Bombay High Court
Western Coalfields Limited, ... vs Sau. Kusum W/O Shankar Thakur on 3 February, 2025
2025:BHC-NAG:1493
1 sa88.20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO.88 OF 2020
Western Coalfields Limited,
Through General Manager, Majri Area,
At Kuchna, Tahsil Bhadrawati,
District Chandrapur. ...APPELLANT
...V E R S U S...
Sau. Kusum W/o Shankar Thakur,
Aged about 60 years, Occ: Household,
R/o Majri, Tahsil, Bhadrawati, District
Chandrapur. ...RESPONDENT
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Shri A.M. Ghare, Advocate for appellant.
Shri Akhtar Ansari, Advocate for respondent.
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CORAM :- M.W. CHANDWANI, J.
DATED :- 03.02.2025.
ORAL JUDGMENT :
. In view of the order dated 13.02.2020, I have heard the
appeal finally at the stage of admission with the consent of the
learned counsel for the parties.
2. By the present appeal, the appellant is challenging the
judgment and decree passed by the District Judge-1, Warora, District
Chandrapur in Regular Civil Appeal No.214/2008 (Old RCA
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No.144/2006) whereby the decree of dismissal of Regular Civil Suit
No.20/2003 passed by the Civil Judge Junior Division, Bhadrawati
has been reversed. Unfortunately, this appeal of 1997 is being dealt
with in the year 2025. Without going into the question of who is to
be blamed, I proceed to dispose of the appeal.
3. The appellant is a company engaged in the mining of
coal. The respondent claims to be the owner of the agricultural land
bearing Survey No.11 admeasuring 1.26 HR of village Kawadi, Tahsil
Bhadrawati, District Chandrapur which came to be acquired by the
appellant under the provisions of Land Acquisition Act in Land
Acquisition Case No.8/65/89-90. Since the respondent became
landless, when the son of the respondent attained majority, he
applied for employment with the appellant as per policy. However,
the appellant denied the right of the respondent and therefore,
Regular Civil Suit No.20/2003 came to be filed. The trial Court
dismissed the suit by holding that the respondent failed to prove her
ownership of the land and also failed to place on record the policy
document based on which the respondent claims employment. The
first appellate Court relying on the written statement of the
appellant held that the respondent is the owner of the land which
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was acquired by the appellant and reversed the decree of the trial
Court. Hence, this appeal has been filed by the appellant.
4. The following substantial question of law was framed
by order dated 20.09.2021:
"Whether the first Appellate Court has committed error in
interfering and reversing the judgment of the trial Court by
wrongly appreciating the evidence?"
5. Mr. Ghare, learned counsel appearing on behalf of the
appellant submitted that the trial Court has rightly considered all the
aspects of the matter and rightly held that the respondent/plaintiff
failed to prove the ownership as the executant and attesting
witnesses of the sale-deed were not examined. According to him,
even if it is presumed that she was the owner of the land and the
said land was acquired by the appellant but, no policy document has
been placed on record to show that she is entitled to get
employment for her son. Therefore, he sought quashing of the
impugned judgment reversing the decree.
Arguing on the application for filing additional
documents, the learned counsel for the appellant submitted that
there are some documents which will reveal the fact that the
respondent is not entitled for appointment as one Kantakwar has
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been appointed on the basis of no objection given by the respondent
in his favour. It is the contention of the learned counsel for the
appellant that those documents were not brought on record since
the suit for declaration of ownership and appointment of son as the
nominee was not maintainable and therefore, they could not be filed
on record. These are the documents which were sought to be placed
on record by the respondent before the first appellate Court which
came to be rejected. Therefore, the appellant seeks permission to file
those documents on record.
6. Per contra, Mr. Ansari, learned counsel for the
respondent objected the application on the ground that there is no
such reason as envisaged under Order XLI Rule 27 of the Code of
Civil Procedure (for short "CPC") to allow the appellant to file
additional documents at the stage of second appeal particularly,
when there is no such pleading to that effect. Production of the very
same documents was opposed by the appellant before the first
appellate Court. Hence, he sought rejection of the application.
