Himachal Pradesh High Court
Ram Gopal And Others vs Of on 21 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 305 of 2009 .
Reserved on: 29.08.2023 Date of Decision: 21.09.2023 Ram Gopal and others ....Appellants.
Versus of Brij Lal (since deceased) through LRs. ...Respondents.
Coram rt Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the appellants: Mr. Bhupinder Gupta, Sr. Advocate with Mr. Pranjal Munjal, Advocate.
For the Respondents: Mr. N.K. Thakur, Sr. Advocate, with Ms. Ritu Singh, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 28.3.2009, passed by learned Additional District Judge, Una, vide which the appeal filed by respondents (defendants before learned Trial Court) was allowed. (Parties 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 2shall hereinafter referred to in the similar manner in which they were arrayed before learned Trial court for convenience).
.
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking permanent prohibitory injunction for restraining the defendants from raising any construction or of encroaching upon the portion ABCD shown in the site plan rt (Ex.PW-4/A), situated in Abadi Deh and part of Khasra No.-
3350, situated in Village Saloh, Tehsil and District Una as entered in the Jamabandi for the year 1982-83, (hereinafter referred to as the suit land). The relief of possession of removing the superstructure raised, if any, raised during the pendency of the suit was also sought. It was pleaded that plaintiffs are the co-owners in possession of the houses shown in green colour denoted by the letters KGHBCDJI in the site plan (Ex.PW-4/A).
Portion GHBCDJM is a courtyard within the Abadi Deh. The defendants have no right, title or interest over the same. A plot of the defendants exists towards the Eastern side of the Abadi denoted by the letters BEFC. The defendants are threatening to raise construction over the courtyard of the plaintiffs depicted by the letters ABCD. The plaintiffs requested the defendants not ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 3 to do so but in vain. Hence, the suit was filed to seek the reliefs mentioned above.
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3. The suit was opposed by filing a written statement denying the contents of the plaint. However, it was admitted that the plaintiffs are owners of Abadi. The correctness of the site plan filed by the plaintiffs was disputed. It was asserted that of a passage separates the abadi of the parties. The defendants' rt plot comprised of portion ABCD and BCFE shown by the plaintiffs in their site plan. The suit was filed without any basis;
hence, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. Learned Trial Court framed the following issues on 07.12.1993 and an additional issue on 11.3.2005:-
1. Whether the plaintiffs are owners in possession of the disputed site marked by letters ABCD as shown in the site plan? OPP.
1-A. If issue No.1 is proved in affirmative, whether the plaintiffs are entitled for the relief of injunction as prayed for? OPP.
2. Whether the plaintiffs have got no cause of action?
OPD.
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 43. Whether the suit has not been properly valued for the purpose of jurisdiction and Court fees if so, what is the correct valuation of the suit property? OPD.
.
4. Relief.
6. The parties were called upon to produce the evidence and plaintiffs examined Sant Kumar (PW-1), plaintiff No.3 of Kashmiri Lal (PW-2), Santosh Kumar (PW-3), Pyare Lal (PW-
4), Prem Lal (PW-5), Mangat Ram (PW-6) and M.G. Sharda rt (PW-7). Defendant No.5 examined himself as (DW-1), Ghuman Ram (DW-2) and Ganesh Chand Sharma (DW-3).
7. The learned Trial Court held that an earlier suit No.680 was pending between the parties which was instituted on 31.12.1960 and decided on 15.11.1961. The present defendants no. 1 to 4 were the plaintiffs No.1 to 4 in the suit. The present defendants (plaintiffs in that suit) filed a site plan (Ex.PW-1/A) in that suit which is similar to the site plan (Ex.PW-4/A) filed in the present suit. The correctness of the site plan (Ex.PW1/A) was admitted by Brij Lal. The site plan (Ex.DW-3/A) filed by the defendants is not correct as the dimensions of the land shown in the same were different from the site plan stated on oath by the defendants. The previous site plan was duly proved. It amounted ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 5 to admission made by the present defendants and they cannot resile from the same. The version of the plaintiffs that the .
portion ABCD is part of their house appears to be more probable.
The defendants have no right to interfere with the land of the plaintiffs, hence learned Trial Court answered Issue no.1A in the affirmative, rest of the issues in negative and decreed the suit of of the plaintiffs.
