Uttarakhand High Court
Hayat Singh And Others vs Smt Rama Arya on 25 August, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No.37 of 2012
Hayat Singh & Anr. .....Appellants
Versus
Smt. Rama Arya ....Respondent
Mr. Siddhartha Sah, Advocate for the appellants
Mr. Pankaj Miglani, Advocate for the respondent
Hon'ble Lok Pal Singh, J.
Present second appeal has been preferred by the plaintiffs/appellants against the judgment and decree dated 10.02.2012 passed by Civil Judge (Senior Division), Almora in Civil Appeal No.20 of 1984 Smt. Rama Arya vs. Hayat Singh and others.
2. In brief, facts of the case are that plaintiff/appellants filed a suit being Original Suit No.34 of 1983 for permanent injunction and recovery of possession against the defendant/respondent with the averments that they are residents of city Almora and are owners of plot no.14543, 14544, 14546 and the defendant has no right over any of the plots and is trying to take forceful possession and is trying to raise construction over it. During the pendency of suit, plaintiffs got amended their plaint to the effect that during the pendency of suit, the defendant has raised some construction, therefore, decree of mandatory injunction be issued in favour of the plaintiffs, directing the defendant to remove the illegal construction from the suit property. The defendant contested the suit and filed her written statement as well as additional written statement and contended 2 that the defendant is not threatening the plaintiffs. She contended that the plaintiffs have no right, title or interest in the disputed plot and that she had started construction over plot no.14546 before filing of the suit which was completed in the month of March 1983. The plaintiffs did not raise any objection at the time of construction of the house. She has spent Rs.18,000/- towards construction of house.
3. On the basis of pleading of the parties, Munsif, Almora framed the following issues:
(i) Whether the plaintiffs are landlord and in possession of the land in dispute? If so, its effect?
(ii) To what relief, if any, is the plaintiff entitled for?
4. Thereafter, the parties led their oral and documentary evidence. In documentary evidence, the plaintiffs filed copy of khatoni, copy of map, receipts of lagan, whereas no property rights were filed by the defendants. In oral evidence, the plaintiff got examined himself as P.W.1 and Rajendra Singh as P.W.2. On behalf of the respondent/defendant, statement of D.W.1 Rama Arya was recorded. After hearing the parties and on the basis of evidence recorded, the trial court came to the conclusion that the plaintiffs are in possession of the disputed plots and the defendant has no right to interfere in the possession of the plaintiffs. Accordingly, learned trial court decreed the suit of the plaintiffs vide order dated 27.8.1984. Aggrieved by the said judgment and decree, the defendant filed an appeal being Civil Appeal No.20 of 1984 before the Civil 3 Judge, Almora, which was allowed vide judgment and decree dated 20.11.1984 and the judgment and decree dated 27.8.1984 was set aside. Against the judgment and decree dated 20.11.1984 passed by the first appellate court, the plaintiff preferred Second Appeal No.35 of 2001 before this Court. This Court, vide its judgment and order dated 02.05.2007, allowed the appeal and remanded the case to the first appellate court for deciding afresh after affording opportunity to the parties. This judgment dated 02.05.2007 was challenged by the defendant before the Hon'ble Apex Court by filing a Special Leave to Petition, but the Hon'ble Apex court, upon hearing the learned counsel for the parties, declined to interfere in the matter and dismissed the SLP. After remand, learned Civil Judge (Senior Division), Almora framed issue no.3 as under:
"Whether the suit of the plaintiff is barred by principle of Estoppels and acquiescence?"
5. After framing the issue, learned Civil Judge (Senior Division) sent the case to the court of Civil Judge (Junior Division), Almora for disposal of issue no.3. Learned Civil Judge (Junior Division), Almora registered the case and decided issue no.3 in favour of the defendant vide order dated 7.7.2010, which was challenged by the defendant in Civil Revision No.16 of 2010 in the court of District Judge, Almora. Learned District Judge, Almora, vide his judgment and order dated 23.2.2011, allowed the revision and remanded the matter to the trial court for fresh disposal. Vide order dated 08.07.2011, Civil Judge (Junior Division) again decided the issue in favour of the plaintiffs. Thereafter, the Civil Judge, Senior Division, Almora, 4 allowed the appeal, vide its judgment and decree dated 10.02.2012. Feeling aggrieved by the judgment and decree dated 10.02.2012, the plaintiffs/appellants has filed this second appeal.
