Delhi High Court
Smt Ranjana Mitra vs Sh Ashok Kumar Mazumdar & Ors. on 2 August, 2021
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 02.08.2021
+ RSA 22/2021 & CM APPL. 7598/2021 (stay)
SMT. RANJANA MITRA ..... Appellant
Through: Mr. Peeyoosh Kalra, Mr. Sudhindra
Tripathi and Mr. Ashok Nagrath,
Advocates
versus
SH. ASHOK KUMAR MAZUMDAR & ORS. ..... Respondents
Through Mr. P.C. Sharma & Mr. Manish
Kumar Sharma, Advocate for R-1.
Mr. Aayush Agarwal, Advocate for
R-2 to 5.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
1. Present Regular Second Appeal has been filed by the Appellant
impugning the judgement and order dated 23.01.2021 passed by the First
Appellate Court in RCA No. 133/2019 whereby the Appeal of the Appellant
herein has been dismissed and the judgement and decree dated 01.10.2019
passed by the learned Trial Court in Civil Suit No. 50607/2016 has been
upheld and affirmed. Appellant herein was Defendant No. 1 in the Suit and
Respondent No. 1 herein was the Plaintiff. Respondents No. 2 to 5 herein
were Defendants No. 2 to 5 before the Trial Court. The parties are being
referred to by their litigating status before this Court, hereinafter, for the
sake of convenience.
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2. Respondent No. 1/ Shri Ashok Kumar Mazumdar, being the legal heir
of the alleged landlord, Late Shri Rohini Kumar Mazumdar, filed a Suit
against the Appellant, alleged tenant and Respondents No. 2 to 5, other legal
heirs of the alleged landlord, seeking three reliefs viz: (a) decree of
possession of the tenanted premises bearing No. A-80, Chitranjan Park, New
Delhi (hereinafter referred to as 'premises'); (b) recovery of arrears of rent
amounting to Rs. 36,000/- along with interest @ 18% per annum and
(c) recovery of mesne profits/damages @ Rs. 25,000/- per month w.e.f.
01.02.2015 along with interest @ 18% per annum.
3. The case of Respondent No. 1, as set out in the plaint, was that Late
Shri R.K. Mazumdar was allotted the land underlying the premises by the
Ministry of Rehabilitation, Government of India, vide registered Lease
Agreement dated 24.11.1969. Late Shri Mazumdar constructed a house over
the said land in the year 1991 by raising a loan from LIC through DDA
against mortgage of the property with DDA. During his lifetime,
Shri Mazumdar had inducted the Appellant as a tenant with respect to the
entire premises, except for one store room, marked and shown separately in
the site plan, initially vide Tenancy Agreement dated 22.11.1992 and later
vide Tenancy Agreement dated 31.01.1995 for a period of two years ending
on 31.12.1996. Vide the latter Agreement, the agreed rate of rent was
Rs. 6,000/- per month. However, on account of friendly relationships
between Late Shri Mazumdar and Shri B.K. Mitra, husband (now deceased)
of the Appellant, it was verbally agreed that out of the said monthly rent,
Appellant would deposit Rs. 5,457.30/- with DDA to discharge the loan
liability and pay the balance to Late Shri Mazumdar. Appellant was paying
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the rent in accordance with the agreed terms during the lifetime of Late
Shri Mazumdar.
4. It was further averred by Respondent No. 1 that after the death of Late
Shri Mazumdar on 05.12.1998, Appellant changed her stand and started
making claims of being the purchaser of the premises and also stopped
paying the rent. On 08.11.2014, when Respondent No. 1 and his wife tried
to enter the portion of the premises in their possession and sought arrears of
rent, they were denied entry and were threatened with dire consequences by
the Appellant. This conduct of the Appellant compelled Respondent No. 1 to
send a legal notice dated 22.11.2014 to the Appellant, determining the
month-to-month tenancy, which even otherwise had come to an end by
efflux of time under the Tenancy Agreement dated 31.01.1995. Failure on
the part of the Appellant to vacate the premises led to the filing of the Suit
by Respondent No. 1 seeking possession, arrears of rent and mesne
profits/damages.
5. Appellant contested the suit and filed the Written Statement.
Primarily the case of the Appellant was that no landlord-tenant relationship
existed between the parties and the Appellant was the owner of the premises.
The narrative of facts set out in the written statement was that the Appellant
was the owner of first floor of House No. A-79, Chitranjan Park, New Delhi,
adjoining the premises. Late Shri Mazumdar had approached the husband of
the Appellant with an offer to sell the roof rights of the premises. The offer
appealed to the Appellant's husband but he did not readily have the funds to
purchase the roof rights. It was agreed that the funds shall be arranged by the
Appellant and her husband by selling their first floor and in the meantime
Appellant and her family shall move to the ground floor of the premises and
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pay monthly rent. The ground floor was not in a habitable condition and
thus, it was further agreed that the husband of the Appellant would carry out
the repairs and the expenditure incurred would be deducted from the sale
price of the roof rights of the premises. Shri B.K. Mitra, husband of the
Appellant spent Rs. 1,90,000/- on the said repairs and the family shifted to
the ground floor.
6. It was averred that thereafter Late Shri Mazumdar offered to sell the
entire house to the Appellant and her son for a sum of Rs. 9 Lakhs, after
adjusting Rs. 1,90,000/- spent on repairs of the ground floor and
Rs. 1,40,000/- paid towards the rent. A sum of Rs. 5,65,000/- was
immediately paid by the Appellant and her son to Late Shri Mazumdar and
in respect of balance sale consideration of Rs. 3,35,000/-, it was agreed that
the same would be paid after Late Shri Mazumdar obtained the relevant
documents from DDA and discharged his loan liability. It was also agreed
that in case Late Shri Mazumdar did not discharge his liability, the appellant
would pay the outstanding loan amount directly to DDA. An Agreement to
Sell was executed by Late Shri Mazumdar on 22.11.1994 in favour of the
Appellant and her son along with an irrevocable General Power of Attorney
in favour of the husband of the Appellant. The property was thus sold to the
Appellant and her son and they became owners thereof and thereafter, no
rent was ever demanded from the Appellant. Late Shri Mazumdar failed to
discharge the loan liability and the Appellant started paying instalments to
the DDA towards the balance sale consideration of Rs. 3,50,000/-. It was
also the case of the Appellant that Tenancy Agreement dated 30.01.1995 is a
forged and fabricated document as no such Agreement was executed
between the parties. It was denied that possession of any part of the premises
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was retained by Late Shri Mazumdar, as alleged in the plaint. Appellant
prayed that the suit deserved to be dismissed as the Appellant and her son
were the lawful owners of the premises by virtue of the Agreement to sell.
7. Respondents No. 2 to 5 filed a separate Written Statement, inter alia,
pleading that being the legal heirs of Late Shri Mazumdar they also had
share in the house. Prayer was made for transposing them as Plaintiffs in the
Suit and thereafter if and when the Suit was decreed, the benefits and fruits
of the decree should be shared with them by Respondent No.1.
8. The Trial Court framed the following issues on 08.09.2017:-
"1. Whether the plaintiff is entitled to the possession of premises
no. A-80, C. R. Park, New Delhi-90 as shown in the site plan?
OPP
2. Whether the plaintiff is entitled to arrears of rent to the tune
of Rs. 36000/- besides interest as prayed for against defendant
no. 1? OPP
3. Whether the plaintiff is entitled to mesne profits of
Rs. 25,000/- per month against defendant no. 1 since
01.02.2015 as prayed for besides interest? OPP
4. Whether the plaintiff is entitled to cost of suit as prayed for?
OPP"
9. During the trial, Respondent No. 1 examined three witnesses while
the Appellant examined two witnesses. On the basis of the pleadings and
evidence led by the parties as well as the arguments canvassed by the
respective counsels, Trial Court decided all the aforementioned Issues in
favour of Respondent No. 1 and decreed the Suit.