8. rt Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendants filed an appeal, which was decided by learned Additional District Judge, Una, H.P. Learned First Appellate Court conducted the spot inspection 21.3.2009 in the presence of the parties and found that a passage from North to South dividing the vacant land existed between the abadis. There was a courtyard towards the East abutting the abadis of the defendant and a courtyard towards the West abutting the abadi of the plaintiffs. Hence, the version of the defendants that the land of the parties was separated by a passage appeared to be highly probable. The site plan produced by the plaintiffs does not show any passage and no reliance could be placed upon the same. The version of the plaintiffs that the vacant land belonged to them was not ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 6 probable. Hence, the learned First Appellate Court accepted the appeal and set-aside the judgment and decree passed by the .
learned Trial Court.
9. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the appellants/plaintiffs filed the present appeal asserting that the of learned First Appellate Court committed a grave error by relying rt upon the facts ascertained at the time of spot inspection to discard the oral and documentary evidence led before it. The site plan produced by the plaintiffs was duly corroborated by the previous site plan (Ex.PW-1/A);the correctness of which was admitted by Brij Lal (DW-1). The existence of the passage was not material, as the dispute was regarding the vacant land existing between the abadis and the parties. Learned First Appellate Court heavily relied upon its observations to upset the findings recorded by the learned Trial Court, which is not permissible. Therefore, it was prayed that the present appeal be allowed and that judgment and decree passed by the learned First Appellate Court be set-aside.
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 710. The appeal was admitted on the following substantial questions of law on 28.8.2009:-
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1. Whether the Lower Appellate Court has acted in excess of jurisdiction in making the spot inspection, when the application was not in consonance with the provisions of Order 18 of the Code of Civil Procedure?
2. Whether the Lower Appellate Court has committed a of grave error of law and jurisdiction in relying upon the observations made during spot inspection to contradict the oral and documentary evidence and basing its decision on the basis of such spot rt inspection?
3. Whether the impugned judgment and decree passed by Lower Appellate Court is vitiated on account of misreading the material documents i.e. Ex.PW-1/A, PW-4/A and DW-3/A besides the testimony of PW-1, PW-2, PW-3 and P-4?
4. Whether the Lower Appellate Court has failed to take into consideration the principles of Evidence Act regarding admissions? Has not Lower Appellate Court acted in excess of jurisdiction in ignoring the admissions made by defendant who appeared as DW- 1 accepting the correctness of site plan Ex.PW-1/A which was produced in previous judicial proceedings?
5. Whether the Lower Appellate Court has acted in an erroneous and perverse manner to reserve the well-
reasoned findings of the Trail Court without even making remote reference and arising sufficient and cogent reasons for not agreeing with the findings of the Trial Court?
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 811. I have heard Mr Bhupender Gupta, learned Senior Advocate, assisted by Mr. Pranjal Munjal, Advocate, for the .
appellants/plaintiffs and Mr. N.K. Thakur, learned Senior Counsel, assisted by Ms. Ritu Singh, Advocate, for the respondents/defendants.
12. Mr. Bhupender Gupta, learned Senior Advocate, for of the appellants-plaintiffs submitted that the learned First rt Appellate Court visited the spot and did not prepare any memorandum as required under Order 18 Rule 18 of CPC.
Learned First Appellate Court could not base its decision on the observation made by it at the time of spot inspection. Learned First Appellate Court erred in reversing the findings of fact solely upon the result of the spot inspection. The admission made by the defendant Brij Lal regarding the correctness of the site plan (Ex.PW-1/A) was ignored by the learned First Appellate Court; therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set-aside.
13. Mr. N.K. Thakur, learned Senior Counsel for respondents/defendants supported the judgment and decree ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 9 passed by the learned First Appellate Court. He submitted that the learned First Appellate Court had not solely relied upon the .
result of the spot inspection. It also considered the evidence led by the parties. The correctness of the site plan of the defendants was duly proved on record and there is no infirmity in the findings recorded by the learned First Appellate Court; hence, he of prayed that the present appeal be dismissed.
