Gujarat High Court
Amarabhai Dharmabhai Parmar vs Methiben Kahalabhai Mangrola on 19 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/46/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 46 of 2015
==========================================================
AMARABHAI DHARMABHAI PARMAR
Versus
METHIBEN KAHALABHAI MANGROLA
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the PETITIONER(s) No. 1
MR MTM HAKIM(1190) for the RESPONDENT(s) No. 4
MR SUNIL K SHAH(803) for the RESPONDENT(s) No. 1,2,3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/06/2018
ORAL ORDER
1. This second appeal under section 100 of the CPC is at the instance of the original plaintiff, questioning the legality and validity of the judgment and order dated 13th February, 2015 passed by the Principal District Judge, Banaskantha at Palanpur in the Regular Civil Appeal No.17 of 2008, by which, the Appellate Court dismissed the regular civil appeal filed by the appellant herein-original plaintiff affirming the judgment and decree dated 31st March, 2008 passed by the 8th Addl. Senior Civil Judge, Palanpur in the Regular Civil Suit No.119 of 1998.
2. In the memo of the second appeal, the proposed substantial questions of law, raised therein, are extracted hereunder;
"(A) Whether both the courts below have committed substantial error of law in misreading documents below Exh.81, 82, 83, 84 and 97?
(B) Whether both the courts below have committed substantial error of law in not appreciating that the Page 1 of 13 C/SA/46/2015 ORDER appellant is the owner of the suit property in question and that the defendants had violated the order of injunction and the construction put up by the defendants was required to be demolished?
(C ) Whether both the courts below have committed substantial error of law in not appreciating that the defendants had admitted the ownership of plot no.1 of the plaintiff in the written statement?
(D) Whether the learned lower appellant has committed substantial error of law in not framing points for determination under Order 41 Rule 31 of the Code of Civil Procedure, 1908?"
3. It appears from the materials on record that a plot of land bearing No.1, admeasuring 675 square feet, i.e. 62.7097 square meters came to be allotted in favour of the appellant herein by virtue of a public auction conducted by the D.D.O way back in the year 1996. It is the case of the appellant plaintiff that he purchased the land in question on 27th August, 1996. The description of the land said to have been purchased by the appellant-plaintiff is as under;
"Plot No.1 situated at Gamtal, Village- Songadh, Dist:-
Banaskantha.
Measurement E-W:-North side-45 Ft.
South Side 45 ft.
N-S:- East Side:- 15 ft.
West Side:- 15 ft.
Total measurement 675 sq. ft.- i.e. 62.7097 sq. mt.
Boundaries On east- 30 Ft. Wide way On west:-Gamtal Land On north:-20 ft. way Page 2 of 13 C/SA/46/2015 ORDER On South:- Plot No.2."
4. After the purchase of the plot in question in a public auction, by an order dated 27th November, 1996, a Sanad came to be issued in favour of the appellant-plaintiff by the District Development Officer. The appellant-plaintiff also prayed for permission to put up the construction. These documents were produced in the course of the trial vide Exhibits 82 to 87.
5. It appears that the plot Nos.2 and 3 came to be purchased by the respondents Nos.1 to 3-original defendants and the Sanad was issued in their favour. A common possession receipt was issued by the authority in favour of the appellant-plaintiff and the three defendants. This document is at Exhibit-9.
6. In 1998, the appellant-plaintiff had to file a regular civil suit as the defendant Nos.1 to 3 encroached upon the suit land and started putting up the construction. On 26th May, 1998, the Civil Court granted an ad-interim injunction against such construction. A written statement was filed by the defendants Nos.1 to 3 admitting that the appellant-plaintiff is the owner of the plot No.1. They did not dispute as regards the measurement but they asserted that they had put up the construction in their own land, i.e, on the plots allotted in their favour. The original defendant No.4, i.e., the respondent No.4 herein is the Talati cum Mantri of the village. He also filed a written statement. It appears that three Panchnamas were drawn. The Panchnamas are on record.
7. In the regular civil suit filed by the appellant-plaintiff Page 3 of 13 C/SA/46/2015 ORDER herein, the following issues came to be framed.
"(1) Whether the plaintiff proves that he is the lawful owner and is in possession of the suit property?
(2) Whether the plaintiff proves that the defendants Nos.1 to 3, in collusion with defendant No.4, have made an illegal construction?
(2-A) Whether the plaintiff proves that he has a right to demolish the house illegally constructed by the defendants in the suit plot and to bring it in its original position?
(2-B) Whether the plaintiff proves that he is entitled to receive Rs.500/- per day from the date of the filing of the suit till the defendants demolish the house illegally constructed in his plot and to bring it in its original position?
(2-C) Whether the plaintiff proves that he is entitled to receive Rs.25,000/-as compensation for the loss due to the construction made by the defendants in his plot against the order passed in the Civil Appeal No.53 of 1998?