10. With respect to the first Issue, Trial Court observed that the Appellant
had raised the defence of her entitlement to the benefit of protection under
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Section 53A of the Transfer of Property Act, 1882 (hereinafter referred to as
'TPA'), for the first time only during the final arguments on 16.09.2019 and
21.09.2019. Appellant had nowhere pleaded in the Written Statement that
she was entitled to the benefit of the said provision, as she had upon
execution of the Agreement to Sell, taken possession of the premises, in part
performance of the Agreement and consequently even evidence was not led
to that effect. Instead, Appellant had pleaded that upon execution of the
Agreement to Sell and GPA, both dated 22.11.1994, her son and the
Appellant had become owners of the premises. Trial Court relied on the
judgement of the Supreme Court in Shyam Narayan Prasad vs. Krishna
Prasad & Ors., (2018) 7 SCC 646, wherein the Supreme Court has held that
wherever the Defendant intends to avail the benefit of Section 53A of TPA,
he must plead that he has taken possession of the property, in part
performance of the contract, since pleadings give each side intimation of the
each other's case and also enables the Court to determine the real issue for
determination. Therefore, in the absence of pleadings, benefit of protection
under Section 53A of TPA cannot be granted to the Defendant.
11. The second reason given by the Trial Court for deciding the First
Issue in favour of Respondent No. 1 was that even if the plea with regard to
the protection under Section 53A of TPA could be entertained by the Trial
Court, the evidence led by the Appellant did not pass the muster of law laid
down by the Supreme Court in the case of H.K. Sharma vs. Ram Lal,
(2019) 4 SCC 153. In the said judgement, the Supreme Court has held that
the question, whether the jural relationship between the lessor and the lessee
in relation to the tenanted premises comes to an end upon the lessor and
lessee entering into an agreement for sale or purchase of the said premises,
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would have to be decided keeping in view the provisions of Section 111 of
TPA. The Agreement to Sell executed between the parties must evidence
and provide the fate of the tenancy and the intent to surrender the tenancy
rights as contemplated in Clause (e) or (f) of Section 111 of TPA, at the time
of entering into the said Agreement. Relying on the said judgement, Trial
Court concluded that the Agreement to Sell dated 22.11.1994 was
completely silent regarding the fate of the undisputed tenancy. Trial Court's
conclusion, as evident from the judgement, was also based on its observation
that neither in the pleadings in the written statement nor during the evidence,
the Appellant had claimed that she was willing to perform her balance part
of the Agreement to Sell i.e. payment of balance sale consideration of Rs.
3,35,000/-, which remained unpaid and that the benefit of Section 53A of
TPA can only be granted to an agreement purchaser who has performed or is
willing to perform his or her part of the obligations under the Agreement to
Sell.
12. Learned Trial Court further held that the plea of the Appellant that
upon execution of the Agreement to Sell and GPA, her son and the
Appellant had become owners of the premises, was legally untenable on
account of the law laid down by this Court in Saroj Aggarwal vs. Mehar
Singh, 2018 SCC OnLine Del 12022 and Jiwan Dass Rawal vs. Narain
Dass & Ors., AIR 1981 Del 291. In Saroj Aggarwal (supra), this Court did
not accept the contention of the Appellant/Plaintiff therein that the
judgement of the Supreme Court in Suraj Lamp & Industries Private
Limited vs. State of Haryana & Anr., (2012) 1 SCC 656 has a prospective
effect. In Jiwan Dass Rawal (supra), this Court held that an Agreement of
Sale does not create an equitable estate in the purchaser in view of Section
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54 of TPA and that such a document only creates a right to obtain another
document in the form of Sale Deed. Trial Court, therefore, held that there
cannot be a transfer of title/ownership through Agreement to Sell, Power of
Attorney etc. And that the said documents do not confer any right, title or
interest upon the agreement purchaser, except the right to seek specific
performance of the Agreement to Sell.
13. Learned Trial Court also held that the undisputed position that
emerged was that denial of second Tenancy Agreement was of no
consequence as even if the Appellant was not re-inducted as a tenant vide
Tenancy Agreement dated 30.01.1995, she had continued to be a tenant of
Late Shri Mazumdar on the basis of the tenancy emanating from the
Agreement dated 22.11.1992 and the Appellant had not expressly denied
service of legal notice dated 22.11.2014, whereby the tenancy was
determined and terminated by Respondent No. 1.
14. In view of the aforesaid findings on Issue No. 1 in favour of
Respondent No. 1, Trial Court decided Issue No. 2 partly in favour of
Respondent No. 1 and held him entitled to a sum of Rs. 27,000/- in respect
of arrears of rent for the period 01.08.2014 to 30.01.2015, along with
interest @ 12% per annum and consequently decided Issue No. 3 in favour
of Respondent No. 1 awarding mesne profits/damages at different rates for
different periods. Trial Court also awarded costs as permissible under the
Delhi High Court Rules and Orders.
15. The judgement and decree of the Trial Court was challenged by the
Appellant before the First Appellate Court and the Court dismissed the
Appeal, recording its general agreement with all the findings rendered and
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conclusion arrived at by the Trial Court. This led to the filing of the present
Regular Second Appeal by the Appellant before this Court.
16. At the outset, learned counsel for the Appellant contended that
without going into the merits or any other questions of law raised before the
First Appellate Court, this Court should first consider if the impugned
judgement and order of the First Appellate Court is sustainable, being
unreasoned and cryptic and bereft of independent findings or even
discussion on the contentions raised by the Appellant before it. The first
substantial question of law raised by the Appellant, on which substantial
arguments were canvassed by all parties, is as follows:-
(a) Whether the First Appellate Court in terms of Section 96
CPC was required to record its independent findings duly
supported by reasons on all Issues arising before it and the
contentions put forth and pressed by the parties?
17. Mr. Peeyoosh Kalra, learned counsel for the Appellant strenuously
argued that perusal of the impugned order of the First Appellate Court
would show that the judgement contains selective reproduction of the
contents of the Appeal and the pointed grounds agitated challenging the
Trial Court's judgement are not even taken note of and thus there is no
discussion on them. Likewise the judgements cited and relied upon by the
Appellant are not even mentioned in the impugned judgement, though the
Appellant had sent the copies of the judgements by e-mail on 06.11.2020
and hard copies were duly handed over in Court on 07.11.2020. Copy of the
said e-mail and the index of the judgements have been filed before this
Court to substantiate the stand of the Appellant. Trial Court has selectively
and strangely only referred to the judgements cited and relied upon by the
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Respondents. It was further argued that the judgement of the First Appellate
Court contains only a restatement of the factual narration taken from the
order of the Trial Court and the extracts of the reasoning by the Trial Court.
It is totally devoid of independent discussion on the contentions put forth,
the evidence led and/or with respect to the questions of law raised before it.
The First Appellate Court has passed a cryptic and non-reasoned judgement
and on a general agreement concluded that the judgement rendered by the
Trial Court requires no interference.
18. In a nut-shell, the contention of the Appellant was that the First
Appellate Court has merely reproduced the judgement of the Trial Court
mechanically and has failed to discharge the duty cast upon it under
Section 96 and Order XLI Rule 31 CPC and on this sole ground, the matter
deserves to be remanded back for proper application of mind, after
deliberating on the issues and contentions raised and giving reasons for the
findings and conclusion. The judgement, according to the learned counsel, is
silent and bereft of 'reasons' which are the heart and soul of a judicial order.
