Sarwan Kumar vs Amrendra Kumar And Ors
2023 Latest Caselaw 3707 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                     SECOND APPEAL No.34 of 2015
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Sarwan Kumar, Son of Late Kailash Singh, Resident of village-Gopichak, P.S.-Sheikhpura, District-Sheikhpura at present Barbigha, Patel Nagar, P.S.- Barbigha, District-Sheikhpura.

... ... Appellant/s Versus

1. Amrendra Kumar, Son of Late Baidya Nath Prasad.

2. Baidya Nath Prasad, Son of Ram Swaroop Mahton.

3. Laxmi Devi, Wife of Baidya Nath Prasad Sinha.

All residents of Village-Patel Nagar, P.S.-Barbigha, District-Sheikhpura.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s    :       Mr.Deepak Kumar Singh, Advocate
For the Respondent/s   :       Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT

Date : 04-08-2023

Heard the learned counsel for the appellant on the

point of admission.

2. The appellant has filed this second appeal under

Section 100 of the Code of Civil Procedure feeling aggrieved

and dissatisfied with the judgment and decree dated 22.12.2014

passed by the learned Additional District Judge, Sheikhpura in

MTA No.9 of 2013 whereby while dismissing the appeal, the

learned appellate court affirmed the judgment dated 22.02.2013

and decree dated 06.03.2023 passed by the learned Munsif,

Sheikhpura in Title Suit No.18/2010.

3. From the records, it appears the appellant was Patna High Court SA No.34 of 2015 dt.04-08-2023

plaintiff before the learned trial court and the appellant before

the first appellate court.

4. The appellant and the respondent nos. 2 and 3

purchased a piece of land each on Plot No.439 and several other

persons have also purchased the land in the said plot. The

purchased land of the appellant is stated to be 75/32 decimals

and the respondents' purchased land is 13 decimals. The case of

the appellant is that the house of the respondents is situated in

the northern boundary of the house of the appellant and both

sides have entered into a written agreement dated 05.12.2002

that the appellant would leave 1 feet land in his north and the

respondent no.1 would leave 15 inch land in his south and in

that manner they would construct their houses. The open space

of 27 inch between the houses of the appellant as well as the

respondent no.1 would be used as alley for air and light and

both sides agreed not to open any eaves (chajja). Though the

appellant abided by the terms of agreement and erected his wall

leaving 1 feet of the land, the respondents while constructing the

first floor, projected 18 inch of their roof on 15 inch of their

earlier left land and also 3 inch on the land of the appellant. This

extension of 18 inch through projection of the roof on first floor

is the bone of contention in between the appellant and the Patna High Court SA No.34 of 2015 dt.04-08-2023

respondents.

5. On the other hand, the respondents have denied

the agreement dated 05.10.2002. The respondents have further

submitted that when they started constructing their house, they

left two and half feet open space towards south which was from

north to south and further left 25 feet space from east to west

open on their own land for air and light. Further case of the

respondents is that the appellant taking undue advantage of his

being in police force encroached upon the land of the

respondents and started construction work and erected the wall

on the said land.

6. The learned trial court framed nine issues and after

consideration of evidence dismissed the suit of the appellant.

The plaintiff-appellant moved before the learned first appellate

court which recorded finding that the judgment and decree

passed by the learned lower court were legal and valid and went

on to dismiss the appeal of the plaintiff-appellant. The order of

the learned appellate court has been assailed in this second

appeal.

7. The learned counsel appearing on behalf of the

appellant has vehemently contended that the learned trial court

did not frame the issues properly based on the pleadings and the Patna High Court SA No.34 of 2015 dt.04-08-2023

learned appellate court did not take this fact into its

consideration. Both the courts below did not consider that as the

issues were not framed properly, the evidence was not read in

proper perspective and, thus, a wrong finding was arrived at by

the learned courts below.

8. The learned counsel further contended that the

learned appellate court has not considered each and every issues

while recording the judgment of affirmation. The learned

counsel has further submitted that the learned appellate court

was required to appreciate the evidence vis-a-vis the issues

framed and a duty was cast upon the learned appellate court

which it has failed to discharge. The learned counsel has further

submitted that the learned appellate court in paragraph 31 has

summarized its finding basically relying on the discussion made

by the learned trial court on the documents and the oral

evidence.

