Himachal Pradesh High Court
Dhoona Baba Keser Singh (Kutiya) vs Leelavati And Others on 19 November, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 652 of 2008.
.
Date of decision: 19.11.2019.
Dhoona Baba Keser Singh (Kutiya)
and others .....Appellants.
Versus
Leelavati and others .....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 For the Appellants : Mr. G.C.Gupta, Senior Advocate with Ms.Meera Devi, Advocate.
For the Respondents : Mr. Anup Rattan, Advocate, for respondent No.1.
Mr. L.S.Mehta, Advocate, for respondents No.2 to 6.
Tarlok Singh Chauhan, Judge (Oral).
Even though, this appeal has been formally admitted on 03.12.2008 on substantial questions of law so formulated on the said date and thereafter an additional substantial question of law was formulated on 06.08.2019, however, I find that the learned First appellate Court has not decided the case as is required under law.
1Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 20/11/2019 20:24:07 :::HCHP 2
2. 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 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.
3. 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 ::: Downloaded on - 20/11/2019 20:24:07 :::HCHP 3 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) "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."
::: Downloaded on - 20/11/2019 20:24:07 :::HCHP 4The 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 r 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) '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 ::: Downloaded on - 20/11/2019 20:24:07 :::HCHP 5 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 ::: Downloaded on - 20/11/2019 20:24:07 :::HCHP 6 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.)
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 r 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.' "
4. Adverting to the facts of the case, it would be noticed that the learned First Appellate Court has not at all adverted to the reasoning accorded by the learned trial Court while reversing the judgment and decree passed by it and in fact has simply chosen to write a separate judgment. Whereas, as observed above, the learned First Appellate Court was required to come into close quarters with the reasoning assigned by the learned trial Court and then assign its own reasons for arriving at a different finding.::: Downloaded on - 20/11/2019 20:24:07 :::HCHP 7
5. In addition to the aforesaid, it would be noticed that the learned trial Court had on two occasions i.e. 05.07.2005 and .
03.11.2005 framed issues which are as under:
"1. Whether the plaintiff is entitled for the decree of declaration that she is owner of the suit land? OPP.
2. Whether the Revenue entries showing the defendants are illegal, wrong and null and void? OPP.
3. Whether the plaintiff is entitled for the decree of possession of the suit land? OPP.
4. Whether the plaintiff has filed a suit No. 94/1963 dismissed on 20/3/1967 under Order 9 Rule 3 C.P.C. and present suit is not maintainable? OPD.
5. Whether the suit is barred under Order 2 Rule 2 C.P.C.?OPD.
6. Whether the present suit is barred by limitation? OPD.
7. Whether the plaintiff is estopped by her own act, conduct and deeds to file the present suit? OPD.
8. Whether the plaintiff has no locus-standi to file the present suit? OPD.
9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
10. Whether the defendants No.1 to 3 have become owners in possession by way of adverse possession? OPD.
11. Whether the present suit is bad for mis-joinder and non-joinder of necessary parties? OPD.::: Downloaded on - 20/11/2019 20:24:07 :::HCHP 8
12. Whether the suit land has been relinquished by Leelavati in favour of Kesar Singh (Known as Dhuna Baba Kesar Singh) through rapat No. 73 dated .
13/11/1950? OPD.
13. Relief."
6. It is after recording evidence that the learned trial Court answered issues No. 1 to 3 against the plaintiff and thereafter answered the remaining issues in favour of the defendants, except issue No.9 which was not pressed and proceeded to dismiss the suit.
Meaning thereby, even issues No.4 and 5 (supra), which were purely legal and went to the root of the case, were decided against the plaintiff. But, the learned First Appellate Court did not even take into consideration the issues so framed by the learned trial Court and framed the following points for determination:
"1 Whether the plaintiff is owner of the suit land and that she never gifted or relinquished the same in favour of Kesar Singh vide Rapat Rojnamcha No.73 dated 13-11- 1950 and mutation No. 2701 dated 12-12-1950 is wrong and illegal?
2. Whether the plaintiff is entitled for possession of the suit land?
3. Whether the suit of the plaintiff is within limitation?::: Downloaded on - 20/11/2019 20:24:07 :::HCHP 9
4. Whether the defendants in the alternative have become owners of suit land by way of adverse possession?
.
5. Relief."
7. To say the least, the points had to be formulated by the learned first Appellate Court on the basis of the findings recorded by the learned trial Court and only then and then alone could such findings have been set aside in appeal.
8. 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 after formulating proper points for determination. Ordered accordingly.
9. The parties, through their learned counsel(s), are directed to appear before the learned First Appellate Court on 17.12.2019.
10. Since the suit was filed more than 15 years back i.e. on 06.11.2004, the learned First Appellate Court is requested to decide the same as expeditiously as possible and in no event later than 31st March, 2020.
( Tarlok Singh Chauhan ) th 19 November, 2019. Judge (krt) ::: Downloaded on - 20/11/2019 20:24:07 :::HCHP