Smt. Reeta Devi And Others vs Prakash Chaudhari Advocate
2022 Latest Caselaw 1678 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 
Case :- SECOND APPEAL No. - 483 of 2001
 
Appellant :- Smt. Reeta Devi And Others
 
Respondent :- Prakash Chaudhari Advocate
 
Counsel for Appellant :- Brijesh Kumar Saxena,Brijesh Kumar Saxena
 
Counsel for Respondent :- Ashok Kumar Srivastava,Atul Kumar Srivastava,Gyan Swaroop Srivastava,Ratnesh Kumar Srivastava
 

 
Hon'ble Vivek Chaudhary,J.

Heard Mr. B.K.Saxena, learned counsel for the appellants and Ashok Kumar Srivastava, learned counsel for the respondents.

The present second appeal is filed against the judgment and decree dated 24.11.2001 in RCA No.261 of 1999 (Smt. Rita Devi and others Vs. Shri Prakash Choudhary) passed by the Court of 10th Additional District Judge, Lucknow, confirming the judgment and decree dated 13.10.1999 in R.S.No.228 of 1985 (Shri Prakash Choudhary Vs. Smt. Rita Devi and others) passed by the Court of Civil Judge (Junior Division), North, Lucknow. By the said judgment and decree, the suit of the plaintiff/respondent for declaration of ownership on the basis of will of the property in dispute and possession thereof has been decreed.

The facts of the case are that the plaintiff/respondent claimed that he was living initially as a tenant in part of the property in dispute owned by late Shanti Devi. Later, he was illegally evicted from the said property in dispute by the defendants who are nephews of late Shanti Devi. Smt. Shanti Devi was the childless widow. In the said background, he filed a suit on 22.1.1985 for possession under Section 6 of the Specific Relief Act of the portion from which he was evicted. After the exchange of the written statements and replica, in January, 1992, the suit was amended and it was claimed by the plaintiff, that, on the basis of a will dated 22.12.1982, he became the legatee of the property in dispute and, therefore, he may be declared the owner of entire property and given possession of the entire property in dispute. An amended written statement was also filed to the same.The trial court decreed the suit of the plaintiff and the appeal filed against the said judgment and decree passed by the trial court was also rejected by the appellate court and, thus, the present second appeal.

Learned counsel for the appellants Sri B.K. Saxena submits that a bare perusal of the order of the appellate Court shows that the trial court has failed to take into consideration any evidence filed before the trial court. The appellate Court has proceeded to affirm the findings of the trial court with regard to the validity of the will without referring to any evidence on record. He further submits that with regard to valuation also the appellate Court has wrongly refused to consider the submissions of the appellants on the ground that the issue of valuation was decided by the trial court on 20.2.1995 and since the appellants at that time did not challenge the same, hence now they cannot challenge the same at this stage by way of the present appeal. For challenging the said findings on valuation, counsel for the appellants relied upon Section 105 of C.P.C.

Sri B.K. Saxena also submits that the relief for declaration of title is also barred by limitation of 3 years and as per Section 3 of the Limitation Act, it is the duty of the Court to look into the same, despite the said issue not being raised in the Court below. He thus presses the following question of law:-

"Whether the judgment and decree of the appellate Court is legally perverse".

Opposing the same, Mr. Ashok Kumar Srivastava, learned counsel for the respondents submits that the judgment of the appellate Court is a well-versed judgment which has been passed taking into consideration all aspects of the matter. He further submits that even presuming the finding on valuation may not be good, the valuation can be made good at any stage of proceedings.

I have perused the judgment of the appellate Court with the assistance of counsel for the parties.

The appellate court has proceeded to note the submissions of the counsel for the appellants that the will is forged and the signature of Shanti Devi on the same are also forged, and that valuation of the suit is not rightly made. Thereafter the appellate Court has proceeded to consider the impact of probate upon a will and found that in the State of U.P. a probate is not required. Thereafter in a single line the appellate court has given a finding that "since on the basis of evidence it is found that the aforesaid will was executed by Shanti Devi in favour of the plaintiff/respondent and the trial court has also found that the will is not forged". While giving the same findings, the appellate Court has nowhere referred to any piece of evidence which was given before the trial court. No document or statement of any witnesses is anywhere referred to in the impugned judgment of the appellate court, therefore, the said findings on the face of it is without any consideration and the same, thus, cannot stand.

