Allahabad High Court
Ram Karan And Another vs Uma Shanker And Another on 4 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 6 Case :- SECOND APPEAL No. - 955 of 1996 Appellant :- Ram Karan And Another Respondent :- Uma Shanker And Another Counsel for Appellant :- N. Lal,Anirudh Kumar Upadhyay,C.P. Dwivedi,S.P.Srivastava Counsel for Respondent :- Ramakant Tiwari,Dinesh Kumar Pandey,H.S.N. Tripathi,P.S. Tripathi,Ramakant Tiwari,Umesh Chandra Tiwari Hon'ble J.J. Munir,J.
1. This is a plaintiffs' appeal, who had a vacillating fortune before the Courts below in a suit instituted for the relief of permanent prohibitory injunction.
2. Original Suit No. 455 of 1984 was instituted by Ram Karan son of Ishwar Dutt Tripathi and Dadhich Chand son of Ram Karan against Uma Shanker and Paras Nath on 08.08.1984, claiming a permanent prohibitory injunction to the effect that the defendants be restrained from interfering with the plaintiffs' possession in part of their abadi and Sahan (Courtyard), denoted by letters C D E M in the plaint map or disturbing the Neem tree standing there.
3. The two plaintiffs were the original appellants here. Of them, Ram Karan died pending appeal and is represented on record by his heirs and LRs, who are appellant nos. 1/1, 1/2, 1/3, 1/4, 1/5, 1/6 and 1/7. Appellant no. 1/3 is on record as appellant no.2. All the appellants shall hereinafter be collectively referred to as ''the plaintiffs'. However, in case of individual reference, the concerned plaintiff shall be referred to by his name. The two defendants to the suit, Uma Shanker and Paras Nath were in the same order arrayed as respondent nos. 1 and 2 to this appeal. Both the defendant-respondents have died pending appeal and are represented on record by their heirs and LRs, as entered in the cause title of the appeal. Any reference hereinafter to the two defendant-respondents collectively shall be as ''the defendants', but in case of individual reference, Uma Shanker, defendant no. 1, now represented by his LRs, shall be referred to as ''Uma Shanker'. Likewise, Paras Nath, defendant no. 2, now represented by his LRs, in case of individual reference, shall be referred to by his name.
4. The plaintiffs' case is that their ancestral house, the present house that they live in, stands over the site it has been and also over the site to its north, where the house of Shri Narain stood and that their door has always been oriented both to the west and the north. Also, their Sahan (Courtyard) has existed both to the north and the west of their house. To the south-west stands Uma Shanker's abadi. Westward of Uma Shanker's abadi, the plaintiffs' Sahan extends up to the houses of Jamuna, Udairaj and Khaderan. It is the plaintiffs' case that the entirety of their property, which they have referred to as abadi, is denoted in the plaint map by letters A B C D E F A.
5. It is also the plaintiffs' case that Krishnadev, a collateral, sold his share in their favour, whereas another collateral Shri Narain entered into a compromise with them. In consequence, the property shown by letters A B C D E F A came to the plaintiffs' exclusive ownership and possession. The plaintiffs have been using the aforementioned property for their residence and the household establishment over time. The aforesaid property includes the plaintiffs' house, Dalan (verandah), and Neem trees. It is said that the various activities of living, associated with the rural way of life went about for the plaintiffs in this property. It is particularly said that for the past 2-3 years, the cattle, that were tethered over a part of the said property, have been moved to another place by the plaintiffs, but they have complete dominion and use of the suit property, denoted by letters C D E M. A Neem tree stands over the said land. The part of the property denoted by letters C D E M shall hereinafter be referred to as ''the suit property'.
6. It is also the plaintiffs' case that Uma Shanker's property is located to the east of the line ED and which has a higher elevation compared to the suit property. The defendants' house was earlier a kachcha construction, which in course of time, they have demolished and replaced by a pucca house, comprising just two rooms, secured by an enclosure (Hata). To the south of a part of the suit property is located one Shiv Murat Tiwari's abadi, in the southern part whereof, Shiv Murat has his house. Shiv Murat Tiwari has sold off his house and abadi to Manikraj, and Manikraj, in turn, has sold it to Paras Nath, defendant no. 2.
