HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- SECOND APPEAL No. - 375 of 2005 Appellant :- Ram Newal Respondent :- Diwakar Agrawal Counsel for Appellant :- M.A. Siddiqui Counsel for Respondent :- Rakesh Kr. Srivastava Hon'ble Aditya Nath Mittal, J.
Heard learned counsel for both the parties and perused the record.
This Second appeal has been filed against the judgement rendered by the First Appellate Court in Civil Appeal No.7 of 2004 by which the appeal has been dismissed by the First Appellate Court and the judgement of the Trial Court has been upheld.
This Second Appeal has been admitted on the following substantial questions of law:
i. Whether the judgement rendered by the two courts below holding the plaintiff to be owner of the land in question merely on the basis of a sale deed claimed by him without the least considering whether the said vendor had got any right, title and interest in the property in dispute, is justifiable ?
ii. Whether as per plaintiff's own assertion, plaintiff's vendor having acquired right by deed of relinquishment and unless the same antecedent title is established no title could be deemed to have accrued on such person by illegal relinquishment and the judgment rendered by the two courts below without adverting to this aspect of the matter is sustainable in the eye of law?
Subsequently, by order dated 22.04.2015, the following additional substantial question of law was also framed :
"Whether the judgement rendered by the learned appellate court is sustainable in the eye of law, no point for determination as provided in Rule 31 of Order 41 CPC being formulated, whereas there being two appeals?"
The brief facts of the case are that the respondent filed a suit on 22.08.1992 against the appellant/defendant for mandatory injunction requiring demolition of the construction and prohibitory injunction averring that the defendant has encroached upon his land and raised construction in January 1989 and himself claimed to be the owner on the basis of sale deed executed by one Rahmat Ilahi dated 23.05.1981 of a limited portion of plot no.356 with the contention that his predecessor in interest viz. Rahmat Ilahi got the 2 biswa 7 dhur land of plot no. 356 M and out of the said, he sold the said portion.
The written statement was filed in which it was alleged that no encroachment has been made and the constructions sought to be demolished are in existence for more than 38 years and the plaintiff has got no title to the same. His vendor also did not possess any title and the suit was barred by limitation.
After filing the written statement, the learned Trial Court framed the following issues :
1. D;k oknh fookfnr Hkwfe ds ekfyd gS ,oa v{kj ;0d0j0?k0 Hkwfe dksfy;k dh Hkwfe gS
2. D;k fookfnr Hkwfe esa fd;k x;k fuekZ.k voS/k gS ,oa gVk;s tkus ;ksX; gS
3. D;k nkok oknh dky okf/kr gS
4. D;k nkok oknh dCts ds vHkko esa [kkfjt fd;s tkus ;ksX; gS
5. D;k nkok oknh fuca/ku ,oa ekSdk lgefr ds fl)kar ls okf/kr gS
6. D;k okn dk ewY;kadu de gS ,oa U;k; 'kqYd vi;kZIr gS
7. oknh fdl mi'ke dks izkIr djus dk vf/kdkjh gSA After considering the evidence of both the parties, the learned Court below came to the conclusion that the plaintiff was entitled to get remove the possession of the defendant up to extent of 8 ft. towards west. The learned trial court also came to the conclusion that the plaintiff is entitled to get remove the encroachment and accordingly decreed the suit partly by the judgement and order dated 05.12.2003.
The aforesaid judgement was challenged by way of Civil Appeal No.07 of 2004 by the defendant as well as by way of Civil Appeal No.15 of 2004 by the plaintiff. The learned First Appellate Court had not found any material illegality in the said judgement of the trial court and accordingly dismissed both the appeals by the judgement and order dated 23.09.2005. The defendant has challenged the judgement passed in Civil Appeal No.07 of 2004 by the present second appeal but the plaintiff has not challenged the said judgement passed in Civil Appeal No.15 of 2004.
With this backdrop, learned counsel for the appellant has submitted that the provisions of Order XLI Rule 31 CPC has not been complied. Therefore, the judgement is bad in the eye of law and is liable to be set aside. It has also been submitted that the findings, regarding the ownership of the plaintiff, are based on sale deed dated 28.05.1981 but it has not been proved. It has also been submitted that in view of the decision in Execution Case no. 24 of 1979, Rahmat Ilahi, the vendor of the plaintiff, had no right to transfer the land in dispute. The question of identifiability has not been decided correctly. Habibur-Rahman had never claimed to get the land in dispute from his father Azizur-Rahman and Azizur-Rahman was claiming exclusive ownership of the land in dispute since 1952. It has also been submitted that the objection of Rahmat Ilahi in execution case deserves to be seen and the objection under section 47 CPC has been allowed for 0-1-2 and the alleged deed of relinquishment is shame transactions, which could not be taken into consideration. It has also been submitted that during the proceedings, Rahmat Ilahi was alive but he was not examined in the court.