(3) Whether the plaintiff proves that the defendants disobeyed the order of interim injunction?
(4) Whether the defendants prove that the construction put up by them is on the auctioned plot?
(5) Whether the defendants prove that the suit is required to be rejected for want of necessary notice?
(6) Whether the plaintiff is entitled to the relief as prayed for?
(7) What type of order and decree?" 8 The issues, enumerated above, framed by the Civil Court, came to be answered accordingly; Page 4 of 13 C/SA/46/2015 ORDER "(1) In the negative (2) In the negative (2-A) In the negative (2-B) In the negative (2-C) In the negative (3) In the negative (4) In the affirmative (5) In the negative (6) In the negative (7) As per the final order"
9. On overall appreciation of the evidence on record, the Trial Court came to the conclusion and recorded a finding that the plaintiff failed to establish his title and ownership over the land in question. The Trial Court also recorded a finding that the plaintiff failed to prove that the defendants Nos.1 to 3, in collusion with the defendant No.4, had put up illegal construction on the land allotted in his favour. Ultimately, the suit came to be dismissed.
10. Being dissatisfied with the judgment and order passed by the Civil Court dismissing the suit, a Regular Civil Appeal No.17 of 2008 came to be filed by the appellant-plaintiff herein in the District Court, Banaskantha at Palanpur. The First Appellate Court dismissed the appeal, thereby affirming the judgment and decree dated 31st March, 2008 passed by the Civil Court. While dismissing the appeal, the Appellate Court observed as under;
"15. Plaintiff has also placed his reliance upon Exh.81 Sanad of Plot No.1, Exh.82 Map of Plot No.1, Exh.83 Revenue receipt, Exh.84 permission for construction, Exh.85 Copy of Sanad, Exh.86 copy of Sanad, Exh.87 Copy of Saand, Exh.89 order passed by District Court, Palanpur against the order below Exh.5, Exh.90 Panchnama of Plot No.1 and surroundings places of the same. Exh.91 Map drawn by court Commissioner, Exh.92 copy of sanad, Exh.93 copy of Sanad, Exh.94 revenue Page 5 of 13 C/SA/46/2015 ORDER receipt, Exh.95 letter of Dy. Executive Engineer, Exh.96 rough scratch, Exh.97 revenue receipt, Exh.98 proposed plan for the rest building of Shri Mangrola Kaslabhai Dharmabhai in his plot No.2 and Smt. Methiben Kaslabhai in her plot NO.3, Exh.99 Revolusion of Songadh Gram Panchayat wherein it is stated that Plot No.1 is open and permission was granted to holder of Plot Nos.2 & 3 subject to conditions imposed by Songadh Gram Panchayat, Exh.100 Panchnama prepared by Court Commissioner, Exh.101 Map prepared by Court Commissioner, Exh.102 Panchnama prepared by Court Commissioner, Exh.103 Map prepared by Court Commissioner, Exh.107 copy of title of Civil Misc. Appeal No.53/1998, Exh.108 copy of letter from District Surveyor, Exh.109 letter from District Observer, D.I.L.R Office, B.K., District: Palanpur, Exhs. 111 & 112 copy of Panch Tapas for Plot Nos.1 to 4, Exh.113 copy of Rojkam and Exh.114 Layout plan. The matter was remitted from Hon'ble Gujarat High court vide order passed in Civil Revision Application No.364/2000.
16. Defendant Kaslabhai Dharmabhai Mangrola has also filed affidavit at Exh.235 stating his grievances and he was duly cross-examined by L.A. For the plaintiff but he has not taken stand. On the contrary he has admitted that there is no dispute between Plot Nos.1 to 4 regarding ownership. It is also contended that there is open plot No.1 and Plot No.2 belongs to Kaslabhai Dharmabhai and Plot No.3 belongs to his wife i.e. defendant No.1.
17. This Court has completely gone through the judgement given by learned the then 8th Addl. Civil Judge, Palanpur on 31.03.2008 wherein learned the then 8th Addl. Sr. Civil Judge, Palanpur has discussed each and every issues in detail and I am in fully agreement with the reasons rendered by learned the then 8th Addl. Sr. Civil Judge, Palanpur.
18. So far as the issues Nos.1 & 2 are concerned, learned the then 8th Addl. Sr. Civil Judge, Palanpur has rightly appreciated Issue Nos.1 & 2 in favour of the defendants that plaintiff has failed to prove his case that he is legal owner and possessor of the suit property. Plaintiff has also failed to prove that defendant Nos.1 to 3 and defendant No.4 jointly made illegal construction.Page 6 of 13 C/SA/46/2015 ORDER
That the plaintiff has not produced any evidence regarding his ownership over the disputed property. On the contrary the defendants have made construction on suit premises which is in their ownership and possession. Further plot No.1 of the plaintiff is open and it is in his possession. There is no encroachment by the defendants on the plot No.1 but defendants have made construction on Plot Nos.2 & 3. Therefore, learned the then 8th Addl. Sr. Civil Judge has rightly decided the Issues Nos.1 & 2 in favour of the defendants.