7. The plaintiffs assert that their property denoted by letters A B C D E F A is in their complete title, dominion and possession, including the constructions standing thereon and the Neem trees as well. The defendants have neither been in possession of the suit property nor have their ancestors ever been in its occupation. According to the plaintiffs, the defendants have conspired and filed a collusive suit, where Uma Shanker, defendant no.1, sued Paras Nath, defendant no.2 vide O.S. No. 61 of 1982, claiming right over a part of the property that is the plaintiffs', including the suit property (Sahan). The plaintiffs made an application for impleadment in the said suit, but it was rejected by the Court by an order dated 27.07.1984. It is the plaintiffs' case that after rejection of the impleadment application, the defendants conspiring amongst themselves are attempting to encroach upon a part of the plaintiffs' Sahan, that is to say, the suit property and further trying to usurp the Neem trees standing there. It is on the said cause of action that the suit for permanent injunction giving rise to this appeal was instituted.
8. The defendants entered appearance and put in separate written statements. So far as Paras Nath (defendant no.2) is concerned, his stand and defence loose all significance, because a compromise and adjustment of the suit was entered into between parties in terms of the memorandum of compromise dated 04.02.1986. The said compromise was verified by the Trial Judge, after due identification of parties, on 24.05.1986. The suit between the plaintiffs and Paras Nath, therefore, stood disposed of in terms of the compromise dated 04.02.1986. The suit has, thus, proceeded between the plaintiffs and Uma Shanker (defendant no.1) alone.
9. Uma Shanker filed his written statement dated 30.10.1985 on 08.11.1985. Uma Shanker contested the plaintiffs' claim and in the additional pleas asserted that no cause of action arose to the plaintiffs to institute the present suit. It was pleaded that the plaintiffs' verandah (Dalan) is oriented lengthwise, north to east and to its south all abadi that is located, is neither the plaintiffs' nor in their possession. It has never been so. The plaint map was denied. It was also pleaded that the plaintiffs, Krishnadev and Shri Narain belong to the same bloodline and their ancestral house at present is located to the north of Uma Shanker's house. It faces the west and is so since the time of the parties' ancestors. It is also asserted that in the house standing over the suit property, Shri Narain lived in the northern portion and in the southern the plaintiffs and Ram Krishna lived. However, after the plaintiffs bought Ram Krishna's share, he has a two-third share in that house in its southern portion. The northern one-third of the plaintiffs' house is Shri Narain's. It was also denied that there is a verandah or a door to the south of the plaintiffs' house. To the contrary, at the time the plaintiffs' verandah was constructed, there were two doors located on its northern face. The plaintiffs' household is located elsewhere for a long period of time and their courtyard is located to the north of the verandah, and to the west of the plaintiffs' house. The rest of the land shown by letters C D E M belongs to Uma Shanker since the time of his ancestors.
10. It is also Uma Shanker's case that to the west of the line MC, as shown in the plaint map, Uma Shanker's house and Sahan has always been in existence. Uma Shanker's house aforesaid is ancestral and faces the west. Its courtyard (Sahan), extends to the houses of Udairaj and Khaderan in the east and Uma Shanker has been in possession of the said property since the time of his ancestors. He is still in possession. Two Neem trees stand in Uma Shanker's property aforesaid. It is also Uma Shanker's case that his ancestral house, which was dilapidated in course of time, collapsed, and, therefore, he constructed a house in its place, moving a little towards the west and south, facing the west. Most of this house has been constructed, where telltale remains of the old house are still in existence. It is also Uma Shanker's case that to the south of the suit property lies Uma Shanker's land, where he has his living. It is asserted by Uma Shanker that the plaintiffs and Paras Nath, defendant no.2, are in collusion and the two threatened Uma Shanker, though not said about what specifically the threat was. It led Uma Shanker to institute Suit No. 61 of 1982, which by the time the written statement was filed, was pending trial. The suit was asserted to be undervalued and the court-fee paid insufficient. The suit was also asserted to be barred by Sections 38 and 41 of the Specific Relief Act, 1963, besides the principle of estoppel. The suit was said to be barred by limitation and not maintainable.
11. On the pleadings of parties, the Trial Court framed the following issues (translated into English from Hindi):
(1) Whether the plaintiffs are the owners in possession of the property in dispute?
(2) Whether the suit is undervalued and the court-fee paid insufficient?
