Chattisgarh High Court
Kameshwar Prasad Gupta And Ors vs Samsuddin And Ors on 28 February, 2020
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.251 of 2010
1. Kameshwar Prasad Gupta, S/o Late Ramjanam Sao, aged about 50
years,
2. Rajeshwar Prasad, S/o Late Ramjanam Sao, aged about 35 years,
3. Sunil Kumar, S/o Late Ramjanam Sao, aged about 30 years,
All above R/o Village Sewari, Police Station & Tahsil Rajpur, Surguja
(C.G.)
(Defendants)
---- Appellants
Versus
1. Samsuddin, S/o Late Abdul Hameed, aged about 50 years,
2. Asmuddin, S/o Late Abdul Hameed, aged about 45 years,
3. Abdul Rahman, S/o Late Abdul Hameed, aged about 40 years,
4. Jubaidi Khatun, D/o Late Abdul Hameed, aged about 42 years,
All above R/o Barejpara, Ambikapur, District Surguja (C.G.)
5. Tajbun, W/o Moin, D/o Late Abdul Hameed, R/o Hajari Bag, Bihar
6. Aainul Bibi, W/o Mumtaj, D/o Late Abdul Hameed, R/o Shahpur,
Daltengaj, Jharkhand
(Plaintiffs)
7. State of Chhattisgarh, through Collector, Surguja (C.G.)
(Defendant)
---- Respondents
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For Appellants: Mr. Manoj Paranjpe and Mr. Anurag Singh, Advocates. For Respondents No.1 to 3: -
Mr. A.K. Prasad and Mr. Ravi Mahobia, Advocates. For Respondent No.7 / State: -
Mr. Ravi Kumar Bhagat, Deputy Government Advocate.
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Hon'ble Shri Justice Sanjay K. Agrawal 2 Judgment On Board 28/02/2020
1. This second appeal preferred under Section 100 of the CPC by the appellants herein / defendants No.1 to 3 was admitted for hearing by formulating the following three substantial questions of law: -
"(1) Whether the first appellate Court is justified in deciding the appeal without complying with the requirements of Order 41 Rule 31 of the CPC including not formulating the points for determination which is mandatory requirement for effective disposal of first appeal?
(2) Whether the First Appellate Court was justified in reversing the judgment and decree passed by the trial Court without reversing the findings recorded by the trial Court on issue No.1 & 5?
(3) Whether transfer of suit land vide registered sale deed dated 26-11-1975 in favour of late Ramjanam i.e. father of defendants is void and ineffective in view of the provisions contained in Section 165(7)(b) of the C.G. Land Revenue Code?"
[For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the suit before the trial Court.] Plaintiff's suit: -
2. The suit land bearing Khasra No.189/2, area 1.36 acre and Khasra No.152/6, area 1.00 acre, total area 2.36 acres of land was granted on lease to Shri Abdul Hamid (father of the plaintiffs) by patta (Ex.P-
4) by the revenue officer for a period of five years which he is said to have transferred in favour of Ramjanam Ram - father of the defendants vide sale deed dated 26-11-1975 (Ex.P-6) and said to 3 have delivered peaceful possession to the father of the defendants (Ramjanam Ram). Thereafter, only on 25-7-2003, Abdul Hamid instituted a suit that the sale deed dated 26-11-1975 be declared as ineffective, void, as he never executed any such sale deed Ex.P-6 in favour of Ramjanam Ram and it is absolute fabricated document and he (original plaintiff) be granted decree for possession in his favour; during the pendency of suit, he died and his legal representatives were brought on record.
Defendants' case: -
3. Defendants No.1 to 3 / legal representatives of Ramjanam Ram filed their joint written statement stating inter alia that their father purchased the suit land from the plaintiff vide sale deed dated 26-11-
1975 and since then they are in possession after getting their names recorded in the revenue record and in cultivating possession of the suit land, as such, the plaintiff has no right and title over the suit land. By way of additional statement, an additional ground that the suit is barred by limitation as it was filed after 28 years, was specifically raised.
