Sangram Basky Son Of Late Chudka Basky vs Hauwa Hembrom
2025 Latest Caselaw 1342 Jhar

Jharkhand High Court

Sangram Basky Son Of Late Chudka Basky vs Hauwa Hembrom on 2 January, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            S. A. No. 28 of 2017
    1. Sangram Basky son of Late Chudka Basky
    2. Ruplal Basky son of Late Chudka Basky, a man of unsound mind,
       represented through his brother Sangram Basky and next friend
       who has got no adverse interest against him
       Both residents of Jodhpur, P.O. & P.S.: Gandey (now Ahilyapur),
       District: Giridih.
                                  ...... Plaintiffs/Respondents/Appellants
                               -Versus-
    1. Hauwa Hembrom
    2. Paira Hembrom
    3. Singra Hembrom
    4. Kujjar Hembrom, minor, represented through his eldest brother
       Hauwa Hembrom, natural guardian and next friend who has got no
       adverse interest against him
       All residents of Jodhpur, P.O. & P.S.: Gandey (now Ahilyapur),
       District: Giridih.
                       ...     ...       Defendants/Appellants/Respondents
                               ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant(s) : Mr. Sudhir Kumar Sharma, Advocate : Mr. Ram Prakash Singh, Advocate : Mr. Shashi Shekhar Dwivedi, Advocate For the Respondent(s) : None

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07/02.01.2025

1. This second appeal has been filed against Judgement dated 30th June, 2016 and decree sealed & signed on 12 th of July, 2016 passed by Learned District Judge-II, Giridih in Title Appeal No. 48 of 2008 whereby and where under he has allowed Title Appeal No. 48 of 2008 and has set aside Judgment dated 30th August, 2008 and decree sealed & signed on 18th September, 2008 passed by Learned Additional Munsif-I, Giridih in Title Suit No. 163 of 1991 whereby and whereunder he had decreed Title Suit No. 163 of 1991 in favour of the plaintiffs.

2. This appeal was admitted for hearing vide order dated 16th October, 2019 on the following substantial question of law:-

"Whether the learned appellate court below has decided the appeal without expression any opinion in proper sense and whether in absence of any analysis and reason, the impugned judgment renders it indefeasible?"

Argument of the appellants

3. The learned counsel for the appellants has submitted that Title Suit No. 163 of 1991 was filed by the plaintiffs seeking declaration of title of the plaintiffs over Schedule 'B' land and confirmation of their possession over the said property (Except Schedule 'C' lands) and for recovery of possession of Schedule 'C' lands from the defendants.

4. The learned counsel has submitted that the defendants had contested the suit and on the basis of pleadings, following issues were framed by the learned trial court: -

      I.     Whether the suit as framed is maintainable?
      II.    Whether the plaintiffs have got a valid cause of action for the
             suit?

III. Whether the suit is barred by limitation and adverse possession?

IV. Whether the suit is also barred by the principles of waiver, estoppel and acquiescence?

V. Whether there was an oral agreement between plaintiff no. 1 and defendant no. 5 Dhena Manjhi for sale of Schedule C land for Rs.2,000/- in the month of October, 1988 and in furtherance thereof, defendant no. 5 was given possession of the same and he started making construction thereon? VI. Whether it is a fact that Chudka Manjhi, son of recorded raiyat Mohan Manjhi, surrendered eastern half of plot nos. 179 and 180 under khata no. 17 of suit village Jodhpur, to the then landlord Jasmat Manjhi on 13.02.1946 and the landlord came in possession of the same?

VII. Whether it is a fact that the said landlord Jasmat Manjhi on 15.03.1947 orally settled in permanent raiyati right the aforesaid surrendered lands measuring 1.24½ acre and 0.29½ acre under plots no. 179 and 180 respectively with defendant

no. 5 Dhena Manjhi by delivery of possession and also granted a Hukumnama to this effect?

VIII. Whether said Dhena Manjhi has been coming in peaceful and un--interrupted possession of the aforesaid settled lands along with his sons i.e. defendants No. 1 to 4?

