Jharkhand High Court
Amar Kumar vs Ramchandra Ram And Ors on 4 May, 2017
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. no. 161 of 2015
Amar Kumar, son of Hira Ram, resident of village Awal Mohalla, Chatra, PO ,
PS and Dist. Chatra ...........Appellant
Versus
(1) (i) Asha Devi, wife of late Ramchandra Ram
(ii) Binod Kumara Verma
(iii) Vijay Kumar Verma, both sons of late Ramchandra Ram
All resident of Mohalla Awal, PO, PS and Dist. Chatra
(iv) Saroj Devi, W/o late Nand Lal Prasad and D/o late Ramchandra
Ram, R/o Mansari, PS Chauparan, Dist. Hazaribagh
(v) Poonam Devi, W/o Mukesh Anand Singh, D/o late Ramchandra
Ram, R/o Thana Road, Chakradharpur, PS Chakradharpur, Dist. West
Singhbhum
(vi) Pummi Kumari, D/o late Ramchandra Ram, resident of Mohalla
Awal, PO , PS and Dist. Chatra
(2) Most. Laxmi Devi, wife of late Badri Ram, both residents of Mohalla
Awal, Near Gita Ashram School, PO, PS and Dist. Chatra
(3) Asha Devi, wife of Umesh Prasad, D/o late Badri Ram, Resident of
Nootan Nagar, PO and PS Sadar, Hazaribagh, District Hazaribagh
(4) Mamta Devi, wife of Durga Prasad and D/o Late Badri Ram, resident of
Khagariawan, PO Khapariyan, PS and Dist. Hazaribagh
(5) Rajendra Ram, son of late Manki Ram, R/o village Kathoutia Tola
Bhagwan Das, Chatra, PO, PS and Dist. Chatra
(6) Rekha Devi, Wife of late Kanhai Ram
(7) Santu Ram, Son of late Kanhai Ram
(8) Jitu Ram, Son of late Kanhai Ram
(9) Pani Devi, D/o Son of late Kanhai Ram
Nos. 6 to 9 are resident of Okni Mohalla, Hazaribagh, PO PS and Dist.
Hazaribagh
(10) Barho Devi, Wife of Mahesh Ram, resident of village Shahrjam, PO
Karni, PS Itkhori, Dist. Chatra
..........Respondents
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Ayush Aditya, Advocate
Mr. Shashank Shekhar, Advocate
For the Respondent : Mr. S.K. Sharma, Advocate
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14/Dated:04.05.2017
This second appeal has been preferred against the judgment passed by the District Judge-1st, Chatra in Misc. (Civil) Appeal no. 07 of 2005, dismissing the appeal preferred by the appellant.
2. Mr. Ayush Aditya, learned counsel for the appellant has laid out the sequence of events culminating in preferring this Second Appeal. It is submitted that Execution Case no.1 of 2005 was instituted by the respondents/plaintiffs and the appellant (herein) had filed the objection petition under Order XXI Rule 97 C.P.C., to which a rejoinder was filed by the respondents/plaintiffs. The objection filed by the appellant was rejected by the Executing Court, whereupon, the appellant had preferred Miscellaneous -2- Appeal before the District Judge who vide order dated 04.01.2006 had directed to return the memo of appeal observing that the order passed by the Executing Court was revisable and not appealable. Against the order of the District Judge, the appellant had preferred Second Appeal no. 12 of 2006 and this Court while setting aside the order of the District Judge held that the order passed under Order XXI Rule 97 was a decree in terms of Rule 103 CPC and was appealable under Section 96 CPC and accordingly, the District Judge was directed to hear the appeal and pass necessary orders afresh, in accordance with law.
3. Mr. Ayush Aditya has eloquently argued that perusal of the judgment would ex-facie disclose that the court below while passing the order has not adhered to the requirement of provisions of Section 96 CPC. In support of his contention he has relied on the decision reported in (2017) 2 Supreme Court Cases 415 in the case of Laliteshwar Prasad Singh and Others Vs. S.P. Srivastava (Dead) Through Legal Representatives and submitted that the Supreme Court has held that the first appellate court is bound to state the points for determination and the reasons for the decisions. It is urged that the order impugned herein, reveals that no independent findings has been recorded by the learned District Judge, rather he has merely reiterated the findings of the Executing Court. That in fact, the order has been passed without assigning any reasons or independent application of judicial mind. It is contended that this itself gives rise to a substantial question of law.
Learned counsel has also referred to the decision in the case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) by Lrs. reported in (2001) 3 Supreme Court Cases 179, and submitted that in the said decision it has been held that improper functioning of first appellate court may give rise to substantial question of law as the judgment of the first appellate court must reflect conscious application of mind and the findings should be supported by reasons on all issues and contentions.
Learned counsel has also relied on the decisions reported in (2014) 16 Supreme Court Cases: (2015) 3 Supreme court Cases (civ) 453 and in the case of United Engineers & Contractors Vs. Secretary to Government of A.P. & Others wherein it has been held that there should be full-fledged inquiry and the issue should be framed by the trial court and merely dismissal of the case is improper. It is argued that in similar circumstances, the Supreme Court had remitted the matter to the first -3- appellate court to frame issues and decide it in terms of Order 41 Rule 31 C.P.C.
