Himachal Pradesh High Court
Balraj Singh vs Bhagat Singh (Deceased) Through His on 20 November, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.131 of 2005.
.
Date of decision: 20th November, 2018.
Balraj Singh .....Appellant/plaintiff.
Versus Bhagat Singh (deceased) through his legal representatives Swaran Singh and others .....Respondents/defendant.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr. Romesh Verma, Advocate.
For the Respondents : Mr. Tara Singh Chauhan, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
Even though, this appeal has been formally admitted vide order passed earlier in the day, however, after hearing the parties, it was noticed that the learned first appellate Court has not decided the appeal in accordance with law.
2. The parties hereinafter shall be referred to as the 'plaintiff' and 'defendant'.
1Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 2
3. The plaintiff had filed a suit for permanent injunction against the defendant to restrain him from blocking the path passes .
through Khasra No. 8976 on the basis of easement of necessity. It is claimed that the plaintiff was owner in possession of land comprised in Khasra Nos. 605 and 606 and that there is a passage 'share-aam' since the inception of the Village being used by the residents of the Village from time immemorial. The passage is situated towards East r to of Khasra Nos. 605 and 606 and there is no other passage. The revenue authorities did not mention the passage in 'aks-shajra and missal-haqiyat-istemal' and, therefore, taking undue advantage of these wrong entries, the defendant had threatened to block the path and hence the suit wherein a decree for permanent injunction restraining the defendant from blocking the passage marked with letters ABCD and shown with red dots in the site plan accompanying the plaint was sought for.
4. The defendant contested the suit by filing written statement wherein it was averred that he was having residential 'abadi' in Khasra No. 8976 and the same was alloted to him along with Khasra No.8974 under landless scheme. It was further averred that the plaintiff illegally encroached the government land and now wanted to create a short-cut through the land of the defendant illegally, ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 3 whereas, the plaintiff had other land towards Western side of the said land. It was also pleaded that common passage only leads to the .
'abadi' where the land of the defendant starts and thereafter there is no further passage as there is no 'abadi' further to the path. The right of easement as claimed by the plaintiff was also denied on the ground that he has wide passage through his land from the pucca road. In addition thereto, the suit was resisted on the ground of maintainability
5.
r to and locus standi and accordingly it was prayed that the suit be dismissed.
Replication controverting the contents of the written statement and reasserting those of the plaint was filed. It was averred that passage about 2 Karam in width was kept intact by the defendant at the time of construction of 'abadi' and that there was no passage to the Western side of Khasra Nos. 605 and 606, as alleged by the defendant.
6. Out of the pleadings of the parties, the learned trial Court on 23.02.1996 framed the following issues:-
"1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
2. Whether there exists any passage in Khasra Nos. 8977 and 8976? OPP ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 4
3. If issue No.2 is proved in affirmative, whether the plaintiff has acquired an easementary right by way of necessity to passage? OPP.
.
4. Whether the plaintiff has no cause of action to file the present suit? OPD.
5. Whether the plaintiff has no locus-standi to file the present suit? OPD.
6. Whether plaintiff is estopped by his act and conduct to file the present suit? OPD.
7. Whether the suit is not maintainable in the present form?
OPD.
8. Relief."
7. After recording evidence and evaluating the same, the learned trial Court decreed the suit filed by the plaintiff which constrained the defendant to file an appeal before the learned first appellate Court, who in turn, allowed the appeal and thereby dismissed the suit filed by the plaintiff, constraining him to file the instant appeal which was admitted today on the following substantial questions of law:
"1. Whether presumption of correctness is attached to the revenue record, wherein area of Khasra No. 8976 New Khasra No. 802 is recorded as gair-mumkin rasta, therefore, findings of Ld. Lower Appellate Court are liable to be set aside?::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 5
2. Whether findings as recorded by Ld. Lower Appellate Court are based on mis-reading, mis-construction and mis- interpretation of the pleadings of the parties?
.
3. Whether Ld. District Judge has acted illegally by failure to grant equitable and discretionary relief of injunction especially that existence of path stands proved and admitted by respondent and, therefore, findings of Ld. Trial Court should not have been reversed?"
