Bombay High Court

Shaikh Rajmohammad Abdul And Anr vs Shaikh Abeda Rahim And Ors on 17 August, 2021

Bench: V. V. Kankanwadi

                                          (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   SECOND APPEAL NO.161 OF 2013
                               WITH
                 CIVIL APPLICATION NO. 4865 OF 2015

 1)       Shaikh Rajmohammad Abdul
          and Another                                 = APPELLANTS
                                                       (Orig.Plaintiffs)

          VERSUS

 1)       Shaikh Abeda Rahim & Ors.                   = RESPONDENT/S
                                                      (Orig.Defendants)
                                          -----
 Mr.SV Natu,Advocate for Appellants;
 Mr.Mukul S.Kulkarni, Advocate for Respondent Nos. 1 to 3;
 Respondent Nos. 4 and 5 are served.
                                         -----

                                  CORAM :         SMT.VIBHA KANKANWADI,J.

                                  DATE :          17th August, 2021.
 PER COURT :-

 1.               Present          appellants        are        the        original

plaintiffs. They had filed Regular Civil Suit No.

408/2005 for declaration, injunction and possession

before Civil Judge, Junior Division, Rahata,

District Ahmednagar. The said suit came to be

dismissed. They had then challenged the said

judgment and decree before the District Court,

Kopargaon by filing Regular Civil Appeal No.

39/2007. Learned District Judge-1,Kopargaon

dismissed the said appeal on 24.9.2012. Hence, the

original plaintiffs have filed this Second Appeal.

2. Heard learned Advocates appearing for

the respective parties. In order to cut short, it

can be stated that both of them have made

submissions in support of their respective

contentions.

3. The plaintiffs had claimed that deceased

Shaikh Abdul Rahimbhai was owner and possessor of

the suit property. Though they had contended that

it was his ancestral property, it appears that they

intended to say that the said property had devolved

on the deceased from his father. There is no

concept of ancestral property in Mohammedan Law.

They had then come with a case that Shaikh Abdul

had partitioned the suit property on 4.4.1988 by a

registered partition-deed and those details have

been given. According to the plaintiffs, they were

minors at that time and even in the partition-deed,

deceased Shaikh Abdul disclosed that since he is

getting pension, which is going on to maintain him,

he is not taking any share in the estate. The said

document appears to be liable to be interpreted.

Then it is stated that on the same day, Shaikh

Abdul sold the share of the minor plaintiffs and

defendant Nos.4 and 5 in favour of deft.No.1. It

was specifically contended that the partition-deed

and the sale-deed were prepared on the same day.

According to the plaintiffs, Shaikh Abdul had no

right, title and interest to sell the property to

deft.No.1 The said sale-deed is also challenged on

the ground that deft.No.1 had no independent source

of income and, therefore, had not paid the amount

of consideration to deceased Shaikh Abdul. On that

ground, they claimed declaration, injunction and

possession. The defence was set up stating that

the alleged partition-deed is hollow and never

acted upon. The sale-deed is valid and legal and,

therefore, deft.No.1 is owner of the suit property.

4. After considering the evidence on record,

the learned Trial Judge held that the plaintiffs

had failed to prove that the sale-deed dated

4.4.1988 is sham and bogs and will not bind them.

The suit was held to be beyond the period of

limitation. The plaintiffs are not entitled to get

any kind of relief. Alternative plea, that was

taken by deft.Nos.1 and 2 regarding acquisition of

title by adverse possession, has been said to be

rendered redundant and then the suit came to be

dismissed.

5. As against this, when the matter was

before the first Appellate Court, it has framed

only three points, viz. -

I. Whether appellants prove that the learned Lower Court has not appreciated the facts, evidence and law properly?

II. Whether appellants prove that learned Lower Court has drawn wrong conclusion?

III. Is their any necessity to interfere in the order passed by the learned Lower Court?

6. It can be seen that the judgment of the

first Appellate Court is totally cryptic and

without proper discussion, findings have been

given. In fact, the first Appellate Court, being

the last fact-finding Court, should intrust much

portion of its judgment in discussing the relevant

facts and then take up the legal points for

discussion. This has not been done by the learned

Judge of the first Appellate Court. There is

absolutely no compliance of Order XLI Rule 31 of

CPC by the learned first Appellate Court.

7. Reliance can be placed on the decision

in, Barnes School and Another Versus Arzoo Allan

Baker, reported in [2012 (3) Mh.L.J. 310], and

Hazrat Ali Mohamad (D) through Lrs. Versus

Prabhakar Dattaram Sirvoicar,- 2015 (5) ALL.M.R.

730. In both these decisions by this Court at

Principal Seat and at Panaji Bench respectively, it

has been held that,-

"It is mandatory for the First Appellate Court to set out the points for determination, the decision thereon and the reasons for the decision."

Further in Laliteshwar Prasad Singh and Others

Versus S. P. Srivastava (dead) through L.Rs. ,

2017 (4) Mh.L.J. 663, it has been held that,

"The Judgment of the First Appellate Court must reflect Court's application of mind and record its findings supported by reasons."

8. Further, in the case of H. Siddiqui

Versus A. Ramalingam, - (2011) 4 Supreme Court

Cases 240, it has been held that,

"The Order 41 Rule 31 of the Code of

Civil procedure provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court 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 detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Sukhpal Singh v. Kalyan Singh , AIR 1963 SC 146;

                  Girijanandini              Devi          v.     Bijendra            Narain
                  Choudhary,               AIR           1967         SC      1124;          G.

Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya v. Parvatini Amarendra Chowdhary , AIR 2007 SC 2380)."

9. In view of the guidelines/observations

referred above, this is a fit case, where the

matter deserves to be remanded to the First

Appellate Court for re-appreciation of the evidence

and accordingly the matter is now remanded. There

is no necessity for this Court to frame substantial

question of law, answering it and then remanding

the matter. For the discussion, as aforesaid,

following order is passed, -

ORDER

1) The Second Appeal is hereby partly allowed. Pending Civil Application stands disposed of.

2) The Judgment and decree passed

in Regular Civil Appeal No.39 of 2007, by learned District Judge, Kopargaon dated 24-09-2012, is hereby set aside.

3) The said appeal is remanded for its decision as per law to the concerned Court.

                  4)              Parties         to    appear          before         the
                  concerned Court on 05-10-2021.

                  5)              It   is     clarified            that,        if     any
                  party        remains      absent         then       presence           of
                  such         party   be     secured         by      the       learned

Court and then the matter be proceeded.

6) Further, needless to say that, there should be proper compliance under Order 41 Rule 31 of the Code of Civil Procedure.

                  7)              Since     the        Appeal       of      2007       has
                  been         remanded,      the      concerned            Court        to