Patna High Court
Sheikh Bashiruddin And Ors. vs Dhani Mohammad And Anr. on 5 April, 1968
Equivalent citations: 1968(16)BLJR374
JUDGMENT Raj Kishore Prasad, J.
1. Defendants-first party are the appellants. Defendants 1 and 2 are the sons and defendant No. 3 is the daughter of the deceased, Karu, and these three constitute defendants-first party. They have appealed from the judgment of the learned Additional Subordinate Judge, Third Court, Purnea, who set aside the judgment, and decree of the trial court and decreed the plaintiff's suit on contest against defendants-first party arid without contest against the rest.
2. In order to appreciate the arguments presented by Mr. M. Mazhar Hussain, on behalf of the appellants, and, Mr. S. Akbar Hussain, on behalf of the plaintiff-respondent No. 1, it would be useful to state the facts of the case so far as they are material for deciding the present appeal.
3. The disputed lands are C.S. No. 249 under Khata 22 having an area of 1.16 acres which is equivalent to R. S. Plots 592 and 595 having an area of 1.25 acres. The other plots are C.S. Plots 19, 60 and 63 under Khata 31(Ka) which are equivalent to R. S. Plots 217, 222 and 230 having an area of 1.38 acres. The total area of the lands in dispute, therefore, is 2.54 acres. These lands admittedly belonged to three brothers, namely, Karu, father of the appellants; Moniruddin and Maruf. The aforesaid three brothers sold the disputed lands to two persons, namely, Doman and Basarat, who subsequently, in their turn, sold the lands again to Karu and Moniruddin only. Later on, the heirs of Karu and Moniruddin sold the lands in suit on 4-3-1943 under Ext. 1 to four persons, namely, Dost Mohammad, Shamsul, Bali alias Biloo and Mali, who subsequently died heirless. The area conveyed under Ext. 1, as appears from the sale deed, is 2.11 acres. Sometime later, in 1954, the heirs of Dost Mohammad, Shamsul and Bali executed a sale deed in favour of the plaintiff in the name of defendant No. 4, Insar Ali, who is respondent No. 2 before this Court, under a sale deed dated 9-5-1954, Ext. 1/a. In the Survey Record of Rights, defendant No. 1 was recorded as Sikmidar under the plaintiff, who is respondent No. 1.
4. The plaintiff, therefore, brought the suit, out of which the present appeal arises, for a declaration that the survey entry recording defendant No. 1, as Sikmidar, was wrong, inasmuch as, defendant No. I is not Sikmidar at all nor he ever was or is in possession of the land in suit and that the plaintiff has always been in possession of the suit land.
5. The suit was contested by the defendants-first party mainly on three grounds: (a) that the sale deed, Ext. 1, executed in favour of Dost Mohammad and others was a Farzi document and it was never acted upon and the defendants always continued in possession of the lands in suit; (b) that the sale, Ext. 1/a, in the name of defendant No. 4 is a genuine transaction and the defendants have always been in possession of the lands in suit; and, (c) that the defendants are Raiyats of the lands in suit and not Sikmidars as wrongly recorded in the Survey Record of Rights.
6. The trial court, after a consideration of the evidence, oral and documentary of both sides, came to the conclusion, as will appear from paragraph 30 of its judgment, that the defendants-first party were in actual possession of the suit lands and they were Kayami tenants regarding them and the sale deed, Ext. 1, was Farzi, and, therefore, Dost Mohammad and others, the vendors of the plaintiff, have no title and possession and have consequently transferred no title and possession to the plaintiff and that the survey entry should have been Kayami in the names of the defendants-first party and they have wrongly been recorded as Sikmidars under the plaintiff. The learned Additional Munsif further held that the plaintiff had no title or possession anytime within 12 years of the suit and so the suit was also barred by limitation and as such, the plaintiff was not entitled to the declaration sought for or to a decree for confirmation of possession.
7. The plaintiff, therefore, took the matter in appeal, which was heard by the learned Additional Subordinate Judge, Third Court, Purnea, who reversed the judgment of the trial court and decreed the plaintiff's suit. The learned Judge held that the sale deed of the plaintiff, Ext. I/a, is genuine and, therefore, he was in possession of the suit land. He further held that due to a false claim set up by the defendants, a wrong entry was made in the record of rights recording defendant No. 1 as Sikmidar; but the survey entry is wrong. He further held that the sale deed, Ext. 1, in favour of Dost Mohammad and his brothers was a genuine transaction.
8. On appeal, it was argued by Mr. M. Mazhar Hussain, in support of the appeal, that it was not a proper judgment of reversal, because (i) the court of appeal below had not considered at all the evidence of the witnesses of the plaintiff on the point of possession; (ii) the court of appeal below has not considered the documents in favour of the defendants, such as, Exts. C. B to B/7, G and G/l and 4 and 6; (iii) the court of appeal below has not decided whether defendant No. 1 was a Sikmidar of the land in suit as recorded, in the survey record of rights; and (iv) the court of appeal below has also not decided whether defendant No. 4 was a Farzidar of the plaintiff.
9. In reply, it was contended by Mr. S. Akbar Hussain that the appeal is concluded by findings of fact, and, therefore, on second appeal, the judgment of the court of appeal below should not be reversed. He further contended that it is true that the evidence of the witnesses of the plaintiff have not been specifically dealt with; but, in fact, the evidence has been considered, as will appear from paragraph 10 of the judgment of the court of appeal below. He further contended that the court of appeal below has also considered, Exts. G and G/1, although not specifically mentioning those exhibits, as will appear from paragraph 9 of its judgment. It was, therefore, contended that the judgment of the court of appeal below should be affirmed.