14. rt I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Substantial Question of Law Nos.1 and 2:
15. These substantial questions of law are interconnected and are being taken up together for convenience.
16. Learned First Appellate Court held in para 17 of its judgment that an application for spot inspection was filed, which was not contested by the plaintiffs. The learned Presiding Officer visited the spot on 21.3.2009 and found that a passage existing from North to South divided the vacant land existing between the abadis. There was a courtyard towards the East abutting the abadis of the defendants and a courtyard towards ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 10 the West abutting the abadis of the plaintiffs. In view of this, the correctness of the site plan filed by the plaintiffs was doubtful .
because no such passage was shown. Further, dimensions towards the North in the two site plans were different.
17. It is apparent from the judgment of the learned First Appellate Court that it based the findings upon the spot of inspection conducted by the learned Presiding Officer. Order 18 rt Rule 18 of CPC empowers the Judge to carry out the spot inspection, which reads as under:-
"18. Power of Court to inspect The Court may at any stage of a suit inspect any property or thing concerning which any question may arise and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit."
18. It is apparent from the bare perusal of the provisions that the Court has the power to inspect but it has to prepare a memorandum and such memorandum has to form the part of the record. In the present case, no such memorandum was prepared. Further, Order 18 does not empower the Judge to base the judgment upon observations made on the spot.It was laid ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 11 down by Mysore High Court in T. Krishnaswamy Rao v.
Dundappa, 1960 SCC OnLine Kar68: ILR 1961 Mys 53: AIR 1962 Mys .
17 at page 55 that the observations of the Judge at the time of spot inspection cannot substitute the evidence led before the Court and no judgment can be passed upon such observations. It was observed:-
of "The learned District Judge bases his decision mainly on his personal inspection. That part of the judgment which rt is relevant for the purpose runs thus:
"There was a personal inspection made by me after hearing both sides on 7-10-1950 and on this occasion, I noted that the rafters on which the roof of the plaintiff's house rests were protruding into this common wall throughout including the portion along D.W. 1's house on the other side. The facts noticed or me at the personal inspection show that the plaintiff's case that the wall is common to him and the defendants is true and that the evidence produced on the side of the defendants cannot be true and that the wall is not the exclusive property of the defendants."
This indicates that the learned Judge has given importance to his personal inspection of the spot and to what he has observed at that time. In fact, he uses his observation as against the evidence in the case. This is not warranted either in the procedure or in law. Personal inspection by the Presiding Judge is set out in Order 18 Rule 18 of the Code of Civil Procedure which runs as follows:--
"The Court may at any stage of a suit inspect any property or thing concerning which any question may arise."::: Downloaded on - 21/09/2023 20:35:40 :::CIS 12
Nowhere it is laid down that the observations of the Judge at the time of the inspection could be substituted as evidence in the case and a judgment based on the same. In .
fact, there are certain cases which discourage such a procedure following the case of KessavojiIswar v. The Great Indian Peninsular Railway Company I.L.R. 31 Bom. 381 (P.C.). The learned Judges of the Bombay High Court inspected the spot to find out whether the plaintiff in the case was entitled to get damages for the fall from a train and based their decision on those observations. This of course was disapproved by their Lordships of the Privy Council. They held that the case was decided not on the testimony given as to what took place on the night of the accident but by Judges' observations of what they saw on rt another night altogether.
In a Bench decision of the Calcutta High Court in Rai Chandra Banik v. Iswar Chandra Banik [A.I.R. 1925 Cal. 170.] it was held as follows:--
"Though the present Code empowers the Court to go on local inspection of any property in respect of which it is called upon to decide a question in controversy, it is still the duty of the Court not so make the result of such inspection the foundation of its Judgment which must be based upon evidence adduced by the parties. It does not entitle the judge to put his view obtained by means of such inspection in place of evidence. The Judge is to hold such inspection for the purpose of better following and understanding the evidence adduced before him or to test its accuracy. The Code nowhere lays down that the result of a local enquiry must be placed on record."
The limits to which the views of the Judge on inspection could be used are laid down in this decision. They can be used only for the purpose of better following and understanding the evidence adduced in the case or to test its accuracy. But it is not the purpose of such inspection to be substituted as evidence in the case or to contradict the ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 13 evidence placed before the Court and make it the foundation of the judgment. Similar are the observations in the cases of Mohammed Ishaq v. Balmakund Lal A.I.R. .
