Allahabad High Court
Banshraj, vs Ram Naresh & Another on 6 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 349
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on: 26.02.2020 Delivered on: 06.03.2020 Court No. - 8 Case :- SECOND APPEAL No. - 171 of 2010 Appellant :- Banshraj, Respondent :- Ram Naresh & Another Counsel for Appellant :- Rajendra Prasad Tripathi Counsel for Respondent :- Nishant Srivastava,Dinesh Kr. Shukla Hon'ble Virendra Kumar-II,J.
1. Heard Mr. Rajendra Kumar Tripathi, learned counsel for appellant ex-parte as none is responding on behalf of the respondents.
2. The present second appeal has been preferred by the appellant assailing impugned judgment and decree dated 26.3.2010 delivered by learned District Judge, Court No.-2 Gonda in Civil Appeal No. 135 of 2008 (Ram Naresh Vs. Banshraj and another) by which learned first appellate court has set aside the judgment and decree dated 12.9.2008 delivered by trial court of learned Additional Civil Judge (Jr. Div.) III, Gonda in Original Suit No. 253 of 1994 (Ram Naresh Vs. Banshraj and another).
3. The trial court had dismissed the suit of plaintiff/respondent no. 1 and first appellate court has decreed the suit of plaintiff/respondent no. 1 by setting aside impugned judgment and decree dated 12.9.2008 and held 1/3 share of plaintiff and both the defendants. It is directed by first appellate court to prepare preliminary decree accordingly.
4. It is pleaded in grounds of appeal that first appellate court has not appreciated oral and documentary evidence minutely and in correct perspective, as it was done by the trial court. It is also mentioned that disputed property was comprising of ancestral property, land purchased by means of sale deed and new Abadi. It was not appreciated by first appellate court that property purchased by means of sale deed gives rise to only purchaser and none-else.
5. Likewise first appellate court has not correctly appreciated the provisions of Uttar Pradesh Panchayat Raj Act, 1947 regarding jurisdiction of Nyay Panchayat. The findings of the first appellate court is incorrect that Nyay Panchayat was not competent to deliver judgment regarding disputed property. The plaintiff/respondent no. 1 could participate in proceedings conducted by Nyay Panchayat, but he had not opted to participate knowingly. He was bound by the decision given by Nyay Panchayat. The provisions of Section 11 of the C.P.C. applies to the proceedings of present dispute between the parties.
6. It is further pleaded that since disputed property also comprised land of New Abadi, therefore, Gram Sabha was the necessary party.
7. On the basis of aforesaid pleadings, the impugned judgment and decree dated 26.3.2010 has been sought to be set aside.
8. On 26.2.2020 present appeal was heard ex-parte and the following order was passed:-
"Heard learned counsel for the appellant ex-parte, because none is responding on behalf of respondents.
It was directed vide order dated 05.12.2019 as follows:
"List revised. Learned counsel for appellant is present. None is responding on behalf of respondents today.
On 14.11.2019 this Court has passed the following order:
"List revised. Case called out twice.
None is responding on behalf of the respondents.
Learned counsel for appellant is present.
In this case record of first appellate court and trial court has been received.
In the interest of justice, the case is adjourned.
List on 05.12.2019.
Learned counsel for respondents has to appear and argue the case on the next date of listing, otherwise this case shall be decided in accordance with law."
Learned counsel for respondents has to appear and argue the present second appeal on the next date of listing, otherwise, it shall be heard exparte.
List on 08.01.2020."
After 05.12.2019, on next date of listing i.e. 08.01.2020, 14.01.2020, 17.01.2020, 24.01.2020 and 11.02.2020, learned counsel for respondents did not appear for arguments, therefore, today ex-parte arguments of learned counsel for the appellant heard and concluded.
Judgment reserved."
9. Learned counsel for respondents has not appeared during proceedings of present appeal after 19.12.2017. On 19.12.2017 Mr. Dinesh Kumar Shukla, Advocate informed his illness on behalf of the respondents.
10. Notices issued against respondent nos. 1/1/1 and 1/1/2 were served sufficiently. In absence of respondents, the following substantial questions of law were formulated on 3.1.2018:-
1- Whether judgment given by Nayay Panchayat on the same subject matter between the same parties would have effect of resjudicata and Section-11 C.P.C is a bar for fresh trial?
2- In any suit for partition identification for disputed properties as ancestral is essential or not?
3- Where between the parties it is admitted that most of the properties have been divided, the presumption of property to be joined would not help the person who is seeking partition of the property in dispute?
4- Whether non-compliance of the provisions contained in order 41, Rule 31 by lower appellate court has resulted in prejudice to the present appellant, if so, its effect?
Thereafter the appeal was admitted.
11. Learned counsel for appellants on the basis of substantial questions of law formulated by this Court has put forth his argument on the basis of contentions made in grounds of appeal. He submitted relying on decision of this Court dated 1.9.2017 delivered in Second Appeal No. 403 of 2014 (Jagannath Vs. Savitri Devi and others) that first appellate court has not framed any point of determination and has violated the provisions of order XLI, Rule 31 of C.P.C.
12. Likewise, learned counsel for appellant relying on decision of Karnataka High Court in the case of Ambanna Vs. Ghanteappa reported in AIR 1999 Karnataka 421 (Principal Seat at Bengaluru) has submitted that if particulars of property has not been mentioned in plaint of suit for partition, then such plaint is liable to be rejected under Order VII, Rule 3 of C.P.C. The plaintiff/respondent no. 1 has not mentioned particulars like description of property in correct perspective with correct boundaries. These particulars has not been proved during course of trial of original suit. Therefore, the provisions of Order VII, Rule 3 are attracted to the contentions of plaint of present matter. Therefore, plaint instituted by the plaintiff ought to have been rejected for violation of aforesaid provisions.
13. Learned counsel for appellant has further submitted that the disputed property comprises ancestral property, the property purchased by respondent/appellant Banshraj by means of sale deed and some portion of disputed property was allotted by Gram Sabha to him. Therefore, the Land Management Committee of Village Dixit Purwa, Mauza Semara Shekhpur, Tehsil Tarabganj, District Gonda was the necessary party of present suit.
14. It is further submitted that the trial court and first appellate court has not considered and recorded the findings on issue no. 5 in correct perspective, rather both the learned courts below have not considered the issue no. 5 on the basis of contentions of written statement filed by appellant Banshraj.
15. It is also submitted that likewise, judgment delivered by Nyay Panchayat was operative as res-judicata according to provisions of Section 11 of C.P.C. The principle of res judicata was not complied with by the first appellate court and argument of learned defence counsel was discarded on this score illegally.
