Jammu & Kashmir High Court
Khatoon Magray And Ors. vs Subhan Magray And Ors. on 23 November, 2004
Equivalent citations: 2005(2)JKJ210
JUDGMENT Hakim Imtiyaz Hussain, J.
1. The following four substantial questions of law have been framed by this court on 03-11-2000 for determination in this Civil Second Appeal:-
1. If the appellate court as final court of facts in absence of discussion and appreciation of Statements of witnesses lead by the parties can reverse the judgment of the trial court given on appreciation and discussion of evidence?
2. If in absence of formal admitting/accepting documents in evidence, reliance can be placed on such documents to of-set other evidence which under due procedure has come on record?
3. If in the facts and circumstances of this case, suit for injunction can lie interse co-sharers?
4. Whether the appellate court could give a relief for which no foundation is laid in the pleadings or for the relief which goes beyond the scope of the case pleaded and set up by a party?
2. The facts giving rise to the present appeal are as under:-
Subban Magray and Gh. Nabi Magray sons of Ismail Magray R/o GiliKadal Zoonimar, Srinagar (respondents) filed a suit for permanent injunction against Habibullah Magray and Mohd. Magray sons of Samad Magray R/o GiliKadal Zoonimar, Srinagar (appellants). It was alleged by the respondents that land measuring 2 Kanals and 3 Marias under survey No. 1474 (19 Marias) and 1475 Min (1 Kanal and 4 Marias) situated at Mouza Zoonimar, Srinagar Tehsil Khas was in their possession and prior to them was in possession of their father since long and that the appellants had no right over the same. The respondents alleged that despite the fact that they were in peaceful possession of said piece of land the appellants interfere with their possession and intend to forcibly and without any right to occupy the same and try to snatch the possession from them. They, therefore, prayed that a decree for permanent injunction be passed in their favour and against the appellants directing them not to interfere in their possession on the suit land. The suit was heard by the 2nd Additional Munsiff Srinagar before whom the appellants in their written statement denied that the respondents were in possession of the land. They alleged that they were in possession of Khasra No. 1475 to the extent of 2 kanals and 5 marlas on the eastern side which also includes the suit property. They pleaded that their peaceful possession on the land is being fortified by the revenue record and that they have also constructed a residential house duly fenced after proper permission from Municipal Authority. According to the appellants the respondents have no title, claim, interest or right over the suit property as such the suit of the plaintiff was not maintainable.
3. The trial court framed as many as five issues in the case which were as unden-
1. Whether the suit property is in the possession of the plaintiffs? OPP
2. Whether the defendants are interfering with the possession of the plaintiff. OPP
3. Whether the decree has been passed by the City Munsiff with regard to the suit property and thus the suit is not maintainable? OPD.
4. Whether the defendants have constructed a house on the suit land? OPD
5. Relief
4. The file reveals that the plaintiffs have recorded the statements of witnesses namely Syed Sharief-ud-din Sadiq Lone, Ghulam Mohd. Bhat. Besides the plaintiffs namely Subhan Magray appearing as his own witness in the case and has recorded his statement. The defendants have also recorded the statements of Gh. Ahmad Shiekh, Mohd. Sultan Dar, Mohd. Shafi Patwari and Abdul Rashid Bhat. Besides the defendant Gh. Mohd. Magray appearing as his own witness has recorded his statement.
5. After taking the evidence of the parties the trial court came to the conclusion that the plaintiffs had failed to establish their possession over the suit land as such they were not entitled to any relief. Issue No. 1 which related to the possession of the plaintiff over the suit property was the main and the most important issue in the case which has been decided against the respondents. While analysing the oral evidence of the parties on record the trial court observed and came to the following conclusion:-
"Plaintiff Subhan Magray in his statement has said that the suit land is joint between the plaintiffs and the defendants further he has said that the defendants have no other land except the suit land. Again he has also said that the defendants tried to take the possession of the suit land to the execution of plaintiffs. The defendants witnesses Mohd. Sultan Dar has said that both the parties are claiming the suit land which is situated at Jominar and the defendant No. 2 has constructed a house on it. The defendants witness Abdul Rashid has also said that the suit land is also in possession of the defendants and they have fenced it by the tin sheets 5/6 years back. Further he has said that the suit land is claimed by the both the parties. Plaintiffs witness Ghulam Ahmed Sheikh has also said that the suit land is fenced by Habibullah Magray by tin sheets and a house has been constructed over it by Mohd. Magray in which he reside, the defendant Ghulam Mohd. Magray has said in his statement that the suit land is in their possession and has been fenced by him by the tin sheet and he has constructed a house on the suit land which is in their possession from the last 30 years. He has not been able to state as to what is the total land under survey No. 1475 but he has said that two kanals and five marlas are in their possession. Thus, from the statements it appears that the plaintiffs have not established that the suit land is in their exclusive possession from the last 40 years and set out in the plaint. Rather they have admitted that a house has been constructed on the suit land by Ghulam Mohd Magray (defendant No. 2) and the suit land has been fenced by Habibullah Magray defendant No. 1. So issue No. 1 is decided against the plaintiffs and in favour of the defendants."