(3) Whether the suit is barred by Sections 38/41 of the Specific Relief Act?
(4) Whether the suit is barred by Section 115 of the Evidence Act?
(5) Whether the suit is barred by time?
(6) To what relief is the plaintiffs entitled?
12. The plaintiffs filed for their documentary evidence, a copy of the sale deed, marked as Ex. 1, whereas Uma Shanker filed a copy of the decree, marked as Ex. Ka-1, besides the sale deed marked as Ex. Ka-2 on behalf of the defendants.
13. The plaintiffs examined Ram Chandra as PW-1 and Dadhich as PW-2, whereas the defendant examined Munshi as DW-1 and Uma Shanker (defendant no.1) as DW-2.
14. It must be remarked here that for reasons to be found in the Trial Court's judgment, the Trial Court has considered some documentary evidence, but opined that it is not binding on parties. That evidence has, therefore, been regarded as circumstantial by the Trial Court. All other evidence that has been considered is parole evidence of witnesses produced by parties. The Trial Judge, on an evaluation of the oral evidence led by both sides, as well as some documents which have been regarded as circumstantial in nature, has found for the plaintiffs on preponderance of probability. The Trial Judge inferred in favour of the plaintiffs primarily because of the existence of the door opening into the suit property form the plaintiffs' verandah facing the south. There is much quarrel between parties that this door was opened pending suit. The Trial Judge also depended for his finding on the boundaries of a contiguous property mentioned in the sale deed, executed between third parties in the year 1959, Ex. Ka-2. He also looked into another sale deed of the same property, Ex. 1.
15. The Lower Appellate Court, on an evaluation of the evidence of witnesses, reached a contrary conclusion, reversed the Trial Court and dismissed the suit. However, the Lower Appellate Court has not considered in the least documents that the Trial thought were circumstances to be taken into account to find on the matter in issue.
16. Aggrieved, the plaintiffs have instituted this appeal from the appellate decree. It was admitted to hearing vide order dated 07.11.1996 by this Court, but without formulating the substantial question/ questions of law involved. This is not to say that the memorandum of appeal did not carry the proposed questions. Accordingly, this Court vide order dated 27.04.2022 proceeded to formulate the following substantial questions of law:
(i) Whether the Lower Appellate Court can set aside findings of fact recorded by the Trial Court, where the findings are based on appreciation of oral evidence alone?
(ii) Whether the Lower Appellate Court has committed a manifest illegality in considering a third case not pleaded by the parties to the effect that there was no way for the appellants to access the land in dispute - a courtyard (sahan) and on that basis, setting aside the findings recorded by the Trial Court?
(iii) Whether the Lower Appellate Court pronounced upon the character and ownership of land in dispute as the appellants' courtyard (sahan) without taking into consideration the two sale deeds which the Trial Court had considered to reach a different conclusion?
17. This appeal has, accordingly, been heard on the aforesaid substantial questions.
18. Heard Mr. Anirudh Kumar Upadhyay, learned Counsel for the plaintiffs and Mr. Ramakant Tiwari, Advocate appearing on behalf of the defendants.
19. In order to put the record straight, it is clarified that out of the three heirs and LRs of Uma Shanker, defendant no.1, the defendants' interest has been represented by his sons Jai Prakash and Om Prakash, for whom Mr. Ramakant Tiwari has appeared and defended this appeal. Like the Courts below, there has been no contest on behalf of Paras Nath and his heirs and LRs in tune with the compromise before the Trial Court.