16. I have perused record of Original Suit No. 253 of 1994 (Ram Naresh Vs. Banshraj and another) and impugned judgment and order dated 26.3.2010 delivered by first appellate court in Civil Appeal No. 135 of 2008.
Factual matrix
17. The plaintiff/respondent no. 1 Ram Naresh instituted suit for partition before the trial court. He has contended that ancestral house is marked as v c l n in plaint map and Abadi land is marked by c l ; j y, which is situated as courtyard for keeping debris, Kundaur and Khalihan. On this land trees of Eucalyptus, Mango, Neem, Mahua, Shisham and Imli are standing.
18. The plaintiff and defendants are real brothers and the disputed property is their joint property. They are living separately from 15 years ago and agricultural land was divided 10-12 years ago. The land of Abadi could not be divided. Now there was extension in family of plaintiff and there is paucity of accommodation, he is having 1/3 share in the disputed property and wants to construct separate house for his family. He requested the defendants to divide the disputed property and give him 1/3 share, but defendants refused for partition on 20.5.1994. Therefore, suit was instituted by the plaintiff.
19. Respondent no. 2 Hansraj filed his written statement 25 Ka before the trial court and pleaded that there is Kachcha house in dilapidated condition, which is inhabitant. He constructed Pakka Dalan. He has corroborated this fact that trees of aged 20 years are standing in the disputed property. Ghari, Madwa, place for debris, and Kandaur are also situated on this land. The plaintiff and defendants are having equal share in the disputed property, whereas defendants Banshraj took possession of Abadi land greater than his share. The plaintiff and defendants are residing in the disputed property from the period of their ancestors.
20. The defendant Banshraj filed his written statement Ka-15. He has pleaded that disputed property is not identifiable and plaint map is incorrect. He has further pleaded that only property marked by v c l n is ancestral property. He purchased property marked with c l ; j y o by means of sale deed dated 8.7.1965 executed by Smt. Ram Dulari widow of Bindeshwari Prasad and this land is in his possession.
21. He has further pleaded that land marked with n j y o is new Abadi, which was obtained by him on Patta executed by Land Management Committee regarding Khasra No. 1015. He has mentioned in paragraph no. 13 and 14 that trees are standing on land marked by n j y o and c l ; j. He has further mentioned that Hansraj purchased land, which was situated on east and northern side of their ancestral house and constructed his house. The plaintiff did not purchase any land or property. He has disclosed the entire property as ancestral property incorrectly.
22. The defendant Banshraj has also relied upon decision delivered by Nyay Panchayat in the year 1980 and contended that 1/3 share was given to him in ancestral house. The remaining property was decided as his self acquired property. He has claimed that entire property was partitioned 32-35 years between the plaintiff and defendants. He has accepted that the plaintiff and defendant are real brothers. In paragraph no. 9, he has mentioned his pedigree.
23. On the basis of pleadings of both the parties, the trial court framed the following issues:-
1- D;k fookfnr lEifRr i{kdkjksa dh iSr`d lEifRr gS\ 2- D;k fookfnr lEifRr esa lHkh i{kdkjksa dk 1@3 Hkkx gS\ 3- D;k fookfnr Hkwfe vifjP;kRed gS\ 4- D;k okn vewY;kafdr gS ,oa U;k;'kqYd de vnk fd;k x;k gS\ 5- D;k fookfnr lEifRr xkWo lHkk dh Hkwfe gS ,oa mls vko';d i{kdkj u cuk;s tkus ds dkj.k okn fujLr gksus ;ksX; gS\ 6- oknh fdl vuqrks"k dks ikus dk vf/kdkjh gS\
(i) Whether the disputed property is ancestral property of both the parties?
(ii) Whether both the parties are having 1/3 share in the disputed property?
(iii) Whether the disputed property is not identifiable?
(iv) Whether the suit is under valued and court fee paid is deficient?
(v) Whether disputed property belongs to Land Management Committee and it is necessary party of the suit and it should be dismissed because the Land Management Committee was not arrayed as party?
(vi) To what relief plaintiff is entitled?Substantial question of Law No. 1
24. Learned counsel for appellant has relied upon paper no. 211/53/1 (complaint), 211/53/2 (agreement), 211/54/1, 211/54/2 report submitted before the Nyay Panchayat 211-211/55/1 to 211/55/4 judgment delivered by Nyay Panchayat, which is available on record of trial court. The learned first appellate court has considered the provisions of Uttar Pradesh Panchayat Raj Act and these documents relied upon by learned defence counsel before the trial court.
25. On perusal of these documents, it reveal that Banshraj defendant no. 2/appellant submitted a complaint on 5.6.1980 for offence punishable under Section 448, 504 and 323 IPC regarding incident dated 5.6.1980 committed by Hansraj-respondent no. 2 and his wife Smt. Savita Devi. He apprised the Nyay Panchayat that Hansraj Mishra has taken forcible possession over the Dalan and assaulted his two daughters. The plaintiff Ram Naresh/respondent no. 1 was not party to the proceedings conducted by Nyay Panchayat. On 28.6.1980 Banshraj and Hansraj executed agreement to authorize Nyay Panchayat to decide dispute between them.
26. It is relevant to mention here that DW-3 Agnu was examined on behalf of appellant as defence witness. The evidence of DW-3 was appreciated by learned first appellate court and found that he could not disclose the nature of proceedings conducted by Nyay Panchayat. He has denied that these proceedings were conducted for criminal offence, but stated that this proceeding was related to civil dispute. He was the Punch of Nyay Panchayat, even then he could not disclose the details of disputed property, regarding which, Nyay Panchayat delivered its judgment. He could not disclose this fact also that when disputed land was inspected by Nyay Panchayat. He stated this fact incorrectly, as Bashraj himself filed complaint against Hansraj and his wife. Therefore, the evidence of DW-3 was discarded by first appellate court.
27. It is relevant to mention here that learned trial court has also appreciated the evidence of DW-3 Agnu and found that he stated before the trial court that Ram Naresh instituted a case of civil nature against Banshraj before the Nyay Panchayat. He stated this fact incorrectly as Banshraj himself filed complaint against Hansraj and his wife. He has specifically stated that he was unable to disclose the details of disputed property.
28. The trial court has not recorded any specific finding about the proceedings conducted by Nyay Panchayat. Therefore, first appellate court has rightly observed that the proceedings instituted by Banshraj before the Nyay Panchayat was mainly of criminal nature and Nyay Panchayat decided the civil dispute also by composite judgment regarding criminal and civil dispute. Therefore, the details of property d [k x ?k mentioned in inspection report does not extend any benefit to the appellant that the disputed property d was ancestral property. [k was property purchased by Banshraj by means of sale deed and x property was given by Pradhan and Consolidation Officer to him of Patta being Abadi of Gram Samaj and property ?k Ghari was a joint property of plaintiff and defendants.
