Subhash Vithalrao Gatlewar And ... vs Dattatraya Keshavrao Shinde ...
2004 Latest Caselaw 959 Bom

JUDGMENT

A.H. Joshi, J.

1. This second appeal is filed by unsuccessful defendants No. 3 to 8 who had succeeded in the Trial Court, however, failed in the first appellate Court.

2. The plaintiff Dattatraya had filed a suit for recovery of possession of the suit house. According to the plaintiff:

Defendant No. 1 Tukaram was a tenant of monthly rent of Rs. 1.50 paise leased out by the plaintiffs brother Govindrao who was formerly Karta of the family. The defendant No. 1 Tukaram is the real uncle of the defendants No. 2 to 5, 7 and 8. Defendant No. 6 is the widow of Vithalrao, the deceased brother of the defendant No. 1. The defendant No. 1 was staying in the suit property by raising a grass hut, later on constructed a Tin shed on it, with whom later on Vithalrao the brother of the defendant No. 1 also joined him. The defendant No. 1 got alternate premises. However, Vithalrao continued to stay in the premises though the defendant No. 1 continued to pay the rent. Vithalrao died about 10 years prior to the date of suit. Since the suit plot came to be allotted to the plaintiffs share in family partition, the defendant No. 1 became plaintiffs tenant. The plaintiff thereafter, terminated the tenancy of the defendant No. 1 by issuing notice dated 30-7-80 which is received by the defendant No. 1 and the tenancy was terminated with effect from 31-8-80. The defendant No. 1 was called upon to deliver the possession on 1-9-1980 by removing his super-structure and was called to pay the compensation @ Rs. 5/- per day in the event of failure to vacate the premises. The defendants No. 2 to 8 who were occupying were illegally in possession as the tenancy of the defendant No. 1 had come to an end.

3. The defendant No. 1 replied the notice and expressed that though he wanted to vacate, however, due to occupation of the other defendants who were unwilling he could not do so. The plaintiff, therefore, filed the suit. In the suit, the defendants No. 1 and 2 did stick up to their stand that they were intending and willing to vacate. However, the defendants 3 to 8 objected the plaintiffs claim pleading their animous with the defendants No. 1 and 2 and also that they were in possession of the suit property openly adverse to the plaintiffs title and claimed that the suit was barred by limitation and their title was perfected by adverse possession.

4. Learned Trial Judge framed as much as 8 issues. Issue No. 3 refers to adverse possession which reads as follows :-

3. Do defendants 3 to 8 prove that they acquired the ownership of the suit site by way of adverse possession for more than 12 years?

5. Learned Trial Court held the issue No. 3 in favour of the defendants No. 3 to 8. While holding so, learned Trial Judge disbelieved the plaintiffs evidence of the defendant being the lessee and their having paid the rent which were Exh.65 and 68. The suit No. 52 of 1981 was dismissed by the Judgment and decree dated 12-11-1982.

6. The aggrieved plaintiff filed appeal before the District Court which was registered as Regular Civil Appeal No. 38/1983. The said appeal was heard and decided by District Judge, Yavatmal who allowed the appeal, reversed the decree of the Trial Court and decreed the suit.

7. Present Second appeal was admitted on ground No. 1 of memo of appeal namely :-

"1. That the learned District Judge was in error in seeking to make available to the plaintiff a decree for possession particularly when it was evident that he had failed to establish his possession within 12 years from the date on which the suit came to be filed."

8. The appellant had sought permission for amendment of appeal memo and by amendment added two grounds and addressed the Court on those grounds. These grounds are quoted below for ready reference.

"6-A. That inasmuch as there has clearly been a breach of the requirement of Order 41, Rule 31 inasmuch as the only points framed are whether the appellant is entitled to the possession of the suit plot from the respondent? and what order? it is clear that the judgment as recorded not having complied with the mandatory requirements of Order 41, Rule 31, the said judgment stands vitiated.

6-B That it was obligatory for the learned District Judge to have framed necessary points for determination arising in the case and that not having been done, the judgment suffers from incurable illegality requiring the same to be set aside and the matter remanded for fresh decision of the appeal in question.

9. It is seen from the body of the judgment that the first appellate Court had formulated one question for determination namely :-

Whether the appellant is entitled to possession of the suit plot from the respondents?