1929 All. 116, GujuMahato v. JogendraNath A.I.R. 1935 Pat.
457, Abdul Bagi v. M. Fakhrul Islam, A.I.R. 1937 Pat. 333 and Hari Prasad Sahu v. RopnaKharia A.I.R. 1938 Pat. 238. To my mind it appears that a salutary rule of law has been laid down in these cases, otherwise, there is every possibility of the personal inspection of the Court being substituted as evidence in the case to the detriment of the of parties because of the fact that they have no right to test the correctness of the learned Judge's observation at the time of the inspection by means of cross-examination."
19. rt This High Court also held in Roop Singh and others Vs. Parma Nand and another1991 (2) Shim. LC 77 = 1990 ILR (HP) 1523 that the purpose of empowering the Court to inspect any property is to understand and appreciate the evidence but the Court cannot base its conclusion based on the observations made on the spot. It was observed:-
"3. By now, it is well settled that the purpose of empowering the Court to inspect any property or thing is to enable it to understand and appreciate the evidence on record for deciding the point in issue. This power is not given to enable the Court to solely or wholly base its conclusion on its observations during the spot inspection without referring to the evidence on record, If the Court is permitted to substitute its observations made during the spat inspection by the evidence on record, the Judge himself would become a witness and the party against whom he has made observations or the Inspection report would have no opportunity to cross-examine him. Such an interpretation of Order 18 Rule 18 of the Code of Civil ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 14 Procedure will destroy the very basis of our legal system.
4. For the above interpretation of Order 18 Rule 18, C P. C, draw support from Amrat Lal v. Land Acquisition Officer, .
AIR 1945 Bom. 302; Smt.Tikoli Kumar v. State of UP. and others, 1981 All LJ 1021 and Raghuvir Harish Chandra Salgaonkar v. Smt. Siraswati Pundi Uk Salgaonkar, AIR 1984 Bom. 284. In Raghuvir Harish Chandra Salgaonkar's case it has been held;-
".......It is now well settled that this power had been conferred on the Court with a view to enable it to of understand and appreciate the evidence on record. In a given case the Judge may not be in a position to properly understand and appreciate the oral and rt documentary evidence on record without himself seeing the situation on the spot. It is to this limited extent that the Court is permitted to see the spot and draw its notes. This power, therefore, cannot extend to enable the Court to rely solely or wholly on its observations disregarding the evidence which is on record..........."
5. The provision of Order 18, Rule 18 of the Code of Civil Procedure was considered by the Supreme Court in Ugam Singh and another v. Kesrimal and others, AIR 1971 SC 2540, Though on the facts of that case the Supreme Court found that the judgment of the trial Court was not solely based on its inspection report, yet, the ratio of this judgment is clear that where the judgment of a Court is based wholly on the observations of the Court during the spot inspection or the inspection report, its findings are vitiated. Now, the provision of Order 18, Rule 18, C. P. C. stands amended and it is incumbent upon the Court to make a memorandum of its observations immediately after the spot inspection and place it on the record of the case."
20. A similar view was taken by this Court in Jagat Singh ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 15 vs. Badri Nath and others 1997 (2) Shim. LC353 = 1998(1) Cur. L.J. (HP) 122, wherein it was observed:-
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"8. Rule 18 of Order 18, Code of Civil Procedure deals with the power of the Court to carry out local inspections. The object of this provision is to enable the court to understand the questions that are being raised and to follow and apply the evidence. The power to inspect has to be exercised only when the court feels that without of inspection it will not be possible for it to assess the evidence and to dispose of the lis. The purpose of the spot inspection is not to substitute the evidence led by the parties.The apex Court in Ugam Singh and another v rt Kesrimal and others, AIR 1971 SC 2540, has held that a judgment should not be based solely on the basis of personal local inspection.
The learned District Judge has, therefore, committed a grave error in substituting his own views formed as a result of local inspection for the evidence in the case and in basing his findings solely on such observations and impressions formed by him during the local inspection.