29. It is pertinent to mention here that neither the sale deed nor the Patta was produced during proceedings conducted by Nyay Panchayat by Banshraj. Appellant- Banshraj and respondent no. 2- Hansraj only participated before the Nyay Panchayat. Complainant/respondent no. 1-Ram Naresh was not summoned by Nyay Panchayat nor any allegation is levelled by Banshraj against him in his complaint submitted on 5.6.1980. The statement of complainant Banshraj and witnesses Ramesh Pratap Singh and Paras Nath Pandey were examined by Nyay Panchayat regarding the incident of assault and Hansraj was also examined.
30. It is mentioned in the judgment dated 10.8.1980 delivered by Nyay Panchayat that at the point of time of inspection of disputed property, the persons present on the spot had apprised; the Nyay Panchayat that Consolidation Officer and Village Head gave disputed property x on Patta to complainant Banshraj. There was no request in complaint of Banshraj that Nyay Panchayat should also decide the shares of the parties. Therefore, Nyay Panchayat could not decide the shares of complainant-defendant regarding the disputed property mentioned in map prepared at the point of time of inspection.
31. In these circumstances, the Nyay Panchayat was not having jurisdiction to decide the dispute of civil nature of shares of complainant and defendants, because complainant Ram Naresh/respondent no. 1 was not participating during aforesaid period. Therefore, judgment dated 10.8.1980 relied upon by learned counsel for appellant was not binding on respondent no. 1/Ram Naresh on the basis of provisions of Section 11 of i.e. principle of res-judicata.
32. Learned first appellate court has considered Section 64, 52/1A of U.P. Panchayat Raj Act, 1957. Section 52 and 64 provides as follows:-
52. Offences cognizable by Nyaya Panchayats - [(1) The following offences as well as abetments of and attempts to commit such offices, if committed within the jurisdiction of a Nyaya Panchayat shall be cognizable by such Nyaya Panchayat] :
(a) offences under sections 140, 160, 172, 174, 179, 269, 277, 283, 285, 289, 290, 294, 324, 334, 341, 352, 357, 358, 374, 379, 403, 411, (where the value of the stolen or misappropriated property in cases under Sections 379, 403 and 411 does not exceed fifty rupees), 426, 428, 430, 431, 447, 448, 504, 506, 509, and 510 of the Indian Penal Code, 1860;
(b) offences under sections 24 and 26 of the Cattle Trespass Act, 1871;
(c) offences under sub-section (1) of Section 10 of the United Provinces District Board Primary Education Act, 1926;
(d) offences under Sections 3, 4, 7 and 13 of the Public Gambling Act, 1867;
(e) any other offence under aforesaid enactments or any other enactment as may, by notification in the official Gazette, be declared by the State Government to be cognizable by a Nyaya Panchayat; and
(f) any offence under this Act or any rule made there-under.
(1-A) The State Government may by order published in the Official Gazette empower any Nyaya Panchayat to take cognizance of offences under Sections 279, 286, 336 and 356 of the Indian Penal Code, 1860 and may likewise withdraw any offence referred to in clauses (a) to (d) of sub-section (1) from the cognizance of Nyaya Panchayats generally or such Nyaya Panchayats as may be specified. (2) Any criminal case relating to an offence under Section 143, 145, 151 or 153 of the Indian Penal Code, 1860, pending before any court may be transferred for trial to the Nyaya Panchayat if in the opinion of such court the offence is not serious.
64. Extent of jurisdiction in civil cases - (1) Subject to the provisions of Section 66 a Nyaya Panchayat may take cognizance of any civil case of the following description if its value does not exceed one hundred rupees -
(a) a civil case for money due on contract other than a contract in respect of immovable property;
(b) a civil case for the recovery of movable property or for the value thereof;
(c) a civil case for compensation for wrongfully taking or injuring a movable property; and
(d) a civil case for damages caused by cattle trespass.
(2) The State Government may, by notification in the official Gazette, direct that the jurisdiction of any Nyaya Panchayat shall extend to all such civil cases of the value not exceeding five hundred rupees."
33. Learned counsel for appellant has argued before first appellate court that according to Section 64 of Nyay Panchayat, Nyay Panchayat was competent to decide civil dispute of property of costs less than Rs.100/-
34. Appellant Banshraj relied upon sale deed, which was of Rs.100/-. Therefore, first appellate court has held that Nyay Panchayat was not having jurisdiction to decide civil dispute also.
35. According to Section 64 of U.P. Panchayat Raj Act, 1947, Nyay Panchayat is not competent to hear and decide the suit for partition of immovable and civil case of property valued Rs.100/- or its value, which exceed Rs.100/-. The category of cases within jurisdiction of Nyay Panchayat has been enumerated in Section 64 and civil dispute of partition of property between the parties was not entertainable by Nyay Panchayat. The Nyay Panchayat was not having jurisdiction to decide suit for partition.
36. Likewise, no notification issued by the State Government of U.P. enhancing pecuniary jurisdiction upto Rs.500/- was not produced before the trial court. The present suit was valued at Rs.3,600/-.
37. Therefore, Nyay Panchayat was not having pecuniary jurisdiction to entertain the present dispute. The Nyay Panchayat was not having jurisdiction to take cognizance of offence under Sections 379, 403 and 411 IPC, where the value of the stolen or misappropriated case property exceeded Rs.50/-. According to Section 52/1A of U.P. Panchayat Raj Act, 1957 provides also that Nyay Panchayat was not competent to decide disputed property of costs above Rs.50/-.
38. Likewise, the first appellate court has considered criminal proceedings also in light of provisions of Section 52 of U.P. Panchayat Raj Act.
39. Learned first appellate court has also recorded finding regarding sale deed dated 8.7.1965 relied upon by the appellant in light of provisions of Section 54 of Transfer of Property Act, which provides that transaction/transfer of property of costs of Rs.100/- or above could be made only by means of registered document, but sale deed paper no. Ka/52 has not been registered, therefore, no rights could be transferred by Ram Dulari wife of Bindeshwari Prasad on the basis of sale deed dated 8.7.1965 in favour of appellant Banshraj.
40. Learned first appellate court has appreciated and analysed the evidence of both the parties and found that in the year 1965 appellant and respondent were living jointly and there was no partition of agricultural land or Abadi land in the year 1965. The present original suit no. 253 of 1984 (Ram Naresh Vs. Banshraj and another) was instituted on 27.5.1994. It is pleaded in the plaint that plaintiff and defendant were living separately from 15 years ago and agricultural land was divided 10-12 years ago.