10. Learned Advocate for the appellant relied upon two reported Judgments of this Court namely (i) and (ii) 1984 Mh.L.J, 931 : Learned Advocate Shri Chandurkar placed entire emphasis on these two judgments in order to demonstrate that failure of the first appellate Court to formulate the questions for determination as a incurable defect and the judgment of the appellate Court is nullity and he, therefore, sought to address the Court on this point and urged in favour of setting aside the Judgment under appeal and remand and direction for hearing and expeditious disposal as per law.

11. In order to find out as to exactly which questions fell for determination of the Appellate Court had to fall for determination of the Appellate Court, it is necessary once again to examine the pleadings of the parties.

12. The plaintiffs came with a story of ownership, tenancy in favour of defendant No. 1 and defendants 3 to 8 being in possession of suit property through defendant No. 1. This story is defended by the defendants with the pleading that they are in adverse possession of the suit property.

In view of these pleadings controversy that was liable to be considered by any Court including First Appellate Court was as to whether "the defendants' title was perfected by an adverse possession and as to whether the plaintiffs' suit was barred by limitation. Answering the objection raised by the learned Advocate for the appellant, Advocate Shri A. B. Chaudhary submitted that this would be unsafe to focus restrictively upon the question for determination framed by the learned First Appellate Court. It would not be appropriate to be restrictively guided by any of the question framed by the Appellate Court, if the entire gamut of discussion done by the Appellate Court is seen, it would reveal that every point or question which fell for determination of the Trial Court and in turn of the Appellate Court has been dealt with by the appellate Court. According to Mr. Chaudhary, the questions which, in fact, fell for determination were about the character of possession of defendants No. 3 to 8. In the event, it is held that the defendants 3 to 8 succeed in demonstrating their animous against the true owner, all other pleas of the plaintiffs that the defendant No. 1 was the tenant became non consequential. With this point of view, learned Advocate Mr. Chaudhary demonstrated from the Judgment of the First Appellate Court that the question as to nature of character or possession of the defendant which was decided by the Trial Court has been examined, the evidence thereupon has been re-appreciated and reasoned finding has been recorded by the First Appellate Court. Upon examination of the pleadings of the defendant, the learned Appellate Court observed in para 27 as follows :-

"27. On Point No. 1 :-So far as the fact as regards ownership of the plot in question of the appellant is concerned not only that the fact is admitted in the written statements of respondents, but there is cogent documentary evidence to conclude that the appellant held and is still holding title to the plot in question. What the respondents 3 to 8 have contended, is their acquisition of title by adverse possession. This itself goes to show an acknowledgment on the part of respondents 3 to 8 that originally before their alleged adverse possession commenced the appellant held title to the suit site. It is to be noted that so far as plea of adverse possession of respondents 3 to 8 is concerned they have no personal knowledge as regards right, title and interest of their father Vithalrao as regards the suit site. They are merely banking on long stay of Vithalrao in the suit site and after Vithalrao's demise their stay in the suit site."

Going through the evidence brought by the defendants, the learned Appellate Court observed in paras 29 and 30 as follows :

"29. It is to be noted that the evidence on record goes to show that prior to the partition between the appellant and his elder brother Govindrao and others respondents No. 1 and father of respondent Nos. 2 to 5, 7 and 8 and husband of respondent No. 6 Vithalrao were occupying the suit site as tenants of Govindrao. This fact is admitted by respondent No. 1 and 2. Respondents 2 to 8 were minors than except for respondent No. 6 who is widow of Vithalrao deceased father of respondents 2 to 5, 7 and 8. Naturally in their family Vithalrao being the Karta, his widow and others were not aware of the transaction and also the rights of Vithalrao as to how and in what right he was occupying the suit plot.

"30. In view of this parol evidence which is to the knowledge of respondents 1 and 2 and the appellant and against it the mere say of respondents 3 to 8 without any personal knowledge, the evidence of respondents 1 and 2 and the appellant must be accepted as cogent. Thus so far oath against oath is concerned, I find that the evidence of respondents 1 and 2 the appellant is reliable and must be accepted and the mere controversy created by respondents 3 to 8 without having personal knowledge of the transaction involved as regards the suit plot is concerned, has no substance and cannot be accepted. I, therefore, discard the parol evidence of respondents Nos. 3 to 8."

13. Mr. Chaudhary thus, demonstrated that in the light of the issue/question framed by the Trial Court, the questions which fell for determination of the First Appellate Court was, as to whether the plaintiffs' suit was barred by limitation? whether the defendants No. 3 to 8 had perfected their title by adverse possession?

All questions which essentially fall for consideration have been dealt with and decided by the learned District Judge.