19. Learned counsel relied on the judgement of the Supreme Court in C.
Venkata Swamy vs. H.N. Shivanna (Dead) by L.R. & Anr., (2018) 1 SCC
604, wherein the Supreme Court had set aside the impugned judgement and
decree of the High Court and remanded the Regular First Appeal for fresh
disposal after noticing that the judgement under Appeal was cryptic and
none of the relevant aspects had been noticed. The Supreme Court had, in
turn, relied on an earlier judgement in B.V. Nagesh vs. H.V. Sreenivasa
Murthy, (2010) 13 SCC 530, wherein the principles relating to disposal of
appeals by Appellate Courts, were reiterated.
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20. Without prejudice to the above contentions, it was submitted that the
Trial Court has rendered two significant findings in favour of the Appellant
i.e. (a) Agreement to Sell and GPA, both dated 22.11.1994, are genuine
documents and (b) Tenancy Agreement dated 31.01.1995 is an unreliable
document and does not bear genuine signatures of Late Shri Mazumdar and
the Appellant. Despite the said findings, the Trial Court decreed the suit
against the Appellant on two counts viz. (a) there was no pleading that the
Appellant was entitled to the benefit of Section 53A of TPA and (b) the
Agreement to Sell is silent about the fate of tenancy and there is no evidence
of intent to surrender the tenancy. Mr. Kalra contended that the First
Appellate Court ought to have taken into account these crucial findings and
the fact that in the absence of challenge to the documents by the
Respondents in terms of Section 31 of the Specific Relief Act, the finding
that the Agreement to Sell and GPA are genuine, has attained finality qua
the Respondents.
21. It was contended that all along the Appellant's defence was that she
was entitled to defend her possession by virtue of the Agreement to Sell and
GPA executed by Late Shri Mazumdar. Parties went to trial knowing each
other's stands and evidence was led accordingly. Appellant was not required
to state in the pleadings that she was ready and willing to perform her part of
the contract or point out the law as she was only defending her possession
and not seeking specific performance and secondly, transaction of sale qua
Late Shri Mazumdar stood concluded upon execution of both the
documents, including passing of the rights to the Appellant to perfect her
title and further create third party rights. In order to perfect her title, all that
the Appellant was required to do was to pay the balance installments to
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DDA to clear the loan liability and take steps to get the Conveyance Deed
executed in her name. In any case, it was the duty of the Court to see the
letter and spirit of the pleadings and not to throw out a genuine claim on
mere technicalities.
22. Learned counsel placed reliance on the judgment of this Court in
Hardip Kaur vs. Kailash & Anr., 2012 SCC OnLine Del 2937 to argue that
the Appellant may not be a classical owner of the property but has a 'better
right' of possession and is protected under Section 53A of TPA. It was also
argued that as per Sections 91 and 92 of the Evidence Act, once there is a
written document of transaction, it cannot be contradicted by oral evidence.
23. Learned counsel further argued that the reliance of the Trial Court on
the judgement of the Supreme Court in H.K. Sharma (supra) to hold that
the Agreement to Sell is silent on the fate of tenancy, is misplaced. Trial
Court erroneously did not take into consideration the GPA which
categorically records the fact of the Appellant's acquiring possession and
doing all acts in relation to the property including the right to sell. Trial
Court failed to appreciate that it is a settled law that if a transaction is
contained in more than one document between the same parties, they must
be read and interpreted together and have the same legal effect for all
purposes, as if they are one document. Learned counsel placed reliance on
the judgement of the Supreme Court in R. Kanthimathi & Anr. vs. Beatrice
Xavier, (2000) 9 SCC 339, more particularly paragraphs 7 and 8, where the
Supreme Court relying on an earlier judgement in Arjunlal Bhatt Mall
Gothani vs. Girish Chandra Dutta, (1973) 2 SCC 197, held that once there
is an Agreement to Sell between a landlord and a tenant, the old relationship
comes to an end and even if the Agreement is cancelled, the status of the
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tenant is not restored and from the date of execution of the document, the
earlier status changes into a new status of a purchaser and a seller. It was
urged that the Trial Court wrongly relied on H.K. Sharma (supra) wherein
the Petitioner had relied upon the judgement in R. Kanthimathi (supra). In
the said case, the Supreme Court distinguished the judgement by holding
that in R. Kanthimathi's case (supra), the Agreement of Sale recorded that
the demised property had already been surrendered and possession given,
which indicated the intention of the parties to surrender the tenancy rights
and end the landlord-tenant relationship. Thus, the Trial Court overlooked
that the law in R. Kanthimathi (supra) was upheld but distinguished on
facts in H.K. Sharma (supra). Despite the findings of the Trial Court being
erroneous, the First Appellate Court concurred with the judgement and that
too without even discussing the contentions raised and giving reasons to
disagree on the points raised, assailing the judgement.
24. Arguing for Respondent No. 1 and defending the impugned
judgement, Mr. P.C. Sharma, learned counsel contended that the First
Appellate Court has concurred with all the findings of fact and law recorded
by the Trial Court and thus, there was no necessity of giving detailed
reasons. The expression of general agreement with the reasons recorded by
the Trial Court was sufficient and it cannot be urged by the Appellant that
the judgement is cryptic or unreasoned. The First Appellate Court has
rightly appreciated all the grounds raised by the Appellant in letter and spirit
and has given its findings relying on the judgements cited by the parties and
the arguments canvassed before the Court. The First Appellate Court has
considered and tested the reasons given by the Trial Court and found no
reason or ground to reverse its findings.
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25. It was further argued that the findings of the Trial Court are based on
the evidence on record, both oral and documentary and settled legal position,
with which the First Appellate Court concurred and no case for remand is
made out by the Appellant. It was further contended that the Appellant has
failed to raise any substantial question of law as required under Section 100
CPC and in the absence of the same the present appeal deserves to be
dismissed. The Trial Court as well as the First Appellate Court have relied
on the judgements where the law on the points raised by the Appellant
stands settled by the Supreme Court and no question of law arises, which
requires any debate or argument. Trial Court has given a reasoned
judgement on the interpretation of Section 53A of the TPA, relying on the
judgement of the Supreme Court in Shyam Narayan Prasad (supra), which
is binding on both the Courts below. The Supreme Court has held therein
that in order to avail the benefit of Section 53A of TPA, a party is required
to plead that he or she has taken possession of the property, in part
performance of the contract, so as to apprise the other party of the case set
up and also enable the Court to determine the real issue between the parties.
Thus, no relief could have been granted to the Appellant, in the absence of
pleadings to that effect and there is no infirmity in the judgement impugned.
26. Learned counsel for Respondent No. 1 also argued that it is a settled
law that execution of documents such as Agreement to Sell, GPAs, Wills
etc. do not constitute/complete a transaction of transfer/sale/conveyance of
immoveable property. These documents do not confer Title and are not
recognised as valid modes of transfer of immoveable properties, as clearly
held by the Supreme Court in Suraj Lamp (supra) and thus the Agreement
to Sell set up by the Appellant conferred no right or Title on the Appellant
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and she continued to be a tenant till the subsistence of the Tenancy
Agreement. Trial Court has also rightly held that Appellant cannot be
granted the benefit and protection under the provisions of Section 53A of
TPA, as in her written statement there was no pleading that she was willing
to perform her balance part of the Agreement to Sell dated 22.11.1994 and
admittedly, the balance consideration of Rs. 3,35,000/- was never paid. This
finding is clearly recorded in para 19 of the judgement of the Trial Court and
rightly upheld by the First Appellate Court.
