Bombay High Court
Shri Subhash Krushnaji Jagtap vs Age 67 Yrs. Occ : Agriculture on 19 December, 2012
Bench: R. M. Savant
sa-888.12&cas-1808.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.888 OF 2012
WITH
CIVIL APPLICATION NO.1808 OF 2012
Shri Subhash Krushnaji Jagtap ]
Age 57 yrs. Occ : Agriculture, ]
R/o. Vidyanagar, Sakharwadi ] Appellant
Tal. Phaltan, Dist. Satara ] (Org.Deft.)
Versus
Shri Maruti Krushna Jagtap ]
Age 67 yrs. Occ : Agriculture, ]
R/o. Murum, Tal Phaltan ig ] Respondent
Dist. Satara ] (Org.Plff.)
Mr. V S Talkute for the Appellant.
Mr. Rajesh S Patil for the Respondent.
CORAM : R. M. SAVANT, J.
DATE : 19th December 2012
ORAL JUDGMENT
1 The above Second Appeal arises out of the Judgment and Order
dated 25/09/2012 passed by the learned District Judge-2, Satara in Regular
Civil Appeal No.181 of 2012 by which the Judgment and Decree dated
12/4/2012 passed by the learned Civil Judge, Junior Division, Phaltan in
Regular Civil Suit No.44/2011 came to be confirmed.
FACTUAL MATRIX
2 The Appellant herein is the original Defendant in the said Regular
lgc 1 of 14
sa-888.12&cas-1808.12
Civil Suit No.44/2011 which has been filed by the Plaintiff for declaration and
injunction. The Suit property is Gat No.729 admeasuring 2 Hectors and 14
Ares situated at village Khamgaon, Tal. Phaltan, Dist.Satara. It was the case of
the Plaintiff that he is the owner of the Suit property and since the date of
purchase he has been in continuous possession of the same.
3 The Suit was resisted by the Defendant on the ground that the
entire consideration for the purchase of the property in question was paid by
the Defendant, however, on account of some technical difficulties and since the
relations between the Defendant and Plaintiff, who are brothers, was cordial,
that the sale deed was got executed in the name of the Plaintiff. It was further
the case of the Defendant that at the time of execution of the sale deed, the
Plaintiff was not even present. It was further the case of the Defendant that he
had invested a huge amount and got the land levelled and also constructed a
cattle shed admeasuring 30x25 ft. and that he has been staying in the said
cattled shed since last 10 to 12 years prior to filing of the Suit in question. The
cause for filing the Suit by the Plaintiff was the alleged obstruction caused by
the Defendant in the property in question which is in possession of the
Plaintiff.
4 The Trial Court considering the nature of controversy which was
involved in the said Suit, framed the issues. In so far as the present Second
lgc 2 of 14
sa-888.12&cas-1808.12
Appeal is concerned, the two issues (English Translation) which are relevant
were as follows :-
(1) Whether the Plaintiff proves that the Suit property is of his
ownership?
(2) Whether perpetual injunction could be granted against the
Defendant?
Both the parties have adduced evidence in assertion of their respective cases.
The Trial Court on the basis of the material on record answered both the issues
in favour of the Plaintiff and resultantly decreed the Suit in question and
granted a declaration that the Plaintiff is the owner of the Suit property and
also granted perpetual injunction against the Defendant not to disturb the
Plaintiff's possession. This the Trial Court did by its Judgment and Order dated
12/4/2012.
5 The aggrieved Defendant carried the matter in Appeal. The Lower
Appellate Court, as can be seen, framed the following issues (English
Translation)
[1] Whether the Plaintiff proves that the Suit property is in his
occupation and possession ?
lgc 3 of 14
sa-888.12&cas-1808.12
[2] Whether the Plaintiff is entitled to perpetual injunction?
[3] Whether the Decree passed by the Trial Court merits interference ?
The Lower Appellate Court in spite of the fact that the Suit being one for
declaration and injunction approached the Appeal only from the point as if it
was a Suit only for injunction. The Lower Appellate Court notwithstanding the
finding in respect of declaration in favour of the Plaintiff glossed over the said
aspect and in fact in Paras 8 and 9 of the impugned Judgment and Order has
categorically observed that the Suit being only one for injunction, it was not
necessary for it to consider the issue of title. In the teeth of the decree which
was passed by the Trial Court which was both for declaration as well as
injunction, the Lower Appellate Court has by approaching the matter only
from the angle that the Suit being only one for injunction has proceeded on a
wrong premise.