6. Accordingly the suit was dismissed and a decree sheet was prepared by the trial Court on 29.6.1988.
7. Being aggrieved by the said judgement and decree the respondent went in appeal against the same which was heard and disposed of by the 2nd Additional District Judge, Srinagar on 2.12.1989. The Ld. District Judge set aside the judgement and decree passed by the trial court on the ground that the trial court has depended more on oral evidence and relegated the documentary evidence on the file to the background. According to the first appellate Court the trial court had come to an incorrect final opinion The Ld. Court further observed that on the file there is Shajra and Khasra on the basis of village map prepared during last settlement and other documents relating to revenue record which have not been duly considered by the court. The court said:-
"On the file there is Shajra and Khasra on the basis of village map prepared during last settlement. It is prepared by the Patwari and is attested by the Tehsildar Srinagar. There is exp-D/1 an extract of Girdawari land under Khasra No. 1475 with full detail of persons holding the area a under the said khasra No. There is a Photostat copy of an extract Girdawari with regard to area under Khasra No. 1475/M and area under Khasra No. 1474 from 1969 to 1972 Kharief. Besides there is the site plan prepared by the licenced Draftsman Mr. Nisar Ahmed Amin showing the location of the suit land measuring 1 kanal 4 marlas in possession of the plaintiffs as on spot. There is also a decree-sheet."
8. According to the Ld. Appellate court there is a presumption of correctness in favour of the revenue record under Land Revenue Act though the presumption is rebuttal.
9. The Ld. Appellate court was further of the opinion that the suit land being Abadi deb. type the revenue officers mentioned under Section 16 of the Common Lands Act possess exclusive jurisdiction to pass appropriate orders in the matter of allotment, ejectment etc. of land recorded as Abadi deh and no power has been reserved for the Civil Court to question the correctness or validity of the Revenue Officers in such matters. Regarding the suit land the court said:-
"It becomes clear that plot under Khasra No. 1975 is 'Abadi Deh' kind of land measuring 3 kanals 9 marlas in total. On its eastern side is the ownership land of the appellants under khasra No. 1477 and on its western side an area of 19 marlas 'Abadi Deh' is in the occupation of the plaintiffs. The site plan prepared by the licensed Draftsman had while taking the measurement of the suit land on spot found that the suit land, 1 kanal and 4 marlas is touching the border of the appellants ownership land under khasra No. 1477 on the eastern side. The EXP-D/1 shows an entry in favour of the plaintiffs father Ismail Magrey to the extent of 1 kanals and 4 marlas. This position become clear when it is found that the respondents relying on the civil court decree allege that they are in possession of only 2 kanals 5 marls out of the total area under Khasra No. 1475. They never claim the whole and so the appellants being the only claimants are proved to be in occupation of the suit land 1 kanal and 4 marls under khasra No. 1975."
10. The appellate court thus came to the conclusion that the findings arrived at by the court below suffered from misappreciation of law as well as facts involved in the suit and the same cannot stand. It therefore, set aside the judgment and decree of the court below and decreed the suit of the respondents with costs through out.
11. Being aggrieved by the order of the first appellate court the appellants have filed the present appeal on various questions of law which have been given in detail in the memorandum of appeal. On consideration of the memorandum of the appeal the above mentioned substantial questions of law have been framed by this court which need adjudication and determination.
Question No. 1. If the appellate court as final court of facts in absence of discussion and appreciation of Statements of witnesses lead by the parties can reverse the judgement of the trial court given on appreciation and discussion of evidence?
Question No. 2. If in absence of formal admitting/accepting documents in evidence, reliance can be placed on such documents to of-set other evidence which under due procedure has come on record?