8. During the course of arguments, learned counsel for the appellant/plaintiff has taken me through the findings rendered by the learned first appellate Court in paragraphs 25 to 28 which infact form the basis for reversing the judgment and decree passed by the learned trial Court and noticeably such findings are not in conformity and are rather contrary to the case set up by the parties.
9. The learned first appellate Court has firstly held the suit land to be 'shamlat' and as such vested in the State of Himachal Pradesh and has further concluded that in view of vestment, the plaintiff cannot claim any easement of right of passage over the suit land as such rights stood extinguished when the land in suit stood vested in the State of Himachal Pradesh under Section 3 of the H.P. Village Common Lands (Vesting and Utilization) Act, 1974. In addition thereto, the learned first appellate Court after allowing the application ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 6 for additional evidence whereby certain revenue records along with site plan was placed on record, observed as under:-
.
" The controversy in the case in hand can be examined from another angle also. It is clear from a bare look at the plaint that the plaintiff has not mentioned in the head-note or prayer clause the Khata, Khatauni and Khasra numbers of the land through which the passage is being claimed. It is settled law that when plaintiff is seeking declaration or injunction in respect of a right pertaining to immovable property the plaint shall contain description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in record of settlement or survey the plaint shall specify such boundaries or number."
9. To say the least, the aforesaid findings recorded by the learned first appellate Court are perverse and based upon complete misreading of the plaint which otherwise as per settled law has to be read as a whole. No doubt, the plaintiff is required to comply with the provisions of Order 7 Rule 3 CPC, but then in the instant case, the same stands duly complied with as is clearly evident from para-1 of the plaint which reads thus:-
"1. That the plaintiff is the resident of village Kungrat. He owns and possesses Khasra Nos. 605 and 606. There is a passage share-am since the inception of the village & the residents of the village alongwith residents of other villages use the same as passage since the time immemorial. The said passage is situated towards the east of Khasra Nos. 605 & 606 & the ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 7 same has been shown in red dots marked with letters ABCD in the site plan. It passes through Khasra Nos. 8977 and 8976. There is no other passage and as such the plaintiff has .
acquired the easementary right by way of necessity to use the passage."
10. Unfortunately, the learned first appellate Court did not even care to look at the site plan which accompanied and formed part and parcel of the suit wherein the alleged path and its ingress and outgress points had clearly been delineated. The findings recorded by the learned first appellate Court that the plaintiff had failed to mention the specific khasra number of the land through which the passage is being claimed are absolutely perverse in view of the averments reproduced above and, therefore, liable to be set aside.
11. 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 the 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 ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 8 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.
12. 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 Laliteshwar Prasad Singh & Ors. versus S.P. Srivastava (dead) through legal representatives (2017) 2 SCC 415, wherein it was held as under:-
"13. 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:- (SCC pp. 394-96, paras 12-15) "12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15) ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 9 "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 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 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) ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 10 '2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion.'
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.
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, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756, SCC p. 758, para 5.) ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 11
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.' "
13. It would be noticed that the learned first appellate Court has not decided the case on merits, but has decided the same only on "technical grounds" which otherwise are not sustainable in the eyes of law. Noticeably, none of the grounds on which the judgment and decree passed by the learned trial Court have been set aside, was ever seriously raised in the grounds raised by the defendant in that appeal. Therefore, the judgment and decree so passed by the learned first appellate Court and, more particularly, the observations made in paragraphs 25 to 28 thereof are liable to be set aside. Ordered accordingly.
14. The appeal is allowed in the aforesaid terms, leaving the parties to bear their own costs. The parties through their respective counsel(s) are directed to appear before the learned first appellate Court i.e. District Judge, Una, on 10.12.2018.::: Downloaded on - 24/11/2018 22:56:30 :::HCHP 12
15. Since the suit was instituted as far as back on 04.05.1995, the learned Court below shall make every endeavour to decide the .
appeal as expeditiously as possible and in no event later than 31.03.2019.
16. The appeal is disposed of in the aforesaid manner, so also the pending application, if any.
( Tarlok Singh Chauhan ) th 20 November, 2018. Judge (krt) ::: Downloaded on - 24/11/2018 22:56:30 :::HCHP