20. So far as the first substantial question of law is concerned, it is submitted by the learned Counsel for the plaintiffs that the evidence of PW-1, who is the plaintiff's son and that of Ram Chandra, the then Pradhan of the Village, has been misconstrued by the Lower Appellate Court, to hold that the suit property is part of the defendants' courtyard and not the plaintiffs. Likewise, the evidence of the two witnesses for the defendants, DW-1 and DW-2 Uma Shanker has been misconstrued. The evidence of these witnesses was considered by the Trial Court to reach a reasonable conclusion based on preponderance of probability. The suit property was, in fact, the plaintiffs' courtyard. The Trial Court had considered the evidence of witnesses, together with circumstances on record and the geographical location, to reach a plausible conclusion. This conclusion, amongst other matters, was based on the fact that the plaintiffs' door opening out from their verandah, faces the suit property, which showed it to be a part of the plaintiffs' courtyard (Sahan). It has been noticed by the Trial Court that the aforesaid door in the verandah is affixed facing the south, where it opens into the suit property. The Trial Court has noticed the statement of DW-2, where he has accepted the fact that to the north of the suit property is the plaintiffs' verandah (Dalan), and further that a door opening to the south in that verandah exists. The Trial Court has also noticed that in the testimony of Uma Shanker, DW-2, it has been acknowledged that the suit property lies to the west of the defendants' abadi. From this acknowledgment, amongst others, it has been concluded that Uma Shanker's abadi lies to the east of the suit property. The further conclusion drawn from the said fact, in togetherness with others, is that the suit property belongs to the plaintiffs and a part of his courtyard (Sahan). It is not part of Uma Shanker's courtyard.
21. The Lower Appellate Court has taken a contrary view of the evidence by considering the particular geographical features of the suit property to find that in case the suit property is regarded as the plaintiffs' courtyard (Sahan), where he tethers his animals etc., the only door leading to it would be through his verandah. This has been regarded as an impossibility. The Lower Appellate Court has considered the evidence of the four witnesses to reach a diametrically opposite conclusion, holding the suit property a part of Uma Shanker's courtyard (Sahan); not the plaintiffs'.
22. It is argued by the learned Counsel for the plaintiffs that the two Courts below have opined, without prejudice to the plaintiffs' case, that there was some documentary evidence also considered by the Trial Court, considering evidence entirely oral, comprising the testimony of two witnesses on each side, produced by both the parties. It is argued by the learned Counsel that in a case that turns entirely on oral evidence, the Trial Court's view generally ought not to be disturbed by the Appellate Court, because the Trial Court had the advantage of hearing witnesses and watching their demeanour. It is submitted, therefore, that the Appellate Court was not right, in the absence of a manifest illegality demonstrable in the Trial Court's view of the oral evidence, in interfering with the Trial Court's opinion, based on appreciation of oral evidence alone.
23. The learned Counsel appearing for Uma Shanker (defendant no.1) has opposed the aforesaid submission and says that the Lower Appellate Court has thoroughly considered every part of the oral testimony of witnesses to reach a contrary conclusion from that of the Trial Court, taking a better view of the evidence. It is argued that the Lower Appellate Court, being a Court of fact, has coextensive jurisdiction with that of the Trial Court to consider the entire evidence on record, both on questions of fact and law and hold differently. It is emphasized that a Court of First Appeal has jurisdiction, as wide as that of the Trial Court, to judge issues of fact and law, which cannot be fettered by the subtle consideration about the Lower Appellate Court's disadvantage in not watching the witnesses, which the Trial Court had. Learned Counsel for Uma Shanker in support of his contention has placed reliance upon the law laid down by the Supreme Court in Malluru Mallappa (Dead) through Legal Representatives v. Kuruvathappa and others, (2020) 4 SCC 313, where it has been held:
"12. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74] it was held thus : (SCC pp. 77-78, para 5) "5. ... In the well-known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Article 1762, the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial."
13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazariv. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , B.M. Narayana Gowda v. Shanthamma [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476 : (2014) 2 SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC 259] ].
14. A first appeal under Section 96 CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature.
15. Order 41 Rule 31 CPC provides the guidelines for the appellate court to decide the matter. For ready reference Order 41 Rule 31 CPC is as under:
"31. Contents, date and signature of judgment.--The judgment of the appellate court shall be in writing and 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;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
16. In Vinod Kumar v. Gangadhar [Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521] this Court has reiterated the principles to be borne in mind while disposing of a first appeal, as under : (SCC p. 395, para 15) "15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words : (SCC pp. 530-31, paras 3-4) ''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 [H.V. Sreenivasa Murthy v. B.V. Nagesha, 2008 SCC OnLine Kar 837] 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 [Santosh Hazariv. Purushottam Tiwari, (2001) 3 SCC 179] , SCC p. 188, para 15 and Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , SCC p. 758, para 5.)'"