In support of the arguments, learned counsel for the appellant has relied upon State Bank of India and others vs. S. N. Goyal; (2008) 8 SCC 92 in which Hon'ble the Apex Court has explained the meaning and scope of the expression "substantial question of law" and has held as under:
"Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case. Be that as it may."
Learned counsel for the appellant has further relied upon Vinod Kumar vs. Gangadhar; (2015) 1 SCC 391 in which the Hon'ble Apex Court has held that :
"It is the duty of the High Court while sitting as court of first appeal to deal with all issues and evidence led by parties before recording its findings."
Learned counsel for the appellant has further relied upon H. Siddiqui (dead) by LRS. vs. A. Ramalingam; (2011) All. CJ 1133 in which the Hon'ble Apex Court has again held that First Appellate Court while deciding the first appeal has to strictly adhere to the provisions of Order XLI Rule 31 CPC and has held as under:
"The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380)"
Regarding the compliance of provisions of Order XLI Rule 31 CPC, reliance has also been placed upon Union of India and another vs. Ranchod and Others; (2009) 27 LCD 407 as well as a decision of this Court in the case of Smt. Gajrani and others vs. Smt. Gajrami and others; (2014) 32 LCD 1268 decided on 23.05.2014.
Learned counsel for the appellant has further relied upon Mussauddin Ahmad vs. State of Assam; (2009) 14 SCC 541, which relates to criminal appeal and an interpretation of the provisions of Section 114 Evidence Act, wherein it has been held that "it is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference."
Learned counsel for the appellant has further relied upon K. C. Kapoor vs. Smt. Radhika Devi; AIR 1981 SC 2128, which relates to plea of estoppel.
Learned counsel for the appellant has further relied upon Ram Das vs. Salim Ahmad; (1998) ACJ 1081 in which Hon'ble the Apex Court has held that for declaration of title, weakness in claim of defendant cannot establish the title of plaintiff and the plaintiff has to establish his title by leading convincing evidence.
Learned counsel for the respondent has submitted that there are concurrent findings of both the Trial Court and the First Appellate Court regarding the title of the plaintiff, which could not be disturbed in the second appeal. The defendant had admitted in his paragraph 3 of the written statement that whatever land he had purchased from Zamilur-Rahman, he had got constructed his house and he has not stated in the written statement that some portion of the land was left open. It is not disputed that Zamilur-Rahman who was the owner of the land, sold it to Barsati, who was father of defendant. It has also been submitted that there is no dispute of identification of the land in dispute and no substantial question of law arises. Therefore, the appeal is liable to be dismissed.
In support of his arguments, learned counsel for the respondent has relied upon Hero Vinoth (minor) vs. Seshammal; (2006) 5 SCC 545, which relates to substantial question of law. Learned counsel has further relied upon G. Amalorpavam and others vs. R. C. Diocese of Madurai and others; (2006) 3 SCC 224 in which Hon'ble the Apex Court interpreting the provisions of Order XLI Rule 31 CPC has held that if it is possible to make out from the judgement of the appellate court that there is substantial compliance with requirements of Order XLI Rule 31 CPC and that justice has not thereby suffered, that would be sufficient. It has also been held that where entire evidence has been considered and discussed in detail and conclusions and findings are supported by the reasons even though no point has been framed, there is substantial compliance with provisions of Order XLI Rule 31 CPC. Hon'ble the Apex Court has further held as under:
"The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC.
At this juncture it would be relevant to note what this Court said in Girijanandini Devi and Ors. v. Bijendra Narain Choudhary (AIR 1967 SC 1124). In para 12 it was noted as follows:
"It is not the duty of the appellate court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice."
As far as compliance of provisions of Order XLI Rule 31 CPC are concerned, it not disputed that the First Appellate Court has not formulated the points for determination but in view of the judgement of Hon'ble the Apex Court in the case of G. Amalorpavam (supra) in which Girijanandini Devi and Ors. v. Bijendra Narain Choudhary (AIR 1967 SC 1124); Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 and other judgements of Hon'ble the Apex Court have been considered, it has to be seen whether the lower appellate court has independently considered the evidence and has given different findings on the issues framed by the Trial Court. Mainly, it has to be seen that by non-compliance of the said provisions - whether the justice has been suffered or not?