IX. Whether plaintiffs have got any right, title and interest in respect of the suit lands?

X. Whether plaintiffs are entitled to the relief claimed in the plaint?

XI. What relief, if any, the plaintiffs are entitled to?

5. He submitted that the suit was ultimately decreed on contest in favour of the plaintiffs and against the defendants. The right and title of the plaintiffs over Schedule 'B' lands was declared and their possession over the same was also confirmed. So far as the Schedule 'C' lands is concerned, defendants were directed to hand over vacant and peaceful possession of Schedule 'C' lands after demolishing the construction standing over the same within 60 days failing which liberty was given to the plaintiffs to execute the decree through the process of law.

6. The learned counsel submitted that an appeal was filed by the defendants bearing Title Appeal No. 48 of 2008. He further submitted that the mandate of Order 41 Rule 31 of CPC has not been followed while allowing the appeal and reversing the decree of the trial court. The learned counsel also submitted that no point of determination was framed and the major part of the judgment by the first appellate court refers to submissions and the case of respective parties. The first appellate court has straightway jumped to the conclusion and while arriving at the conclusion, there is no comprehensible reason for such conclusion much less discussion of the reasons of the learned trial court while reversing the decree.

7. The learned counsel referred to the judgment passed by the Hon'ble Supreme Court reported in (2022) 3 SCC 90 (Manjula and others Vs. Shyamsundar and others) Paragraph-8 to submit that

under similar circumstances, the Hon'ble Supreme Court has set aside the judgment of the first appellate court and remanded the matter for fresh consideration.

8. He also relied upon the judgment passed by Hon'ble Supreme Court reported in (2010) 13 SCC 530 (B.V. Nagesh and another Vs. H.V. Sreenivasa Murthy) and submitted that the decision of the first appeal without framing point for determination and without considering both the facts and law cannot be sustained in the eyes of law.

9. He also relied upon the judgment passed by Hon'ble Patna High Court reported in AIR 1985 Patna 214 (Narain Singh and others Vs. Kanta Singh and others) and submitted that while reversing a decree of the trial court, it is also the duty of the appellate court to meet the reasons assigned by the trial court for its decree.

10. The learned counsel submitted that if the reasons are not adequately met by the appellate court, then there will be two parallel findings on the same set of rules and such a course of adjudication is not contemplated under law.

11. The learned counsel also relied upon the judgment passed by the Hon'ble Supreme Court reported in 2017 3 JLJR (SC) 409 (U. Manjunath Rao vs. U. Chandrashekar and another) to submit that the principles and the manner of exercise of power by the first appellate court has been elaborately discussed, and it has been held that the first appellate court has the definite role in its judgment and its judgment should show application of mind and should reflect the reasons on the basis of which it agrees with the trial court judgment. By referring to this judgement, the learned counsel submits that even in case of concurrent findings, the Hon'ble Supreme Court has held that the reasons are to be assigned by the appellate court to agree to the view of the trial court's judgment.

12. He submitted that the citing of reasons assumes all the more importance when it is a judgment of reversal and the first appellate court before reversing the decree has a duty to meet the reasons

assigned by the trial court. He submitted that this exercise has not been done by the learned first appellate court over and above the aforesaid submissions that even the point for determination was not framed by the learned first appellate court.

13. The learned counsel submitted that the matter be remitted to the first appellate court for fresh consideration in the light of the aforesaid judgments read with the provisions of Order 41 Rule 31/33 of the CPC.

Findings of this Court

14. After hearing the learned counsel for the appellants, this court finds that the Title Suit No. 163 of 1991 was filed for declaration of title with respect to Schedule 'B' lands and confirmation of their possession and also for declaration of title in connection with Schedule 'C' land and for recovery of possession of Schedule 'C' land. The suit was a contested suit and the issues as mentioned by the learned counsel for the appellants and recorded above were framed by the learned trial court. The learned trial court considered the various issues and had also recorded that Issue No. III was not pressed by learned counsel for the defendants before the learned trial court. The suit was decreed in favour of the plaintiffs.

15. The defendants filed appeal which was numbered as Title Appeal No. 48 of 2008 and before the first appellate court with respect to issue No. III, it was asserted by the appellants therein that the trial court illegally stated that Issue No. III was not pressed.

16. The perusal of the first appellate court judgment reveals that the first appellate court till Page No. 20 recorded the submissions and mentioned the exhibits and thereafter straightaway jumped at the conclusion from Paragraph-5 at Page No. 20 onwards. The first appellate court has not mentioned the point(s) for determination. The learned first appellate court has again referred to the exhibits, but the learned first appellate court has not decided the case as is required under the provisions of Order 41 Rule 31 of CPC.