6 It appears that at the Appellate stage, the Plaintiff i.e. the
Respondent herein had moved an application (Exhibit 20) for leading
additional evidence by having recourse to Order 41 Rule 27 of the Code of Civil
Procedure. The said additional evidence was in the form of documents which
were mentioned in the said application (Exhibit 20). It seems that the Lower
Appellate Court without deciding the said application has ventured to consider
the said document and has decided the Appeal. Hence the following
lgc 4 of 14
sa-888.12&cas-1808.12
substantial questions of law arise for consideration :-
[1] Whether the impugned Judgment and Decree is unsustainable in
law since the Lower Appellate Court has proceeded on a wrong
premise that the Suit in question was only one for injunction and
was therefore not required to consider the issue of declaration of
ownership ?
[2] Whether the Lower Appellate Court erred in confirming the Decree
of declaration of ownership and perpetual injunction passed by the
Trial Court without even considering the issue of declaration of
ownership which was sought by the Plaintiff ?
[3] Whether the Lower Appellate court committed an error in relying
upon the documents produced by the Respondent in the Appeal by
way of application Exhibit 20 filed under Order 41 Rule 27 of the
Code of Civil Procedure without passing any order on the said
application ?
7 Heard the learned counsel for the parties. The learned counsel
appearing for the Appellant Shri Talkute would contend that the Lower
Appellate Court having approached the matter on a wrong premise viz. that the
lgc 5 of 14
sa-888.12&cas-1808.12
Suit in question is restricted only to the relief of perpetual injunction has
thereby glossed over the aspect of the relief by way of a declaration of
ownership which was sought by the Plaintiff. The learned counsel for the
Appellant would contend that the impugned Judgment and Decree passed by
the Lower Appellate Court is vitiated on the said count. The learned counsel
would contend that the Lower Appellate Court being a final fact finding court,
it was required to consider all issues of fact and law which arise in the Suit.
However in the instant case the Lower Appellate Court, having failed to
consider the issue of declaration of ownership, has thereby failed in its duty as
a First Appellate Court. In support of the said contention, the learned counsel
for the Appellant would rely upon the judgment of the Apex Court reported in
(2011) 12 SCC 174 in the matter of State Bank of India and anr. v/s.
Emmsons International Limited and anr. wherein the scope of jurisdiction of
the First Appellate Court is enunciated. It has been held that the First Appellate
Court is required to consider all issues of fact and law which arise before it.
The said Judgment of the Apex Court also refers to the judgment reported in
(2001) 3 SCC 179 in the matter of Santosh Hazari v/s Purushottam Tiwari
(Deceased) by LRs which also enunciates the scope of the jurisdiction of the
First Appellate Court.
8 Per contra, it is submitted by the learned counsel appearing for the
Respondent Shri Patil that since the Appellant in spite of an issue of
lgc 6 of 14
sa-888.12&cas-1808.12
declaration of ownership not being framed by the Lower Appellate Court did
not take exception to it, the Appellant is now estopped from contending that
the Lower Appellate Court has proceeded on a wrong premise. The learned
counsel for the Respondent would contend that the title of the Plaintiff was
accepted in some earlier proceedings filed by the third parties against the
Plaintiff and therefore the Judgment and Decree passed by the Lower Appellate
Court is not vitiated on the count that the issue of declaration of ownership has
not been considered. The learned counsel for the Respondent would lastly
contend that since in so far as the issue of injunction is concerned, there is a
concurrent finding in favour of the Respondent, the issue only as regards
declaration of ownership be remanded back to the Lower Appellate Court.
CONSIDERATION
9 Having heard the learned counsel for the parties, I have bestowed
my anxious consideration to the rival contentions. As indicated above, the Suit
filed by the Respondent herein i.e. the original Plaintiff was one for declaration
of ownership in respect of the Suit property being Gat No.729 situated at
Khamgaon, Tal. Phaltan, Dist. Satara. There can be no dispute about the fact
that the Suit apart from being one for injunction is for declaration of
ownership. This is borne out by the averments in the plaint as well as the
reliefs sought. The Trial Court on the basis of the pleadings of the parties had
lgc 7 of 14
sa-888.12&cas-1808.12
framed the relevant issues out of which was the issue of declaration of
ownership. The Trial Court has recorded a finding in favour of the Plaintiff
and has thereafter decreed the Suit in question in favour of the Plaintiff and
granted a declaration that the Plaintiff is the owner of the Suit property. In the
light of the decree which was passed by the Trial Court and the finding
recorded as regards the declaration of ownership, the Lower Appellate Court
being the final fact finding court was required to address the issue of
declaration of ownership, and consider the finding recorded by the Trial Court.
The said course of action has been enunciated by the Apex Court in the
judgments (supra) referred to herein above. In so far as the judgment in the
State Bank of India's case (supra) is concerned, the relevant para is Para 19
which is reproduced herein in under :-
"Having regard to the controversy set up by the parties in
the course of trial, in our view, it cannot be said that
Issue 5 is immaterial or finding of the trial court on that
issue is inconsequential. The High Court was hearing the
first appeal and, as a first appellate court it ought to have
considered and addressed itself to all the issues of fact
and law before setting aside the judgment of the trial
court. The judgment of the High Court suffers from a
grave error as it ignored and overlooked the finding of
the trial court on Issue 5 that the seller accepted the
encashment of bill and document on collection basis. The
High Court was required to address itself to Issue 5
which surely had bearing on the final outcome of the
case."