41. Therefore, the appellant was obliged to prove this fact that consideration of alleged sale deed dated 8.7.1965 was paid by his source of income and it was his self acquired property. The consideration of sale deed was not paid by the income/joint fund of both the parties.
42. Learned first appellate court has also tallied the boundaries mentioned in the sale deed with the disputed property mentioned in map of plaint and found that there was no mention of fact that on western side, property of appellant Ram Naresh was situated and ancestral property of parties was situated.
43. I have also tallied the boundaries mentioned in sale deed dated 8.7.1965 and boundaries mentioned in map of plaint and in map prepared by Amin paper no. 24/2 x. On eastern side of sold property way along with house of Ram Deen was existed as per sale deed. On western side Ghari has been shown. On southern side Aaraji Majruba. On north side, house of Mustari was mentioned.
44. Learned first appellate court has observed that in map of plaint, the place marked c l ; j was bounded. On western side of house of appellant Ram Naresh and main door of his house was opened towards eastern side i.e. towards disputed property marked with c l ; j. Therefore, learned first appellate court has observed on the basis of boundaries mentioned in plaint map and sale deed dated 8.7.1965 that it could not be proved that disputed property marked with c l ; j was the same property, which was sold by Ram Dulari widow of Bindeshwari Prasad.
45. It is relevant to mention here that the trial court has not tried to consider the identity of disputed property mentioned in plaint map on the basis of inspection report 24 x@1 and map 24 x@2 prepared by Amin under orders of trial court in correct perspective, before holding that disputed property was not identifiable. It is relevant to mention here that complainant/respondent no. 1 has appended plaint map Ka15/6 of disputed property and facts mentioned in plaint map are corroborated by map 24 x@2 prepared by Amin.
46. Therefore, finding of trial court regarding issue no. 3 that disputed property was not capable of identification was incorrect. Moreover, the trial court was obliged to appreciate the evidence of plaintiff/respondent no. 1, appellant/defendant DW-1 and respondent no. 2 DW-4 in light of map prepared by Amin 24 x@2 and facts mentioned in plaint map. The sufficient material was available on record for consideration of trial court regarding identification of disputed property in this regard.
47. Learned first appellate court has mentioned in judgment and order dated 26.4.2010 that none of the parties argued on issue no. 3 and 4, which were framed by trial court regarding identification of disputed property and deficiency of violation of the suit and court fees. The finding recorded by the trial court on issue no. 3 is liable to be set aside as it is not recorded on the basis of material available on record.
48. On the basis of appreciation of evidence available on record, learned first appellate court has rightly recorded the finding in correct perspective regarding sale deed dated 8.7.1965 and documents relating to Nyay Panchayat relied upon by appellant Banshraj. The suit of plaintiff/respondent no. 1 was not barred by provisions of Section 11 of the C.P.C.
49. The substantial question of law no. 1 is decided against the appellant.
Substantial question of law no. 2 and 3:-
50. These substantial question of law are formulated on the basis of grounds of appeal regarding identification of disputed properties and joint property. Where between the parties, it is admitted that most of the properties have already been divided, then the presumption of property to be joint would not help the person, who is seeking partition of the property dispute?
51. The trial court after appreciation of evidence of both parties has recorded finding that disputed property was not identifiable and the plaintiff could not prove the details of disputed property, according to him, which was subject of partition.
52. On perusal of impugned judgment delivered by learned trial court, it reveal that trial court has only considered the plaint map and it has not considered map 24 x@2 prepared by Amin of civil court. The every minute details, i.e. measurement and boundaries of disputed property has been mentioned in this map, which could be relied upon by the trial court.
53. The appellant Banshraj has specifically contended in his written statement that the disputed property marked with n j y o related to Nai Abadi and it was given by Land Management Committee to him, by executing Patta of Khasra No. 1015. The appellant has not produced any Patta given by Consolidation Officer and Village Head to him of this property, before the proceedings conducted by Nyay Panchayat.
54. The appellant was also present on spot, when Amin inspected the disputed property under order of the trial court. Amin has submitted his report 24 x along with map of disputed property 24 x@2. The appellant had not stated before Amin as per report 24 x that the property was obtained by him by means of Patta, which was included in the disputed property.
55. During course of trial also, the appellant was not able to prove his specific contention mentioned in written statement that disputed property n j y o was part of Nai Abadi and he took it on Patta from Land Management Committee of Khasra No. 1015. No Patta was produced before the trial court also.
56. The complainant Ram Naresh PW-1 and his witnesses PW-2 Anirudh, PW-3 Kubernath and DW-5 Hansraj defendant/respondent no. 2 has proved this fact that sale deed dated 8.7.1965 relied upon by appellant Banshraj is fictitious and his contention that land of Nai Abadi on Kharsa No. 1015 was included in the disputed property, was incorrect, which was obtained by him on Patta from Land Management Committee.
57. The appellant DW-1 Banshraj was unable to prove the fact of Patta obtained by him of Khasra No. 1015 by producing it before the trial court. His witnesses DW-2 Triyugi Narain, DW-3 Agnu, DW-4 Dharm Baksh Singh also were unable to prove the identification of property obtained by Banshraj on Patta.
58. On perusal of map 24 x@2 prepared by Amin discloses this fact that all the properties sought to be partitioned in this matter is situated in the same campus. PW-1 Ram Naresh, and DW-5 Hansraj are co-sharer and real brothers of appellant Banshraj. They have proved that disputed property mentioned in plaint map is their joint property of Abadi and it was not ever partitioned.
59. Learned first appellate court has appreciated the evidence of both the parties and observed that issue no. 1 and 2 framed by trial court was liable to be decided in positive in favour of plaintiff and both the defendant and plaintiff Ram Naresh were having 1/3 share in the disputed property and entire property was ancestral property of them.
60. The learned defence counsel on behalf of the appellant has not pressed issue no. 5 even before the trial court regarding necessity of Land Management Committee ought to have been arrayed in the original suit.
61. It is pertinent to mention here that when issue no. 5 was not pressed, even before the trial court and alleged Patta given by Land Management Committee was not produced by appellant Banshraj before the trial court, therefore, it cannot be said that Land Management Committee was the necessary party of the original suit.
62. Learned first appellate court has observed in the impugned order dated 26.4.2010 that appellant Banshraj had not produced any evidence before the trial court. Therefore, the trial court has decided issue no. 5 in negative against the appellant.
63. Therefore, the learned first appellate court has rightly recorded finding that complainant Ram Naresh and defendant-appellant Banshraj and Harsraj- respondent no. 2 are having 1/3-1/3 share in the disputed property and rightly decreed suit of the plaintiff and a direction has been given for preparation of preliminary decree. The impugned judgment and order dated 12.9.2008 has been set aside in correct perspective after due appreciation of evidence of both the parties. Therefore, substantial question of law no. 2 and 3 are hereby decided against the appellant.
