Shabbu And Another vs Moinuddin
2021 Latest Caselaw 3226 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 21
 
Case :- SECOND APPEAL No. - 539 of 2017
 
Appellant :- Shabbu And Another
 
Respondent :- Moinuddin
 
Counsel for Appellant :- Mohammad Tauseef Siddiqui
 
Counsel for Respondent :- Anil Kumar Awasthi,Pramesh Kumar Jaiswal
 

 
Hon'ble Jaspreet Singh,J.

Heard learned counsel for the appellant and Sri P.K. Jaiswal, learned counsel for the respondents.

This is the defendant's second appeal against the judgment of reversal passed by the Lower Appellate Court in Regular Civil Appeal No. 86 of 2015 whereby the Additional District Judge, Court No. 3, Sitapur while allowing the appeal of the plaintiff-respondents by means of judgment and decree dated 28.10.2017 has set aside the judgment passed by the Trial Court dated 27.05.2015 in Regular Suit No. 74 of 2015 as a result, the suit of the plaintiff stood decreed.

The instant second appeal was admitted by a coordinate Bench of this Court by means of order dated 06.12.2017 on the following substantial questions of law which are being reproduced hereinafter for ready reference.

"1. Whether the lower appellate court has committed manifest illegality in not making compliance of Order XLI Rule 31 and thereby the judgment impugned is not sustainable in the eyes of law?

2. Whether the judgment impugned has been passed by the lower appellate court without reversing findings recorded by the trial court and without establishing the right and title as well as possession of the respondent-plaintiff.?

3. Whether findings recorded by the lower appellate court are totally perverse." ?

The learned counsel for the appellant while assailing the judgment passed by the Lower Appellate Court has submitted that the plaintiff-respondents had instituted a suit for permanent injunction on the basis of his possession.

It was pleaded that the plaintiff along with his father had come to Biswa, District Sitapur about 30 years ago. On account of family disturbance, he was separated from his family. Since he could not get any house on rent, accordingly, Cleric of the local mosque had permitted the plaintiff to put up a thatched structure and live on an area nearby the local mosque which has been shown by Letters A, B, C in the Site plan annexed as forming part of the suit. With the passage of time, the Nagar Palika had laid a Khadanja and the plaintiff had also raised a boundary wall and had been residing in the aforesaid premises.

It was further pleaded that the defendants claimed that they had purchased the property and by using force were attempting to dispossess the plaintiff from the property in question and in the aforesaid backdrop the suit bearing R.S. No. 74 of 1999 seeking a remedy of permanent injunction was instituted in the Court of Civil Judge, Junior Division, Biswa, District Sitapur.

It has further been urged by the learned counsel for the appellant that the defendants had filed a detailed written statement wherein they had indicated that the property in question initially belonged to one Sri Puttu Son of Lal Mohammad. He had sold the property to Smt. Rafiqa Khatun in the year 1968 and thereafter Smt. Rafiqa Khatun sold the premises to the father of the defendant namely Babu Master. Upon the death of Babu Master, the defendant had inherited the property and has been in its possession since then.

Upon the pleadings, the Trial Court framed 5 issues. Issue no. (i) related to the fact whether the plaintiff is the owner in possession of the land in question; (ii) The other relevant issue was whether the Civil Court had the jurisdiction to hear the matter; (iii) Whether the suit was barred by virtue of Section 34 of the Specific Relief Act.

The parties led their evidence and upon considering the same, the Trial Court while dealing with issue no. 1 specifically found that the plaintiff could not establish his ownership in respect of the property in question. It further held that the plaintiff could also not establish its possession.

In view of the aforesaid finding, the suit was dismissed by means of judgment and decree dated 27.05.2015. As far as the issue regarding jurisdiction of the Civil Court and whether the suit was maintainable in view of the Section 34 of the Specific Relief Act are concerned, these two issues were not pressed nor urged by the parties, hence, the same were answered accordingly.

