Gujarat High Court
Gordhanbhai Ranchodbhai Patel vs Dineshbhai Laxmanbhai Patel on 3 November, 2023
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 297 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SECOND APPEAL NO. 297 of 2023
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GORDHANBHAI RANCHODBHAI PATEL
Versus
DINESHBHAI LAXMANBHAI PATEL
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Appearance:
MR YATIN OZA, SR. ADVOCATE WITH MR PINAKIN M RAVAL(2495) for
the Appellant(s) No. 1
MR SANDIP H MUNJYASARA(10781) for the Respondent(s) No. 1,2
MS NAISARGI N CHAVDA(11670) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 03/11/2023
ORAL ORDER
1. This Second Appeal under Section 100 of the Code of
Civil Procedure, has been filed against the judgment
and decree dated 09.06.2023 passed by the learned
3rd Additional District Judge, Gandhinagar in Regular
Civil Appeal No. 73 of 2018 arising out of the
judgment and decree dated 23.10.2018 passed by
the learned 3rd Additional Senior Civil Judge,
Gandhinagar in Civil Suit No. 60 of 2016.
2. The appellant is the original defendant who has lost
his case from both the courts below. The respondent
herein filed a suit for permanent injunction,
declaration and possession of the suit property i.e.
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plot No. 511 admeasuring 400 sq.mt. of the GIDC,
Gandhinagar.
3. The plaintiffs had filed a suit against the appellant
herein inter-alia alleging that, he has no right, title or
interest in the suit property and therefore, his
possession is illegal. The suit was contested by the
appellant. In the written statement, it was pleaded
that, they have purchased the suit property and
pursuant to the sale transaction, they are in
possession and occupation of the suit property. The
trial Court after considering the pleading framed the
issue at Exh. 11. The issue no. 2 with respect to
unauthorized possession of the suit property is
answered in favour of the plaintiffs and accordingly,
the trial Court held that, the possession of the
defendant is illegal and unauthorized. The Civil Court
vide judgment and decree dated 23.10.2018 by
partly allowing the suit, directed the appellant
defendant to handover peaceful and vacant
possession of the suit property to the respondents
plaintiffs within 60 days.
4. Being aggrieved with the said judgment and decree,
the appellant has preferred Regular Civil Appeal No.
73 of 2018 before the District Court at Gandhinagar.
Learned first Appellate Court after hearing the
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parties, was pleased to dismiss the appeal vide its
judgment and decree dated 09.06.2023. The learned
first Appellate Court while dismissing the Appeal, has
recorded general expression of the concurrence of
the trial Court judgment.
5. Being dissatisfied with and aggrieved by the
aforesaid judgment and decree dated 09.06.2023
passed by the first Appellate Court, the appellant -
original defendant has preferred present appeal on
the following substantial question of law:.
Substantial Question of Law
A) Whether the order of First Appellant Court is
illegal, arbitrary, and against the settled principal
and law and therefore the same is not sustainable in
the eye of law?
B) Whether the Learned District Judge have very
hurriedly decided the Appeal only on the hearing of
Exhibit - 5 Application whereby very crucial right of
the appellant herein is defeated?
C) Whether the Learned District Judge have failed to
appreciate the fact that as per evidence of GIDC the
ultimate ownership of any plot remains with GIDC
only and in such circumstances holding the present
appellant as unauthorised occupant in the said
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subject land is without taking into consideration such
relevant and admissible evidence more particularly
when respondent is claiming his rights by way of
unregistered documents only?
D) Whether that Learned Trial Court and First
Appellate Court both have failed to consider the
Provisions of Transfer of Property Act and
Registration Act?
E) Learned Trial Court and First Appellate Court have
failed to consider and appreciate the material
documents in form of the agreement to sale, MOU,
power of attorney given by Prabhudas Kashiram
along with the possession of the suit land to the
present appellant which is continuing from year 1994
till date with the appellant?
F)Whether the Learned District Judge have hurriedly
decided the appeal only on the hearing of Exhibit - 5
Application whereby very crucial right of the
appellant herein is defeated?