64. The impugned judgment and order dated 26.4.2010 is modified that map 24 x@2 prepared by Amin of civil court shall be considered while preliminary decree would be prepared by the trial court.
Substantial question of law no. 4:-
65. Learned counsel for appellant has argued that learned first appellate court has not complied with provisions of Order XLI, Rule 31 of C.P.C., which resulted in prejudice to the appellant, if so affect?
66. On perusal of impugned judgment and order dated 26.3.2010, it reveal that first appellate court has addressed the dispute by analyzing and evaluating the evidence adduced by both the parties before the trial court on the basis of issue framed by trial court and substantially complied with provisions of Order XLI, Rule 31 C.P.C. On the point of compliance of Order XLI, Rule 31 C.P.C., the following exposition of law is relevant:-
67. Hon'ble the Apex Court in the case of R.S. Anjayya Gupta v. Thippaiah Setty, reported in (2019) 7 SCC 300 has held as under:-
17. In a recent decision of this Court in U. Manjunath Rao [U. Manjunath Rao v. U. Chandrashekar, (2017) 15 SCC 309 : (2018) 2 SCC (Civ) 682] , the Court after adverting toSantosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15], Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [Sarju Pershad Ramdeo Sahu v.Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120, para 15], Madhukar [Madhukar v.Sangram, (2001) 4 SCC 756, para 5], H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, para 3] and SBI v. Emmsons International Ltd. [SBI v.Emmsons International Ltd., (2011) 12 SCC 174 : (2012) 2 SCC (Civ) 289] went on to observe thus: (U. Manjunath Rao case [U. Manjunath Rao v. U. Chandrashekar, (2017) 15 SCC 309 : (2018) 2 SCC (Civ) 682] , SCC pp. 313-15, paras 11-14) "11. ... ''3. ... Thus, in the first appeal the parties have the right to be heard both on the questions of facts as well as on law and the first appellate court is required to address itself to all the aspects and decide the case by ascribing reasons.'
12. In this context, we may usefully refer to Order 41 Rule 31 CPC which reads as follows:
''ORDER 41 Appeals from Original Decrees ***
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.'
13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi [Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124] , the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15]. However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] has to be borne in mind.
14. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Sao [Asha Devi v. Dukhi Sao, (1974) 2 SCC 492] is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an "expression of opinion" in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit."
Under Order XLI, Rule 33 of C.P.C. reads as under:-
"33. "Power of Court of Appeal-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
Principles for entertaining Second Appeal
68. On the point of admission of Second appeal, the following exposition of law is relevant:-
69. In the case of Thulasidhara v. Narayanappa, (2019) 6 SCC 409 the Hon'ble Supreme Court has held as under:
"7.1. At the outset, it is required to be noted that by the impugned judgment and order [Narayanappa v. Rangamma, 2007 SCC OnLine Kar 737] , in a second appeal and in exercise of the powers under Section 100 CPC, the High Court has set aside the findings of facts recorded by both the courts below. The learned trial court dismissed the suit and the same came to be confirmed by the learned first appellate court. While allowing the second appeal, the High Court framed only one substantial question of law which reads as under:
"Whether the appellant is the owner and in possession of the suit land as he purchased it in the year 1973, that is, subsequent to the date 23-4-1971 when Ext. D-1, partition deed, Palupatti is alleged to have come into existence?"
No other substantial question of law was framed. We are afraid that the aforesaid can be said to be a substantial question of law at all. It cannot be disputed and even as per the law laid down by this Court in the catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC.
7.2. As observed and held by this Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722], in the second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
or
(ii) Contrary to the law as pronounced by the Apex Court;
or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in the second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.
7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain v. Sohan Lal [Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434] . In the aforesaid decision, this Court has specifically observed and held: (SCC pp. 441-42, paras 10-13) "10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.
11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. ...
12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. ...
13. In either of the above situations, a substantial question of law can arise."
70. In the case of Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641 the Hon'ble Supreme Court has held as under:
"13.1.The suspicious circumstances which were considered by the learned trial court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstance, which was dealt with by the learned trial court, the first appellate court by giving cogent reasons held the will genuine and consequently did not agree with the findings recorded by the learned trial court. However, in second appeal under Section 100 CPC, the High Court, by the impugned judgment and order has interfered with the judgment and decree passed by the first appellate court. While interfering with the judgment and order passed by the first appellate court, it appears that while upsetting the judgment and decree passed by the first appellate court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that the High Court has not at all appreciated the fact that the High Court was deciding the second appeal under Section 100 CPC and not first appeal under Section 96 CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
or
(ii) Contrary to the law as pronounced by the Supreme Court;
or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal."
71. Hon'ble Supreme Court in State of M.P. v. Dungaji, (2019) 7 SCC 465 has propounded regarding interference by High Courts in exercising of power under Section 100 C.P.C. as follows:
"10. Now, so far as the impugned judgment and order [Dungaji v. State of M.P., Second Appeal No. 580 of 2003, order dated 29-10-2010 (MP)] passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the 1960 Act and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji, original plaintiff. There were concurrent findings of facts recorded by both the courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the courts below specifically disbelieved the divorce deed at Ext. P-5. The aforesaid findings were recorded by both the courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the courts below. Cogent reasons were given by both the courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned judgment and order in the second appeal under Section 100 CPC.
11. Even on merits also both the courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of divorce deed at Ext. P-5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a sale deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the competent authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the revenue records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the trial court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.
12. At this stage, it is required to be noted that before the competent authority, Kaveribai submitted the objections. Before the competent authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the competent authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the custom much prior to coming into force the 1960 Act. Therefore, as rightly observed by the learned trial court and the first appellate court only with a view to get out of the provisions of the Ceiling Act, 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned trial court that the divorce deed at Ext. P-5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act, 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the courts below which were on appreciation of evidence on record."
72. Hon'ble the Apex Court in the case of Narayana Gramani v. Mariammal, reported in (2018) 18 SCC 645 has held as under:-
17. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law". Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). The respondent, however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the High Court under sub-section (4) does not involve in the appeal. The reason for giving this right to the respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the respondent. In other words, the question is framed behind the back of respondent and, therefore, sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to sub-section (5), however, also recognises the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal. (See Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] and Surat Singh v. Siri Bhagwan [Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562 : (2018) 3 SCC (Civ) 94])
73. In the case of Arulmighu Nellukadai Mariamman Tirukkoil v. Tamilarasi, reported in (2019) 6 SCC 686, Hon'ble Apex Court has held as under:-
10. The need to remand the case has occasioned because we find that the High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100(4) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") and further failed to decide the appeal as provided under Section 100(5) CPC.