17. In Shasidhar v. Ashwini Uma Mathad [Shasidhar v. Ashwini Uma Mathad, (2015) 11 SCC 269] , it was held as under : (SCC p. 277, para 21) "21. Being the first appellate court, it was, therefore, the duty of the High Court [Shasidhar v. Ashwini Uma Mathad, 2012 SCC OnLine Kar 8774] to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law."
24. Upon considering the submissions advanced by the learned Counsel for parties, this Court finds that no doubt there is a well acknowledged principle that the Trial Court's opinion on issues or the suit itself, which turns entirely on oral evidence, should not be lightly disturbed by the Appellate Court, unless it be manifestly illegal or perverse. This principle is particularly important when the finding turns on the credibility of a witness. Deference to the Trial Court's opinion in a case founded on oral evidence is based on the consideration that the Trial Court had the advantage of hearing and watching the witness, which the Appellate Judge did not have. Therefore, unless the conclusions of the Trial Court are based on a wholesome misreading of evidence, conjecture, surmise or the result of perverse reasoning, the Appellate Court should not generally interfere. This rule is, of course, confined to those cases where the findings are based entirely on parole evidence, without there being any documentary evidence, bearing on the case/ issues. The principle is well elucidated by the following the remarks of the Supreme Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs, (2001) 3 SCC 179:
"15. ......... Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [AIR 1951 SC 120] ) ........."
25. There is an older decision by the Supreme Court in Madhusudan Das v. Narayanibai (Deceased) by LRs and others, (1983) 1 SCC 35, where the principle under reference has been stated thus:
"8. ...... At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. ....."
26. The principle under reference is also acknowledged by the Privy Council in Valarshak Seth Apcar v. Standard Coal Co., Ltd. and others, AIR 1943 PC 159, where it has been held:
"They treated the plaintiff as a witness whose testimony should not be believed, and accepted as accurate the evidence of Fairhurst and Wills. In their Lordships' opinion, the High Court on appeal was not justified in this case in taking a different view of the plaintiff's credibility from that adopted by the trial Judge. McNair J., enumerates a series of points upon which he bases his view that the plaintiff's evidence is such that reliance cannot be placed upon it, but they are just the sort of points as to which the only person who can effectively form an opinion and draw conclusions is the trial Judge who has the witness before him. He alone knows the demeanour of the witness; he alone can appreciate the manner in which the questions are answered, whether with honest candour or with doubtful plausibility, and whether after careful thought, or with reckless glibness. He alone could form a reliable opinion as to whether the plaintiff had emerged with credit from a cross-examination, lasting the greater part of two days, which was to a great extent repetitious, and sometimes offensive."
27. There is no doubt about the principle that where oral testimony alone is the basis for the findings, the Trial Judge is entitled to respect enough that he is not generally disturbed by the Court of Appeal unless his reasoning be manifestly illegal, perverse or one that misses out some decisive part of the testimony, on which he forms opinion. But, the aforesaid principle is set in the context of a postulate that the Trial Judge is one, who has heard the witnesses and authored the judgment. If in a case, which is quite common place these days and was so even at the time when the present suit was tried and decided, the author of the judgment in the Trial Court is different from the Judge, who heard the witnesses, the rule under reference would loose all significance. Therefore, in a case where a party attempts to sustain the judgment passed by a Trial Judge and reversed in appeal, which turns entirely on appreciation of oral evidence and nothing else, based on the principle under reference, it has to be demonstrated for a fact that the Trial Judge was the same person, who heard the witnesses and wrote the judgment. Ideally speaking, a Trial Judge writing a judgment, who has not heard witnesses in the case is an anathema for the most essential character of the Trial Judge, different from all other Judges in the higher rungs of the judicial hierarchy, is the fact that the Trial Judge is one who has heard witnesses. In civil cases, the application of this principle nowadays is truncated to hearing the witnesses on cross-examination alone, as the examination-in-chief after Amendment Act No. 22 of 2002 (w.e.f. 1-7-2002) is on affidavit. However, the present case is one which arose much before the Amendment Act and the entire testimony is by witnesses, who appeared in the dock.