G) Whether the Learned District Judge have failed to
appreciate the fact that as per the evidence of GIDC
the ultimate ownership of any plot remains with GIDC
only and in such circumstances holding the present
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appellant as unauthorised occupant in the said
subject and is without taking into consideration such
relevant and admissible evidence more particularly
when respondent is claiming his rights by way of
unregistered documents only?
H) Whether the Judgment and Order passed by Lower
Appellant Court is vitiated by not framing and
deciding appropriate points for determination as
required under the provisions of Order 41 R-31 of
CPC?
I) Whether the Lower Appellant Court has materially
eared in not undertaking the exercise of independent
appreciation of entire evidence and thereupon
recording independent findings in the appeal?
J) Whether in view of the findings recorded on issue
no.1 by the trial court, the plaintiff had any locus to
file the suit for the relief as claimed?
K) Whether the suit filed by the Plaintiffs is clearly
barred by Non- joinder of necessary parties?
L) Whether the suit of the parties in view of the
established facts on record is clearly barred by
Limitation?
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M) Whether the continuance of possession of the
defendant over the suit land in question can be
treated to be illegal and unauthorised particularly
when the initial induction of the defendant in the
land in question was lawful and under the valid
authority?
6. In the aforesaid factual background facts, this Court
has heard learned Senior Counsel Mr. Yatin Oza,
assisted by Mr. P.M. Raval, learned advocate
appearing for and on behalf of the appellant and Mr.
Sandip H. Munjyasara, learned advocate appearing
for the respondents.
7. Learned Senior Counsel Mr. Oza assailing the
judgment and decree passed by the first Appellate
Court has submitted that, the first Appellate Court
has committed an error while deciding the Appeal in
a cursory manner, without framing the point for
determination. Referring to Order 41 Rule 31 of the
CPC, he submitted that, the first Appellate Court is
the last court of facts and it is mandatory for the
court to independently assess the evidence of the
parties and consider the relevant points which arise
for adjudication. That, in the facts of present case,
the first Appellate Court without framing the point for
determination, expressing general expression of
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concurrent with the trial Court judgment, passed an
order of dismissal of the appeal, as a result, the
judgment and decree is vitiated and on this ground,
the Second Appeal deserves consideration and it may
be admitted.
8. On the other hand, countering to the submissions,
learned counsel Mr. Sandip Munjyasara, has
submitted that there is no substantial question of law
raised by the appellant - defendant in this Second
Appeal and urged to dismiss the Appeal. He would
further submit that, in the instant case, the first
Appellate Court has considered all the aspects of the
matter and submissions made by the learned counsel
for the parties and therefore, though the first
Appellate Court framed only one point for
determination, which itself may not vitiate the
judgment.
9. Having heard the learned counsel for the respective
parties and on perusal of the findings recorded by the
courts below, the only question that falls for my
consideration is whether present Second Appeal
involves any substantial question of law?
10. It is no doubt true that the cause of action to file the
suit by the respondent was the judgment and decree
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dated 29.02.2016 passed in Special Civil Suit No.
1090 of 2013 wherein, the appellant, respondents
and others were parties to the suit. Pursuant to said
decree, the present suit i.e. Special Civil Suit No. 60
of 2016 was filed to recover the possession of the
suit property from the appellant. The learned trial
Court while decreeing the suit, by sufficient reason
on the issues, directed the appellant to handover the
possession of the suit property. The matter was
carried further in Appeal before the District Court,
Gandhinagar. The first Appellate Court without
framing the point for determination, expressing
general concurrence with the judgment of the trial
Court, dismissed the appeal.
11. The appellant herein raised the substantial question
of law that, the judgment and decree of the first
Appellate Court is vitiated, by not framing and
deciding the appropriate points for determination, as
required under Order 41 Rule 31 of the CPC.