6. I have heard learned counsel for the parties and have perused the entire evidence available on record.
7. This appeal was admitted on 11.05.2012 on the following substantial questions of law:
i) Whether the appellate court has
misread the evidence in allowing the
appeal?
ii) Whether mentioning of plot numbers in the plaint is sufficient for identifiablility of suit property?
8. Before any further discussion, it would be relevant to mention Order XLI Rule 31 of The Code of Civil Procedure, 1908, which is reproduced hereunder:
"Order XLI. Appeals from Original
Decrees
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, 5 and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
9. The first appellate court which is the last court of facts has committed patent error of law in deciding the appeal in a cursory manner. No reasons have been assigned by the first appellate court while reversing the findings of the trial court. The first appellate court has decided the appeal in a very cryptic and cursory manner without perusing the oral and documentary evidence led by the parties. The first appellant has neither recorded its own findings on the issues framed by the trial court nor framed any points for determination in order to adjudicate the case between the parties. There is no reference made by the first appellate court that the findings recorded by the trial court are incorrect or against the evidence available on record.
10. It is well settled in law that the reason is the life of law. The Hon'ble Apex Court in its recent judgment dated 04.08.2017 rendered in the case of U. Manjunath Rao vs. U. Chandrashekhar, has held as follows:
"7. It is well settled in law that the reason is the life of law. It is that filament that injects soul to the judgment. Absence of analysis not only evinces non-application of mind but mummifies the core spirit of the judgment. A Judge has to constantly remind himself that absence of reason in the process of adjudication makes the ultimate decision pregnable. While dealing with the first appeal preferred under Section 96 CPC, the Court in State of Rajasthan v. Harphool Singh (dead) through his LRs1 took note of the exception to the judgment passed by the first appellate court by 6 observing that there was no due or proper application of mind or any critical analysis or objective consideration of the matter, despite the same being the first appellate court.
8. A three-Judge Bench in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs2, while discussing about power of the first appellate court, has opined that it is the final court of facts and, therefore, pure findings of fact remain immune from challenge before the High Court in 1 (2000) 5 SCC 652 2 (2001) 3 SCC 179 second appeal. It is necessary to note that the Court had also held thus:
"... 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 Choudhary3). 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. ..." [Emphasis supplied] The aforesaid passage has to be appositely understood.
While reversing the finding and conclusions of the trial Court, the duty of the first appellate court is different than while affirming a judgment. Be it stated, the Court has also held that it is a final court of law in the sense that its 3 AIR 1967 SC 1124 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 7 erroneous findings of the first appellate court even on questions of law unless such question of law is a substantial one. In the said case, the Court, after referring to the decision in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh4, has further opined that:
"... 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 purpose of referring to the said decision is to highlight the responsibility cast on the first appellate court or a court hearing the first appeal.
9. In Madhukar and others v. Sangram and others5, the Court noticed that the High Court has framed two 4 AIR 1951 SC 120 5 (2001) 4 SCC 756 questions and thereafter had set aside the judgment and decree of the trial court and allowed the first appeal. Discussing about the duty of the first appellate court, the Court had referred to the decision in Santosh Hazari (supra) and reiterated the principles stated therein.
10. In H.K.N. Swami v. Irshad Basith (dead) by LRs6, the two-Judge Bench ruled:
"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. The order of the High Court is cryptic and the same is without assigning any reason." The said principle has been reiterated in State Bank of India and another v. Emmsons International Limitedand another7. Thus, in the first appeal the parties have right to be heard both on the questions of facts as well as on 6 (2005) 10 SCC 243 7 (2011) 12 SCC 174 law and the first appellate court is required to address itself to all the aspects and decide the case by ascribing reasons.8
12. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial Court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi (supra), the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court.
Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari (supra). However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial Court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari (supra) has to be borne in mind.
13. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Sao and another8 is worthy of noticing, 8 AIR 1974 SC 2048 although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a Letters Patent appeal from the judgment of the single Judge in a first appeal. The Court held that the Letters Patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the Letters Patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial Court. There has to be an "expression of opinion" in the 9 proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit.
14. In the case at hand, as we have noted earlier, the learned Judge has really not ascribed any reason. There has been no analysis of facts or law. There is no discussion with regard to the points urged. While agreeing with the general approval of reasons to support the conclusions of the judgment in appeal, the High Court has to keep in view the language employed in Order XLI Rule 31 CPC and the view expressed in Santosh Hazari (supra). Analysis and reason are to be manifest. When that is not done, needless to say, the judgment of the High Court becomes indefensible."
11. The Court further finds that not only the first appellate court, but the trial court has also sight of the fact that initially suit for injunction was filed by the plaintiff/appellant, but during the pendency of suit, the respondents/defendants had succeeded to raise construction, but issue no.1 was not modified by the trial court, which was framed to the effect that the plaintiffs are owner and in possession over the suit property. Therefore, when issue no.1 was not corrected/modified by the trial court as well as by the first appellate court, there was no occasion for the first appellate court to arrive at a particular conclusion. Thus, in the considered opinion of the Court, both the courts below have committed patent error of law in deciding the lis between the parties. Proper issues have not been framed by the first appellate court as well as by the trial court which are necessary to adjudicate the lis between the parties. In such view of the matter, issues framed by the trial court are reframed as under:
10(i) Whether the plaintiffs are owner of the property in dispute?
(ii) Whether plaintiffs' suit is barred by principle of estoppel as contended by the defendants?
(iii) Whether the defendant/respondent has raised illegal construction over the plaintiffs' land in Khasra no.14546 during the pendency of suit and the plaintiffs are entitled to get relief of possession over the property in dispute and to remove the construction raised by the respondent/defendant over the said khasra.
12. Answer to substantial question of law no.1:- From the perusal of the record as well as the judgment of the first appellate court dated 10.02.2012, it would reveal that the first appellate court without adverting to the documentary evidence adduced by the plaintiff as well as statement of P.W.1 and P.W.2 has recorded its findings on assumption and conjectures. The first appellate court has not considered the admission of defendant/respondent that she has raised the construction over the property khasra no.14546. In the opinion of the Court, the first appellate court has misread the evidence and has committed illegality in allowing the appeal filed by the defendant/respondent without assigning any reason. Substantial question of law no.1 is answered accordingly in favour of the plaintiff.
1113. Answer to substantial question of law no.2:- This substantial question of law is purely of legal nature. In view of provisions of Order 7 Rule 3 CPC, property can be identified by two ways. Firstly, by giving plot number/khasra, and secondly, by way of mentioning the boundaries. In the present case, plaintiffs have given the details of khasra in their plaint. The averments made in the plaint that the property in dispute is situated in third khasra number have not been refuted in the written statement of the defendant. It is settled proposition of law that if averment made in the plaint is not specifically denied by the defendant/respondent in written statement, the same shall be deemed to be admitted. This substantial question of law is thus answered in favour of the plaintiffs and it is held that mentioning khasra no.14546 is sufficient to identify the property. Thus, the property in dispute is identifiable.
14. As issue no.1 has been reframed and issue nos.2 and 3 have been framed by this Court, therefore, the matter is remitted to the trial court to record its findings on the issues, so framed by this Court, and to decide the suit in accordance with law after affording full opportunity of pleadings and evidence to the parties.
15. The second appeal is disposed of, as above. As the matter is quite old, the trial court shall make every endeavour to decide the suit within a period of six months from the date of production of certified copy of this judgment. Both the parties shall appear before the trial court on 22.09.2017.
1216. No order as to costs.
17. Lower court record be sent back to the trial court.
(Lok Pal Singh, J.) 25.08.2017 Rajni