The plaintiff-respondents being aggrieved by the aforesaid judgment and decree preferred Regular Civil Appeal No. 86 of 2015. The Lower Appellate Court after hearing the parties found that in so far as the possession is concerned, the same was duly established, hence, it set aside the judgment passed by the Trial Court holding that even though the plaintiff was not able to prove his title yet he being in possession was entitled to a decree of permanent injunction and he may not be dispossessed without due process of law and consequently the appeal was allowed vide judgment and decree dated 28.10.2017.

The further submission of learned counsel for the appellant is that the Lower Appellate Court in terms of Order 41 Rule 31 C.P.C. ought to have noticed the respective contentions, the issues before it as well as ought to have formulated points for determination and thereafter ought to have decided the appeal.

It is also urged that the Lower Appellate Court has committed an error in abdicating its duties as a First Appellate Court in failing to consider the evidence before it and has set aside the judgment passed by the Lower Appellate Court without reversing the findings. It was necessary for the Lower Appellate Court to have reversed the findings regarding possession and title and only then it could have allowed the appeal.

It has further been urged that the Lower Appellate Court has committed an error in coming to the conclusion that the plaintiff is in possession which is completely perverse, inasmuch as, the Trial Court considering the evidence as well as the cross examination had come to a definite finding that the plaintiff was out of possession. In absence of the possession, the plaintiff was not entitled to a decree of permanent injunction.

It has further been urged that admittedly the plaintiff before the Lower Appellate Court had made an application bringing on record certain documents to indicate that he has been dispossessed. Though, the said documents were not noticed nor were taken on record to be considered but the fact remains that admittedly the plaintiff was out of possession and without meeting the reasons recorded by the Trial Court, it was not open for the Lower Appellate Court to have reversed the judgment and decree passed by the Trial Court which has resulted in sheer miscarriage of justice.

Sri P.K. Jaiswal, learned counsel for the plaintiff-respondents submits that the Lower Appellate Court has not formulated the points for determination and since the mandate of Order 41 Rule 31 C.P.C. which is necessary to be complied with has not been followed, thus, the second appeal to that extent can be allowed for re-consideration before the Lower Appellate Court.

Having heard the learned counsel for the parties and on perusal of record, the factual matrix is in a limited compass. The plaintiff has claimed possession over the property in question and seeks permanent injunction that he may not be dispossessed from the property without due process of law. On the other hand, the defendant has claimed the property being its owner as well as in its possession. The Trial Court has clearly held that the title of the property could not be established by the plaintiff. Even noticing the evidence and the cross examination, the Court came to the conclusion that the plaintiff could also not establish his possession and accordingly dismissed the suit.

The Lower Appellate Court while affirming that the title was not available with the plaintiff but considering that the possession was with the plaintiff set aside the judgment.

It is true that the provisions of Order 41 Rule 31 C.P.C. are salutary in nature and are required to be followed by the Courts of Appeal.

Though, upon perusal of the judgment passed by the Lower Appellate Court, this Court is satisfied that the Lower Appellate Court did not adhere to the mandate of Order 41 Rule 31 C.P.C., inasmuch as, it has not considered the submissions, the issues before it and has also not reversed the findings by the Trial Court nor it has met the reasons given by the Trial Court at close quarters and yet it has allowed the appeal without reversing the findings.

This Court is fortified in its view in light of the decision of the Apex Court in the case of B. V. Nagesh and another vs. H. V. Sreenivasa Murthy JT (2010) 13 SCC 530, Hon'ble the Apex Court has held as under :-

"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 therein is open for re-hearing 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 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 and Madhukar and Ors. v. Sangram and Ors. (2001) 4 SCC756]

Similarly, In the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by Lrs. (2001) 3 SCC 179, Hon'ble the Apex Court has held as under :-

"A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. 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. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or 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 (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, 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. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."