4. On the basis of said pleadings, the trial Court framed following six issues with findings thereon: -
Øekad okn&iz'u fu"d"kZ
1 D;k oknh] okn&Hkwfe (ifj-^v^) ^izekf.kr ugha^
dk ,dek= Hkwfe&Lokeh jketue (dafMdk 16)
lko ds i{k esa fu"ikfnr foØ;i=
fnukad 26-11-75 voS/k ,oa 'kwU; gS\
2- D;k okn&Hkwfe ifj-^v^ dk dCtk ^ugha^ ;k udkjkRed
oknh] izfroknhx.k ls ikus dk (dafMdk 22)
vf/kdkjh gS\
4
3- D;k okn&Hkwfe ij izfroknhx.k dk ^gk¡^ vFkkZr~ ^ldkjkRed*
dCtk lu~ 75 ls gh fujarj pyk vk (dafMdk 21)
jgk gS\
4- D;k oknh }kjk U;k; 'kqYd de pLik oknhx.k us mfpr U;k;
fd;k x;k gS] tks okn pyus ;ksX; 'kqYd pLik fd;k gSA ugha gS\ (dafMdk 28) 5- D;k okn le; ckf/kr gS\ ^gk¡^ ;k ^ldkjkRed* (dafMdk 27) 6- lgk;rk ,oa okn&O;;\ Okknhx.k dk okn fujLr fd;k tkrk gSA Findings of the trial Court and the first appellate Court: -
5. The trial Court dismissed the suit holding that the alienation made by the plaintiff in favour of the defendants' father is neither invalid nor void and further held that the suit is barred by limitation by answering issue Nos.1 & 5 against which the plaintiffs preferred first appeal before the first appellate Court in which the plaintiffs raised eight grounds before the first appellate Court which state as under: -
1@ ;g fd ekuuh; fuEu U;k;ky; us okn iz'u Ø&1 dk fu"d"kZ izekf.kr ugha esa nsdj fof/k ds iz'u dks le>us esa Hkkjh Hkwy dh gSA 2@ ;g fd okn iz'u Ø0&2 dk fu"d"kZ udkjkRed :i esa ^^ugha** esa nsdj fof/k ds fo:) fn;k gS] tks fujLr djus ;ksX; gSA 3@ ;g fd okn iz'u Ø0&3 dk fu"d"kZ ^^gk¡** vFkkZr ldkjkRed :i esa vkns'k ikfjr dj fof/k ds fo:) fu.kZ; fn;k gS] tks fujLr djus ;ksX; gSA 4@ ;g fd okn iz'u Ø0&4 dk fu"d"kZ gkW esa nsdj fof/k fo:) fu.kZ; ikfjr fd;k gS] tks fujLr djus ;ksX; gSA 5@ ;g fd ekuuh; U;k;ky; us bl iz'u dk fopkj ugha fd;k gS] fd okn xzLr Hkwfe dk iV~Vk oknhx.k ds firk Lo0 vCnqy gehn dks flgnso ;kstuk ds rgr 'kkldh; iV~Vk iznku fd;k x;k Fkk] og ,d 'kkldh; iV~Vsnkj Fkk] mls vHkh Hkwfe Lokeh gd dk iV~Vk Hkh izkIr ugha gqvk Fkk] fcuk dysDVj ds vuqefr ds dksbZ Hkh 'kkldh; iV~Vsnkj Hkwfe dk vUrj.k ugha dj ldrk gS] rFkk dfFkr foØ; i= Loeso gh 'kwU; gS] ekuuh; fuEu U;k;ky; us mDr rF;ksa ij fcuk fopkj fd;s fu.kZ; ikfjr fd;k tks fujLr djus ;ksX; gSA 5 6@ ;g fd ekuuh; fuEu U;k;ky; us dkuwuh rF;ksa ,oa izdj.k esa miyC/k lk{; ds foijhr fu.kZ; fn;k gS vr% fuEu U;k;ky; dk vkyksP; fu.kZ; iw.kZr% fof/k fo:) gS] blfy, fujLr djus ;ksX; gSA 7@ ;g fd vihy le; lhek ds vUnj gSA 8@ ;g fd vihy dk ewY;kadu fuEu U;k;ky; esa fuf'pr U;k; 'kqYd 150 ¼,d lkS ipkl :i;s½ dk Hkqxrku fd;k x;k Fkk vr% vihy dk ewY;kadu fuEu U;k;ky; ds ewY;kadu ds vk/kkj ij fuf'pr U;k; 'kqYd 150 :i;s dk Hkqxrku fd;k tk jgk gSA
6. A careful perusal of the grounds of first appeal would show that the plaintiffs have only challenged the finding of the trial Court on issue Nos.1 to 4, they did not challenge the finding on issue No.5 i.e. the suit is barred by limitation.