28. On a perusal of the record, this Court finds that the judgment by the Trial Court, that is to say, the Court of the Sixth Additional Munsif, Jaunpur was delivered by Mr. Mukteshwar Prasad. A closer perusal of the order-sheets show that Mr. Mukteshwar Prasad appears to have taken over charge of the Court of the Sixth Additional Munsif in the month of July, 1989 and heard arguments for the first time on 15.07.1989, after three adjournments in July. He heard further arguments on 17.07.1989 and reserved judgment to be delivered on 19.07.1989. Delivery of judgment was deferred to 21.07.1989, when it was, in fact, delivered by the Trial Judge. A further perusal of the order-sheet shows that testimony of the four witnesses, that is to say, the two PWs and the two DWs, was recorded on 02.11.1988 and 04.05.1989. It appears from a perusal of the order-sheet that until the end of May, 1989, the Presiding Officer, incumbent in the Court of the Sixth Additional Munsif, Jaunpur, was a person different from Mr. Mukteshwar Prasad and it is he who heard the witnesses. The learned Judge, before whom evidence concluded on 09.05.1989, fixed the suit for address of arguments on 25.05.1989, a date when he was on leave. The suit was further adjourned to 26.05.1989 for arguments and then to 30.05.1989. On 30.05.1989, it was adjourned to 10.07.1989, again for the address of arguments by parties. It appears that incumbency in the Court of the Sixth Additional Munsif, Jaunpur changed hands after the summer recess in the month of June, 1989, and in July, Mr. Mukteshwar Prasad heard arguments by Counsel. Therefore, the Trial Judge does not appear to be the person who had heard witnesses in this case. Learned Counsel for the parties could not point out anything to show that Mr. Mukteshwar Prasad indeed heard the witnesses and the record appears to indicate otherwise.
29. The Substantial Question of Law No. (i) is, therefore, answered in the negative in terms that generally the Appellate Court cannot set aside findings recorded by the Trial Court, where the findings are based on appreciation of oral evidence alone, but it is a rule of prudence and sound practice, subject to known exceptions. It would not apply to a case at all, where the Trial Judge is a person different from the one, who has heard witnesses; it applies only to cases where the Trial Judge, who authors the judgment, is the same person, who hears witnesses.
30. This takes the Court to the next substantial question of law involved.
31. It is argued by the learned Counsel for the plaintiffs that the Lower Appellate Court has committed a manifest error of law, going to the root of the matter, by carving out a third case, which none of the parties pleaded. And that third case is that the Lower Appellate Court has held that there was no way whatsoever for the plaintiffs' animals to move in and out of the suit property except through the door on the southern face of the verandah, opening into the suit property. It is argued that this was a case which none of the parties pleaded. Learned Counsel for Uma Shanker has, however, defended the aforesaid finding and submits that it does not constitute a third case.
32. What constitutes a third case, is to be found in the observations of the Supreme Court, albeit in the context of a matter under Section 125 Cr.P.C. In Deb Narayan Halder v. Anushree Halder (smt), (2003) 11 SCC 303, it has been opined:
"20. ....... The court is not permitted to conjecture and surmise. It must base its findings on the evidence produced before it by the parties. The enquiry by the court is restricted to the evidence on record and the case pleaded by the parties. It is not permissible to the court to conjecture and surmise and make out a third case not pleaded by the parties only to answer the query such as the one posed to us."
33. There is some further elucidation of the principle to be found in a broader context in Bachhaj Nahar v. Nilima Mandal and another, (2008) 17 SCC 491. In Bachhaj Nahar (supra), it has been held:
"17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad [AIR 1966 SC 735] and Ram Sarup Gupta [(1987) 2 SCC 555 : AIR 1987 SC 1242] referred to above and several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu."
(emphasis by Court)
34. Here, what is criticized as a third case, is not indeed a case at all. A case is a statement of facts by a party, backed by evidence, entitling it to a right that can be established before a Court of law and the remedy secured. For instance, a case by the plaintiff in a suit for declaration and injunction regarding immovable property that he is the title-holder in possession on the basis of a registered sale deed, is a case in the sense that the term is understood. If the plaintiff were to say that he is entitled to the declaration and injunction, because he is owner of the suit property in possession by virtue of a Will, it is a different case. If the defendant were to contest the plaintiff's case, saying that the suit property belongs to him on the basis of a right that the defendant has got under a testamentary disposition by the last recorded owner of the property, it would be the defendant's case. In this illustration, if the Court were to find and hold, without any pleading to that effect by either party, that the plaintiffs are owners in possession of the property involved in the suit on the basis of adverse possession, it would be a classical instance of a third case. The Court is not allowed to conjecture a third case for parties. And if it does, its determination would be illegal.
