Sammi @ Gurjeet Kaur vs Rajesh Kumar And 3 Others
2018 Latest Caselaw 3603 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 
Case :- SECOND APPEAL No. - 1155 of 2018
 
Appellant :- Sammi @ Gurjeet Kaur
 
Respondent :- Rajesh Kumar And 3 Others
 
Counsel for Appellant :- Prem Prakash Chaudhary,Jagdish Prasad Mishra
 
Counsel for Respondent :- Abu Bakht,Gaurav Pundir
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Prem Prakash Chaudhary, learned counsel for the objector-appellant and Sri Abu Bakht, learned counsel for the decree holder/respondent No.1.

2. One Sri Mahendra Singh was the father of the objector-appellant. He sold the disputed house in the year 1995 to his son Harminder Singh, who subsequently executed an agreement to sell in favour of the decree holder/respondent No.1.

3. Since sale deed was not being executed by the aforesaid Harminder Singh, therefore, the decree holder/respondent No.1 filed O.S. No.505 of 2006 for specific performance which was decreed by the trial court by judgment and decree dated 19.07.2013. Thereafter the decree holder filed an Execution Case No.8 of 2013. The sale deed was executed through Court on 16.02.2016 in favour of the decree holder/respondent No.1. An order of possession was passed in favour of the decree holder in Misc. Case No.50 of 2017 in which the objector-appellant filed an objection being paper No.3-Ga on the ground that the disputed house is an ancestral property in which she has 1/4th share and therefore, the entire house could not have been sold by his brother-Harminder Singh. The aforesaid application 3-Ga was rejected by the Additional Civil Judge (Senior Division), Court No.1, Muzaffarnagar by order dated 12.09.2018 on the finding that the objector-appellant has not filed any evidence to indicate that the disputed house was owned by her great grand father.

4. Against the aforesaid order the objector-appellant filed a Misc. Civil Appeal No.46 of 2018 (Civil Appeal No.96 of 2018) which has been dismissed by impugned judgment dated 22.09.2018 passed by First Additional District Judge, Muzaffarnagar. In paragraph 7 of the impugned judgment, the appellate Court has recorded findings that the objector-appellant has stated that she is co-sharer of 1/4th share of the disputed house but there is nothing on record to support her contention, the application/objection was not accompanied by any documentary evidence to support her bald statement of co-ownership of the disputed house and that the decree-holder has filed a copy of the sale deed executed by Mahendra Singh in favour of Harminder Singh in the year 1995 which was not even rebutted by the objector-appellant. On these facts the appellate court further observed that the appellant has failed to prove even prima facie that she was co-sharer of the disputed house.

5. Despite being asked by this Court, the learned counsel for the appellant could not point out any material from the record of the present second appeal to indicate even prima facie that the objector-appellant is a co-sharer of the disputed house. Findings recorded in the impugned judgment are findings of fact.

6. The scope of interference in second appeal with the findings of fact is very narrow. In Veerayee Ammal v. Seeni Ammal, (2002) (1) SCC 134, Hon'ble Supreme Court considered the scope of Section 100 C.P.C and held as under:

"7. .....We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal.

This Court in Paras Nath Thakur Vs. Mohani Dasi held: (AIR p.1205 para 3).

"It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact."

7. Similar view has been taken by Hon'ble Supreme Court in Thiagarajan and others Vs. Sri Venugopalaswamay B. Koil and others, JT 2004 (5) SC, 54, Rajeshwari Vs. Puran Indoria (2005) 7 Supreme Court Cases, 60, Gurdev Kaur and others Vs. Kaki and others 2006 All.C.J. (Supreme Court) 1481 and Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others, (1999) 3 Supreme Court Cases 722.

8. In view of the above discussion, I do not find any error of law in the impugned judgment. No substantial question of law is involved. Therefore, the appeal deserves to be dismissed.