7. The first appellate Court by its impugned judgment & decree framed following question for determination as held in paragraph 10 of the impugned judgment which states as under: -
10@ izdj.k esa ;g fopkj.kh; gS fd& D;k v/khuLFk U;k;ky; ds }kjk vkyksP; fu.kZ; ,oa fMØh fnukad&30-04-2007 dks ikfjr djus esa fdlh izdkj ls rF; fof/k ,oa izfØ;k laca/kh lkjoku =qfV dh gS\
8. The first appellate Court in paragraph 7 of its judgment only recorded the submissions of the plaintiffs / appellants therein which relate to issue Nos.1 to 4 only and no argument on the question of limitation was raised, therefore, it was rightly not recorded. But it is nowhere apparent from the judgment of the learned first appellate Court as to whether the respondents (therein) were heard, as the submissions of the respondents were not noticed as apparent from the impugned judgment and only it has been mentioned that only the counsel of the plaintiffs were heard. The first appellate Court in paragraph 13 held 6 that the sale deed has been executed by Abdul Hamid in favour of the defendants' father which is said to be fabricated by him and his legal representatives now. Thereafter, in paragraphs 14 & 16, the first appellate Court has held that since there is violation of Sections 158(3) & 165(7)(b) of the Chhattisgarh Land Revenue Code, 1959, as the suit land was alienated by Abdul Hamid in favour of the defendants' father without the permission of the Collector under Section 165(7)(b), therefore, the sale deed is not in accordance with law. Thereafter, in paragraph 17 it was recorded that issue No.4 has rightly been decided by the trial Court. However, in paragraph 18, it has been recorded that no other ground has been taken and thereafter, by holding that the sale deed dated 26-11-1975 was contrary to law, therefore, the appeal has been allowed.
9. Mr. Manoj Paranjpe, learned counsel appearing for the appellants herein / defendants, would submit as under: -
(1) The first appellate Court adjudicated the appeal in absolutely casual and cavalier manner as no points for determination were formulated under Order 41 Rule 31(a) of the CPC and proceeded to decide the appeal by which the appellants have suffered great prejudice which is evident from the fact that though the suit filed by the plaintiff was dismissed as barred by limitation under Article 58/59 of the Limitation Act, 1963, yet the first appeal was allowed without setting aside the finding on limitation (issue No.5), which could have been avoided by formulating the points for determination and appeal deserves to 7 be allowed on this short ground only.
(2) The first appellate Court reversed the finding on issue No.1, qua the validity of sale deed without meeting with the reasonings of the trial Court and without following the principles for reversal of findings of the trial Court laid down by the Supreme Court in the matter of Santosh Hazari v.
Purushottam Tiwari (Deceased) by LRs. 1 which is absolutely impermissible in law.
(3) The first appellate Court has allowed the appeal on totally altogether new ground by inventing it, without giving a reasonable opportunity to the parties to meet that ground, even their submissions were neither noticed in the judgment nor considered by the first appellate Court, as such, the first appellate Court has failed to perform the duty of the first appellate Court as expected of and delineated by the Supreme Court in Santosh Hazari (supra) and thus, the matter is liable to be remanded for fresh consideration.
10.Per contra, Mr. A.K. Prasad, learned counsel appearing for respondents No.1 to 3 herein / plaintiffs No.1 to 3, would support the impugned judgment & decree and submit that the first appellate Court is absolutely justified in granting the appeal by reversing the judgment & decree of the trial Court in which no interference is called for in the jurisdiction under Section 100 of the CPC.
11.I have heard learned counsel for the parties and considered their rival 1 (2001) 3 SCC 179 8 submissions and went through the record with utmost circumspection. Answer to substantial question of law No.1: -
12.Order 41 Rule 31 of the CPC deals with the judgment of the Appellate Court and states as under: -
"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 therein."