35. Here, what the Lower Appellate Court has done is to opine on a relevant fact as understood under Section 3 of the Indian Evidence Act, necessary to determine the fact in issue, which is whether the suit property is the plaintiffs' courtyard (Sahan) or Uma Shanker's. In order to find on the aforesaid fact in issue, the Lower Appellate Court has taken into consideration oral evidence as well as circumstances. One of the circumstances that the Lower Appellate Court has noticed is that the suit property, in its opinion, has no ingress or egress for the plaintiffs to let in and take out their cattle, except through the door placed on the southern face of the verandah. From this fact, it has been inferred that since animals possibly cannot be brought into or taken out of the suit property through the door in the verandah, the plaintiffs' case on this part of it is not convincing. What, therefore, the plaintiffs assail as a third case is a finding on a relevant fact, a minor part of the inquiry to reach its conclusions by the Lower Appellate Court on the fact in issue. After all, the process of reasoning or appreciation of evidence cannot be dubbed as a third case. It is small feature in a broader inquiry and nothing more.
36. Substantial Question of Law No. 2 is, therefore, answered in the negative.
37. About the third substantial question of law involved, it is submitted by the learned Counsel for the plaintiffs that the Trial Court has taken into consideration two sale deeds, Ex. 1 and Ex. Ka-2. Ex. 1 has been executed by Shiv Murat in favour of Manikraj, whereas Ex Ka-2 is a sale deed by Manikraj in favour of Paras Nath (defendant no.2). In the sale deed, Ex. 1, the vendor, Shiv Murat has shown boundaries of the property sold by him, which acknowledges the plaintiffs' courtyard as one of the boundaries. The sale deed shows as its northern boundary 'Sahan Darwaja Ishwar Dutt', as recorded by the Trial Court. Ishwar Dutt is the first plaintiff, Ram Karan's father. Likewise, the sale deed (Ex. Ka-2) executed by Manikraj in favour of Paras Nath, shows on the northern boundary the house of Ram Karan, plaintiff no.1. About the sale deed (Ex. 1), it has been remarked by the Trial Court that it shows that Shiv Murat, way back in the year 1959, considered the suit property as the plaintiffs' courtyard (Sahan). After so much of consideration bestowed to these documents, the Trial Court has remarked that these boundaries are not binding on the parties and further that since there is no documentary evidence on record, the boundaries shown in the sale deeds (Ex. 1 and Ex. Ka-2) are to be regarded as circumstantial evidence. The Lower Appellate Court has not at all referred to these documents, and opined only on the basis of parole evidence.
38. This Court is of opinion that the Trial Court has erred in thinking that Ex. 1 and Ex. Ka-2, the two sale deeds are not documentary evidence, but circumstantial. The boundaries of properties in a sale deed between third parties is relevant evidence to show that a person is the owner of the property indicated in the boundaries. In this connection, reference may be made to the decision of this Court in Hari Lal v. Amrik Singh and another, AIR 1978 All 292, where referring to older decisions, it was held:
"15. Learned counsel then urged that the court below erred in relying on the pleadings in Suit No. 193 of 1949 which was not inter partes. In our opinion the pleadings were admissible in evidence under Section 13 of the Indian Evidence Act. It was then urged that the two sale-deeds Exts. 18 and 19 where the house in dispute was mentioned as the boundary of the properties transferred by Sita Ram were also admissible. In Mst. Katori v. Om Prakash (AIR 1935 All 351) it was held that recitals in a sale-deed though between third parties were evidence of the fact that a person was the owner of the property indicated as boundary. Recitals of the boundaries in documents of title not inter partes have been held to be admissible under sections 11 and 13 of the Evidence Act. See Rangayyan v. Innasimuthu Mudali (AIR 1956 Mad 226) and Natwar v. Alkhu ((1913) 11 All LJ 139)."