14. It would, thus be clear from the above discussion that it would be unjust to hold that the learned Appellate Judge did not formulate the questions for determination and that, therefore, had failed to apply his mind and failed to comply with the rule contained in Rule 31 of Order 41 of Civil Procedure Code.

15. It shall have to be seen if formulation of questions for determination is a matter of form, or formality or purpose. It does not need to be supported by a precedent to say that formulation of points is a matter of purpose of having at hand a device and mechanism for enabling the Judge to methodically deal with questions which arise and/or those may be otherwise raised. Therefore, what is material is application of mind and not formulation of points. Graver it would be to have failed to apply mind than to fail to formulate the points/questions for determination.

16. Formulation of points for determination by the 1st appellate Court is a provision carrying imperative status and effect. At the same time, the formulation is not a matter of completion of empty formality. The aim and object and need behind formulation of points by the Ist appellate Court will have to be looked into. The points for determination when formulated by the 1st appellate Court those provide to the said Court a mechanism of methodically dealing with the case. To say further, it is a device of application of mind. It ought to be noted that base bare formulation of points shall not suffice and when the points have been formulated, all those will have to be dealt with in the Judgment. It would be convenient to the Court sitting in second appeal to find out whether the judgment otherwise reveals lack of application of mind, over and above that the questions have been formulated.

17. Since formulation of question is not the object, but a device appellate Court will have to deal with all points and rule upon those whether those are formulated or not. Thus, the appellate Court has to deal with the questions and points which arise for its determination, nevertheless that those points may not have been formulated. In such an eventuality if the judgment reveals that due and proper application of mind and adjudication of the questions which fell for determination is done by the 1st Appellate Court, it would be necessary to find out whether failure to formulate questions which do not affect the merit of the case could be made a ground of foundation for interference in a judgment of the 1st appellate Court on the ground of failure in formulating the points for determination tentamounting to acting in violation of the procedure prescribed under Rule 31 of Order 41 of Civil Procedure Code. In order to examine whether such interference is necessary, it would be fruitful to have a look at Section 99 of Civil Procedure Code which reads as follows :

"99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: Section 99 of Civil Procedure Code puts a guard on the power of the appellate Court to interfere in the judgment appealed against to the effect that if the error banked upon by the appellants committed by the appellate Court while delivering the judgment in question does not affect the merits of the case, such judgment need not be interfered. To my mind, exception to this rule which would be the observance of principle of natural justice and or any other point having nexus thereto i.e. to the hearing. It may also admit non observance of a mandatory provision of law, however, would never admit any rule or provision which is either not mandatory or does not affect the merit of the case.

18. True it is that in view of the precedents relied upon by learned Advocate Shri Chandurkar failure to observe Rule 31, Order 41 would certainly constitute a substantial question of law consequence of which shall be that a second appeal can be admitted for final hearing. However, said failure to formulate the pre-told consequence is not to set aside the judgment and decree and to remand the case. Looking to the interpretation of Section 99 of Civil Procedure Code as has been done by various Courts laying down binding precedent is that when the judgment does not affect the merit of case, in order to avoid unnecessary cost and inconvenience to the litigant, it is not necessary to set aside the judgment un-necessarily. The view afore referred is the dictum and ratio as ruled in various judgments namely.

(i) , Muhammad Husain Khan and Ors. v. Babu Kishva Nandan Sahai

In this case, Their Lordships of Privy Council held as follows :

"The provisions contained in the Civil Procedure Code do not regulate the procedure of their Lordships in hearing appeals from India, but there can be no doubt that the rule embodied in Section 99 proceeds upon a sound principle, and is calculated to promote justice; and their Lordships are not prepared to adopt a course which would merely prolong litigation. Assuming that the High Court has erred in overruling the objection to the amendment and in upholding the trial on both the causes of action, they do not think that the trial should be rendered abortive, when the alleged misjoinder has affected neither the merits of the case nor the jurisdiction of the Court."

(ii) Kiran Singh and Ors. v. Chaman Paswan and Ors.,

In this case, Their Lordships of the Supreme Court held as follows : "The reference to Section 578, now Section 99, Civil Procedure Code in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over valuation or undervaluation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over valuation or under valuation shall not be entertained by an Appellate Court except in the manner and to the extent mentioned in the section. It is a self contained provision complete in itself and no objection to jurisdiction based on otherwise than in accordance with it.

With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, Civil Procedure Code and Section 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.

(iii) AIR 1965 SC 1816, R. S. Maddanappa v. Chandramma and Anr.