13.From the above-stated provision, it is quite vivid that the judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision. As such, the provisions of Order 41 Rule 31 of the CPC are mandatory and imperative. The object behind the provision is two fold. Firstly, to afford the parties an opportunity of knowing and understanding the grounds of the decisions with a view to enable them to exercise the right of Second Appeal, and secondly, to enable the High Court in Second Appeal to judge whether the Lower Appellate Court has properly appreciated the case and has decided it after applying its mind to it and that whether material on record is considered in judicial manner. Therefore, the judgment of the first 9 appellate Court deciding the appeal under Section 96 of the IPC must strictly comply with the provisions contained in Order 41 Rule 31 of the CPC.
14.The provisions contained in Order 41 Rule 31 of the CPC came to be considered by the Supreme Court in the matter of Thakur Sukhpal Singh v. Thakur Kalyan Singh and another 2 in which highlighting the object of the aforesaid provisions their Lordships observed as under: -
"(10)... The object seems to be that the parties should know for what reasons the decision has gone against them and thereby be in a position to decide whether they should go up in appeal or revision against the judgment. If they do not know the decision and the reasons therefor, they cannot make up their mind and, even if they have no intention to go up in appeal, they may not even be satisfied about the Court considering the matter for determination properly.
(11) Another object can be that the second appellate Court or the revision Court be in a position to know why the Court below came to a certain conclusion. Such knowledge is undoubtedly of great assistance to the Court.
..."
Further, their Lordships also made it clear that the provisions of Rule 31 of Order 41 of the CPC should be reasonably construed and should be held to require the various particulars to be mentioned in the judgment only when the appellant has actually raised certain points for determination before the appellate Court and not when no such points have been raised.
15.Similarly, in the matter of Hari Shankar and others v. Rao Girdhari Lal Chowdhury3, their Lordships of the Supreme Court held that a right 2 AIR 1963 SC 146 3 AIR 1963 SC 698 10 of appeal carries with it a right of re-hearing on law as well as on fact, unless the statute conferring a right of appeal limits the re-hearing in some way as has been done in second appeal arising under the CPC.
16.In the matter of B.V. Nagesh and another v. H.V. Sreenivasa Murthy4, the Supreme Court set aside the judgment of the first appellate Court (High Court) because without framing points for determination and considering both facts and law, without proper discussion and assigning reasons, the appeal was decided. Their Lordships observed as under: -
"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 decisions. Order 41 CPC deals with appeals from original decrees. Among the various 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 4 (2010) 13 SCC 530 11 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 itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari1 (supra), SCC p. 188, para 15 and Madhukar v. Sangram5, SCC 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 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 manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of 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 law."
17.Similarly, in the matter of Laliteshwar Prasad Singh and others v. S.P. Srivastava (Dead) Through Legal Representatives 6, their Lordships after relying upon B.V. Nagesh (supra) held as under: -
"12. ... It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties.
13. An appellate court is the final court of facts. The judgment of the appellate court must, therefore, reflect the court's application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. ..."
5 (2001) 4 SCC 756 6 (2017) 2 SCC 415 12
18.In the matter of R.S. Anjayya Gupta v. Thippaiah Setty and others 7, their Lordships of the Supreme Court dealing with Section 96 and Order 41 Rule 33 of the CPC summarised the principles of disposing the first appeal which are as under: -
➔ In first appeal parties have right to be heard both on questions of facts as well as on law.
➔ First appellate court is required to address itself to all the aspects and decide case by ascribing reasons.
➔ Judgment of first appellate court has to state reasons for its decision.
➔ First appellate court may agree with trial court or take different view.
➔ If it is agreeing with view taken by trial court on the evidence, it is not necessary to restate the effect of evidence or reiterate reasons given by trial court.
➔ Expression of general agreement with reasons given in trial court's judgment should ordinarily suffice.
➔ However, expression of general agreement with findings recorded in judgment of trial court should not be a device or camouflage to be adopted by appellate court for shirking its duty cast on it.
➔ First appellate court has a defined role and its judgment should show application of mind and reflect reasons on the basis of 7 (2019) 7 SCC 300 13 which it agrees with trial court.
➔ There has to be an "expression of opinion" in proper sense of the said phrase.
➔ It cannot be said that mere concurrence meets the requirement of law.
➔ It is one thing to state that appeal is without any substance and it is another thing to elucidate, analyse and arrive at conclusion that appeal is devoid of merit.