12. This Court is of considered view that, the first
Appellate Court must not record general expression
of concurrence with the trial Court judgment. The
court ought to have give reasons for its decision on
each point independently. The point is how to deal
with the issue by the first Appellate Court. There must
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be a discussion, appreciation, reasons and
categorically findings on the issues as to why the
findings of lower court be upheld or reversed. Order
41 Rule 31 cast an obligation on the first Appellate
Court to state their points for determination, the
decision thereon, the reasons for the decision. In the
facts of the present case, the point for determination
framed by the Appellate Court is to whether the
findings recorded by the trial Court on the issues
framed are required to be interfered with or not?. It
is not legal requirement that, whatever the issue
framed by the Civil Court should again framed by the
Appellate Court. The legal requirement is to
appreciation of the evidence, discussion and reasons
thereof, so as to arrive at the conclusion to upheld or
reverse the judgment and decree of the trial Court. In
the present case, in a single determination of the
issue, the first Appellate Court did not have weighed
the evidence with sufficient reasons for concurring
with the findings of the Civil Court.
13. The Apex Court has considered the scope of Order 41
Rule 31 in Siddiqui (dead by Lrs.) Vs. A.
Gambling, AIR 2011 SC 1492 and held as under:
"18. The said provisions provide guidelines for
the appellate court as to how the court has to
proceed and decide the case. The provisions
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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 of 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
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adherence to the requirements of the said
statutory provisions.
(Vide: Thakur Sukhpal Singh v. Thakur Kalyan
Singh and Anr., AIR 1963 SC 146; Girijanandini
Devi and Ors. v. Bijendra Narain Choudhary, AIR
1967 SC 1124; G. Amalorpavam and Ors. v. R.C.
Diocese of Madurai and Ors., (2006) 3 SCC 224;
Shiv Kumar Sharma v. Santosh Kumari, AIR 2008
SC 171; and Gannmani Anasuya and Ors. v.
Parvatini Amarendra Chowdhary and Ors., AIR
2007 SC 2380).
19. In B.V. Nagesh and Anr. v. H.V. Sreenivasa
Murthy, (2010) 10 SCC 55, while dealing with the
issue, this Court held as under:
"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 therein
is open for re-hearing 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
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for decision of the appellate Court. Sitting as a
court of 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 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, AIR 2001 SC 965 and
Madhukar and others v. Sangram and others,
AIR 2001 SC 2171]."
Thus, it is evident that the First Appellate
Court must decide the appeal giving adherence
to the statutory provisions of Order XLI Rule 31
CPC."
14. The principle discernable from the case law referred
to above is that, it is mandatory for the first Appellate
Court to independently assess the evidence of the
parties and consider the relevant point, which arise
for adjudication and the bearing of the evidence on
those points. The first Appellate Court, being a final
court of facts, must not record general expression of
concurrence with the trial Court judgment and must
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assigned reasons for its decision on the issue and
entire evidence must be considered and discussed in
detail.
15. In light of the aforesaid law and applying to the facts
of the present case, this court finds merits in the
contentions raised by the counsel appearing for the
appellant and thus, therefore, this Court comes to
conclusion that, it is a case of non-compliance with
the provision of Order 41 Rule 31 of the CPC. The
contentions raised by learned counsel for the
respondent that mere a noncompliance of the
provisions may not vitiated the judgment, when the
findings of the first Appellate Court established the
requirement of the mandatory provision. In this
aspect, it is beneficiary to refer to the case of
G.Amalorpavam Vs. R.C. Diocese of Madurai,
2006-0-AIJEL-SC-36975, the Apex Court in para-8
and 9 of the judgment held that, the question
whether in a particular case, there has been a
substantial compliance of provision of Order 41 Rule
31 of the CPC, has to be determined on the nature of
judgment delivered in each case and non-compliance
with the provisions, may not vitiate the judgment and
make it wholly void and may be ignored if there has
been substantially compliance with it. In the present
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case, the first Appellate Court failed in recording
proper reasons on the issue and therefore, the very
object to frame point for determination and to cite
the reasons thereof are missing in the facts of the
present case.
16. For the reasons recorded, without entering into the
merits of the case, the impugned judgment and
decree passed by the first Appellate Court in Civil
Appeal No. 73 of 2018 is hereby set aside. The
matter is remanded to the first Appellate Court to
decide the said first appeal in accordance with law
within four months from the date of receipt of this
order.
17. The present Second Appeal is disposed of
accordingly. Interim relief granted earlier stands
vacated.
18. In view of the order passed in Second Appeal, no
order in Civil Application and is disposed of
accordingly.
(ILESH J. VORA,J)
P.S. JOSHI