As far as the compliance of Order XLI Rule 31 CPC is concerned, it relates to first appeal whether it is decided by the District Judge or by the High Court itself while sitting in the appellate jurisdiction. In the present, case, the First Appeal has been decided by the District Judge. In Vinod Kumar (Supra), the First Appeal was decided by the High Court and Hon'ble the Apex Court came to the conclusion that the judgement under appeal is cryptic and none of the relevant aspects have even been noticed. It was further observed that the appeal has been decided in an unsatisfactory manner and it falls short of considerations, which are expected from the court of first appeal, which has resulted in causing prejudice to the appellant, who has been deprived of his valuable rights.
As far as the case of H. Siddiqui (supra) is concerned, in that case none of the courts below had taken into consideration clause 11 of the agreement dated 25.06.1979 and thereby the First Appeal was not decided strictly in accordance with law.
As far as the case of Union of India (supra) is concerned, Hon'ble the Apex Court came to the conclusion that the High Court has not all addressed to even a single piece of evidence and there is absolutely no indication in the judgement as to how it has come to a conclusion that the findings recorded by the Reference Court requires to be affirmed. Therefore, the matter was remanded.
In the present case, the perusal of the judgement of the First Appellate Court reveals that the First Appellate Court has considered the pleadings of the parties; the evidence - both oral as well as documentary; and the findings of the Trial Court. The First Appellate Court has independently appreciated the whole of the evidence on record and he has also considered and discussed the arguments of the appellant and has given a definite findings upon them. The judgement of the First Appellate Court is detailed one and the First Appellate Court has also given the reasons for confirming the findings of the Trial Court.
In all these circumstances, the judgement of the First Appellate Court can neither be said to be cryptic nor it can be said that the issues and the evidence led by the parties have not been considered. It can also not be said that there is no indication in the judgement of the First Appellate Court as to how it has come to the conclusions. Therefore, in view of G. Amalorpavam (supra), there is substantial compliance with the requirement of Order XLI Rule 31 CPC and because the First Appellate Court has given reasons for his conclusions as well as for affirming the judgement of the Trial Court after considering the evidence of both the parties independently. Therefore, in my opinion, the justice has not thereby suffered any way.
The intention of the provisions of Order XLI Rule 31 CPC is that the Appellate Court should consider the entire evidence on record and should give reasons for decision. In the present case, the learned First Appellate Court has considered and discussed all the materials on record as well as the submissions of the learned counsel for the appellant. Therefore, simply by not framing the point for determination, it cannot be said that the compliance of Order XLI Rule 31 CPC has not been made. Accordingly, it cannot be said that the judgement rendered by the First Appellate Court is not sustainable in the eyes of law.
The plaintiff had claimed his title on the basis of sale deed, which was disputed by the defendant on the ground that Zamilur-Rahman was not the owner of the property in dispute.
Admittedly, the father of the defendant had also purchased the part of the land from the said Zamilur-Rahman. In the evidence, it has come that Rahmat Ilahi was owner of the property in dispute on the basis of relinquishment executed by Zamilur-Rahman and Habibur-Rahman, which was also registered with the Sub-Registrar. Exercising his right of ownership, Rahmat Ilahi had sold the portion of the said land to the plaintiff by a registered sale deed.
As far as the sale deed in favour of the plaintiff is concerned, the plaintiff himself has proved the said sale deed in his examination-in-chief stating that Rahmat Ilahi had executed the sale deed [paper no. 9-Ka 1/14] in favour of him and his father and he was also present at that time. He has further stated that the said sale deed was signed by Rahmat Ilahi as well as the witnesses. It has also been stated in examination-in-chief that the said sale deed was read over to Rahmat Ilahi and other persons present threre and after-that, Rahmat Ilahi had executed it. Cross examination at length has been conducted by the defendant but in the cross examination, nothing has come that Rahmat Ilahi has not executed the said sale deed or there was any fraud in getting the sale deed.
In these circumstances, I do not find any substance in the submissions of the learned counsel for the appellant that in view of Order XVIII Rule 4 CPC, if the exhibit has not been marked in document and has not been signed by the Judge, that cannot be read in evidence.
