it may be posted before any other Court of competent jurisdiction of expeditious disposal of the appeal. Let the record be sent to the Court of Learned District Judge, Siwan.
(Chakradhari Sharan Singh, J) Arun Kumar/-