12. Both these questions are interconnected and are therefore taken up for adjudication together. Both the parties have led oral evidence in the case and as many as four witnesses have been examined by the respondent-plaintiffs while as five witnesses have been examined by the appellants-defendants. Besides there are some copies of revenue extracts also on file but the same are mere Photostat copies and have not been duly proved and exhibited. The grievance of the appellant is that the trial Court had based its order on the statements of the witnesses produced by the parties while as first appellate Court has all together ignored these statements and relied upon the photostat copies of the documents which were not admissible at all. The question which has therefor been raised by this court is as to whether the first appellate Court could have relied upon these documents without formally admitting/accepting these in evidence and could have on the basis of these documents reversed the judgement of the trial court given on appreciation and discussion of evidence.
13. Under Order 41 Rule 31 of the CPC the judgement of the appellate Court is to be in writing and it shall state: (a) the points for determination (b) the decision thereof (c) the reasons for the decision and (d) where the decree appealed is revered or varied, the relief to which appellants is entitled.
14. Primarily, the duty of the First Appellate court is to determine all the questions of the fact and law which are necessary for the decision of the case. It is mandatory to determine with reasons, the questions of fact on which a decision has been given by the court of Ist instance. There can be no two opinions that while giving the reasons for the decision the appellate court should take into consideration the whole evidence both oral and documentary lead by the parties in arriving at a conclusion. The evidence is adduced by the respective parties in support of their conflicting contentions and it is duty of the courts, both the trial as well as the appellate court to consider the evidence objectively and dispassionately, examine it in the light of probabilities and decide which way the truth lies. The material evidence on a particular issue for and against the parties to the suit must be set out in the judgement, and reasons stated for its acceptance or rejection. The judges have to decide the cases on the evidence on record and if there are both oral and documentary evidence the court has to assess the same, see the effect of one on the other and come to a just conclusion of the matter.
15. In the present case the parties, as said above, have produced both oral and documentary evidence. The respondents-plaintiffs have examined Syed Sharief-ud-din, Gh. Mohd. Bhat besides examining respondent Subhan Magray while as the appellants have examined Abdul Rashid Gh. Ahmed Sheikh, Mohd. Sultan Bar and Mohd. Shafi Patwari. Appellant Gh. Mohd. Magray has also appeared as his own witness.
16. Respondent-plaintiffs have also placed on file a verified copy of the decree dated 17.6.1978 passed by City Munsiff, Srinagar in case titled Gh. Mohd. Magray v. Rasool Sheikh and Ors., copy of the Shajra for Khasra No. 1475, copy of the Girdawari of Khasra No. 1475, Photostate copies of the permission for construction of house under No. 35453 and photostate copy of the approved map for fencing the land. Out of these documents except of Girdawari has been duly proved by the patwari (P.W Mohd. Shafi) and it has been exhibited EXPD1 while as the copy of the decree dated 17.6.1978 passed by City Munsiff Court, Srinagar is a duly certified copy issued by the concerned court. Rest of documents are mere copies and have not been duly proved or exhibited during trial and are, therefore, on the face of it inadmissible in evidence.
17. The First Appellate court has taken note of Sharja and Khasra and has stated that these have been prepared the basis of Village map during last settlement. I wonder where from the first appellate court gathered that the Shajra had been prepared on the basis of village map when no witness has been produced by the respondents to prove these documents. The Municipal permission and the permission for raising wall as also the Shajra of Khasra No. 1475 are all inadmissible in evidence as the same have not been duly proved and in the circumstances of the case the first appellate Court has fell into patent error by relying upon these documents.
18. In view of this fact the conclusions arrived at by the first appellate Court cannot stand as the same are based on evidence which is otherwise inadmissible.
19. The first appellate Court has committed another error by not taking into consideration the oral evidence lead by the parties. The matter related to the possession and alleged interference. Such questions are purely question of facts which can be proved by leading oral evidence only. As to whether a piece of land which is the bone of contention between the parties is in possession of one or the other party and if it is in possession of a particular party whether there is any interference on the part of other party are questions of fact which can be established only by the witnesses. In the present case proper issues have duly been framed and the burden was placed on the respondents. To establish their respective contentions the pat-ties lead evidence. While deciding the case on the basis of documents it was the duty of the first appellate Court to look into the oral evidence also particularly when the trial Court had relied on such evidence and the documentary evidence produced had not been duly admitted in evidence. No mention has been made by the first appellate court of the statements of the witnesses nor has he commented upon the role of the trial court in placing reliance on this evidence. He has merely said that the trial Court has depended more on oral and related documentary evidence on the file to the background. The trial court was justified in ignoring the documentary evidence on the ground that it had not been duty admitted in evidence and has rightly given credence to oral evidence.