Apparently, there is a glaring error to the aforesaid effect. Thus, in so far as the first two substantial questions of law are concerned, there is no doubt that the judgment of the Lower Appellate Court suffers from the aforesaid vice and accordingly the said questions of law are answered.

At the same time, another substantial question of law which has been framed is whether the finding recorded by the Lower Appellate Court is perverse.

Upon considering the aforesaid aspect of the matter and from the perusal of the record, it would indicate that the Trial Court has meticulously considered the evidence of the plaintiff-witnesses who has stated that the plaintiff was residing elsewhere and not in the property in question. Once such a statement was available before the Trial Court which indicated that the possession was not with the plaintiff then under the aforesaid circumstances, the suit for permanent injunction could not have been decreed. There was no positive material available on record to indicate that the plaintiff has been in possession. Even before the Lower Appellate Court, the plaintiff had made an application bringing on record the fact that he had been dispossessed from the property in question and even though the said application was not allowed but the fact remains that the possession was not available with the plaintiffs. It is also to be seen that where the plaintiff was claiming injunction then whether the injunction can be granted against the true owner or not. This matter also needs to be seen from another angle as to where the plaintiff is seeking injunction and had pleaded in the plaint itself that the defendant claimed title to the property which was explicitly mentioned in its written statement then whether a suit for simplicitor injunction would be maintainable. Though, an issue to the aforesaid effect was framed by the Trial Court but as the suit was dismissed on the ground that the plaintiff was unable to establish his possession and title, the Trial Court did not venture any further in deciding the aforesaid issue by considering the law and the facts.

At this stage, it will be relevant to notice the decision of the Apex Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy reported in 2008 (4) SCC 594 wherein the issue before the Apex Court was regarding the scope of the suit for prohibitory injunction relating to immovable properties. The relevant principles laid down by the Apex Court in the aforesaid report in paragraph 21 is being reproduced hereinafter for ready reference:-

"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

Thus, in view of the aforesaid, where the plaintiff despite knowing the fact that the title has been set up by the defendant failed to convert the suit for permanent injunction into one seeking declaration and further without there being clear evidence regarding possession of the plaintiff also for the reason that no injunction could be granted against the true owner. For the aforesaid reasons, this Court is satisfied that the finding recorded by the Lower Appellate Court on the point of possession is perverse and is a case of clear misreading of the evidence, hence, cannot be sustained.

In the above circumstances, the next question that arises, whether the matter should be remanded for fresh re-consideration by the Lower Appellate Court. In this regard, it is found that being the second Appellate Court, this Court upon consideration of the material finds that the finding on the issue of possession given by the Trial Court is based on proper appreciation of evidence. The Lower Appellate Court has set aside the same without discussing the same. Moreover, though a procedural lapse has been committed by the Lower Appellate Court and otherwise on merits the learned counsel for the plaintiffs-respondent could not establish the possession of the plaintiffs, hence, without possession the suit for injunction could not be maintained.

In the aforesaid backdrop where the possession of the plaintiff-respondent is not satisfactorily proved, this Court is of the opinion that no gainful purpose would be served in remanding the mater for re-consideration only on account of the procedural lapse committed by the Lower Appellate Court, hence, in the peculiar circumstances, this Court is not inclined to remit the matter.

In view of the aforesaid, the second appeal succeeds. The judgment of the Lower Appellate Court dated 28.10.2017 passed in Civil Appeal no. 86 of 2015 passed by the Additional District Judge, Court No. 3, Sitapur is set aside and the judgment and decree dated 27.05.2015 passed in Regular Suit No. 74 of 1999 passed by the Civil Judge, Junior Division, Biswa, Sitapur is affirmed.

In the aforesaid facts and circumstances, there shall be no order as to costs.

Office is directed to remit the lower court concerned record within a period of two weeks.

[Jaspreet Singh, J.]

Order Date: 09.03.2021

Asheesh