Learned counsel has relied on the decision in the case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam by its president and others reported in (2012) 6 Supreme Court Cases 430 and submitted that the courts are bound to frame issues on the basis of the pleadings of the parties as laid down under Order 14 Rule 1 & 3 and Order 10 Rule 2 C.P.C.
Learned counsel has also relied on the decision reported in (2009) 2 Supreme Court Cases 562 in the case of S. Satnam Singh and Others vs. Surender Kaur and Another and submitted that the impugned judgment does not come within the definition of decree as defined under Section 2 of the Code.
Learned counsel has also relied on the decision in the case of Baljit Singh Vs. Balkar Singh reported in (2001) 2 PLR 315; (2001) 1 RCR (Civ) 180; (2000) 0 Supreme (P & H) 849 and in the case of S.K. Mukherjee, Basudeva Panigrahi Vs. Calcutta Vyapar Pratisthan Ltd., reported in (1995) 1 CalLT 427; 1995 1 CLJ 434; (1995) 0 Supreme (Cal) 99 and contended that Order 21 CPC has been incorporated by amendment of Rule 1976 with an object to curtail multiplicity of suit. It is argued that the Executing Court is competent to decide the issues on the applications filed under Order 21 Rule 97 CPC by adjudicating on the issues and contentions and pleas raised even by a stranger who resists the execution of decree by the decree holder.
4. Learned counsel on behalf of the respondents has submitted that the respondents had instituted Title Suit no. 91 of 1984 against the father of the appellants for eviction from the suit premises and the suit was decreed in favour of the father of the respondents, whereafter, the appellant's father had preferred Title Appeal no. 40 of 1995 before the Additional District Judge, Chatra, who had affirmed the decree of the trial court. Being aggrieved the appellants had preferred Second Appeal no. 610 of 2004 which was dismissed by order dated 14.05.2009. Learned counsel for the respondents has filed the certified copy of the same in course of hearing which is kept on record.
It is contended by the learned counsel for the respondents that it would be evident that after passing of the judgment and decree in Title Appeal no. 40 of 1995, the respondent/plaintiff had filed Execution Case and in the said Execution Case, the defendant / appellant had filed their objection -4- under Order 21 Rule 97 CPC. They merely stated that they are residing separately from their father and they had not been impleaded in the said suit nor in the execution proceeding, hence, the decree is not binding upon them and the respondent/plaintiff had filed the rejoinder stating that when the father of the appellants had filed the original title suit, the objectors/appellants were minor aged 5 and 6 years and were residing with their father and had no separate right title over the suit property.
That it would be evident from the order of the Executing Court that the court had asked the objectors/appellants whether they had any document in support of their claim that they had separate and independent title to that of their father with respect to the suit property to which they had replied in negative.
It is contended that in the said execution proceeding, the appellants had taken plea of adverse possession and the Executing Court held that they had failed to produce or bring any material evidence on record to substantiate the plea of adverse possession as to against whom they were claiming hostile title or the date from which they acquired title by adverse possession.
It is submitted that after dismissal of the Miscellaneous Appeal by the District Judge, the appellant had preferred the second appeal before this court and the substantial question of law which came up for adjudication was whether the Order XXI Rule 98 CPC was revisable/or appealable and this court had held that the order was appealable being a decree under Rule 103 Order XXI CPC and remitted the matter to the District Judge for adjudication of the appeal in accordance with law. It is argued that the appellate court on hearing the parties and on consideration of the material facts has rightly dismissed the appeal. It is urged that no substantial question of law is involved in the present appeal.
5. Having heard the counsels and on perusal of judgment and materials on record, it would be evident that the objectors/appellants had merely pleaded that they are residing separately from their father and have a separate and independent title. No material facts were pleaded nor documents adduced to substantiate as to on what basis or evidence they were claiming independent and separate title. It is settled principle that framing of issues are founded on the grounds of issue of law and issue of facts. It is abundantly clear that the appellants merely pleaded that they were residing separately from their father and had a separate title. Admittedly, in Second Appeal no. 12 of 2006, the substantial question of law involved was -5- whether order passed under Order XXI Rule 98 CPC was revisable or appealable and the Hon'ble Single Judge held that order passed under Order XXI Rule 98 CPC was a decree in terms of Rule 103 of Order XXI and is appealable. The Hon'ble Judge remitted the matter to the court below to proceed with the appeal and pass necessary orders in accordance with law.
It would be evident from the impugned order and the facts exposited as above that the appellants did not file any application for amendment of pleading nor did they make any efforts to adduce additional evidence under Order 41 Rule 27 CPC before the District Judge to substantiate the pleading that they had separate title over the suit property. The pleadings were shorn of any material details, hence, there was no material proposition before the courts to frame any issues or formulate any points for determination.
5. Thus, in the absence of any material proposition, the appellate court had no option but to base its findings by reiterating the findings recorded by the trial court while dismissing the appeal.
6. In the attending facts and circumstances, it is explicit that the facts of the decisions relied upon by the learned counsel for the appellant has no application to the attending facts of the present case. In fact, no substantial question of law is involved in the present appeal.
7. In the result, the appeal stands dismissed.
(Amitav K. Gupta, J.) Tarun /-