Another error committed by the learned District Judge is that a new case has been made out by him for the plaintiffs. There are no pleadings with regard to the easement as of necessity. The case as set up by the plaintiffs in their plaint is purely that there exists a path in the land belonging to the defendant. It is nowhere averred that the plaintiffs have acquired an easementary right of way as of necessity."
21. Hon'ble Gauhati High Court also heldin President,Bharat Sevashram Sangha v. Secretary to the Government of Meghalaya, 2013 SCC OnLineGau 59 : (2013) 3 Gau LR 586 at page 590that the decision cannot be based on the result of spot ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 16 inspection. Spot Inspection can be carried out to understand and appreciate the evidence in an appropriate manner. It was .
observed:-
"17. On going through the aforesaid provision of law, I have found that the very purpose of order 18, rule 18 of the CPC is to help the court understand well the evidence brought on record by the witnesses of the party(ies) of before the court and up to that limited extent, the court can conduct an inspection of any property or thing connected with the suit. Therefore, at any stage of the suit, in my considered opinion, means anytime after rt putting in evidence on record by the parties or anyone of them.
18. Here it needs to be remembered that if a Judge is allowed to conduct an inspection of such property/thing even before recording the evidence then there is every possibility of such a Judge becoming a witness to any of the parties to the proceeding before him. But such an eventuality has strongly been deprecated by the provisions of law which make such inspection possible. In that view of the matter, a Judge cannot be allowed to make an inspection of the suit land even before recording evidence.
19. The learned counsel for respondent No. 10 has arduously argued that if the Judge inspects the suit land at a very initial stage, more particularly, even before the recording of evidence that would help him to appreciate the evidence likely to come before the court during trial. I have already found that such a proposition is not contemplated under the law. Moreover, it sounds pretty illogical and irrational as well that a Judge should be allowed to conduct an inspection of a thing/property in order to appreciate the evidence likely to come before the court at some point during the trial.::: Downloaded on - 21/09/2023 20:35:40 :::CIS 17
20. I have already found that when one reads the judgment under reference in its totality, there cannot be any escape from the conclusion that inspection can be .
done by a Judge under order 18, rule 18 of the CPC only to appreciate the evidence on record (emphasis supplied by me). Thus, I have found that the judgment relied on by the parties helps only the contention advanced by the learned counsel for the petitioner-plaintiff."
22. A similar view was taken by Bombay High Court in of Shankar Lal Ganulal Khandelwal v. BalmukundSurajmalBharuka, 1998 SCC OnLineBom 513 : (1999) 2 Mah LJ 569: AIR 1999 Bom rt 260,wherein it was observedat page 577:
"12. Lastly, Shri S.P. Dharmadhikari, the learned Counsel for the respondent, submitted that the findings of the trial Court are vitiated because the trial judge decided the matter on what he found on the spot at the time of spot inspection. According to him, the observations of a Judge at the time of the inspection can only be used for the purpose of better following and understanding the evidence adduced in the case or to test its accuracy and it is not the purpose of such inspection to be substituted as evidence in the case or to contradict the evidence placed before the Court and make it the foundation of the judgment. For this, he relied upon the decision of Mysore High Court in T. Krishnaswami Rao v. Dundappa reported inAIR 1962 Mysore 17 and of Supreme Court in Ugam Singh v. Kesrimal reported in (1970) 3 SCC 831: AIR 1971 SC 2540. On considering the aforesaid decisions, I find much force in the aforesaid submission made by the learned Counsel for the respondent that the observations of a Judge at the time of inspection can be used only for the purpose of better following and understanding the evidence adduced in the case or to test its accuracy. It is ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 18 true that such inspection cannot be substituted as evidence in the case nor the Judge can make it the foundation of his judgment. In the present case, if the .
observations made by the trial Court in this behalf are considered in its proper perspective, we find that the learned trial Judge had neither substituted his notes of inspection as evidence nor made the same the foundation of his judgment. On careful scrutiny of the judgment of the trial Court, one can find that the trial Court has considered the entire oral and documentary evidence. It of also took into consideration all the circumstances of the case and thereafter took into consideration his own notes of inspection. In fact, the trial Court ought not to have mentioned the observations about the inspection in its rt judgment because the observations of a Judge at the time of inspection can be used only for appreciation of the evidence. The trial Court had, therefore, committed an error in giving evidentiary value to the observations made by him at the time of inspection. However, it is crystal clear from the judgment of the trial Judge that he did not base his conclusions solely on the result of his personal inspection and it is well-settled that when the judgment is not based solely on the result of personal inspection, it is not vitiated as observed by the Apex Court in the decision in the case of Ugam Singh (cited supra).