10. We are concerned in this case with a judgment of reversal. In order to decide whether this judgment is a proper judgment of reversal, the basic principles which should guide a first appellate court should be borne in mind. It has been 'repeatedly pointed out by this Court in several cases, such as, for instance, Bhagtoan Singh v. Ujagir Singh A.I.R. 1940 Pat. 33, which was followed in Sailajananda Pandey v. Lakhichand Sao ;
Lala Suraj Prasad v. Ram Charitar Singh , that the Legislature has entrusted a very important duty to the first appellate court and it is for that court to decide finally all questions of fact on which the disposal of the suit might depend, but it must appear from the judgment of the lower appellate court that it has made an honest endeavour to make a proper appraisement of the merits of the cases put forward by the parties, and it should never appear to the litigant public or to the superior court that it has agreed with the trial court simply because it was not inclined to take much trouble over the case. In a case of reversal, it is more important for the court of appeal below to consider the evidence and also the reasonings of the trial court and thereafter to give its reasons for not agreeing with the findings of the trial court. There must be a sufficient discussion to show that it has applied its own mind to the evidence. As observed by Rowland, J. in the first case, above mentioned':
I do not propose to decide the questions of fact arising in this case, or to go into the details of the depositions to see whether the substantial facts I have referred to can be outweighed by points scored in a contest of wits between cross examiner and witness in the box. The proper place for that is the Court of Appeal below. The Legislature has thought fit to entrust to the first Appellate Court the final decision of all matters of fact on which the disposal of the suit turns. Every officer in this position should, realize that the confidence thus reposed in him implies a corresponding duty and trust, that he will to the best of his power weigh and balance the evidence, facts and considerations appearing on both sides. He should endeavour so to decide his cases that his judgment may carry a conviction if not of its correctness, at least of a fair endeavour to place a correct valuation on the merits of the cases of both sides. He should never let it appear, either to the public or to a superior Court that he has chosen to accept the evidence of one side or the other without due consideration of the salient facts established and contrary to the conclusion to which the outstanding facts point, arbitrarily or on patently inadequate grounds. In short, the judgment ought to show that the Judge has been led to a particular conclusion by the force of the facts and not that he has had a fancy to adopt a particular conclusion and then made a one-sided presentation of the facts to support that conclusion. The danger that in any particular case a decision on facts may be against the weight of evidence and hardship may result is one that the Legislature has deliberately chosen to take relying on the good sense, experience, honesty and impartiality of the officers selected to discharge these important duties. All the more therefore it is incumbent on such an officer to see that in the discharge of his functions not only are none of these important qualities wanting but none shall even appear to be wanting. And particular care should be taken to avoid even the suspicion of bias in dealing with the rights of parties or the decision of a subordinate officer of a different religion or community from one-self.
In a case of affirmance, it has been held by the Supreme Court, for instance, in Girjnnandini Devi v. Bijendra Narayan Choudhary 1967 B.L.J.R. 513 that "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 effect of the evidence or 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."
11. Admittedly here the most important question was the question of possession as to whether the plaintiff was in possession or the defendants were in possession and on the decision, of that important question rested the other questions raised by the parties. While considering the question of possession, the trial court considered the evidence of each of the witnesses of the plaintiff and after considering and scrutinising their evidence, it found that the plaintiff had failed to prove that he had any time come in actual possession of the suit land or that his vendors were any time in possession of the same. The trial court considered also the evidence of the defendants and after consideration of the same it held that the defendants first party were, in fact, coming in continued possession of the suit lands in spite of Ext. 1. The trial court also considered the documents on the question of possession which are mentioned in paragraph 27 of its judgment. On looking to the judgment of the lower appellate court I do not find any consideration of the evidence of the plaintiff's witnesses nor do I find any mention, much less consideration of the documents, such as, Exts. B to B/7, C, 4 and 6, on which the defendants relied and which 'are considered by the trial court in Paragraph 27 of its judgment, in order to decide whether the trial court was right in not relying on the plaintiff's evidence and in relying on defendants' evidence. The court of appeal below was aware that the trial court had not relied on the evidence of the plaintiff's witnesses and had relied on the evidence of the defendants' witnesses for coming to the conclusion that the plaintiff was not in possession and the defendants were in possession. In spite of that fact, it did not take the trouble of considering itself the evidence of the witnesses of both sides in order to judge whether the findings of the trial court could be sustained or reversed. This omission of the court of appeal below to consider the evidence of the plaintiff's witnesses is certainly a very strong circumstance in favour of the appellants. It was open to the court of appeal below not to agree with the finding of the trial court but it was its bounden duty to consider for itself the entire evidence, oral and documentary, before reversing the judgment of the trial court. Simply recording findings of fact, without any discussion of the evidence, is, in my opinion, no judgment at all. Such a judgment cannot be said to be a proper judgment of reversal. The court of appeal below may ultimately be correct, if it had considered the evidence, in reversing the judgment of the trial court, but it must appear from the judgment itself that the court of appeal below has considered all the reasonings given by the trial court for coming to the contrary conclusions. In this view of the matter, the judgment under appeal cannot stand.
12. As I have decided to remand the appeal, I do not wish to express any opinion on the merit of the case which might prejudice the parties and embarrass the court of appeal below in coming to its own independent conclusion. But the attention of the court of appeal below is drawn to the decisions, referred to above, in which the duty of the first appellate court has been elaborately laid down.
13. For the reasons given above, I would allow the appeal, set aside the judgment and decree of the court of appeal below and remand the appeal to it for a fresh hearing and a fresh decision in accordance with law, after a consideration of the evidence, oral and documentary, of both sides and also after a consideration of the reasonings given by the trial court. Parties will bear their own costs of this Court.