27. It was contended that Trial Court has rendered a clear finding that the
Appellant was a tenant of Late Shri Mazumdar under the Tenancy
Agreement dated 22.11.1992 and that the tenancy was terminated by serving
a legal notice dated 22.11.2014, the receipt of which was not denied either in
the pleadings or during the evidence by the Appellant. It was also contended
that even otherwise, the premises was under legal encumbrance because of
the restriction to sell the same under Clause (xi) of the Lease
Deed/Agreement (Exh. PW-3/A), under which the land was leased to the
father of Respondent No. 1 by the Ministry of Labour, Employment and
Rehabilitation. The father being a Lessee was not legally authorised to sell
the property, by whatever mode.
28. Learned counsel for Respondent No. 1 had also urged that while the
GPA and other documents relied upon by the Appellant do not confer Title
and transfer the property, in any event the documents are forged and
fabricated and in any event no Sale Deed was ever executed in favour of the
Appellant. It was submitted that Section 17 of the Registration Act, 1908
was amended and sub-Section (1A) was inserted by Amendment Act 48 of
2001 effective from 24.09.2001. After the Amendment, the documents
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containing contracts to transfer for consideration, any immoveable property,
for the purpose of Section 53A of TPA, shall be registered, if they have been
executed on or after the commencement of the Registration and Other
Related Laws (Amendment) Act, 2001, and if such documents are not so
registered, they shall have no effect for the purposes of Section 53A of TPA.
Counsel relied on the judgement of the Supreme Court in H.K. Sharma
(supra) wherein according to him, the judgment of the Supreme Court in
R. Kanthimathi (supra) relied upon by the Appellant has been
distinguished. It was argued that in H.K. Sharma (supra), the Supreme
Court, faced with an identical question, laid down the test that the Court
must ascertain whether the terms of the Agreement to Sell set up by the
Tenant evidence any intention to abandon the existing landlord-tenant
relationship and only on being satisfied that such intention exists, the old
relationship will come to an end and the Agreement to Sell would confer
protection to the tenant under Section 53A of TPA.
29. Learned counsel appearing for Respondent No. 3 and Respondents
No. 2, 4 and 5, who are daughters of Late Shri Mazumdar, argued in support
of the impugned judgements and submitted that if and when the present
decree is executed, the rights of the daughters be protected and they be given
their shares as legal heirs of Late Shri Mazumdar.
30. It was argued that the Trial Court has given a comprehensive
judgement after considering all facts, documents and evidence. The
Appellant cannot argue that there is any hard and fast rule as to the manner
in which a judgement is required to be delivered by an Appellate Court and
the Supreme Court has, in fact, held that there is nothing wrong with the
First Appellate Court simply recording a general agreement with the
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judgement impugned before it. Reliance was placed on the judgement of the
Supreme Court in Girijanandini Devi & Ors. Vs. Bijendra Narain
Choudhary, (1967) 1 SCR 93.
31. It was further contended that the sole question, in fact, for
consideration before this Court is the effect and/or relevance of the
Agreement to Sell and GPA dated 22.11.1994, in view of the admitted
position that Appellant was inducted as a tenant at least under the
Agreement dated 22.11.1992 and a consequential question whether these
documents entitle the Appellant to resist the suit for possession. Elaborating
on the arguments, it was submitted that a defence on the basis of an
Agreement to Sell and GPA can take three forms viz. (a) it could be alleged
that Appellant is entitled to part performance under Section 53A of TPA i.e.
a right based on part performance; (b) it could be alleged that by virtue of
these documents, the Appellant has become the owner i.e. right based on
ownership, and (c) it could be alleged that Appellant, though not a classical
owner, has acquired some rights in the property so as to resist eviction i.e.
residual rights argument. In the present case, Appellant has only pleaded
ownership as is evident from the written statement filed before the Trial
Court and cannot at this stage go beyond the pleadings and set up a plea of
part performance under Section 53A of TPA. This is clearly held by the
Supreme Court in Bachhaj Nahar vs. Nilima Mandal & Anr., (2008) 17
SCC 491. In order to set up the plea of part performance, Appellant ought to
have pleaded that she had taken some steps in furtherance of the Agreement
and is in possession of the premises. She also ought to have pleaded that she
was ready and willing to perform her part of the Agreement in accordance
with the provisions Section 53A of the TPA, which are clear and require no
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interpretation. Part performance argument cannot simply flow out of an
ownership argument, as in the former, one concedes that he has only an
Agreement to Sell in his favour and protection from dispossession is sought
on the strength of the fact that he has acted in furtherance of the Agreement
and remains willing to comply with the balance terms, while in the latter
case, one asserts that the Agreement to Sell is by itself proof of ownership
and as a corollary nothing further is required to be done. The Appellant has
clearly chosen the latter course as is evident from para 4 of the written
statement.
32. Learned counsel relies on a recent judgement of the Supreme Court in
H.K. Sharma (supra) which according to him clinches the issue in favour of
the Respondents. It is submitted that the Supreme Court faced with an
identical question held that the Court must try and ascertain whether the
terms of the Agreement to Sell, set up by the tenant reveal an intention to
abandon the existing landlord-tenant relationship and only where such an
intention is clear, protection under Section 53A of the TPA can be granted.
The Trial Court has, after relying on the said judgement, clearly rendered a
finding that the present Agreement to Sell does not evince any such
intention and this Court in a Second Appeal should not interfere with a
finding of fact. In any event, even assuming for the sake of completeness
that the GPA which has been set up to demonstrate such an intention is
merely an authority letter and is not valid in view of Article 48(f) of the
Stamp Act as applicable to Delhi and reliance was placed on the judgement
of this Court in Wg. Cdr. (Retd.) Yeshvir Singh Tomar vs. Dr. O.P. Kohli &
Ors., 2015 SCC OnLine Del 10834.
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33. It was also contended that the Supreme Court in H.K. Sharma (supra)
has clarified that it is a misconception that the judgement of the Supreme
Court in Suraj Lamp (supra) mandating a registered conveyance deed for
ascertaining title is prospective in nature. It is clearly a settled law that
documents such as Agreement to Sell, GPAs etc. do not confer title or
complete the transaction of transfer of immoveable property. At best, the
only right that a person, in whose favour such documents have been
executed, acquires is a right to file a suit for specific performance.
34. I have heard the learned counsels for the respective parties and
considered their rival submissions.
35. As aforementioned, the parties have addressed arguments on the
question of remand of the matter to the First Appellate Court as also on the
merits and other questions of law raised before the First Appellate Court.
However, in view of the substantial question of law raised by the Appellant
seeking a remand of the matter on the ground that the First Appellate Court
has passed a mechanical judgement which is unreasoned and cryptic and
does not deal with the issues and contentions raised, it becomes necessary to
first consider the law on the said question.
36. Before proceeding to deal with the said substantial question of law,
two provisions of the Code of Civil Procedure,1908, need a reference and
are as follows:
"96. Appeal from original decree.--(1) Save where otherwise
expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie from every
decree passed by any Court exercising original jurisdiction to
the Court authorised to hear appeals from the decisions of
such Court.
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(2) An appeal may lie from an original decree passed ex
parte.
(3) No appeal shall lie from a decree passed by the Court
with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognizable by Courts of Small
Causes, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees."
"Order XLI
Appeals from Original Decrees
31. Contents, date and signature of judgment.--The judgment
of the Appellate Court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or
varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated
by the Judge or by the Judges concurring therein."
37. In C. Venkata Swamy (supra), the Supreme Court held that right to
First Appeal against a decree under Section 96 CPC is a valuable legal right
of the litigant. The jurisdiction of the First Appellate Court is very wide and
all findings of fact and/or law can be assailed by the Appellant. It is the duty
of the First Appellate Court to appreciate the entire evidence and arrive at its
own independent conclusion, for reasons assigned, either of affirmance or
difference. Relevant paras are as follows:
"11. It is a settled principle of law that a right to file first
appeal against the decree under Section 96 of the Code is a
valuable legal right of the litigant. The jurisdiction of the first
Appellate court while hearing the first appeal is very wide like
that of the trial court and it is open to the appellant to attack all
findings of fact or/and of law in first appeal. It is the duty of the
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first Appellate court to appreciate the entire evidence and
arrive at its own independent conclusion, for reasons assigned,
either of affirmance or difference.