Therefore, I do not find any substance in the aforesaid submission made on behalf of the respondent."
23. Thus, the Court can carry out the spot inspection but cannot base its judgment on the result of the spot inspection carried out by it. In the present case,the learned First Appellate Court had heavily relied upon the observations made by the Court to contradict the site plan of the plaintiffs which was ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 19 impermissible. Hence, these substantial questions of law are answered accordingly.
.
Substantial Questions of Law Nos.3 and 4.
24. Defendant Brij Lal (DW-1) admitted in his cross-
examination that he had filed a civil suit in the year 1961 against Harnam Singh etc. He had produced one site plan in the previous of suit. This site plan and the dimensions recorded in it were correct; however, the houses were constructed after the rt submission of the site plan. Thus, the defendants had categorically admitted the correctness of the site plan and the dimensions shown in it. Learned First Appellate Court had compared the dimensions of the site plan (Ex.PW-1/A) with the dimensions of the site plan (Ex.PW-4/A) filed in the present case and held that the Southern side of the Sehan Mushtarka was shown as 20ft. in the earlier site plan (Ex.PW-1/A)and it was shown as 23 ft. in the present site plan (Ex.PW-4/A). Similarly, the measurement towards the North was given as 20 ft. in the site plan (Ex.PW-4/A), whereas it was mentioned as 14 ft. in the site plan (Ex.PW-4/A).
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 2025. A perusal of the site plans (Ex.PW-1/A)and (Ex.PW-
4/A) shows that the measurement in the site plan(Ex.PW-1/A) is .
with reference to the disputed land of Amar Chand in possession of Brij Lal, whereas the measurement in the site plan(Ex.PW-
4/A) is with reference to Taur of Suram Chand and Kashmiri Lal.
The defendant has given an explanation that the houses have of been constructed since the preparation of the earlier site plan.
The situation rtwould have changed somewhat after the preparation of the earlier site plan; hence the site plan could not have been discarded due to the difference in the dimensions.
The fact remains that the area adjacent to the house of Suram Chand etc. was shown to be Sehan Mushtarka (common courtyard)in the site plan (Ex.PW-11/A). English translation of the plaint in the previous suit shows that the present defendants (plaintiffs in that suit) claimed the portion ABCD part of Khasra No.4188 as their courtyard and the portion MNOP owned by Amar Chand ancestor of the plaintiff. Thus it is apparent that the present defendants (plaintiffs in that suit) had not lodged any claim to the courtyard towards the West site of the disputed portion denoted by the letters MNOP. Therefore, the learned Trial Court had rightly held that the site plan and the plaint in ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 21 the previous suit constituted admission regarding the possession of the present plaintiffs and this admission was .
binding upon the defendants.
26. The defendants relied upon a site plan (Ex.PW-3/A) in which they showed a pucca street towards the Southern side and Eastern side of the house of Kashmiri Lal. This street was of stated to be separating the land of the parties. The learned Trial rt Court had held that this was not a correct site plan and there were discrepancies in the site plan (Ex.DW-3/A) and the statement on oath made by Brij Lal.
27. The Learned Trial Court noticed that while Brij Lal (DW-1) claimed on oath that his Taur was 20-25 ft towards East, 20 ft. towards West, North and South, his site plan showed the dimension as 36 ft. towards the North. It was also contrary to the earlier site plan in which a Sehan Mushtarka was shown towards the West of the disputed portion MNOP which is missing from the present plan. It appeared that the portion ABCD marked by the plaintiff in their site plan was part of Sehan Mushtarka earlier. Learned First Appellate Court was persuaded by the existence of the passage on the spot to hold that since the ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 22 passage was depicted in the site plan filed by the defendants and not in the site plan filed by the plaintiffs, therefore, the site plan .
filed by the plaintiffs was incorrect while that of site plan filed by the defendants was correct.