"Here both the plaintiff and the first defendant claim under the same title and though defendants 2 to 8 had urged special defences against the first defendant, they have been fully considered and adjudicated upon by the High Court while allowing her appeal. Since the trial Court upheld the special defences urged by defendants 3 to 8 and negatived the claim of the first defendant it may have thought it unnecessary to order her transposition as plaintiff. But the High Court could, while upholding her claim well have done so. Apparently it either overlooked the technical defect or felt that under Order XLI, Rule 33 it had ample power to decree her claim. However, that may be, the provisions of Section 99 would be a bar to interfere here with the High Court's decree upon a ground such as this.

19. It is, therefore, liable to be held that in the present case, the appellant Court's judgment is not liable to be regarded as illegal or otherwise contrary to the principles of justice and suffering from non-application of mind on account of its failure to comply with Order XLI, Rule 31 of Civil Procedure Code. It is also considered necessary to record that in view of Section 99 of Civil Procedure Code, the judgment impugned is not liable to be reversed, on account of the said failure as the appellant has failed to demonstrate that the judgment and decree under appeal are wrong on merits and resulting in injustice.

20. In view of the discussion in foregoing paras, the substantial question of law urged by the learned Advocate Shri J. N. Chandurkar does not merit interference on the ground that the points for determination encompassing therein all the questions involved or covering all issues those had arisen or were framed by the Trial Court having not been formulated by 1st Appellate Court.

21. Having indicated that the Appellate Judgment is not vitiated on account of failure to formulate the question called for determination in the form and style expected by the appellants, the learned Advocate was called upon to advance his submission on the substantial question of law which was formulated at the time of admission namely ground No. 1 from the appeal memo which is quoted in the beginning for ready reference.

"2. That, admittedly, the plaintiff has not been able to establish any lease held by Vithalrao the predecessor-in-title of the present appellants and consequently in such a situation he was not entitled to rely on an alleged termination of lease, particularly when admittedly no rent was being paid by Vithalrao in respect of the premises in question.

Any scrutiny into said question calls for examination as to whether the judgment of the first Appellate Court is liable to be blamed as perverse. Learned Advocate for the appellant Shri Chandurkar tried to demonstrate that the statement of witnesses for the defendant were not considered by the learned Judge and that said non consideration resulted in rendering the judgment perverse.

22. In contrast, the learned Advocate for the appellants Mr. Chaudhary advanced submissions stating that findings are based on evidence on record and cogent reasons what the appellant is urging is attempting a debate on appreciation of evidence which was impermissible in second appeal.

23. Upon examination of the evidence, it is evident that the finding recorded by the Appellate Court that the evidence of the defendant is based on hearsay is not assailed, nor assailable being factual. In view of this very fact, the appellants submit that the finding as perverse is totally untenable.

Learned Advocate Mr. Chaudhary placed reliance on the following reported judgments namely :

1. , Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (Smt) and Ors.. 2. , Khepa Gorain v. Kus Gorain. 3. , Gava Prashad Dikshit v. Dr. Nirmal Chander and Anr.. 4. , Premendu Bhusan Mondal v. Sripati Ranjan Chakravarty, 5. , Tayabali Jaffarbhai Tankiwala v. Messrs. Asha and Co. and Anr.. 6. at Nagpur, Chaturbhuj Sitaram v. Manjibai Hirachand and Anr.. 7. , Bhawanji Lakhamshi and Ors. v. Himatlal Jamnadas Dani and Ors.. 8. , Annasaheb Bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil. 9. , Sudhir Kumar Paul v. Indu Prova Ghose and Ors.. 10. , Smt. Molina Mundal v. Smt. Puspa Rani Dasi. 11. , R. V. Bhupal Prasad v. State of A. P. and Ors..

24. The judgments are relied upon to bring home the point as to what are the ingredients which the appellant does not dispute the proposition that the appellants had to establish and prove occupation hostile to the owners right and urged and repeated that whatever was the evidence brought by the appellants to prove their animous and possession being hostile was sufficient. It is, therefore, not necessary to deal with all the citations in details.

25. In view of the discussion hereinbefore, being un-persuaded by the submission of the appellants that the substantial question of law framed by this Court at the time of admission and at the time of hearing is liable to be answered in the negative holding that the appellants having failed to prove their possession being adverse and that the District Judge was not in error in allowing the appeal.

26. Appeal, therefore, deserves to be dismissed and same is dismissed with costs.