20. Now I will take up the two questions reproduced above. First we will go to the 2nd question. In view of the above discussion I am of the view that in absence of formal admitting/accepting documents in evidence, the reliance cannot be placed on such documents to of-set other evidence which under due procedure has come on record.
21. The Ld. first appellate court should not have of-set the oral evidence by relying on the documents on record which had not been formally accepted/admitted in evidence.
22. The outcome of the second question materially effects the decision on the first question.
There is no dispute over the legal position that appellate court as a Final court of facts has got power to appreciate and reverse the judgement of the trial court when it finds that the findings arrived at by the trial Court are perverse and are not in accordance with facts and circumstances of the case. The appellate court can set aside the judgment of the trial court when it finds that the conclusion arrived at by the trial court is contrary to what emerges from the evidence or that the judgement suffers from incorrect application of law.
23. As said above it is the duty of the appellate court to consider the evidence objectively and dispassionately. The impression formed by the appellate Court about the character of the evidence will ultimately determine the conclusion to which he reaches. It is to be born in mind, as has been held by the Apex Court in Ishwari Prasad v. Mohammad Isa AIR 1963 SC 1728 that all judicious minds may not react in the same way to the said evidence and it is not unusual that the evidence which appears to be respectable and trust-worthy to one judge may not appear to be respectable and trustworthy to another judge. That explains why in some cases Courts of appeal reverse conclusions of fact recorded by the trial court on its appreciation of oral evidence. But there is no denial of the fact that appellate court while coming to its own conclusion has to analyse succinctly and appreciate statement of witnesses recorded by the trial court and come to its own conclusion. The appellate court cannot in absence of such discussion and appreciation reverse the judgement of the trial court otherwise based on appreciation and discussion of the evidence.
24. It may be reiterated that under the Code of Civil Procedure first appellate Court is the final court of facts, it is, therefore, imperative that the judgement of the appellate court should be strictly in compliance to Order 41 Rule 31. It should be a speakingjudgement and should contain decision on each and every point arising for consideration before the court with reasons therefor. The appellate court can supplement its judgement with reasons only when it considers the material on record which includes the oral as well as the documentary evidence, if any. The scope of Order 41 Rule 31 came to be considered by the Supreme Court in Sukhpaul Singh v. Kalyan Singh AIR 1963 SC 146. The court observed:-
"...The objection seems to be that the parties should know for what reasons the decision has gone against them and thereby be in a position to decide whether they should go up in appeal or revision against the judgment. If they do not know the decision and the reasons therefore, they cannot make up their mind and, even if they have no intention to go up in appeal, they may not even be satisfied about the Court considering the matter for determination properly. Another object can be that the second appellate Court or the revision Court be in a position to know why the Court below came to a certain conclusion. Such knowledge is undoubtedly of great assistance to the court..........."
In Bogamal Gohain and Ors. v. Lukhinath Kalita AIR 1991 Gau. 100 the Gauhati High Court observed that the requirement of giving reasons for the decision on each point is a salutary requirement. It is like the principle of audi alterarn partem. It has to be observed in proper spirit. A mere pretence of compliance will not suffice. An appellate judgment, which does not comply with these requirements, would be vitiated.
25. This aspect was also considered by the same court in Fakar Ali v. Superintendent of Police AIR 1971 Assam 165 and it was held that non-consideration of the evidence of the witnesses examined by the plaintiff in support of his case amounts to an illegality and vitiate the judgement.
The Bombay High Court in Vishwas Balu and Ors. v. Ghasirarn Ramratan Jajum and Ors., AIR 1975 Bombay 279 held that the requirements of Order 41 Rule 31 are mandatory. The court observed:-
"The provisions of Procedure are mandatory. The judgment of the first; appellate Court has to set out points for determination, record the decision thereon and give its own, reasons for the said decision. The expression used throughout is 'shall state'. Looking to the said that failure to comply with these provisions is a mere irregularity. The Legislature has laid down these rules so that either the second appellate Court or the Court exercising such extra-ordinary jurisdiction should be in a position to find out the track traversed by the appellate court. It cannot run away from its one-rous duties of recording the finding of fact and/or discussing the evidence..."
In Jani Ram v. Bishnu Ram, AIR 1963 Assam 184 it was held:-
"The Court of appeal in India is a Court of rehearing and it has to examine the evidence independently for itself and not only to use if there is any defect in the judgment of the trial Court..."