(emphasis by court)
39. The Trial Court with reference to the two sale deeds, Ex. 1 and Ex. Ka-2, has recorded the following finding:
"वादीगण ने प्रदर्श सं.- 1 नकल वयनामा प्रस्तुत किया है। इस वयनामा ने जो चौहद्दी दी गई है उसमें वयशुदा भूमि के उत्तर सहन दरवाजा ईसरदत्त लिखा है। ईसरदत्त वादी गण के खानदान का है। उक्त वयनामे में पारसनाथ बाकी भूमि का वयनामा हुआ था। वादीगण उक्त प्रपत्र से यह सिद्ध करना चाहते हैं कि पारस नाथ की आबादी के उत्तर विवादित भूमि है जो ईसरदत्त की सहन है। इसी प्रकार प्रतिवादीगण ने भी प्रदर्श क-2 नकल वयनामा प्रस्तुत किया है। यह वयनामा भी प्रदर्श-1 वाली भूमि के सम्बन्ध में हुआ है। इसमें वयशुदा भूमि के उत्तर रामकरन का मकान लिखा है। वास्तव में प्रदर्श-1 वयनामा शिव मूरत ने मानिकराज के पक्ष में किया। उसी भूमि को प्रदर्श- क-2 वयनामा द्वारा मानिकराज ने पारसनाथ के पक्ष में पुनः वय किया। शिवमूरत ने जो चौहद्दी प्रदर्श-1 में दिया उससे विवादित भूमि के दक्षिण ही वयशुदा जमीन होगी। क्योंकि शिवमूरत ने विवादित भूमि को वादी गण की सहन मानकर अपने वयनामा में चौहद्दी लिखाया। किन्तु जब मानिकचन्द ने पुनः उसी भूमि का वयनामा पारसनाथ के पक्ष में किया तो उसमें चौहद्दी में उत्तर तरफ रामकरन का मकान दिखा दिया। अर्थात् क-2 वयनामा में विवादित भूमि भी वयशुदा भूमि मान ली गई। हालांकि ये दस्तावेज तथा इनमें दी गई चौहद्दी पक्षकारों पर बाध्यकारी प्रभाव नहीं रखेगी और न ही चौहद्दी साक्ष्य में सुसंगत ही होगा किंतु इससे यह तो स्पष्ट है ही कि विवादित भूमि को शिव मूरत 1959 में वादीगण की सहन समझता था। चँकि पत्रावली पर कोई प्रलेखीय साक्ष्य मौजूद नहीं है, अतः इसे एक परिस्थिति-जन्य साक्ष्य माना जा सकता है।"
40. This Court is of opinion that the Trial Court has carefully analyzed the boundaries shown in the two sale deeds and held on that basis that the suit property is the plaintiffs' courtyard. The Trial Court's remark that way back in the year 1959, Shiv Murat regarded the suit property as the plaintiffs' courtyard (Sahan), is of immense moment. This is so because way back in the year 1959, hostilities had not commenced between parties and the sale deed executed by Shiv Murat in favour of Manikraj, Ex. 1 is an impartial and dependable record of the inter se geographical location of the plaintiffs' and the defendant's properties, including the suit property. The Trial Court, however, as already remarked, has erred in regarding these sale deeds as circumstantial evidence. These are documents and dependable ones at that. However, what is of utmost relevance to the substantial question of law under consideration is the fact that both these documents have not at all been considered by the Lower Appellate Court. The Lower Appellate Court has rendered opinion bereft of reference to the documentary evidence, which the Trial Court thoroughly considered in reaching its conclusion. The Trial Court's remark that the sale deeds are not documents, but circumstantial evidence, is legally unsound and of no consequence. At the same time, the Lower Appellate Court, by failing to consider and refer to the documentary evidence that the Trial Court did, has failed to reverse categorical findings recorded by the Trial Court about the location and identity of the suit property.
41. In this view of the matter, the Lower Appellate Court's judgment cannot be regarded as a valid and effective reversal of the Trial Court's judgment rendered after consideration of all relevant evidence.
42. Substantial Question of Law No. 3 is, therefore, answered in the affirmative.
43. Since the Lower Appellate Court has not effectively reversed the Trial Court's judgment and set aside its findings, based, amongst others, on documentary evidence that the Lower Appellate Court has completely ignored, the Lower Appellate Court's judgment deserves to be set aside and that of the Trial Court restored.
44. In the result, this Second Appeal succeeds and is allowed with costs throughout. The impugned decree passed by the Lower Appellate Court is set aside and that of the Trial Court restored.
Order Date :- 4.11.2022 Anoop