Himachal Pradesh High Court
Dhian Singh vs Bhagwan Singh on 26 April, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
RSA No. 522/2016
.
Decided on: 26.4.2017
Dhian Singh. ...Appellant.
Versus
Bhagwan Singh. ...Respondent.
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 No
For the Appellant: Mr. Neeraj Gupta, Advcoate.
For the Respondent: Mr. Gaurav Gautam, Advocate.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral):
Looking to the nature of the order I propose to pass, it is not relevant to cull out in detail the necessary facts.
2. Suffice it to state that the plaintiff-appellant filed a suit for declaration and permanent prohibitory injunction with respect to land comprised in Khata No. 46 min, Khatauni No. 83 min, Khasra No. 623/32 measuring 0-04-44 hectares situated in Mohal Dandh, Mauza Bhagwar, Tehsil and District Kangra, H.P. 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 2
3. The defendant, in addition to contesting the suit on merits, had preferred a counter-claim. Learned .
trial court dismissed both the suit as well as counter-
claim constraining the parties to file appeal/cross-
objections before the learned first appellate court. The first appellate court dismissed the cross-objections and partly allowed the appeal by according the following reasons:
"17. On perusal of the impugned judgment and decree and pleadings of the parties, I am of the considered opinion that there is an ample evidence on record that the possession of the defendants is a long possession by way of construction of a house on the suit land. When the plaintiff did not object to the defendants' raising construction of the old house many years ago and did not object to its renovation. Therefore, the plaintiff was also estopped from filing the present suit claiming the relief of injunction against the defendants/counter claimants.
18. In the impugned judgment, the issue of estoppel against the plaintiff has been framed twice as issue No.1-C and 3. Though, finding on both these issues have been given negative, but both these issues are one and the same thing i.e. regarding estoppel. However, I am of the opinion that as discussed earlier, plaintiff has not objected when the defendants raised construction of house on the suit land 15-16 years ago as has been admitted by the plaintiff while stepping into the witness box as PW-1 that the house which is present in the suit land was constructed by defendant Kickker Singh from the last 15- 16 years and he is living there. The statement of PW-1 ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 3 Dhian Singh was recorded in the year 1996. From the cross-examination as well as evidence led by the defendants also it is amply clear that the construction .
raised by the defendants on the suit land was old one as the plaintiff has not objected at the time of raising of construction by the defendant on the suit land. Therefore, now he was estopped by his act and conduct to restrain the defendants on the suit land. Therefore, now he was estopped by his act and conduct to restrain the defendants from raising any construction or interfering in the suit land when the house raised/constructed many years ago.
Hence, I am of the opinion that the findings on issue Nos.1 =-C and 3 are perverse and erroneous. Accordingly, my findings on issue Nos. 1-C and 3 are answered in affirmative, in favour of the defendants and against the plaintiff.
19. Accordingly, for the aforesaid reasons, point No.1 is answered partly in negative."
4. It would be evidently clear from the aforesaid findings that the learned first appellate court has not at all cared to discuss the evidence led by the parties and solely on the basis of the statement of PW-1 has passed the impugned judgment and decree. The mode and manner in which the first appellate court has rapped up its findings without discussing the oral as well as documentary evidence on record cannot be countenanced.
::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 45. It is settled principle of law that right to file 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 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 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 - 28/04/2017 23:57:48 :::HCHP 56. The scope, ambit and power of the first appellate Court while deciding the first appeal have .
been 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 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, ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 6 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 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 r 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. 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 ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 7 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:
r "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: "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:
::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 8"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 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 ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 9 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."
21. The aforementioned cases were relied upon by this Court while reiterating the same principle in r 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 before the Hon'ble Supreme Court in Union of India Vs. K.V. Lakshman and others, 2016 AIR SC 3139, wherein it was held:-
"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 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.::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 10
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 r 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 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) ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 11
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 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 r 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.
::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 1229. 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 led by the r 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:
"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;::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 13
(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 - 28/04/2017 23:57:48 :::HCHP 14 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 r this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174."
8. Similar reiteration of law can be found in a very recent judgment of Hon'ble Supreme Court in Laliteshwar Prasad Singh & Ors. v. S.P. Srivastava (deceased) through LRs, 2017 (2) SCC 415, 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:-::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 15
"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 r 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."
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) "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 ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 16 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 r 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 ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 17 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, 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, r 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.
::: Downloaded on - 28/04/2017 23:57:48 :::HCHP 1810. The parties, through their learned counsel, are directed to appear before the learned first Appellate .
Court on 15.5.2017.
11. Since the suit was instituted more than two and a half decades back on 24.11.1990, the learned first Appellate Court is requested to decide the same as expeditiously as possible and in no event later than 30th Jun, 2017.
(Tarlok Singh Chauhan), Judge.
26.4.2017 *awasthi* ::: Downloaded on - 28/04/2017 23:57:48 :::HCHP