26. The reply to both the questions, therefore, is in negative.
The First Appellate Court, has in the present case glaringly ignored the oral evidence lead by the parties and has relied upon the documents which were otherwise inadmissible in evidence. While coming to its own conclusion the first appellate court has over looked the discussion made by the trial Court of the oral evidence and the cogent reasons furnished by it in arriving to a conclusion. I, therefore, find myself reluctant to accept the findings of first appellate Court on the issues.
27. Not only that the findings arrived at by the first appellate Court are based on material which was not otherwise admissible the first appellate has made glaring mistakes while making certain observations which were not otherwise required in the case. The first appellate Court has stated that the suit land being Abdi Deh type revenue officers had the exclusive jurisdiction to pass appropriate orders in the matter of allotment, ejectment etc. of the land. The court has further found that no power has been reserved with the Civil Court to question the correctness or validity of the revenue officer in such matters. If the matter was within the domain of revenue officers then how did the first appellate court, being a Civil Court, himself dealt with the matter and pass a decree in favour of the respondents. Otherwise also in view of the definition of the land given by the Land Revenue Act Abdideh land does not fall within the Act.
Question No. 3.
"If in the facts and circumstances of this case, suit for injunction can lie interse co-sharers?
28. In dealing with a suit for injunction interse co-sharers it is to be born in mind that each co-sharer is in theory interested in every portion of the subject-matter and each has right in respect of the quantity of interest, to be in possession of every part and parcel of the property jointly, with the others. Every co-sharer, therefore, has the right to enter into and occupy common property and every part thereof provided that in doing so he does not exclude his other co-sharers or otherwise deny to them some right to which they are entitled as co-sharers. It has been held by the Punjab High Court in Puran Chand v. Nitya Nand, AIR 1958 460 that a co-sharer is not entitled to an injunction restraining another co-sharer from exercising his rights in the common property absolutely and simply on the ground of his co-ownership and without reference to the amount of damage to be caused by one side or the other from the granting or with holding of the injunction. It has been also observed that while a co-sharer is entitled to object to another exclusively land himself to the determent of other co-sharer, the question as to what relief would be granted to the plaintiff in the event of invasion of his rights will depend upon the facts and circumstances of each cases.
In Sardari Lal Gupta v. Siri Krishan Aggrwal, AIR 1984 Punjab 439 the same court held that it is clear that only because the plaintiff is co-sharer he cannot restrain the other co-sharer from making construction on the joint property, unless he can specify that he would suffer damage if the injunction is refused.
Mysore High Court in G.N. Habib v. T.N. Hibib, AIR 1972 Mys. 309 held that there is no preposition hat a co-sharer is entitled to in injunction to restrain another from exceeding his right absolutely.
29. In the present case while going through the evidence one finds that there is a clear admission of the respondent namely Subhan Magray in his statement that the suit land is joint between the plaintiffs and the defendants. The Ld. Trial Court has referred to this portion of the statement of the respondents-plaintiffs and has relied upon it. In view of the fact that there is a clear admission on the part of the respondents that the land is joint between them and the defendants, the first appellate court was not justified in granting a decree of permanent injunction in favour of the respondents preventing the appellants from enjoying the joint property. The proper course, in such circumstance for the respondents was to move the court for partition of the property and once that is granted it could pray the court for exclusive possession and its protection from the appellants. The question is replied accordingly.
Question No. 4In the facts and circumstances of the case I find, that the questions is not relevant to the facts of the present case it, therefore, needs no reply.
30. From this discussion I am of the view that the first appellate Court has not properly appreciated the evidence on record and has based his judgement on the evidence which was not otherwise admissible under law. There was no defect in the judgment of the trial Court which was otherwise based on the oral evidence lead by the parties. From the evidence on record particularly admission made by one of the plaintiffs in his statement regarding the fact that the suit land is joint between the respondents and appellants, the trial Court has come to the right conclusion that there was no case in favour of the respondents to grant the permanent injunction as prayed for and has, therefore, rightly dismissed the suit. The first appellate court fell in patent error by reversing the judgement of the trial Court by passing a decree in favour of the respondents which in view of the circumstances of the case could not have been passed.
31. Under these circumstances the judgement of first appellate Court impugned in this appeal is set-aside and the judgement and decree passed by the trial court is restored.
Parties shall bear their own costs.
Disposed of accordingly.