A perusal of the original sale deed executed in favour of the plaintiff, it reveals that exhibit-I has been marked but there is no initial by the presiding officer. It is merely a clerical irregularity and proof of any document is to be considered not merely by marking exhibit on the document but by the manner of proof. The said sale deed has been proved by the plaintiff as well as by his witnesses and nothing adverse has come in the cross examination. The learned Trial Court as well as the learned First Appellate Court has also considered the evidence regarding the execution of the sale deed and have rightly come to the conclusion that it is proved.
As far as the right of Rahmat Ilahi to sell the land in dispute is concerned, Rahmat Ilahi in the sale deed has stated that he has got the title over the land in dispute through the registered deed of relinquishment. Both the courts below have considered the evidence on this point and has come to the conclusion that the sale deed as well as the deed of relinquishment are registered documents. Both the courts below have also come to the conclusion that regarding the land no.220 - new number 356 (area 9 Biswa 2 Dhoor), objections under section 47 CPC was filed, which was disposed of and the objections regarding 1 Biswa 2 Dhoor was accepted and accordingly the execution application was decided in full satisfaction. The defendant has failed to prove that the said portion of land, which has been sold to plaintiff, did not fall in the ownership of Rahmat Ilahi and it was the part of 1 Biswa 2 Dhoor, regarding which objection was sustained. Both the courts below have considered the evidence regarding the compromise arrived during the execution proceedings and have come to the conclusion that because the said order or the execution was not challenged any more, therefore, it has come final.
The defendant also had contested this case before the courts below and also filed his written statement. From the perusal of paragraph 3 of his written statement, it reveals that he has admitted that his father had purchased his land from Zamilur-Rahman by sale deed dated 19.05.1955 and had constructed his house there upon, which bears municipal number 261/2. Nowhere in the written statement, the defendant - appellant has asserted that while constructing his house on the land purchased from Zamilur-Rahman, he had also left some portion of the land open.
As far as another portion 'Kolia' (street) is concerned, appeal was also filed by the plaintiff-respondent, which was also decided along with the appeal no. 07 of 2004 but no second appeal regarding the judgement passed in first appeal no.15 of 2004 has been filed. Therefore, it is not required to discussed.
From the evidence on record, the title of Rahmat Ilahi is proved by the deed of relinquishment, which is also registered. Before the courts below, the appellant - defendant had failed to prove that the land in dispute is not covered by the deed of relinquishment. I also did not find substance in the submissions of the learned counsel for the appellant that the plaintiff was required to file map of the Execution Case, therefore, adverse inference under section 114 Evidence Act should be taken against him. The plaintiff was not party to the said Execution Case. Therefore, it cannot be supposed that he was in possession of all the papers of Execution Case.
As far as the identity of the land is concerned, both the courts below have also considered this aspect and have given their findings. I also did not find substance in the submissions of the learned counsel for the appellant that the plaintiff cannot take any benefit of weakness of the defendant. In the present case, both the courts below have not given any benefit of the weakness of the evidence of defendant.
Both the courts below have considered in detail the right of Rahmat Ilahi to sell the property in dispute in favour of plaintiff. Therefore, it cannot be said that both the courts below have not considered this aspect. The said relinquishment deed has been considered by the courts below in detail. Therefore, the findings of both the courts below cannot be said to be perverse and it cannot be said that antecedent title of the plaintiff has not been established.
I also do not find any substance in the submissions of the learned counsel for the appellant that the said sale deed in favour of the plaintiff is a shame transaction. The plaintiff is in possession of the land in dispute except the portion of 8 ft. lying in East and West of 10ft. gate regarding which, the mandatory injunction has been granted.
Perusal of the judgement of both the courts below, it is clear that both the courts below have considered that Rahmat Ilahi, who was the vendor of the plaintiff, has got title and interest over the property in dispute and accordingly, he was competent to transfer the land in dispute to the plaintiff. The deed of relinquishment has also been considered by the courts below and the antecedent title was also established. No illegality in the relinquishment deed has been found. Therefore, Rahmat Ilahi was having right, title and interest in the property in dispute, which he has sold to the plaintiff. Both the courts below have considered all these aspects in detail and the findings are based on the evidence on record supported by cogent reasons.
In view of the foregoing reasons, I do not find any perversity in the findings of both the courts below and the decree passed by the Trial Court as well as Appellate Court do not require any interference. Therefore, the appeal is liable to be dismissed.
Thus, the answer to the substantial questions of law is in negative.
The appeal is dismissed.
Office is directed to send a copy of this order along with the lower court record to the court concerned at an early date.
Order Date :- 4th May, 2015 VNP/-