11. It is noticed that the High Court framed two substantial questions of law (see para 7 of the impugned judgment [Tamilarasi v. Arulmighu Nellukadai Mariamman Tirukkoil, 2011 SCC OnLine Mad 1684]) for the first time in the impugned judgment [Tamilarasi v.Arulmighu Nellukadai Mariamman Tirukkoil, 2011 SCC OnLine Mad 1684] itself. In other words, what was required to be done by the High Court at the time of admission of the appeal was to formulate a question of law after hearing the appellant as provided under Section 100(4) CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by the proviso to Section 100(5) CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment.
12. In our considered opinion, the procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section 100 CPC.
13. Recently, this Court had an occasion to examine this very question in Surat Singh v.Siri Bhagwan [Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562 : (2018) 3 SCC (Civ) 94] . The law is explained in paras 19 to 35 of this decision which read as under: (SCC pp. 567-69) "19. ... Section 100 of the Code reads as under:
''100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.'
20. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law". Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court.
21. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). The respondent, however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the High Court under sub-section (4) does not involve in the appeal. The reason for giving this right to the respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the respondent. In other words, the question is framed behind the back of respondent and, therefore, sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to sub-section (5), however, also recognises the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal.
22. Adverting to the facts of this case at hand, we are at a loss to understand as to how the High Court while passing a final judgment [Bhagwan v. Murti Devi, 2006 SCC OnLine P&H 2175] in its concluding paragraph could frame the substantial question of law for the first time and simultaneously answered the said question in appellant's favour. Obviously, the learned Judge must have done it by taking recourse to sub-section (4) of Section 100 of the Code.
23. Here is the case where the High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the appellant or/and his counsel under sub-section (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding paragraph.
24. Such novel procedure adopted by the High Court, in our considered opinion, is wholly contrary to the scheme of Section 100 of the Code and renders the impugned judgment legally unsustainable.
25. In our considered opinion, the High Court had no jurisdiction to frame the substantial question at the time of writing of its final judgment in the appeal except to the extent permitted under sub-section (5). The procedure adopted by the High Court, apart from it being against the scheme of Section 100 of the Code, also resulted in causing prejudice to the respondents because the respondents could not object to the framing of substantial question of law. Indeed, the respondents could not come to know on which question of law, the appeal was admitted for final hearing.
26. In other words, since the High Court failed to frame any substantial question of law under sub-section (4) of Section 100 at the time of admission of the appeal, the respondents could not come to know on which question of law, the appeal was admitted for hearing.
27. It cannot be disputed that sub-section (5) gives the respondents a right to know on which substantial question of law, the appeal was admitted for final hearing. Sub-section (5) enables the respondents to raise an objection at the time of final hearing that the question of law framed at the instance of the appellant does not really arise in the case.
28. Yet, the other reason is that the respondents are only required to reply while opposing the second appeal to the question formulated by the High Court under sub-section (4) and not beyond that. If the question of law is not framed under sub-section (4) at the time of admission or before the final hearing of the appeal, there remains nothing for the respondent to oppose the second appeal at the time of hearing. In this situation, the High Court will have no jurisdiction to decide such second appeal finally for want of any substantial question(s) of law.
29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).
30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.
31. It is, however, of no significance, whether the respondent has appeared at the time of final hearing of the appeal or not. The High Court, in any case, has to proceed in accordance with the procedure prescribed under Section 100 while disposing of the appeal, whether in limine or at the final hearing stage.
32. It is a settled principle of rule of interpretation that whenever a statute requires a particular act to be done in a particular manner then such act has to be done in that manner only and in no other manner. (See Interpretation of Statutes by G.P. Singh, 9th Edn., p. 347 and Baru Ram v. Prasanni [Baru Ram v. Prasanni, AIR 1959 SC 93].)
33. The aforesaid principle applies to the case at hand because, as discussed above, the High Court failed to follow the procedure prescribed under Section 100 of the Code while allowing the second appeal and thus committed a jurisdictional error calling for interference by this Court in the impugned judgment.
34. While construing Section 100, this Court in Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] succinctly explained the scope, the jurisdiction and what constitutes a substantial questions of law under Section 100 of the Code.
35. It is, therefore, the duty of the High Court to always keep in mind the law laid down in Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] while formulating the question and deciding the second appeal."
(emphasis in original)
14. In the light of the foregoing discussion, we cannot sustain the impugned judgment [Tamilarasi v. Arulmighu Nellukadai Mariamman Tirukkoil, 2011 SCC OnLine Mad 1684] which, in our view, is not in conformity with the mandatory requirements of Section 100 CPC and hence calls for interference in this appeal.
15. The appeal thus deserves to be allowed and it is accordingly allowed. The impugned judgment is set aside. The case is remanded to the High Court for deciding the second appeal afresh in accordance with law. The High Court will frame proper substantial question(s) of law after hearing the appellant and if it finds that any substantial question(s) of law arises in the case, it will first formulate such question(s) and then accordingly decide the appeal finally on the question(s) framed in accordance with law.
74. The Division Bench of Hon'ble Apex Court in the case of Chand Kaur v. Mehar Kaur, (2019) reported in 12 SCC 202 : 2019 SCC OnLine SC 426 at page 203 has held in paragraph no. 3 to 5 has held as under:-
3. The need to remand these cases to the High Court is called for because we find that the High Court though disposed of bunch of second appeals (RSAs Nos. 2066 to 2068 of 1987 and RSAs Nos. 2292 to 2294 of 1987) but it did so without framing any substantial question(s) of law as is required to be framed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code").
4. In our opinion, framing of substantial question(s) of law in the present appeals was mandatory because the High Court allowed the second appeals and interfered in the judgment of the first appellate court, which was impugned in the second appeals. It is clear from the last paragraph of the impugned order [Mehar Kaur v. Chand Kaur, 2011 SCC OnLine P&H 17686] quoted hereinbelow: (Mehar Kaur case [Mehar Kaur v. Chand Kaur, 2011 SCC OnLine P&H 17686] , SCC OnLine P&H paras 15-16) "15. However, I am unable to convince myself with the latter part of the judgment of the learned lower appellate court wherein Chand Kaur was held to be entitled to ½ share of the property of Jaimal, by placing reliance on the judgment delivered in the previous litigation between Mehar Singh and Chand Kaur. Once the learned lower appellate court arrived at a specific finding of fact that Chand Kaur was neither the daughter of Santo nor Santo is daughter of Cheta, thus, there was no basis for it to hold that Chand Kaur was entitled to hold half of the property of late Jaimal. By placing reliance on the previous judgment, the learned lower appellate court went against its own judgment and impliedly admitted that Santo was the daughter of Cheta. It is obvious that such a status of things cannot co-exist. By necessary implication, as a result of the finding arrived at by the learned lower appellate court regarding Santo not being the daughter of Cheta, the entitlement of the property of late Jaimal falls on Mehar Singh and Mehar Kaur in equal shares.