On merits, the learned counsel for the respondent
vehemently submitted that the written statement of the appellant
itself is sufficient to decree the suit. According to him, not only the
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ownership but also the policy has been admitted by the appellant in
his written statement as it has not been specifically denied para 3 of
the plaint. That apart, according to him, the very document which
the appellant is intending to file goes to show the existence of the
policy of granting employment to the nominees of a landless person.
Therefore, according to him, nothing remains in the appeal and
hence, he sought rejection of the appeal.
7. Having heard the learned counsel for the respective
parties and having gone through the impugned judgment, pleadings,
evidence and material available on record, it transpires that the
respondent in her plaint in paras 1 and 2 has specifically mentioned
about the ownership of the land bearing Survey No.11 admeasuring
1.26 HR which came to be acquired by the appellant. Perusal of the
written statement of the appellant goes to show that there is no
denial to the facts that the respondent was recorded as the owner of
the land of Survey No.11 which came to be acquired by the
appellant. However, these aspects which have not been considered
by the trial Court have rightly been appreciated by the appellate
Court and therefore, I do not find any perversity in the finding of the
learned first appellate Court regarding ownership and acquisition of
the land of the respondent by the appellant.
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8. Let's turn to the submission of the learned counsel for
the appellant that the trial Court was justified in recording the fact
that no policy has been placed on record and in the absence of
policy, the first appellate Court's direction that the nominee of the
respondent is entitled for employment with the appellant is not a
correct one. According to him, the first appellate Court has made the
declaration on the premise that the policy is not disputed which is
erroneous considering the material available on record.
9. It is worthwhile to consider the pleadings of the
respondent as well as the appellant. In para 3 of the plaint, the
respondent has averred as under:
"3. As per the policy matter of the Central Govt. and State
Govt. it is duty of the acquiring body to give employment to
person who belongs to land oustee or nominated person
from land oustee on that basis the defendant already
provided employment to several persons and they are
working under the control of the defendant."
As against this, the appellant while replying to the same
para has contended in its written statement as under:
"Reply to Para No.3:- It is totally denied that each and every
land holder or his/her nominee is entitled for employment
and are doing the service under the control of defendant.
The rest of the contents of this para are denied. The plaintiff
should strictly prove the contents of this para."
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10. In wake of Order VIII Rule 3 and 4, the appellant ought
to have dealt specifically with each allegation of truth of the fact
which he does not admit except damages and should have avoided
evasive denial. It is not sufficient for the defendant to deny the
allegation made in the plaint. If the allegation of the fact in the
plaint was not denied either specifically or by necessary implication
or it was not stated to be specifically admitted in the written
statement of the defendant, it shall be taken to be admitted. That
apart, the documents which are tried to be placed on record by the
appellant itself goes to show that one unknown person Kantakwar
was given employment on the basis of acquisition of the land of the
respondent who was later on removed by the appellant. Therefore, I
do not find force in the argument of the learned counsel for the
appellant that there is no such material available on record to show
that the policy is placed in the service particularly, in absence of
specific denial in the said averment made in para 3 of the plaint.
11. As far as production of these documents is concerned, it
is nowhere pleaded by the appellant in its written statement
therefore, those documents cannot be considered that too, in second
appeal. That apart, no case is made out as contemplated under
clause (a), (aa) and (b) of Order XLI Rule 27 of the CPC.
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12. The observations of the Supreme Court made in the
decision of Santosh Hazari Vs. Purushottam Tiwari (deceased) by
LRs 1, has been relied upon by the appellant wherein, the Supreme
Court has held that if 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. 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.
13. In view of the judgment of the trial Court ignoring the
admissions of the appellant in the written statement, the appellate
Court was right in reversing the findings of the trial Court which
were suffering from material irregularities. Therefore, the case of
Santosh Hazari (supra) will not assist the appellant.
14. Thus, no substantial question of law arises in this
appeal. Therefore, the appeal is liable to be dismissed and hence, it
stands dismissed.
1 (2001) 3 SCC 179
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15. Before parting with the judgment, it is submitted by the
learned counsel for the appellant that though, the first appellate
Court has declared that a nominee of the respondent is entitled for
the employment as per policy but the nominee of the respondent has
to fulfill the eligibility criteria. Needless to mention, the appellate
Court has already taken care of this aspect and declared that the
nominee of the respondent is entitled for the employment as per the
Rules of the appellant.
(JUDGE)
Wagh