19. The principle of law laid down in B.V. Nagesh (supra) has been further relied upon by the Supreme Court in the matters of Vinod Kumar v. Gangadhar8 and Shasidhar and others v. Ashwani Uma Mathad and another9.
20. In an extremely recent decision in the matter of Malluru Mallappa (D) Thr. LRs. v. Kuruvathappa and others 10, their Lordships of the Supreme Court taking cognizance of its earlier decisions in B.V. Nagesh (supra), Vinod Kumar (supra) and Shasidhar (supra) have clearly held that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. It was further held that even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 of the CPC and non- observance of this requirement leads to infirmity in the judgment of the first appellate court. While setting aside the judgment and decree 8 (2015) 1 SCC 391 9 (2015) 11 SCC 269 10 2020 SCC OnLine SC 174 14 of the first appellate Court, it was held as under: -
"19. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.
20. Keeping in mind the above principles, let us examine the present case. As stated above, the issue relating to readiness and willingness of the plaintiff to perform his part of the contract and issue relating to limitation were held against the plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat has argued that the suit was well within time under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective. "
21. Reverting to the facts of the present case, it is quite vivid that the first appellate Court has to fully meet out the requirements of Order 41 Rule 31 of the CPC to decide the first appeal effectively as the said Court is a final court of facts and law. Therefore, it must comply the provisions contained in Order 41 Rule 31 of the CPC including formulation of points for determination necessarily on the basis of submissions of learned counsel for the parties and point involved in 15 the appeal, but while finally disposing of the first appeal, it cannot run away from its onerous duty of recording the findings of fact and discussing the evidence, otherwise, the imperative provisions contained in Order 41 Rule 31 would be reduced to an empty formality.
22. In the instant case, the trial Court while deciding issue No.1 clearly held that the sale deed dated 26-11-1975 was not obtained by fraud and misrepresentation and the trial Court further held that the suit is barred by the provisions of the Limitation Act under Article 59, but the first appellate Court while adjudicating the appeal did not formulate any points for determination as required under Order 41 Rule 31(a) of the CPC and straightway reached to the conclusion that the sale is hit by Section 165(7)(b) of the Chhattisgarh Land Revenue Code, 1959, and therefore it is not in accordance with law. The first appellate Court ought to have framed the points for determination which is imperative for deciding the first appeal and which was not done. Even though the finding that the suit was barred by limitation was not reversed, yet, the first appeal was allowed. The respondents herein / plaintiffs even did not raise the point that the suit has erroneously been dismissed as barred by limitation and that was the main issue which was required to be considered and to be decided before deciding the appeal on merits, but the first appellate Court did not take any pain to consider that issue and allowed the appeal which could not have been done and that illegality came to be committed by the learned appellate Court also for the reason that the 16 mandatory provision contained in Order 41 Rule 31(a) of the CPC was not complied and straightway, formulating the only question, whether the trial Court has committed error of fact and law in decreeing the suit, the first appeal was decided in a most unsatisfactory manner despite various pronouncements of their Lordships of the Supreme Court as noticed herein-above, which cannot be countenanced. As such, the first appellate Court has failed to formulate the points for determination, record the decision thereon and thereafter give its own reasons for the said decision as provided in Order 41 Rule 31 of the CPC. The first appellate Court has failed to perform its onerous duty as final court of facts and law and omitted to comply the provisions contained in Order 41 Rule 31 of the CPC. Thus, the appellants herein / defendants No.1 to 3 have suffered great prejudice in not complying with the provisions contained in Order 41 Rule 31(a) of the CPC, as first appeal has been allowed by the first appellate Court without setting aside the finding recorded by the trial Court that the suit is barred by limitation. It is not the case where the judgment of the first appellate Court substantially complies with the provisions of Order 41 Rule 31 of the CPC causing no prejudice to the appellants. Therefore, the judgment & decree of the first appellate Court deserve to be set aside on this ground only. The first substantial question of law is answered accordingly against the plaintiffs and in favour of the defendants. Answer to substantial question of law No.2: -
23. It is not only apparent but also evident from the face of the record 17 that the trial Court dismissed the suit holding the sale deed dated 26- 11-1975 to be valid and not obtained by fraud and the suit was also dismissed as barred by limitation. But the first appellate Court reversed the judgment & decree of the trial Court without meeting with the findings of the trial Court on issue Nos.1 & 5, that too even without touching or addressing issue No.5 i.e. the issue of limitation by which the trial Court has held the suit to be barred by the provisions of the Limitation Act.
