Shri Thakur Dass (Deceased ) Through Lrs vs Shri Surtia Alias Surat Ram on 29 December, 2016

[Cites 10, Cited by 0]

Himachal Pradesh High Court

Shri Thakur Dass (Deceased ) Through Lrs vs Shri Surtia Alias Surat Ram on 29 December, 2016

Bench: Tarlok Singh Chauhan

1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 419 of 2006 .

Decided on: 29.12.2016 Shri Thakur Dass (deceased ) through LRs ...Appellant.

Versus Shri Surtia alias Surat Ram ...Respondent.

of Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting? No. rt For the Appellant : Mr. Satyen Vaidya, Senior Advocate, with Mr. Varun Thakur, Advocate.

For the Respondent : Mr. Y.P. Sood and Ms. Seema K. Guleria, Advocates.

Tarlok Singh Chauhan, Judge (Oral).

Taking into consideration the nature of the judgment, I propose to pass, it is not at all necessary to delve deep into the facts. Suffice it to state that the respondent-plaintiff filed a suit for declaration to the effect that he is owner in possession of land comprised in Khasra No. 259/172 measuring 19-5 bighas and Khasra No. 257/172/1 measuring 12-10 bighas (total measuring 31-15 bighas) situated at Chak Chanardi, Tehsil Suni, District Shimla, H.P. and the revenue entries showing defendant-

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appellant as owner in possession of the land shown by Khasra No. 257/172/1 measuring 12-10 bighas and shown by letter 'B' attached with the Tatima are illegal, void, .

inoperative and are not binding on the rights of the plaintiff-respondent and for permanent prohibitory injunction restraining the defendant-appellant from of interfering in the land comprised in Khasra No. 257/172/1 measuring 12-10 bighas situated at Village Charnardi, Pargana Chhota Bahal, Tehsil Suni, District Shimla as a rt consequential relief.

2. The learned trial Court below dismissed the suit of the plaintiff and against the said dismissal first appeal was preferred by the respondent-plaintiff. The learned first Appellate Court below vide the impugned judgment and decree allowed the appeal and consequently decreed the suit and feeling aggrieved by and dissatisfied with the same, the present appellant-defendant has preferred this appeal, in this Court.

3. The learned trial Court dismissed the suit, however, on appeal being carried out before the learned first Appellate Court, the same was allowed and the judgment and decree passed by the learned trial Court was ::: Downloaded on - 15/04/2017 21:50:22 :::HCHP 3 reversed and consequently the suit filed by the plaintiff-

appellant was ordered to be decreed.

4. However a perusal of the judgment rendered by .

the learned first Appellate Court would reveal that while reversing the findings of the learned trial Court, it has not at all adverted to the reasons assigned by the learned trial of Court and has simply chosen to write a separate judgment.

5. It is settled principle of law that right to file first appeal against the decree under Section 96 of the Code of rt 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 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 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 decision of the appellate Court. While reversing a finding of fact, the appellate Court must come into close quarters with ::: Downloaded on - 15/04/2017 21:50:22 :::HCHP 4 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.

6. The scope, ambit and power of the first appellate Court while deciding the first appeal have been of subject matter of various judicial pronouncements and I may refer to a recent pronouncement of the Hon'ble Supreme Court in Shasidhar and others vs. Smt. rt Ashwini Uma Mathad and another 2015 AIR SCW 777 wherein it was held as follows:

"11. Having heard learned counsel for the parties and on perusal of the record of the case and 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, AIR 1969 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 tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the ::: Downloaded on - 15/04/2017 21:50:22 :::HCHP 5 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 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 furious contest between the counsel for the appellant and for 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 of Code.

15. We consider it apposite to refer to some of the decisions.

16. In Santosh Hazari vs Purushottam Tiwari (Deceased) by rt 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. 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......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court ... and then as sign 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-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 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."

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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:

"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 of 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;

rt (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 putforth, 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 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 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."

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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."

7. Similar issue came up very recently before the Hon'ble Supreme Court in Union of India Vs. K.V. Lakshman and others, 2016 AIR SC 3139, wherein it was held:-

of "22. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code 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 rt Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a conclusion different from that of the Trial Court.

23. Similarly, the powers of the first appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.

24. 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, AIR 1969 Kerala 316, reminded the first appellate Court of its duty to decide the first appeal. In his distinctive style of writing with 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 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 ::: Downloaded on - 15/04/2017 21:50:22 :::HCHP 8 and I have no doubt 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 furious contest between the counsel for the appellant and for the respondent, they appear to agree .

with me in this observation....." (Emphasis supplied)

25. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the appellate Court under Section 96 of the Code while deciding the first appeal.

26. We consider it apposite to refer to some of the decisions.

27. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188-189) as of under:

".........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a rt 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......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............"

28. The above view was followed by a three-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 issues and the evidence led by the parties before recording its findings.

29. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3) "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 ::: Downloaded on - 15/04/2017 21:50:22 :::HCHP 9 led by the parties before recording the finding regarding title."

30. Again in Jagannath v. Arulappa & Anr., (2005 12 SCC 303, while considering the scope of Section 96 the Code of Civil .

Procedure, 1908, this Court (at pp. 303-04) observed as follows: (SCC para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."

31. 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:

of "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 rt 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 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 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 appellate court. In our view, the judgment ::: Downloaded on - 15/04/2017 21:50:22 :::HCHP 10 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."

32. 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 of

174."

8. Similar reiteration of law can be found in a very rt recent judgment of Hon'ble Supreme Court in Civil Appeal No. 4426 of 2011, titled Laliteshwar Prasad Singh & Ors. v. S.P. Srivastava (deceased) through LRs, decided on 15.12.2016, wherein it was held as under:-

12. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect 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.

Considering the nature and scope of duty of first appellate court, in Vinod Kumar v. Gangadhar (2015) 1 SCC 391, it was held as under:-

"12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15) "15. ... 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. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court ::: Downloaded on - 15/04/2017 21:50:22 :::HCHP 11 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."

The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (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 issues and the evidence led by the parties before recording its findings.

13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) of "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 rt 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."

14. Again in Jagannath v. Arulappa (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2)

15. Again in B.V. Nagesh v. 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: (SCC pp. 530-31, paras 3-5) "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.

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 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) 9 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758, of para 5.)

5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High rt 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."

9. In view of the aforesaid exposition of law, the judgment and decree passed by the learned first Appellate Court cannot be countenanced and sustained and therefore, this Court has no option, but to set aside the judgment and decree so passed by it and remand the matter for decision afresh. Ordered accordingly.

10. The parties through their learned counsel are directed to appear before the learned first Appellate Court on 9.1.2017.

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11. Since the suit was instituted more than two decades back on 19.9.1996, the learned first Appellate Court is requested to decide the same as expeditiously as .

possible and no event later than 31st March, 2017.

(Tarlok Singh Chauhan) Judge.

of Dated: 29.12.2016 (sanjeev) rt ::: Downloaded on - 15/04/2017 21:50:22 :::HCHP

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