Prahlad And 5 Others vs Smt Hameedan And Another
2021 Latest Caselaw 8363 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 43
 
Case :- SECOND APPEAL No. - 211 of 2021
 
Appellant :- Prahlad And 5 Others
 
Respondent :- Smt Hameedan And Another
 
Counsel for Appellant :- Kshitij Shailendra
 
Counsel for Respondent :- Anay Kumar Srivastava
 

 
Hon'ble Vivek Varma,J.

Heard Sri Kshitij Shailendra, learned counsel for the appellants, and Sri Anay Kumar Srivastava, learned counsel for the caveator- respondent. With the consent of learned counsel appearing for the parties, the present appeal is being decided at this stage itself in terms of the Rules of the Court.

The present second appeal has been filed challenging the judgment, order and decree dated 21.11.2020 passed by the Additional District & Sessions Judge/ Special Judge (SC/ST Act), Baghpat in Civil Appeal No. 6 of 2019 (Prahlad and others v. Smt. Hameedan and others), and the judgment, order and decree dated 03.12.2018 passed by the Civil Judge, Junior Division-Ist, Baghpat in Original Suit No. 143 of 2005 (Smt. Hameedan and another v. Prahlad and others).

The plaintiff-respondent no. 1 instituted a civil suit for permanent prohibitory injunction against the defendants-appellants. The case of the plaintiff-respondent was that the land in dispute had been allotted to her by Gaon Sabha on 12.06.1969, over which she had constructed a Gher and that, the defendants, having no concern with the property, were causing interference in her possession.

The trial Court vide judgment and order dated 03.12.2018 decreed the suit against which the defendants filed a civil appeal, being Civil Appeal No. 6 of 2019, which was dismissed by the lower appellate Court vide judgment and order dated 01.01.2020.

The record reflects that the appellants filed a second appeal, being Second Appeal No. 248 of 2020 (Prahlad and others v. Smt. Hameedan and another), which has been allowed by this Court vide order dated 06.07.2020 and the judgment and order dated 01.01.2020 passed by the lower appellate Court was set aside and the matter was remanded back to pass a fresh judgment as there was non-compliance of the provisions of Order 41 Rule 31 C.P.C.

Pursuant to the said order of this Court, the lower appellate Court has passed the impugned judgment and order dated 21.11.2020.

Sri Kshitij Shailendra, learned counsel for the appellants, submits that on the matter being remanded back, the lower appellate Court has again decided the appeal without framing points of determination and thus, there is non- compliance of the provisions of Order 41 Rule 31 C.P.C.

With the consent of learned counsel for the parties, the following substantial question of law is being framed for determination:

"Whether the judgment of the first appellate Court was consistent with the provisions of Order 41 Rule 31 C.P.C., and if not, the consequences thereof?"

The judgment of the first appellate Court dated 21.11.2020 records the issues framed by the trial Court for determination. Then it frames three points for determination. However, a bare perusal of the said points would indicate that they do not at all fall within the valid category for determination and they are too vague and general in nature. The appellate Court notices the fact that the trial Court found Issue Nos. 2, 3, 4, 5, 6 and 7 against the appellants. Thereon, after merely referencing the results of the findings of the trial court on Issue Nos. 2, 3, 4, 5, 6 and 7 the appellate court records its agreement with the judgment of the trial Court.

The judgment of the first appellate Court fails to advert to the grounds taken in the memo of appeal. The judgment of the appellate Court is cryptic and has not identified the points which arise for determination and has not returned any independent finding on any issue.

It is settled law that the first appellate court being final court of fact 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 total. Such exercise should be done after formulating the points for determination in terms of the provisions contained under Order 41 Rule 31 C.P.C. and the Court must proceed in adherence to the requirements of the statutory provisions.

The Supreme Court in the case of Laliteshwar Prasad Singh and others v. S.P. Srivastava (Dead) through L.Rs., (2017) 2 SCC 415, in paragraphs-13, 14 and 15, has held as under:

"13. An appellate court is the final court of facts. The judgment of the appellate court must, therefore, reflect court's application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of the first appellate court, in Vinod Kumar v. Gangadhar, [(2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521], it was held as under: (SCC pp. 394-96, paras 12-15)

"12. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15)

'15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.'

The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram, (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

13. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3)

'3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.'

14. Again in Jagannath v. Arulappa, (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2)

'2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion.'

15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5)

'3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756, SCC p. 758, para 5.)

5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.' "

14. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. 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 reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court are erroneous.

15. In the light of the above, when we consider the present case, we find that in terms of Order 41 Rule 31 CPC, the High Court neither has framed the points for determination nor discussed the evidence adduced by the defendants. The High Court seemed to have only considered two aspects: (i) genealogical table produced by the first respondent-plaintiff; (ii) documentary evidence adduced by the first respondent-plaintiff, that is, Ext 13 series-entry in survey record of rights and rent receipts (Exts. 1/J and 1/K to 1/M) filed by the first respondent-plaintiff. The documentary evidence adduced by the first respondent-plaintiff has been refuted by the second respondent-defendant. To support his defence plea, second respondent-defendant has adduced oral evidence by examining number of witnesses. That apart, the second respondent-defendant mainly relied upon the following evidence of first respondent-plaintiff (PW-3):

"Tarawati Devi had purchased total two acres and fifteen decimals of land. I cannot tell the number of sale deeds. I don't have the knowledge about the registration of her name on the said land. Till the time of her death, the land purchased by her remained with Tarawati Devi. The land in dispute is two acre and fifteen decimals in area. The land in dispute in the present suit is the land purchased by Tarawati Devi."

The High Court does not seem to have examined the above admission of the first respondent-plaintiff nor considered the oral evidence adduced by the second respondent-defendant. Being the first appellate court, the final court on facts, the High Court should have considered the evidence adduced by the first respondent-plaintiff as well as the evidence adduced by the second respondent-defendant. But the High Court seems to have considered only the evidence adduced by the first respondent-plaintiff and not the evidence adduced by the second respondent-defendant and the alleged inherent contradictions in the statement of first respondent-plaintiff."

Sri Anay Kumar Srivastava, learned counsel for the caveator- respondent, does not dispute the stand taken by the learned counsel for the appellants.

In all fairness, learned counsel for the caveator has submitted that the matter may be remitted to the first appellate court for fresh consideration.

From an independent perusal of the judgment of the first appellate court I am of the considered opinion that the order of the first appellate court dated 21.11.2020 cannot stand, being contrary to the law.

The answer to the substantial question of law is as follows:

"The judgment of the first appellate Court is not only inconsistent with the provisions of Order 41 Rule 31 C.P.C. but has led to fatal miscarriage of justice and is unsustainable in the law."

Accordingly, the impugned judgment, order and decree dated 21.11.2020 passed by the Additional District & Sessions Judge/ Special Judge (SC/ST Act), Baghpat is set aside. The matter is remitted to the first appellate Court for a fresh decision in accordance with law. The first appellate court shall decide the appeal expeditiously, fixing short dates, without granting unnecessary adjournments.

The appeal is allowed in the above terms.

Order Date :- 22.7.2021

SKT/-