Jharkhand High Court
Smt.Geeta Devi & Ors. vs Smt.Parmeshwari Devi Saraf & O on 10 February, 2009
Equivalent citations: 2009 (3) AIR JHAR R 688, 2010 A I H C 605 (2009) 2 JCR 222 (JHA), (2009) 2 JCR 222 (JHA)
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
Appeal from Appellate Decree No.34 of 2006
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Against the judgment and decree dated 4.1.2006 and 16.1.2006 passed by 18th Additional Judicial Commissioner, Ranchi in Title Appeal No.114/1994.
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Smt. Geeta Devi & ors ... Appellants
-Versus-
Smt Parmeshwari Devi Saraf & ors Respondents
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For the Appellants : M/s P.K.Prasad, Sr. Advocate &
R.Gupta, Advocate
For the respondents : None.
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PRESENT: HON'BLE MR. JUSTICE M.Y.EQBAL
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M.Y.Eqbal,J: Heard Mr. P.K.Prasad, learned senior counsel for the
appellant. No one appears on behalf of the respondents. On the earlier occasion also no one appeared on behalf of the respondents.
2. This appeal, by the defendants-appellants, is directed against the judgment and decree dated 4.1.2006 passed by 18th Additional Judicial Commissioner, Ranchi in Title Appeal No.114/94, whereby he has affirmed the judgment and decree dated 22.6.94 passed by Sub Judge 6th, Ranchi in Eviction (Title) Suit No.4/89.
3. The plaintiffs-respondents filed the aforementioned suit for eviction of the defendants on the ground of non-payment of rent of the tenanted premises, which consisted of shop premises and residential premises. The plaintiffs' case was that one Haribux Poddar was the owner of the suit property bearing Municipal Holding No.779 situated at Upper Bazar Ranchi. One Shankar Lal Rungta and Ram Gopal Rungta were brother-in-law of Haribux poddar. The plaintiff's case is that Haribux Poddar poddar was the proprietor of the firm M/s Sheo Narayan Hariibux, which was being carried on in a portion of the ground floor in the building premises. 2 The two brother-in-law, namely, Ram Gopal Rugta and Shankar Shankar Lal Rungta were appointed as manger in the said firm and were allowed to reside in the residential premises. Subsequently Haribux Poddar died in 1973 leaving behind four daughters. According to the plaintiffs, after the death of Haribux Poddar said Ram Gopal Rungta and Shankar Lal Rungta were taken as working partner in the said firm and the business was converted into partnership business. Subsequently the widow of Haribux Poddar also died in 1976. The plaintiffs, who are the daughters of Haribux Poddar then instituted the suit alleging, inter alia, that the said Ram Gopal Rungta and Shankar Lal Rungta, after resigning from partnership firm, continued in occupation of premises as tenants. I need not discuss the entire pleadings of the plaintiffs and the defendants. Suffice it to say that defendants denied relationship of landlord and tenant and claimed title in themselves. Both the parties have led evidence both oral and documentary. From the side of the plaintiffs various documents including partnership deed, Ext.2 and and Ext.5 were filed. The trial court, after discussing the evidence recorded that the relationship between plaintiffs and the defendants have been proved and a case of defaulter has been made out. The suit was accordingly decreed.
4. Aggrieved by the said judgment and decree the appellants preferred Title Appeal No.114/94. The appellate court affirmed the finding recorded by the trial court and dismissed the appeal.
5. It is interesting to point out here that the discussion and finding recorded by the trial court has been reproduced in verbatim by the appellate court in his judgment. Each line and every word of the trial court finding has been reproduced in the judgment by the appellate court while recording a finding on the issue of relationship of landlord and tenant and on the issue of default. 3
6. There is no need to refer any decision on the settled proposition of law that when the appellate court fails to follow the mandatory requirement of Order 41 Rule 31 CPC, the judgment of the appellate court cannot be sustained in law.
7. It is equally well settled that the finding of two courts is binding in second appeal when the finding of the appellate court must be an independent finding after application of mind and discussing the evidence as also after meeting the reasoning given by the trial court. Prima facie I am of the view that the appellate court has not applied his mind while passing the impugned judgment rather he, for the purpose of disposal of the appeal, reproduced the entire findings of the trial court and dismissed the appeal. The impugned judgment and decree passed by the appellate court, therefore, cannot be sustained in law and the matter needs to be remanded back to the lower appellate court for passing a fresh judgment after compying the requirement of law and after giving independent reasonings on the basis of evidence adduced by the parties including all the exhibits that have been proved and marked from the side of the plaintiffs-respondents including Exts.2 and 5.
8. In the aforesaid premises, this appeal is allowed the impugned judgment and decree passed by the court of appeal below is set aside. The mater is remanded back to the court of appeal below for deciding the appeal afresh after giving opportunity of hearing to both the parties.
(M.Y. Eqbal, J. ) Jharkhand High Court, Ranchi, The 10th February, 2009, Pandey/ A.F.R.