The Hon'ble Apex Court in the case of Nemai Chandra Dey (Dead) through Lrs. Vs. Prasanta Chandra (Dead) through Lrs; 2022 SCC Online SC 505, in paragraphs 6 to 10 and 16 provide as under:-

"(6) The first defendant appealed. In the first Appellate Court, the problem of the parties begins. This is so for the reason that contrary to the command of law which has been reiterated on a number of occasions by this Court, the appellate Court finds as follows:

"I have gone through the find of both sides referred by Ld. Lawyers of both sides. Both Mr. A. K. Misra, Ld. Lawyer of the app and Mr. S.Rahaman, Ld.Lawyer of Respondent have elaborately discussed the findings referred by them.

After hearing argument of both sides and after giving my anxious thought over the matter I am constrained to hold that the argument of App is not tenable and the argument of Respondent is much acceptable and the decision cited by the Ld. Advocate for the Respondent is sustainable and rightly accepted by the court below and as such no interference in the judgment and decree of the Court below is required by any means.

As a result, this appeal is likely to be dismissed and the judgment and decree passed by the court below is affirmed. Hence it is ordered that the appeal be and the same in dismissed on contest but without cost.

Let a x-rox copy of the judgment be sent to Ld. Lower Court at an early date."

(7) We may only notice what this Court on one occasion has declared in Madhukar and Others v. Sangram and Others (2001) 4 SCC 756. This Court, inter alia, referred to an earlier judgment reported in Santosh Hazari v. Purushottam (2001) 3 SCC 179 wherein it is stated as follows:

"6. In Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : JT (2001) 2 SC 407] this Court opined: (SCC pp. 188-89, para 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."

(8) We have no difficulty whatsoever in coming to the conclusion that the first Appellate Court clearly has not discharged its duties as the first Appellate Court. As already noticed, the scheme of the Constitution, inter alia, is that the findings of fact are ordinarily to attain finality at the hands of the Court of Appeal and it is only on substantial questions of law that the High Court can interfere in the findings of the first Appellate Court. Therefore, apart from reiterating that it is a valuable right of the party which is at stake, it would not be conducive to the interest of administration of justice that findings of fact are rendered without due care and application of mind to the evidence and the law governing the parties. We say for the reason that any breach of duty by the first appellate Court in this regard has far reaching consequences on the administration of justice.

(9) The case which is not decided in the manner contemplated under law, can finally culminate in the litigants approaching the highest Court and invoking power under Article 136 of the Constitution of India. Power under Article 136 is intended to be used rarely. This is an extraordinary jurisdiction.

(10) The founding fathers contemplated that Courts at each level discharge their duties as contemplated under law. That means that the first Appellate Court will reappreciate the evidence, consider the arguments and apply the law and arrive at findings. Only then limiting of the jurisdiction of the High Court to only cases where substantial question of law arises would be justified. Approach to this Court under Article 136 could be on rare occasions only. We say nothing more except to reiterate that it is the bounden duty of the first appellate Court to deal with appeals within the confines of law and keeping in mind the principles which have been enumerated under Order XLI Rule 31 and various judgments of this Court.

(16) As we have noticed, the High court has proceeded on the basis that the consideration by the first appellate Court to the findings of the trial Court constituted concurrent findings as if this is a case where the first appellate Court has discharged its duties and given its approval to the trial Court findings. One could have understood the High Court so holding in a case where the first appellate Court had considered the appeal in the manner provided by law and as established by long line of judgments. We are clear in mind that this is indeed one such case where by virtue of the first appellate Court having failed to discharge its duties, in the facts of this case, remand to the first appellate Court is warranted."

So far as the issue of valuation is concerned, Section 105 of C.P.C. provides that "where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal." Thus, it was incumbent upon the appellate Court to consider the impact of Section 105 C.P.C. also while giving finding with regard to the valuation.

It appears that the issue of limitation was not raised before the appellate Court. In view of Section 3 of the Limitation Act, it is the duty of the Court itself to consider the issue of limitation. Since the judgment and decree of the appellate Court is without considering any evidence whatsoever and the appellate Court has failed to take into consideration the issue of valuation, it is a fit case for remand to the appellate Court.

The judgement and decree dated 24.11.2001 passed in RCA 261 of 1999 (Smt. Rita Devi and others Vs. Shri Prakash Choudhary) by the appellate Court is set aside. The matter is remanded back to the District Judge, Lucknow for hearing and deciding the same on merits in accordance with law without being influenced from any of the observations made hereinabove. Since the matter is pending since the year 1985, the District Judge, Lucknow shall himself hear the matter and decide the same by 30th November, 2022.

The second appeal is allowed.

Office is directed to return the lower court record to the Court of District Judge, Lucknow without any further delay.

(Vivek Chaudhary, J.)

Order Date :- 28.4.2022

Arjun/-