17. The Order 41 Rule 31 of CPC is quoted as under: -

"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."

18. This aforesaid provision was subject matter of consideration by the Hon'ble Supreme Court in the aforesaid judgments cited by the learned counsel for the appellants. It has been held in the judgment passed in the case of Manjula and others (Supra) that the appellate court has the jurisdiction to reverse or affirm the findings of the trial court and it is settled law that an appeal is a continuation of the original proceedings and the jurisdiction of the appellate court involves re-hearing of appeal on question of law as well as the fact and all the questions of fact and law are open for consideration. It has also been held that the judgment of the appellate court must reflect conscious application of mind and must record the court's findings, supported by reasons, for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. It has been held that the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements amounts to the serious infirmity in the judgment. Paragraph 8 of the aforesaid judgment is quoted as under: -

"8. Section 96 of the Civil Procedure Code, 1908 (for short "CPC") provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state:

(a) 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.

Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment."

19. Similar view has been expressed by the Hon'ble Supreme Court in the judgment of B. V. Nagesh and Another (Supra) wherein it has been held that without framing points for determination and considering both facts and law and without proper discussion and assigning reasons, the first appellate court's judgment cannot be sustained. Paragraph 4 and 5 of the aforesaid judgment are quoted as under: -

"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 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, SCC p. 188, para 15 and Madhukar v. Sangram, SCC 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."

20. In the judgment passed by Hon'ble Patna High Court reported in Narain Singh and others (supra), it has been held that in case of reversal, it is all the more important for the Court of first appeal to consider the evidence and also the reasoning of the trial Court and only thereafter to give its own reasons for not agreeing with the findings of the trial Court. Paragraph- 18 and 19 of the aforesaid judgment are quoted as under: -

"18. It is well settled that if a finding of a fact is recorded without any discussion of the evidence, it is no judgment at all. The lower appellate Court is the final Court of fact and a very important duty is cast upon it. It is for this Court to decide final questions of fact on which the disposal of the suit might depend. On a perusal of the judgment of the lower appellate Court, it must appear that it has made an honest endeavor to make a proper appraisement of the merit of the case put forward by the parties. In case of reversal, it is all the more important for the Court of appeal below to consider the evidence and also the reasonings of the trial Court and only thereafter to give its own reasons for not agreeing with the findings of the trial Court. A perusal of the judgment must show that the lower appellate Court has applied its own mind independently to the evidences on the record.

19. It is also well-settled that every non-consideration of the reasons given by the trial Court in a judgment of reversal is not enough for interference by the High Court sitting under S. 100 of the C.P.C. What has to be seen is whether the lower appellate Court has failed to consider the most material evidence and if it has, then in that case finding is not binding on the High Court. If the finding arrived at by the lower appellate Court is sustainable from the reasonings given by the lower appellate Court, in that case finding cannot be interfered with."

21. Upon perusal of the impugned judgment passed by the appellate court, this Court finds that on the bare perusal of the judgment, the

first appellate court has not adjudicated the appeal in accordance with the provisions of Order 41 Rule 31 of CPC when read with the aforesaid judgments passed by Hon'ble Supreme Court and Patna High Court. On the face of it, neither the points for determination were framed, nor its findings is supported by reasons, nor it has dealt with the reasons of the learned trial court while reversing the judgement and decree passed by the learned trial court.

22. The substantial question of law quoted above is decided in favour of the appellants and against the respondents and consequently, the impugned judgment and decree passed by the learned first appellate court is hereby set aside and the matter is remanded back to the court of District Judge-II, Giridih for fresh consideration of the first appeal in accordance with law.

23. It is placed on record that the respondents have not appeared before this Court in-spite of service of notice and in such circumstances, the first appellate court shall issue notice to respondents herein who were the appellants before the first appellate court for the purposes of fresh adjudication. So far as the present appellants are concerned, they are directed to appear before the learned first appellate court by filing fresh Vakalatnama on 03.03.2025 at 11.00 am.

24. The first appellate court shall make all endeavour to dispose of the title appeal expeditiously. Parties to cooperate.

25. This appeal is accordingly disposed of.

(Anubha Rawat Choudhary, J.) Rakesh/-