16. In view of above, RSAs Nos. 2066-68 of 1987 filed by Mehar Kaur succeed and RSAs Nos. 2292-94 of 1987 filed by Chand Kaur are dismissed. The findings of the learned lower appellate court are modified to the extent that Mehar Singh and legal heirs of Mehar Kaur are held entitled to succeed to the entire property of late Jaimal Singh in equal shares and the legal heirs of Chand Kaur shall have no right to such property at all."
5. This Court has consistently held that the High Court has no jurisdiction to allow the second appeal without framing a substantial question of law as provided under Section 100 of the Code. In other words, the sine qua non for allowing the second appeal is to first frame the substantial question(s) of law arising in the case and then decide the second appeal by answering the question(s) framed. (See Surat Singh v. Siri Bhagwan [Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562 : (2018) 3 SCC (Civ) 94] and Vijay Arjun Bhagat v. Nana Laxman Tapkire [Vijay Arjun Bhagat v. Nana Laxman Tapkire, (2018) 6 SCC 727 : (2018) 3 SCC (Civ) 801] .)
75. The Division Bench of Hon'ble Apex Court in the case of State of Rajasthan v. Shiv Dayal, reported in (2019) 8 SCC 637 : (2019) 4 SCC (Civ) 203 : 2019 SCC OnLine SC 1034 at page 639 has held in paragraph nos. 7, 8 and 11 to 17 and 25 as under:-
7. By impugned order [State v. Shiv Dayal, Civil Second Appeal No. 83 of 1999, order dated 23-3-1999 (Raj)] , the High Court dismissed the second appeals holding that the appeals did not involve any substantial question of law. It is against this order, the State felt aggrieved and has filed the present appeals by way of special leave before this Court.
8. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the State's second appeals on the ground that these appeals did not involve any substantial question of law.
11. In our opinion, the need to remand the case to the High Court has arisen because we find that the second appeals did involve several substantial questions of law for being answered on merits in accordance with law. The High Court was, therefore, not right in so holding.
12. Indeed, we find that the High Court dismissed the second appeals essentially on the ground that since the two courts have decreed the suit, no substantial question of law arises in the appeals. In other words, the High Court was mostly swayed away with the consideration that since two courts have decreed the suit, resulting in passing of the decree against the State, there arises no substantial question of law in the appeals. It is clear from the last paragraph of the impugned order, which reads as under:
"Under these circumstances, when both the learned courts have arrived at the conclusion that the disputed area is outside the forest area. Therefore, the principles laid down in T.N. Godavarman Thirumulpad v. Union of India (abovequoted) cannot be enforced in this appeal."
(emphasis supplied)
13. We do not agree with the aforementioned reasoning and the conclusion arrived at by the High Court. It is not the principle of law that where the High Court finds that there is a concurrent finding of two courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal.
14. True it is as has been laid down by this Court in several decisions that "concurrent finding of fact" is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). However, this rule of law is subject to certain well-known exceptions mentioned infra.
15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called "concurrent finding of fact" whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance.
16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court inRajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)
17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.
25. In our view, the High Court, therefore, should have admitted the second appeal by framing appropriate substantial question(s) of law arising in the case and answered them on their respective merits rather than to dismiss the appeals without considering any of the aforementioned questions.
On the point of concurrent finding, following exposition of is relevant:-
76. In S.V.R.Mudaliar (Dead) by Lrs. and Ors. Vs. Rajabu F.Buhari (Mrs) (Dead) by Lrs. and Ors. AIR 1995 SC 1607, the Court in paras 14 and 15 of the judgment has upheld the contention that though the appellate court is within its right to take a different view on the question of fact, but that should be done after adverting to the reasons given by trial court in arriving at the findings in question. Appellate Court before reversing a finding of fact has to bear in mind the reasons ascribed by Trial Court. Court relied and followed earlier decision of Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, 10 CWN 630 and in para 15 of the judgment said:
"There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate court has to bear in mind the reasons ascribed by the trial court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, (1906) 10 Cal.W.N. 630, wherein, while regarding the appellate judgment of the High Court of judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge."
77. Following the above decision Hon'ble B.L.Yadav, J in Smt. Sona Devi Vs. Nagina Singh and Ors. AIR 1997 Patna 67 observed that whenever judgment of Appellate Court is a judgment of reversal, it is the primary duty of Appellate Court while reversing the findings of Trial Court to consider the reasons given by Trial Court and those reasons must also be reversed. Unless that is done, judgment of lower Appellate Court cannot be held to be consistent with the requirement of Order XLI, Rule 31, which is a mandatory provision.
78. The above view has also been followed recently in Jaideo Yadav Vs. Raghunath Yadav & Anr., 2009(3) PLJR 529 wherein the Court said that Trial Court recorded its findings but lower Appellate Court had not reversed the said findings and rather on the basis of some findings of its own, title appeal was allowed by lower Appellate Court without appreciating findings of Trial Court on the concerned issue. The court then said :
"The law is well settled in this regard that where the judgment of the lower appellate court is a judgment of reversal it is primary duty of the appellate court to consider the reasons given by the trial court and those reasons must also be reversed."
79. This court has also followed the same view in Doodhnath and another Vs. Deonandan AIR 2006 Allahabad 3. Recently this view has also been followed in Second Appeal No. 47 of 2015, Awadh Narayan Singh Vs. Harinarayan, decided on 22.1.2015.
80. The Division Bench of Hon'ble the Apex Court in the case of State of M.P. v. Sabal Singh, reported in (2019) 10 SCC 595 : 2019 SCC OnLine SC 1340 at page 605 in paragraph nos. 31 and 32 has held as under:-
31. About entries in revenue record the trial court and first appellate court, have recorded a concurrent finding of fact that the land was not under personal cultivation. It was not open to the High Court to interfere with the findings of fact, which was based on the proper appreciation of evidence on record. Even the plaintiff was unable to state whether there was any crop in the relevant year 2007 before Zamindari Abolition. Such finding of fact based on proper appreciation of evidence could not have been interfered with by the High Court within the ken of Section 100 CPC.