28. Kashmiri Lal (PW-2) admitted in his cross-
examination the existence of a 2-3 ft. wide passage towards the of South of his house, which turns towards the North. He rt volunteered to say that he had made his courtyard pucca and the people crossed through the same. The courtyard was made pucca during the time of his ancestors. Similarly, his witness Santosh Kumar stated in his cross-examination that the passage passes through the courtyard of Kashmiri Lal and is in the form of a galli. Pyare Lal Bains (PW-4) also admitted the existence of the passage. Thus, the existence of the passage was not disputed by the plaintiff and his witnesses. They stated that the passage was part of the courtyard of the house of the plaintiffs. Thus, the site plan produced by the plaintiffs could not have been rejected because the passage was not shown in the site plan. When it was a part of the courtyard, there was no necessity to show it separately.
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 2329. Thus, the learned First Appellate Court erred in holding that the passage was not shown in the site plan filed by .
the plaintiffs, therefore, the site plan of the plaintiffs was suspect. Learned First Appellate Court ignored the admission made by the present defendants (plaintiffs in the earlier suit) regarding the existence of the common courtyard and not laying of any claim to it in the previous suit. Learned Trial Court had rightly held that these admissions were binding upon the rt present defendants, as they could not have been permitted to take inconsistent pleas in two different proceedings. Therefore, these substantial questions of law are answered accordingly.
Substantial Question of Law No.5:
30. The Learned Trial Court had given cogent reasons for relying upon the site plan of the plaintiffs and rejecting the site plan of the defendants. Learned First Appellate Court has not displaced those reasons and has relied upon the observations made on the spot as well as the absence of the passage in the site plan filed by the plaintiffs.
31. It was laid down by the Hon'ble Supreme Court in Somakka v. K.P. Basavaraj, (2022) 8 SCC 261 : (2022) 4 SCC (Civ) ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 24 437: 2022 SCC OnLine SC 736 that the Appellate Court must come into close quarters with the reasoning assigned by the learned .
Trial Court and then assign its reasoning for arriving at different findings. It was observed:
"32.1. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] (relevant portion of para 15) is of reproduced below : (SCC pp. 188-89) "15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless rt restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect if conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
32.2. In H.K.N. Swami v.Irshad Basith,(2005) 10 SCC 243], this Court again reiterated the same principle in para 3 of the judgment: (SCC p. 244) "3. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 25 law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the .
finding regarding title."
32.3.In 2015, this Court again in Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder : (SCC p.
396) "18. In our considered opinion, the High Court did of not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal rt nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial court can be sustained or not and if so, how, and if not, why.
19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we were unable to uphold the impugned judgment [Vinod Kumar v. GangadharFirst Appeal No. 173 of 1999, order dated 21- 3-2013 (MP)] of the High Court."
32.4.Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjula v. Shyamsundar, (2022) 3 SCC 90 : (2022) 2 SCC (Civ) 33], reiterated the same view in para 8 thereof, which is reproduced hereunder : (SCC p. 96) ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 26 "8. Section 96 of the Civil Procedure Code, 1908 (for short "CPC") provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order .
41 Rule 31CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state:
(a) points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and of
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
rt Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect a conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31CPC and non- observance of these requirements lead to infirmity in the judgment."
33. From the above settled legal principles on the duty, scope and powers of the first appellate court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular, which had been relied upon by the trial court. The impugned judgment [K.P. Basavaraj v.
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 27Somakka, 2006 SCC OnLine Kar 992] of the High Court is thus unsustainable in law and liable to be set aside."
.
32. This position was reiterated in Dheeraj Singh v.
Greater Noida Industrial Development Authority, 2023 SCC OnLine SC 768, wherein, it was observed:
"19. In the case of Santosh Hazari Vs. Purushottam of Tiwari (Dead) by LRs. (2001) 2 SC 407, this Court held that the court of appeal has a duty to apply its mind to all issues raised before it and to discharge such duty, it rt must also record its findings against all such issues raised. For the sake of convenience, the relevant paragraph of the said judgment is being extracted herein:
"The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law. The whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the Appellate Court.
While reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it."::: Downloaded on - 21/09/2023 20:35:40 :::CIS 28
20. In the case of Madhukar and Ors. Vs. Sangram and Ors. (2001) 4 SCC 756, this Court, while reiterating the principles laid down in the Santosh Hazari Judgment .