12. Similarly, the powers of the first Appellate court while
deciding the first appeal are indeed well defined by various
judicial pronouncements of this Court and are, therefore, no
more res integra. It is apposite to take note of the law on this
issue.
13. As far back as in 1969, the learned Judge V.R. Krishna Iyer,
J. (as his Lordship then was the Judge of Kerala High Court)
while deciding the first appeal under Section 96 of the Code
in Kurian Chacko v. Varkey Ouseph [Kurian Chacko v. Varkey
Ouseph, 1968 SCC OnLine Ker 101 : AIR 1969 Ker 316]
reminded the first Appellate court of its duty to decide the first
appeal. In his distinctive style of writing with subtle power of
expression, the learned Judge held as under: (SCC OnLine Ker
paras 1-3)
"1. The plaintiff, unsuccessful in two courts, has
come up here aggrieved by the dismissal of his suit
which was one for declaration of title and recovery of
possession. The defendant disputed the plaintiff's title to
the property as also his possession and claimed both in
himself. The learned Munsif, who tried the suit, recorded
findings against the plaintiff both on title and possession.
But, in appeal, the learned Subordinate Judge disposed
of the whole matter glibly and briefly, in a few sentences.
2. An Appellate court is the final court of fact
ordinarily and therefore a litigant is entitled to a full and
fair and independent consideration of the evidence at the
Appellate stage. Anything less than this is unjust to him
and I have no doubt that in the present case the learned
Subordinate Judge has fallen far short of what is
expected of him as an Appellate court.
3. Although there is furious contest between the
counsel for the appellant and for the respondent, they
appear to agree with me in this observation. ..."
(emphasis supplied)
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14. This Court also in various cases reiterated the aforesaid
principle and laid down the powers of the Appellate court under
Section 96 of the Code while deciding the first appeal. We
consider it apposite to refer to some of the decisions.
15. In Santosh Hazari v. Purushottam Tiwari, this Court held as
under: (SCC pp. 188-89, para 15)
"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. ..."
16. The above view was followed by a three-Judge Bench
decision of this Court in Madhukar v. Sangram, wherein it was
reiterated that sitting as a court of first appeal, it is the duty of
the High Court to deal with all the issues and the evidence led
by the parties before recording its findings.
17. In H.K.N. Swami v. Irshad Basith, this Court stated as
under: (SCC p. 244, para 3)
"3. The first appeal has to be decided on facts as well
as on law. In the first appeal parties have the right to be
heard both on questions of law as also on facts and the
first Appellate court is required to address itself to all
issues and decide the case by giving reasons.
Unfortunately, the High Court, in the present case has
not recorded any finding either on facts or on law.
Sitting as the first Appellate court it was the duty of the
High Court to deal with all the issues and the evidence
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led by the parties before recording the finding regarding
title."
18. Again in Jagannath v. Arulappa, while considering the
scope of Section 96 of the Code, this Court observed as follows:
(SCC p. 303, para 2)
"2. A court of first appeal can reappreciate the entire
evidence and come to a different conclusion. ..."
19. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [B.V.
Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 : (2010)
4 SCC (Civ) 808] , this Court taking note of all the earlier
judgments of this Court reiterated the aforementioned principle
with these words: (SCC pp. 530-31, paras 3-5)
"3. How the regular first appeal is to be disposed of
by the Appellate court/High Court has been considered
by this Court in various decisions. Order 41 CPC deals
with appeals from original decrees. Among the various
rules, Rule 31 mandates that the judgment of the
Appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or
varied, the relief to which the appellant is entitled.
4. The Appellate court has jurisdiction to reverse or
affirm the findings of the trial court. The 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. Sitting as a court of first appeal, it was the duty of
the High Court to deal with all the issues and the
evidence led by the parties before recording its findings.
The first appeal is a valuable right and the parties have
a right to be heard both on questions of law and on facts
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and the judgment in the first appeal must address itself
to all the issues of law and fact and decide it by giving
reasons in support of the findings. (Vide Santosh
Hazari v. Purushottam Tiwari at p. 188, para 15
and Madhukar v. Sangram at p. 758, para 5.)
5. In view of the above salutary principles, on going
through the impugned judgment, we feel that the High
Court has failed to discharge the obligation placed on it
as a first Appellate court. In our view, the judgment
under appeal is cryptic and none of the relevant aspects
have even been noticed. The appeal has been decided in
an unsatisfactory manner. Our careful perusal of the
judgment in the regular first appeal shows that it falls
short of considerations which are expected from the
court of first appeal. Accordingly, without going into the
merits of the claim of both parties, we set aside the
impugned judgment and decree of the High Court and
remand the regular first appeal to the High Court for its
fresh disposal in accordance with law.""
38. Provisions of Order XLI Rule 31 CPC extracted hereinabove mandate
that the Appellate Court shall state the points for determination and the
'reasons' for the decision. It has been held in several judgements that it is
the bounden statutory duty of the First Appellate Court to give reasons for
the decision, which form the soul of the judgement. In the process of
adjudication, it is implicit that reasons are clearly spelt out as the term
'adjudicate' is not an abstract term and while deciding the issues arising for
determination, the judgement must reflect the mind of the Court and the
factors that weighed as well as the law applied, in order to come to a
conclusion that it does. Without any discussion or reasons in the Appellate
order, the Appellant would never know why the Court disagreed with his
contentions and concurred with the judgement impugned. Reasons would
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also enable the Superior Court to have a better insight into the judgement
and facilitate testing its legality.
39. I may, at this stage, usefully allude to two passages from the
judgement of the Bombay High Court in Union of India vs. Kanwar Vilas
Nath & Ors., 2018 SCC OnLine Bom 1499, wherein the High Court has
formulated three-fold objects behind the repeated affirmation that reasons
must be given by the Appellate Court while testing a judgement before it
and these are as follows:
"41. The object of mandating the "giving of reasons" in the
Judgment is three fold. Firstly, reading of the reasons given in
the Judgment enables both the parties to know why the decision
has gone against them or in favour of them. It thus satisfies the
test of justice, not only being done but also appears to have
been done. It helps to remove any lurking feeling of injustice in
the mind of the party, who has lost its case, as he knows that he
has lost it for the reasons stated in the Judgment. Secondly,
giving of reasons in the Judgment avoids the arbitrary exercise
of the powers by the Appellate Court. It helps to remove even
the impression that the decision was given in arbitrary manner.
It guarantee transparency. Thirdly and equally importantly, the
Appellate Court, before which the Judgment is impugned, can
also get the opportunity to test the validity of the Judgment
impugned, on the basis of the reasons given therein, exactly to
judge whether those reasons are based on proper appreciation
of evidence and sound legal position.
42. Hence, it is no exaggeration to say that, without the
"reasons", the Judgment cannot be called as a Judgment at all.
It is no "Judgment" in the eyes of the law. Especially, as
mandated by Rule 31 of Order 41 of the Code of Civil
Procedure, 1908, the first Appellate Court, being the final
Court of fact finding and, to that extent, on the question of law
also, the Judgment of the first Appellate Court must contain the
reasons. That is why it is said that, the First Appeal is a
valuable right of the parties, as, unless restricted by law, the
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whole case therein is open for re-hearing, both, on the
questions of fact and law."