24.The Supreme Court in Santosh Hazari1 (supra) has clearly laid down the procedure to be followed by the first appellate Court while reversing the decree of the trial Court in paragraph 15 of the report which has been followed by the Supreme Court in the matter of U. Manjunath Rao v. U. Chandrashekar and another 11 by holding that in first appeal parties have right to be heard both on questions of facts as well as law and first appellate court is required to address itself to all aspects and decide case by ascribing reasons. Paragraph 15 of the decision of the Supreme Court in Santosh Hazari1 (supra) reads as follows: -
"15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as 11 (2017) 15 SCC 309 18 pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. 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. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate 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 (See Girijanandini Devi v. Bijendra Narain Choudhary12). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai13) The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo 12 AIR 1967 SC 1124 13 (1983) 1 SCC 35 : AIR 1983 SC 114 19 Sahu v. Jwaleshwari Pratap Narain Singh 14) Secondly, 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. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
25.It was further held by their Lordships of the Supreme Court in U. Manjunath Rao (supra) that while reversing findings and conclusion of trial court, duty of first appellate court is different than while affirming judgment and its decision is founded in both cases on different parameters. It was also held that moreover, it is final court of law in sense that its decision on question of law even if erroneous may not be vulnerable before High Court in second appeal because jurisdiction of High Court is not available to correct errors of law or erroneous findings of first appellate court even on questions of law unless such question of law is substantial one. Even in Malluru Mallappa (supra), the said decision of the Supreme Court in Santosh Hazari1 (supra) has been followed in paragraphs 14 and 15 of the report which read as under: -
"14. It is a settled position of law that an appeal is a 14 AIR 1951 SC 120 20 continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari1 (supra), Madhukar and others v. Sangram and others 5, B.M. Narayana Gowda v. Shanthamma (Dead) By LRs.
and another15, H.K.N. Swami v. Irshad Basith (Dead) By LRs.16 and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar17].
15. A first appeal under Section 96 of the CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature."
26.Reverting finally to the facts of the present case, this Court is of the considered opinion that the first appellate Court has failed to formulate the points for determination as required under Order 41 Rule 31(a) of the CPC which resulted in not considering even the issue arising for the decision of appeal, as without reversing the finding on the question of limitation, the first appeal came to be allowed and which could not have been done. The first appellate Court has reversed the judgment & decree of the trial Court without meeting the reasons recorded by the trial Court while dismissing the 15 (2011) 15 SCC 476 16 (2005) 10 SCC 243 17 (1980) 4 SCC 259 21 suit on issue No.1 and reversed the decree on altogether new ground even without affording an opportunity to other side. As such, the judgment & decree of the first appellate Court is hereby set aside and the matter is remitted to the first appellate Court with a direction to adjudicate the first appeal strictly complying with the requirements as mandated under Order 41 Rule 31 of the CPC including formulation of the points for determination on the basis of grounds raised, submissions made by the parties and issues involved therein, in accordance with law.
27. The second substantial question of law is answered accordingly and the second appeal is allowed in part. Parties are directed to bear their own cost(s). In view of the above, the third substantial question of law is not being answered specifically. Consequently, judgment & decree of the first appellate Court is hereby set aside and the matter is remitted to the first appellate Court to adjudicate the appeal within two months from the date of receipt of a copy of this judgment. Record be sent back forthwith.
28. It is made clear that this Court has not expressed any opinion either way on any of the issues arising for decision in the case. All the pleas and points are left and kept open to be considered by the first appellate Court on the basis of submissions to be made by the parties.
29. However, the matter be placed before Hon'ble the Chief Justice for considering and circulating the copy of judgment to the judicial officers manning the first appellate Courts and further to consider and / or sending a copy of the judgment to the Director, Chhattisgarh 22 State Judicial Academy to formulate a course for training of judicial officers to deal with the first appeals strictly in accordance with Order 41 Rule 31 of the CPC in line with the various pronouncements rendered by the Supreme Court and noticed by this Court herein- above (if appropriate).
Sd/-
(Sanjay K. Agrawal) Judge Soma