19. So far as the Issue Nos.2-A, 2-B & 2-C are concerned, learned the then 8th Addl. Sr. Civil Judge, Palanpur has rightly appreciated Issue Nos.2-A, 2-B & 2-C in favour of the defendants that plaintiff has failed to prove his case that defendants had made the illegal construction on Plot No.1 of the plaintiff and so it is to be demolished and put in original position. Plaintiff has also failed to prove his case that defendants had made the illegal construction on plot No.1 of the plaintiff and so till to be demolished and put in original position, compensation of Rs.500/- per day be entitled by the plaintiff from the defendants. Plaintiff has also failed to prove his case that defendants had knowledge of the injunction order of the Hon'ble District Court in C.M.A No.53/1998, inspite of, had made the illegal construction on Plot No.1 of the plaintiff and so, plaintiff is entitled for special compensatory cost of Rs.25,000/- from the defendants. That defendants had made construction on their own land and, therefore, plaintiff has no right to demolish the same and therefore, learned the then 8th Addl. Sr. Civil Judge has rightly decided the issue Nos.2-A, 2-B & 2-C in favour of the defendants."
11. In para-15 of the judgment and order of the First Appellate Court, there is a reference of the documentary evidence adduced by the appellant-plaintiff herein. In para-17, the First Appellate Court concluded that it was in full agreement with the findings of the Civil Court.
12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the Page 7 of 13 C/SA/46/2015 ORDER only question that falls for my consideration is whether any substantial question of law is involved in this second appeal.
13. I am at one with Mr. Majmudar, the learned counsel appearing for the appellant-plaintiff that the first appeal has been dismissed by the appellate court in a very casual manner. There is no discussion or any re-appreciation of the evidence in accordance with law. Mr. Majmudar pointed out that although the thumping documentary evidence was adduced in the course of the trial, the same has not been appreciated in a proper manner. Mr. Majmudar submitted that a first appeal under section 96 of the CPC against the decree 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 the findings of fact or/and of law in the first appeal. It is the duty of the first appellate court to appreciate the entire evidence and arrive at its own independent conclusion. In this regard, the learned counsel appearing for the appellant-plaintiff is correct.
14. I deem it fit and appropriate to remit the case to the first appellate court for the reason that the first appellate court dismissed the appeal very cursorily and without undertaking any proper re-appreciation of the evidence, dealing with various issues arising in the case and discussing the arguments raised by the parties in support of their case. In other words, the disposal of the first appeal by the District Court could not be said to be in conformity with the requirements of section 96 read with Order 41, Rule 31 of the CPC.
Page 8 of 13 C/SA/46/2015 ORDER15. Let me remind the appeal court concerned of the recent pronouncement of the Supreme Court in this regard. In the case of C. Venkata Swamy vs. H.N. Shivanna (Dead) by Legal Representative & Anr., 2018 (1) SCC 604, the Supreme Court observed as under;
"11. 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 arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.
12. 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.
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 Code 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 Page 9 of 13 C/SA/46/2015 ORDER 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 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. We consider it apposite to refer to some of the decisions.
15. 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 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............"
16. 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.
17. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3) Page 10 of 13 C/SA/46/2015 ORDER "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."
18. 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........."
19. 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;
(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 Page 11 of 13 C/SA/46/2015 ORDER 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."
20. 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 and Union of India vs. K.V. Lakshman & Ors. (2016) 13 SCC 124.
21. In the light of foregoing discussion, we have no option but to allow these appeals, set aside the impugned judgment and remand the case to the High Court for deciding the appeals afresh on merits in accordance with law keeping in view our observations made supra.
22. We, however, make it clear that we have refrained from making any observation on merits of the controversy having formed an opinion to remand the case to the High Court. The High Court would, therefore, decide the appeals uninfluenced by any of the observations in accordance with law. Since the appeals are quite old, we request the High Court to ensure expeditious disposal of the appeals. "
Page 12 of 13 C/SA/46/2015 ORDER16. In the light of the foregoing discussion, this second appeal is allowed. The impugned judgment passed by the first appellate court is hereby quashed and set aside and the matter is remanded to the first appellate court for the purpose of deciding the first appeal afresh on merits in accordance with law, keeping in mind all the observations made supra.
17. I, however, make it clear that I have refrained myself from making any observation on merits of the controversy having formed an opinion to remand the case to the first appellate court. The first appellate court would, therefore, decide the appeal uninfluenced by any of the observations in accordance with law. Since this litigation is of the year 1996, the Appellate Court shall see to it that the appeal is heard at the earliest and the same is disposed of within two months from the date of the receipt of the writ of this order.
Direct service is permitted.
(J.B.PARDIWALA, J) Vahid Page 13 of 13