9. After this order was dictated in open Court, learned counsel for the objector-appellant has placed copies of judgments of Hon'ble Supreme Court in the case of Tanzeem-E-Sufia Vs. Bibi Haliman, 2002 (7) SCC 50 (paras 12, 13 and 14), Shreenath and another Vs. Rajesh and others, AIR 1998 SC 1827 (paras 13, 14, 15, 16 and 19), the judgment of Himachal Pradesh High Court in Rajeev Dutta and others Vs. Punjab Wakf Board and another, 2003 AIHC 3144 (paras 12, 15 and 16) and submits that in view of these judgments and also the fact that procedure as provided in order XLI Rule 31 was not followed by the first appellate court, inasmuch as, the points for determination were not framed, the impugned judgment of the first appellate court and the trial court deserves to be set aside.

10. The submission of learned counsel for the appellant-objector as noted in the preceding paragraph also has no merit. In Laliteshwar Prasad Singh & Ors Vs. S. P. Srivastava (D) Thr. Lrs. (2017) 2 SCC 415 (Para 12) Hon'ble Supreme Court considered the provision of Order XLI Rule 31 C.P.C. are held as under:

"12. As per Order XLI Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order XLI Rule 31 CPC reads as under:

"Order XLI Rule 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 propounded be signed and dated by the Judge or by the Judges concurring therein."

It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties."

(Emphasis supplied by me)

11. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. First appellate court is the final court of fact. The judgment of the first appellate court must, therefore, reflect Court's application of mind and findings supported by reasons. The law relating to powers and duties of the first appellate court in passing a judgment is reflected in Order XLI Rule 31 of the Code of Civil Procedure which provides that 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. By judicial pronouncement it has been settled by Hon'ble Supreme Court that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision but mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidences adduced by the parties. Thus, the law requires that the judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasons assigned by the trial court and then assign his own reasons for arriving at a different finding. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with the reasons given by trial court would ordinarily be sufficient. It is only when the appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasoning of the trial court is erroneous. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. These principles of law have been well settled by the Hon'ble Supreme Court in various judgments including Vinod Kumar v. Gangadhar 2015 (1) SCC 391, Santosh Hazari v. Purushottam Tiwari 2001 (3) SCC 179 (para 15), H.K.N. Swami v. Irshad Basith 2005 (10) SCC 243 (para 3), Jagannath v. Arulappa 2005 (12) SCC 303 (para 2), B.V. Nagesh v. H.V. Sreenivasa Murthy 2010 (13) SCC 530, Madhukar v. Sangram 2001 (4) SCC 756, Laliteshwar Prasad Singh & Ors Vs. S.P. Srivastava (D) Thr. Lrs. 2017(2) SCC 415 (para 12, 13 & 14).

12. The judgment of Hon'ble Supreme Court in the case of Tanzeem-E-Sufia (supra) relied by learned counsel for the petitioner is really distinguishable on the facts of the present case, inasmuch as, in that case the facts were that the High Court allowed the revision of the decree holder on the ground that the applications moved on behalf of the objector, a third party, at the stage of execution proceedings when the decree holder had not, despite the report of the Nazir, filed an Application under Order XXI Rule 97 C.P.C., were premature and the objector had also filed a Title Suit No.66 of 1993 against the decree holders. The judgment in the case of Shreenath and another (supra) relied by learned counsel for the appellant-objector is in connection with Order XXI Rule 97 C.P.C. which empowers the Court to adjudicate where the decree holder of a decree for the possession of immovable property or purchase of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property.

13. In the present set of facts, the court below in the impugned judgment has well considered the facts and evidences and the submissions made by the parties. Therefore, it has recorded the findings of fact that the appellant-objector has merely made a bald statement of ownership of the disputed house on the allegation that it is an ancestral property. No papers could be filed by her before the court below to support her contention even prima facie. She has not even disputed or rebutted the sale deed executed by her father Sri Mahendra Singh in favour of her brother Sri Harmender Singh in the year 1995. Thus, the judgments relied by learned counsel for the appellant are clearly distinguishable on facts of the present case. 

14. In view of the above discussion, I do not find any merit in the present appeal. No substantial question of law is involved. Consequently, the appeal is dismissed.

Order Date :- 13.11.2018

Nitin Verma