In so far as the judgment in Santosh Hazari's case (supra) is concerned, the
lgc 8 of 14
sa-888.12&cas-1808.12
relevant para is Para 15 which is reproduced herein 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
lgc 9 of 14
sa-888.12&cas-1808.12
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 quarterswith 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
lgc 10 of 14
sa-888.12&cas-1808.12
be a substantial one."
10 As can be seen in Santosh Hazari's case, the Apex Court has gone
on to say that it is necessary for the Appellate Court to come into close quarters
with the reasoning assigned by the trial court and then assign its own reasons
for arriving at a different finding, if it is reversing the finding given by the Trial
Court. Though such is not the case in the instant matter, the fact remains that
the Lower Appellate Court has failed to consider the issue of declaration of
ownership and has approached the matter on a wrong premise viz. that the
Suit is only one for perpetual injunction. The Judgment and Decree passed by
the Lower Appellate Court therefore stands vitiated on the said count. Though
the finding as regards perpetual injunction has been recorded in favour of the
Plaintiff by both the courts below, it is not possible to sustain the decree of the
Lower Appellate Court in so far as perpetual injunction is concerned, only for
the reason that the Lower Appellate Court whilst deciding the Appeal has
proceeded on a wrong premise viz that the Suit being only one for perpetual
injunction. In so far as the case of the Plaintiff that his title had received the
sanction of the Court in some earlier proceedings, it is for the Plaintiff to plead
the said case before the Lower Appellate Court and that cannot be an
impediment in the way of this Court for remanding the matter back to the
Lower Appellate Court for a de-novo consideration of the Appeal.
lgc 11 of 14
sa-888.12&cas-1808.12
11 It is also required to be noted that the application (Exh.20) was
filed by the original Plaintiff at the appellate stage by invoking Order 41 Rule
27 of the Code of Civil Procedure. The Lower Appellate Court, it seems, has,
without deciding the said application, ventured to take into consideration the
additional evidence which was sought to be produced vide the said application.
The consideration of the said additional evidence without deciding the said
application (Exh.20) therefore is also another ground on which the Judgment
and Decree of the Lower Appellate Court stands vitiated. The Lower Appellate
Court was required to consider the said application (Exh.20) may be at the
hearing of the Appeal on the touchstone of Order 41 Rule 27 of the Code of
Civil Procedure by deciding whether the pre-requisites under the said provision
were satisfied by the Plaintiff. The above Second Appeal is therefore required
to be allowed and the impugned Judgment and Decree dated 25/09/2012 is
required to be set aside. The matter is required to relegated back to the Lower
Appellate Court for de-novo consideration of the Appeal in terms of the
observations made herein above. The questions of law as framed would stand
answered accordingly. Hence the following directions :-
[1] The above Second Appeal is allowed. The Judgment and Decree
dated 25/09/2012 of the Lower Appellate Court is set aside and
the matter is relegated back to the Lower Appellate Court for de-
novo consideration of the Regular Civil Appeal No.181 of 2012.
lgc 12 of 14
sa-888.12&cas-1808.12
[2] On remand the Lower Appellate Court to note that the Suit in
question is one for declaration of ownership as also for perpetual
injunction, and consider the decree passed by the Trial Court in
the said context.
[3] The Application (Exhibit-20) to be decided by the Lower Appellate
Court before it takes up the Appeal for hearing.
[4] It would be contingent upon the order that would be passed on the
Application (Exhibit-20) that the said additional evidence would
or would not be considered by the Lower Appellate Court.
[5] On remand the Lower Appellate Court to decide the Appeal within
a period of six months of the parties appearing before it. The
parties to appear before the Lower Appellate Court on 14 th January
2013 and the time stipulated by this order would start to run from
then.
[6] Needless to say that the contentions of the parties are explicitly
kept open for being agitated in the Appeal.
lgc 13 of 14
sa-888.12&cas-1808.12
[7] In the meantime, the order passed by the Lower Appellate Court
dated 4/5/2012 passed below Exhibit 7 would operate pending
the decision in the Appeal on remand as the said order was
operating in the Appeal when it was originally pending before the
Lower Appellate Court.
[8] The above Second Appeal is accordingly disposed of.
[9]
In view of disposal of the above Second Appeal, the Civil
Application No.1808 of 2012 does not survive and the same to
stand accordingly disposed of as such.
[10] The concerned parties to act upon an ordinary copy of this order
duly authenticated by the Court Sheristedar.
[R.M.SAVANT, J]
lgc 14 of 14