40. The Supreme Court in the landmark decision of Santosh Hazari vs.
Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179 held that the
judgement of an Appellate Court must reflect its conscious application of
mind and record the findings supported by the reasons on all the issues
arising along with the contentions put forth and pressed by the parties for
decision of the Appellate Court. Relevant paras are as follows:
"15. 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 v. Bijendra Narain Choudhary [AIR
1967 SC 1124] ). We would, however, like to sound a note of
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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 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 v. Narayanibai [(1983) 1 SCC 35 : 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
Judge's notice or there is a sufficient balance of improbability
to displace his opinion as to where the credibility lie, the
Appellate court should not interfere with the finding of the trial
Judge on a question of fact. (See Sarju Pershad Ramdeo
Sahu v. Jwaleshwari Pratap Narain Singh [AIR 1951 SC 120])
Secondly, 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. 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
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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 be a substantial
one."
41. The position of law propounded in the aforesaid judgement was
reaffirmed by the Supreme Court in Madhukar v. Sangram, (2001) 4 SCC
756 and B.V. Nagesh (supra). The Supreme Court in the case of B.V.
Nagesh (supra), emphasizing the provisions of Order XLI Rule 31 CPC,
held that sitting as a Court of Appeal, it is the duty of the First Appellate
Court to deal with all the issues and the evidence led by the parties, before
recording its findings.
42. At this stage, it is also crucial and relevant to note that the scope of a
Second Appeal is extremely limited and narrow and the Court cannot enter
into disputes of facts or even questions of law, unless they are 'substantial'
questions of law. The Supreme Court in the judgment of Santosh Hazari
(supra) has delineated what a 'substantial question of law' is and this need
not therefore detain this Court. Suffice would it be to refer to paragraphs 12
and 14 of the said judgment as under:-
"12. The phrase "substantial question of law", as occurring in
the amended Section 100 is not defined in the Code. The word
substantial, as qualifying "question of law", means -- of having
substance, essential, real, of sound worth, important or
considerable. It is to be understood as something in
contradistinction with -- technical, of no substance or
consequence, or academic merely. However, it is clear that the
legislature has chosen not to qualify the scope of "substantial
question of law" by suffixing the words "of general
importance" as has been done in many other provisions such as
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Section 109 of the Code or Article 133(1)(a) of the Constitution.
The substantial question of law on which a second appeal shall
be heard need not necessarily be a substantial question of law
of general importance. In Guran Ditta v. T. Ram Ditta [AIR
1928 PC 172 : 55 IA 235] , the phrase "substantial question of
law" as it was employed in the last clause of the then existing
Section 110 CPC (since omitted by the Amendment Act, 1973)
came up for consideration and their Lordships held that it did
not mean a substantial question of general importance but a
substantial question of law which was involved in the case as
between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v.
Century Spg. and Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp
(3) SCR 549] the Constitution Bench expressed agreement with
the following view taken by a Full Bench of the Madras High
Court in Rimmalapudi Subba Rao v. Noony Veeraju [ILR 1952
Mad 264 : AIR 1951 Mad 969] :
"[W]hen a question of law is fairly arguable, where
there is room for difference of opinion on it or where
the Court thought it necessary to deal with that
question at some length and discuss alternative views,
then the question would be a substantial question of
law. On the other hand if the question was practically
covered by the decision of the highest court or if the
general principles to be applied in determining the
question are well settled and the only question was of
applying those principles to the particular facts of the
case it would not be a substantial question of law."
and laid down the following test as proper test, for determining
whether a question of law raised in the case is substantial:
"The proper test for determining whether a question
of law raised in the case is substantial would, in our
opinion, be whether it is of general public importance
or whether it directly and substantially affects the
rights of the parties and if so whether it is either an
open question in the sense that it is not finally settled
by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls
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for discussion of alternative views. If the question is
settled by the highest court or the general principles
to be applied in determining the question are well
settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd
the question would not be a substantial question of
law."
x x x
14. A point of law which admits of no two opinions may be a
proposition of law but cannot be a substantial question of law.
To be "substantial" a question of law must be debatable, not
previously settled by law of the land or a binding precedent,
and must have a material bearing on the decision of the case, if
answered either way, insofar as the rights of the parties before
it are concerned. To be a question of law "involving in the
case" there must be first a foundation for it laid in the
pleadings and the question should emerge from the sustainable
findings of fact arrived at by court of facts and it must be
necessary to decide that question of law for a just and proper
decision of the case. An entirely new point raised for the first
time before the High Court is not a question involved in the
case unless it goes to the root of the matter. It will, therefore,
depend on the facts and circumstance of each case whether a
question of law is a substantial one and involved in the case, or
not; the paramount overall consideration being the need for
striking a judicious balance between the indispensable
obligation to do justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis."
43. Reference to the aforesaid passages is only with a purpose to highlight
and emphasize that the scope of Second Appeal under Section 100 CPC is
considerably circumscribed and also to stress on the point that on account of
this limited jurisdiction of the Second Appellate Court, the burden and
responsibility on the First Appellate Court becomes much higher, as it is this
Court which alone has jurisdiction to consider not only issues on facts but
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also questions of law involved in the case before it. The First Appellate
Court has the jurisdiction and power to re-appreciate the evidence led by the
parties before the Trial Court and there can hardly be a debate that the First
Appellate Court is the last and final Court of fact finding and re-hearing on
questions of law. In fact, it would not be an exaggeration to state that the
First Appellate Court is final Court of law since its decision on the question
of law, even if erroneous, may not be open to challenge before the High
Court in a Second Appeal, as the jurisdiction in a Second Appeal is not
available to correct errors of law, unless the questions of law are
'substantial'. First Appeal is, therefore, a valuable right of the parties and
thus a reciprocal obligation is cast on the Court to deliberate on the issues
raised before it with complete and conscious application of mind, which in
turn necessitates that the judgment would contain clear findings, duly
supported with reasons, on all issues and contentions put forth and pressed
by the parties. It is for this reason that the Supreme Court has from time to
time affirmed and re-affirmed the dictum that the First Appellate Court
should not shirk from its duty of recording reasons while delivering the
judgments and the valuable right of first appeal should not be frustrated by
rendering a cryptic judgment, bereft and devoid of reasons.
44. At this stage, I may deal with the contention of the learned counsels
for the Respondents that the First Appellate Court has affirmed the findings
of the Trial Court and expressed its general agreement with the reasoning
given and in such a situation, it was not necessary for the First Appellate
Court to re-state the effect of evidence or reiterate the reasons given by the
Trial Court and/or record its separate findings or reasons. In order to deal
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with this contention, it would be useful to allude to the observation of the
Supreme Court in the case of Santosh Hazari (supra), which is as under:-
"The First Appeal is a valuable right of the parties and unless
restricted by law, the whole case is therein open for re-hearing
both on questions of fact and law."
45. No doubt, that the Supreme Court also observed that the task of an
Appellate Court affirming the findings of the Trial Court is an easier one and
expression of general agreement with reasons given by the Trial Court
would ordinarily suffice, but one cannot overlook the 'note of caution'
annotated by the Supreme Court in the following words:-
"We would, however, like to sound a note of caution that the
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."
46. There is no gainsaying that the dictum of law that the First Appellate
Courts must record reasons in the judgments is applicable not only when the
First Appellate Court reverses any finding or sets aside the judgment of the
Trial Court, but would equally apply when the judgment of the Trial Court is
confirmed and concurred with. It bears repetition to state that the Supreme
Court has clearly held that even when the First Appellate Court agrees with
the judgment of the Trial Court, it should not be a device or camouflage
adopted by it to shirk the duty cast on it, i.e. to re-appreciate the entire
evidence on record, re-consider the case keeping in mind the position in law,
frame the issues for determination and answer the same by annotating
'reasons'. There is thus no merit in the contention of the Respondents that
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while delivering a judgment, the First Appellate Court is not required to give
reasons in case there is a general agreement with the findings of the Trial
Court and the judgment is not interfered with.