(Supra), observed that the court of first appeal has a duty to record its findings qua all the issues raised before it, and in cases where the High Court fails to do the same, the matter must be remanded to the same court again for fresh adjudication.."
22. The abovementioned discussions and judgments, when contextualized to the present case, would show that of the High Court was under an obligation to consider the cross objections filed by the Appellants herein. Since such an obligation was not discharged while passing the judgment in appeal, we are of the considered opinion that rt the matter is fit for remand to the High Court for fresh adjudication on the grounds raised in the cross objections during the appeal by the appellants herein.
33. Similar is the judgment of this court in Sunder Singh v. Roop Singh 2019 SCC OnLine HP 550 wherein it was held:
"3. It is a settled principle of law that the right to file the first appeal against the decree under Section 96 of the Code of Civil Procedure is a valuable legal right of the litigant. The jurisdiction of the First Appellate Court while hearing the First appeal is very wide like that of the learned trial Court and it is open to the appellant to attack all findings of fact or/and of law in the first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a different conclusion from that of the trial Court. While doing so, the judgment of the Appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all issues arising along with the contentions put forth, and pressed by the parties for the decision of the Appellate Court. While reversing a finding of fact, the Appellate Court must come into close quarters with the ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 29 reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the First .
Appellate Court had discharged the duty expected of it.
4. The scope, ambit and power of the first Appellate Court while deciding the first appeal have been the subject matter of various judicial pronouncements and I may refer to the pronouncement of the Hon'ble Supreme Court in Shasidhar and others vs. Smt. Ashwini Uma Mathad and another, (2015) AIR SCW 777 wherein it was held as of follows:
"11. Having heard learned counsel for the parties and on perusal of the record of the case and rt examining the issue arising in this appeal, we find force in the submissions of the learned counsel for the appellants.
12. The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
13. As far back in 1969, the learned Judge -V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, (1969) AIR Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under:
"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 30 tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge .
disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt of that in the present case, the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is a furious contest between the counsel for the rt appellant and the respondent, they appear to agree with me in this observation....."
(Emphasis supplied)
14. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate Court under Section 96 of the Code.
15. We consider it apposite to refer to some of the decisions.
16. In Santosh Hazari vs Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179, this Court held (at pages 188- 189) as under:
".........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, andpressed by the parties for the ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 31 decision of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the .
reasoning assigned by the trial court ... and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it............"
17. The above view has been followed by a three-
of judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the rt issues and the evidence led by the parties before recording its findings.
18. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court (at p. 244) stated as under:
"3. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons.
Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
19. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code this Court (at pp. 303 -04) observed as follows:
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 32"2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."
.
20. Again in B.V Nagesh & Anr. vs. H.V.Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various of decisions. Order 41 CPC deals with appeals from original decrees. Among the various rt rules, Rule 31 mandates that the judgment of the appellate court 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.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, ... therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address ::: Downloaded on - 21/09/2023 20:35:40 :::CIS 33 itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v.Purushottam .
Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v.Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first of appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory rt manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of the considerations, which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with the law."
21. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174. This Court has recently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, (2014) 12 Scale 171."
5. Similar reiteration of law can be found in the subsequent judgments of the Hon'ble Supreme Court in Union of India vs. K.V. Lakshman and others, (2016) AIR SC 3139 and in Laliteshwar Prasad Singh & Ors. vs. S.P. Srivastava (deceased) through LRs, (2017) 2 SCC 415."
::: Downloaded on - 21/09/2023 20:35:40 :::CIS 3434. Thus, the learned First Appellate Court erred in reversing the well-reasoned judgment passed by the learned .
Trial Court without assigning any cogent reasons and the substantial question of law is answered accordingly.
Final order:
of
35. In view of the above, the present appeal is allowed and judgment and decree passed by the learned First Appellate rt Court are ordered to be set-aside while those of the learned Trial Court are restored. The pending miscellaneous application(s), if any also stand(s) disposed of.
(Rakesh Kainthla) Judge 21st September, 2023 (Chander) ::: Downloaded on - 21/09/2023 20:35:40 :::CIS