32. The decision of the High Court of Madhya Pradesh in Bheron Singh v. State of M.P.[Bheron Singh v. State of M.P., 1983 RN 243 (MP)] has been relied upon, on behalf of the respondent-plaintiffs, in which the entry of "bir" land i.e. grassland came up for consideration, which was made in the column of "Alavajot" i.e. not under plough. The plaintiff in the said case was erstwhile Zamindar of the suit land, and it was recorded as "khudkasht land". We are unable to accept the proposition mentioned above as the provision of Section 4(1) of the Abolition Act, 2003 had not been considered in Bheron Singh [Bheron Singh v. State of M.P., 1983 RN 243 (MP)] . Where "bir" land vests in the State and only the land under personal cultivation as defined in Section 2(c) and so recorded as khudkasht as per Section 4(2), was saved from vesting. "Grass" was recorded in Alavajot column i.e. in area not under plough. The decision in Bheron Singh [Bheron Singh v. State of M.P., 1983 RN 243 (MP)] cannot be said to be laying down good law, as such it is overruled.
81. The Division Bench of Hon'ble Apex Court in the case of Jagdish Chander v. Satish Chander, reported in (2019) 12 SCC 237 : 2019 SCC OnLine SC 283 at page 241 in paragraph no. 16 has held as under:-
16. Though, it is the contention of the respondent that such gift deed was not executed by Smt Vidya Devi on her free will and consent, there is no evidence on record placed to substantiate such allegation. Further, in absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift. The High Court also committed error in relying on the mutation proceeding, which itself is based on the registered gift deed. Further, the High Court fell in error in reappreciating the evidence on record to come to a different conclusion than the findings recorded by the trial court, in exercise of power under Section 100 of the Code of Civil Procedure. As the findings recorded by the trial court and the first appellate court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, we are of the view that judgment [Satish Chander v. Jagdish, 2016 SCC OnLine HP 3781] of the High Court is liable to be set aside.
82. In the case of Ramathal v. Maruthathal, reported in (2018) 18 SCC 303, Hon'ble Apex Court has held as under:-
3. A brief reference to the facts which are necessary for disposal of the appeal before us are, the appellant herein who is the plaintiff in the suit (hereinafter "the buyer", for brevity) and Respondent 2 who is the defendant (hereinafter "the seller", for brevity unless context otherwise requires) entered into an agreement of sale in respect of suit schedule property on 10-12-1986. The sale consideration was fixed at Rs 1,01,000 per acre. An amount of Rs 40,000 was paid as earnest money. As per the terms of the agreement, one year was stipulated for completion of the sale by executing an absolute sale deed. Additionally, the agreement stipulated that the seller has to conduct a survey for the identification of the boundaries of the suit schedule property. As the said condition was not complied with by the seller, the buyer issued a notice dated 26-9-1987 calling upon the seller to comply with the stipulated obligation without any further delay. Confronted by continuous denials by the seller, the buyer having left with no option, has filed the instant suit seeking specific performance of the agreement of sale dated 10-12-1986.
10. The seller had agreed for conducting a survey of the scheduled property at their own cost and also agreed to demarcate the boundaries by affixing stones. Additionally, the sale consideration was agreed to be calculated according to the extent of land found in the survey. On the other hand, the buyer had agreed to pay the entire sale consideration within six months from the date of the contract. It is to be noted that the seller had agreed to rectify any hindrance which might occur in selling of the land other than those related to the Government, the panchayat, and the Housing Board and to extend the period of the agreement on happening of such hindrances. Moreover, the schedule of the property mentions the extent of property to be 1.87¾ acres.
11. Perusal of various conditions stipulated in the agreement makes it clear that the reciprocal promises were dependent on each other and must be determined on the true construction of the contract in the order which the nature of transaction requires. The view taken by the High Court, regarding the interpretation of the contract wherein the execution of the contract was independent of the payment obligation, is erroneous and cannot be sustained in the eye of the law as the contract needs to be read as a whole and not in a piecemeal approach as undertaken by the High Court. Therefore, the buyer's payment obligation and the obligation to execute the contract, was dependent upon the measurement to be conducted by the seller.
12. The factual aspect which was supposed to be considered was whether the survey was conducted by the seller or not. It is on record that DW 1 and DW 2 have stated that the survey was conducted subsequent to the execution of the agreement, but no documents were marked on behalf of the seller evidencing the fact that survey was undertaken. When both the courts below took a view that evidence of the witness was not believable on detailed consideration of their cross-examination and non-availability of documentary evidence to prove that survey was conducted, then the High Court should not have interfered with such factual findings by taking into consideration the oral evidence of witnesses without there being any documentary evidence. The crucial fact that the survey was not conducted had attained finality by the earlier judgment of the High Court in CRP No. 2195 of 1989. Therefore, once the trial court and the first appellate court which are the fact-finding courts have come to the specific conclusion that the plaintiff is entitled for specific performance of the agreement of sale, the High Court on reappreciation of evidence could not have upset the factual findings in second appeal.
13. It was not appropriate for the High Court to embark upon the task of reappreciation of evidence in the second appeal and disturb the concurrent findings of fact of the courts below which are the fact-finding courts. At this juncture, for better appreciation, we deem it appropriate to extract Sections 100 and 103 CPC, which reads as follows:
"100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
***
103. Power of High Court to determine issues of fact.-- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal--
(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
14.A clear reading of Sections 100 and 103 CPC envisages that a burden is placed upon the appellant to state in the memorandum of grounds of appeal the substantial question of law that is involved in the appeal, then the High Court being satisfied that such a substantial question of law arises for its consideration has to formulate the questions of law and decide the appeal. Hence a prerequisite for entertaining a second appeal is a substantial question of law involved in the case which has to be adjudicated by the High Court. It is the intention of the legislature to limit the scope of second appeal only when a substantial question of law is involved and the amendment made to Section 100 makes the legislative intent more clear that it never wanted the High Court to be a fact-finding court. However, it is not an absolute rule that the High Court cannot interfere in a second appeal on a question of fact. Section 103 CPC enables the High Court to consider the evidence when the same has been wrongly determined by the courts below on which a substantial question of law arises as referred to in Section 100. When appreciation of evidence suffers from material irregularities and when there is perversity in the findings of the court which are not based on any material, the court is empowered to interfere on a question of fact as well. Unless and until there is absolute perversity, it would not be appropriate for the High Courts to interfere in a question of fact just because two views are possible; in such circumstances the High Courts should restrain itself from exercising the jurisdiction on a question of fact.
83. On the basis of exposition of law propounded by the Apex Court, the exposition of law relied upon by learned counsel for appellant does not extend any benefit to the appellant and these are not applicable to the facts and circumstances of this case.
84. The impugned judgment and order dated 26.3.2010 cannot be termed as perverse or against the evidence available on record.
85. On the basis of above discussions, present second appeal lacks merits, impugned judgment and order dated 26.3.2010 is liable to be upheld and it is upheld.
86. A copy of judgment along with record of first appellate court as well as trial court be transmitted to the trial court for information and further action/compliance.
Order Date :- 06.03.2020 Virendra