47. In the present case, there can be no two opinions that the First
Appellate Court has dismissed the first appeal and concurred with the
judgment of the Trial Court, both on facts and law. However, going by the
dictum of the Supreme Court, the First Appellate Court was required to give
its own reasoning on the questions of law raised, based on the facts and
circumstances before it. A bare perusal of the appeal filed before the First
Appellate Court shows that the Appellant had brought before the First
Appellate Court certain disputed facts as well as questions of law and raised
various contentions inter alia: (a). the alleged Tenancy Agreement dated
31.01.1995 on which the suit was based was a forged and fabricated
document and the signatures appearing on the said document of both Late
Shri Mazumdar and the Appellant were not genuine; (b). Trial Court had
given a categorical finding that the Tenancy Agreement dated 31.01.1995 is
an unreliable document and does not bear the genuine signatures; (c). there
was no landlord-tenant relationship between the Appellant and Respondent
No.1 in as much as the premises stood sold to the Appellant and her son on
22.11.1994 by Agreement to Sell and GPA; (d). on the basis of the said
Agreement to Sell, Appellant was put in possession of the premises and was
thus entitled to protection under the doctrine and equity of part performance;
(e). Trial Court erred in not granting the protection under Section 53A of the
TPA, on the erroneous ground that the Appellant had not pleaded in her
defence that she was entitled to the benefit of the provisions of Section 53A
of the TPA, as she had taken possession of the premises in part performance
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of the Agreement to Sell and instead had pleaded that upon execution of the
Agreement, she and her son had become owners of the premises; (f). Trial
Court erred in holding that the Appellant had not pleaded that she was ready
and willing to perform her part of the Agreement to Sell in as much as the
Appellant had categorically pleaded that she was in possession of the
premises by virtue of the Agreement to Sell executed by the father of
Respondent No.1 in her favour; (g). reliance on the judgment of the
Supreme Court in Shyam Narayan Prasad (supra) by the Trial Court was
erroneous as the challenge in the said case was to an unregistered Exchange
Deed which was sought to be declared invalid on the ground that the
property in question was ancestral property while the defence taken was that
the property was not ancestral and in this context the Court held that plea of
part performance was required to be taken while in the present case, a
specific plea of possession was taken and the Appellant was thus entitled to
defend her possession; (h). under the well settled law upon execution of an
Agreement to Sell between the tenant and the landlord, the relationship
becomes one of seller and purchaser by operation of law and the status of
tenant-landlord ceases and even on cancellation of the Agreement to Sell,
the status of tenant is not restored; (i). Trial Court had rendered a specific
finding in favour of the Appellant that the Agreement to Sell and the GPA
both dated 22.11.1994 were genuine documents and yet declined to grant
protection to the Appellant and erroneously decreed the suit, even
overlooking the fact that Respondents never challenged the said documents
in terms of Section 31 of the Specific Relief Act; (j). The case of the
Appellant is squarely covered by the judgment of this Court in Hardeep
Kaur (supra) and therefore, even if the Appellant may not be a classical
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owner of the premises but surely had better right of possession and is
entitled to protection under Section 53 A of the TPA and defend the
possession, and (k). in terms of the Agreement and the GPA, Late
Shri Mazumdar had given up all his rights in relation to his premises and the
sale was complete insofar as he was concerned and only a formal
Conveyance Deed remained to be executed by DDA in favour of the
Appellant on payment of balance installments.
48. A perusal of the judgment of the First Appellate Court clearly reflects
that the above contentions were, in fact, raised by the Appellant. In this
context, I may refer to paragraph 14 of the judgment of the First Appellate
Court as follows:-
"After hearing arguments of both the sides, the Ld. Civil Judge
passed the impugned judgment and decree on 01.10.2019
completely ignoring the facts of the case and settled principles
of law. Feeling aggrieved, the appellant has challenged the
impugned judgment and decree on the following grounds :
A. Because the impugned judgment is erroneous both in
facts and in law.
B. Because the Ld. Trial Court failed to appreciate that
there was no landlord-tenant relationship between the appellant
and Respondent No.1 in as much as the property in question
stood sold to the appellant and her son on 22.11.1994 and the
said transaction of sale was to the knowledge of respondent
no.1.
C. Because the Ld. Trial Court failed to appreciate that the
father of the respondents during his lifetime had passed on all
his rights, titles and interest in the said property in favour of the
appellant and her son.
D. Because the Ld. Trial Court failed to appreciate that
there was an agreement to sell between the appellant and
respondent no.1 to sell and purchase the property and it was in
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pursuance of this agreement that the present appellant was put
in possession of the property.
E. Because the finding of the Ld. Trial Court to the effect
that the appellant has not pleaded in her defence that she was
entitled to protection under section 53A of the Transfer of
Property Act, 1882 is wholly perverse and misconceived.
F. Because despite rendering a specific finding that the
alleged tenancy agreement dated 31.01.1995 does not appear to
have the genuine signatures of Late Sh. R.K. Mazumdar or the
appellant, the Ld. Trial Court did not take notice of the fact and
took no steps to direct initiation of criminal proceedings against
respondent no.1.
G. Because the Ld. Trial Court while passing the impugned
judgment committed an error by holding that the appellant has
not pleaded in her written statement that she was ready and
willing to perform her part of the agreement to sell.
H. Because the Ld. Trial Court failed to appreciate that even
if the transferee who is in possession fails to file a suit for
specific performance, still in law the contract remains valid and
operative enabling him to exert his / her to retain possession
over the property in question in exercise of his statutory right
conferred by Section 53A of the Transfer of Property Act by
way of defence in a suit brought against him / her for recovery
of possession.
I. Because the Ld. Civil Judge failed to appreciate that in
Shyam Narayan Parsad vs. Krishna Prasad & Ors., the
challenge was to an unregistered exchange deed which was
sought to be declared invalid on the ground that the property
sought to be exchanged were ancestral property to which the
defence taken was that the properties exchanged were not
ancestral properties.
J. Because the Ld. Civil Judge erroneously arrived at the
conclusion that the benefit of section 53A of the Transfer of
Property Act cannot be granted to the appellant as she has not
pleaded that she is willing to perform her balance obligations
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under the agreement to sell dated 22.11.1994 or that the
payment of balance sale consideration has not been done.
K. Because the Ld. Civil Judge failed to appreciate that the
alleged notice dated 22.11.2014 terminating the tenancy was in
relation to the alleged tenancy agreement dated 30.01.1995 and
since the said tenancy agreement has been held to be not
genuine, the alleged legal notice issued in relation thereto does
not serve any purpose and in invalid.
L. Because the reliance upon the alleged legal notice dated
22.11.2014 is misconceived since for determination of tenancy,
even filing of the suit is treated as determination as per the law
settled by various courts"
49. However, after taking note of the contentions put forth, the First
Appellate Court has not dealt with the contentions even cursorily. In
paragraph 16, the Court takes note of the fact that reply was filed by the
Respondents denying the allegations and extracts the judgments relied upon
by Respondent No.1. Paragraphs 17 to 21 are a mere reproduction of the
factual narration by the Trial Court. Paras 22 to 27 are reproduction of the
reasoning of the Trial Court and finally in para 28, the First Appellate Court
concludes that the finding of the Trial Court on Issue no.1 is well founded
requiring no interference. As regards Issues no.2 and 3, the First Appellate
Court has simply noted the findings of the Trial Court and the conclusions
thereof and observed that the findings are well reasoned and require no
interference.
50. Therefore, it is crystal clear from a mere reading of the impugned
judgement that except for citing the submissions made by the parties, the
findings and the conclusions of the Trial Court, the First Appellate Court has
not dealt with the contentions raised by the Appellant and has not even given
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any 'reasons' for concurring with the findings of fact and law given by the
Trial Court as also the reasons why the contentions of the Appellant
challenging the judgment of the Trial Court were devoid of merit. I may
refer to the relevant paras from the judgment of the First Appellate Court,
which would indicate that the same is totally devoid of even any
consideration/discussion on the contentions put forth by the parties and
bereft of reasons to concur with the Trial Court:-
"28. I have gone through the entire record of the case,
arguments rendered by the parties and the judgments cited by
both the parties and I am of this considered opinion that the
findings of the Ld. Trial court in issue no. 1 in favour of the
respondent and against the appellant is well founded and
require no interference from this court.
29. As regards issue no. 2 and 3 are concerned, it has been
recorded by the Ld. Trial court that the appellant was a tenant
qua the tenanted premises till the determination of her tenancy
qua the tenanted premises by service of legal notice dated
22.11.2014 by the appellant and in view of the fact that there is
no dispute between the parties qua non payment of rent by the
appellant and the last admitted rate of rent is Rs.4500/- per
month as per Ex.PWl/8 for the period 01.08.2014 to 31.10.2015
It is held that the respondent is entitled to recover from the
appellant, a sum of Rs.27000/- in respect of arrears of rent for
the period of 01.08.2014 to 31.01.2018 alongwith interest at the
rate of 12% per annum. The findings are well reasoned and
require no interference from this court.
30. It has been recorded by the Ld. Trial court that upon the
determination of appellant's tenancy by service of legal notice
dated 22.11.2014, the respondent had become liable to hand
over the possession of the tenanted premises to the respondent
w.e.f. 01.02.2015 and in view of the failure of the respondent to
lead any evidence regarding grant of mesne profits /damages at
the rate of Rs.25000/- this issue is decided as per the law laid
down in M.C. Aggarwal HUF V Sahara India & Ors. 183
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(2011) DLT 105, State Bank of India V. Dr. Meena Luthra &
Ors. 2017 SCC online Del 7776. It is held that the respondent
shall be entitled to recover from the appellant mesne profits/
damages at the rate of Rs.5175 per month for the period,
01.02.2015 to 31.01.2016 mense profits/ damages at the rate of
Rs.6828/- per month for the period, 01.02.2017 to 31.01.2018
mesne profits/ damages at the rate of Rs.7852/- per month for
the period, 01.02.2018 to 31.01.2019 and mesne profits /
damages at the rate of Rs.9029/- per month for the period,
01.02.2019 till the handing over the tenanted premises by the
appellant to the respondent alongwith interest at the rate of
12% per annum. I am of this considered opinion that the
findings of the Ld. Trial court in this issue is in favour of the
respondent and against the appellant is well reasoned and
required no interference.
31. On the basis of above, facts and evidence on record, I am of
the considered opinion that the judgment dated 01.10.2019
passed by the Ld. ASCJ, South East, Saket Courts, New Delhi is
well founded and delivered on the basis of evidence led before
the court and I do not find any flaw in the judgment and the
same is a reasoned one. Judgment dated 01.10.2019 is hereby
upheld and consequently the appeal filed on behalf of appellant
is hereby dismissed.."
51. There is also merit in the contention of the learned counsel for the
Appellant that a host of judgments were cited on behalf of the Appellant but
the First Appellate Court has not even mentioned the same in its judgment,
while the judgments relied upon by the Respondents have been taken note
of. In order to substantiate the argument, learned counsel has placed on
record a copy of an email dated 06.11.2020 forwarding the judgments as
also a copy of an index showing the proof of handing over hard copies of the
judgments relied upon. Mr. Kalra, learned counsel had strenuously taken up
this point during the arguments and there was no rebuttal on behalf of the
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Respondents. It is not only surprising but most unfortunate that the First
Appellate Court does not even take the trouble of referring to the judgments
filed and relied before it by the Appellant, leave alone dealing with them. It
was the bounden duty of the First Appellate Court to take note of the law
laid down in the judgments and if in its perception the same were not
applicable then to have given reasons as to how the judgments did not
advance the case of the Appellant and/or were distinguishable. This Court
cannot but agree with the learned counsel for the Appellant that under the
camouflage of concurring with the reasons given by the Trial Court, the First
Appellate Court has, to quote the words from the judgment of the Supreme
Court 'shirked from its statutory duty and not applied its own mind'.
52. As per the settled law and the binding dictum of the Supreme Court,
as the 'First Appellate Court' it was the duty of the Court to deal with all
issues raised, contentions put forth and examine the evidence led by the
parties, before coming to a conclusion to reverse or confirm the judgment of
the Trial Court. Contrary thereto, the judgment is bereft of discussion and
reasons as to why the arguments advanced by the Appellant were untenable
in law entailing no interference with the findings of the Trial Court.
53. Following the dictum of the Supreme Court, sans any reasons given
for agreeing and concurring with the judgment of the Trial Court, in my
opinion, the impugned judgment does not fit into the parameters of
'judgment' and cannot be termed as 'adjudication' of the appeal. Whilst it is
a matter of record that the suit in question was instituted by Respondent
No.1 in 2015 and remanding the matter back to the First Appellate Court
would cause some delay in deciding the disputes between the parties and
learned counsels have also argued on the merits of the matter, however, this
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Court has no option on account of the limited jurisdiction to entertain and
decide only substantial questions of law and given the law that the issues of
facts and law can only be tested by the First Appellate Court. The questions
raised by the parties, touching upon the merits, would have their foundation
in evidence and pleadings, which only the First Appellate Court is
competent to adjudicate. This Court cannot re-appreciate the evidence or
consider the arguments based on pleadings and questions of law which are
not substantial. Moreover, that would deprive the Appellant of valuable
right of her case being tested by the First Appellate Court on the anvil of
questions of facts and law.
54. In view of the aforesaid, once this Court finds that the judgment of the
First Appellate Court is bereft of reasons and does not even deal with the
contentions of the Appellant including the fact that the judgments relied
upon are not even referred to, this Court has no option but to remand the
matter back to the First Appellate Court for hearing and deciding afresh.
55. On perusal of the judgment of the First Appellate Court, in my view,
this appeal does give rise to a substantial question of law: 'whether the
appeal deserves to be remanded for fresh hearing, in view of the failure of
the Appellate Court to record its independent findings supported by reasons
on the issues and contentions put forth as required in terms of Section 96
read with Order XLI Rule 31 CPC?"
56. On hearing the parties and for the aforesaid reasons, the substantial
question of law is answered in favour of the Appellant.
57. The Appeal is accordingly allowed. The impugned judgment and
decree dated 23.01.2021 passed by the First Appellate Court is set aside. The
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case is remanded back to the First Appellate Court for hearing and deciding
the First Appeal afresh, in accordance with law.
58. It is made clear that this Court has not expressed any opinion on the
merits of the issues and contentions raised by the respective parties. The
First Appellate Court shall decide the case on facts and law, uninfluenced by
any observations made by this Court, which have been made only with a
view to arrive at a decision on the legality of the impugned judgment on the
threshold of Section 96 and Order XLI Rule 31 CPC, i.e., the requirement in
law to give a reasoned judgment. Contentions of Respondents No. 2 to 5 are
also left open.
59. The First Appellate Court is requested to make every endeavour to
decide and dispose of the appeal within a time-frame of six months from
today.
60. No orders as to costs.
61. Pending application is accordingly disposed of.
JYOTI SINGH, J
nd
AUGUST 2 , 2021
rd/yg
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