9. The learned counsel has further contended that

though the learned appellate court recorded its finding about the

learned trial court not complying the provisions of Order 26

Rule 10A and Order 26 Rule 14 (3) of the Code of Civil

Procedure with regard to report of learned Survey Knowing

Pleader Commissioner, which has been marked as Exhibit 3 Patna High Court SA No.34 of 2015 dt.04-08-2023

series, yet it did not remand the case before the learned trial

court for appointment of new Pleader Commissioner, as Exhibit

3 was disbelieved and not considered by it. In this condition, the

only option open to the learned lower court, under the

provisions of the Order 26 Rule 14 (3) of the Code of Civil

Procedure, was to seek fresh report by appointing a new Survey

Knowing Pleader Commissioner, which was not done by it.

Even the learned appellate court recorded its finding that the

report cannot be relied on due to non-compliance of provisions

of Order 26 Rule 14 (3) of the Code of Civil Procedure. It did

not remit the matter and neither did it resorted to provisions of

Order 41 Rule 7 of the Code of Civil Procedure for bringing on

record the scientific report of the Pleader Commissioner by way

of additional evidence.

10. The learned counsel has further submitted that

the learned appellate court has failed to comply the provisions

of Order 41 Rule 31 of the Code of Civil Procedure and did not

consider the evidence on record. Its finding are not supported by

the reasons. The learned lower court did not consider the oral

evidence and failed in its duty to appreciate the oral evidence.

The learned counsel placed his reliance on the decision of the

Hon'ble Supreme Court in the case of H. Siddiqui v. A. Patna High Court SA No.34 of 2015 dt.04-08-2023

Ramalingam reported in (2011) 4 SCC 240 wherein it held in

paragraph 21 as under :

"Order 41 Rule 31 CPC

21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects 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 Patna High Court SA No.34 of 2015 dt.04-08-2023

consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions (Vide Sukhpal Singh v. Kalyan Singh [AIR 1963 SC 146] , Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] , G.

Amalorpavam v. R.C. Diocese of Madurai [(2006) 3 SCC 224] , Shiv Kumar Sharma v. Santosh Kumari [(2007) 8 SCC 600] and Gannmani Anasuya v. Parvatini Amarendra Chowdhary [(2007) 10 SCC 296 : AIR 2007 SC 2380])".

11. I have considered the contentions and grounds

taken by the learned counsel for the appellant to assail the order

of learned appellate court on the ground that issues were not

properly framed as per the pleadings, I think the same does not

appear to be correct. The issues framed may be loosely worded

but it cannot be said that they are not as per the pleadings or the

issues have been improperly framed. The learned trial court has

framed the following issues on the basis of the pleadings of the

parties :-

1. क्यया वयाद पपोषननीय हह?

2. क्यया वयाद पररिसनीमया अरधिरनयम ससे प्रभयारवत हह?

3. क्यया वयाद रवशसेष अननुतपोष अरधिरनयम कसे धियारिया 34 ससे प्रभयारवत हह?

4. क्यया वयादनी रनधिर्धाररित न्ययाय शनुल्क दयारखिल रकयया हह?

5. क्यया वयादनी कपो वयाद दयायरि करिनसे कया उरचित कयारिण ममौजजूद हह?

Patna High Court SA No.34 of 2015 dt.04-08-2023

6. क्यया प्ररतवयादनी ससं० 1 रदननांक 5.10.02 कसे समझमौतसे कपो मयानया हह?

7. क्यया रववयारदत जमनीन जपो नयापनी कसे अननुसयारि 18" उत्तरि ससे दरक्षिण औरि 25' पजूरिब ससे परश्चिम हह वह प्ररतवयादनी कसे जमनीन कया भयाग हह वयादनी कसे जमनीन कया भयाग हह रववयारदत (वयादग्रस्त जमनीन 18" उत्तरि ससे दरक्षिण औरि 25' पजूरिब ससे परश्चिम रजसपरि प्ररतवयादनी दयारिया रनमर्धाण रकयया गयया हह क्यया यह सहनी हह। यह अवहधि हह , रजससे ध्वस्त रकयया जया सकतया हह।

8. क्यया उतरिवयारिनी रदवयाल रजस परि वयादनी कया घरि हह , वह अपनसे खिरिनीदगनी जमनीन परि बनयायया हह।

9. क्यया वयादनी मनांगसे गयसे अननुतपोष कपो पयानसे कया हक़दयारि हह?

12. The learned counsel for the appellant has not

been able to convince this Court that any of the issues were not

required to be framed or were beyond the pleadings.

13. The learned appellate court took notice of all

issues and formulated its own points for determination of the

appeal. Thereafter, the learned appellate court considered the

findings recorded by the learned trial court on the evidence for

arriving at its findings and in doing so, it has also recorded its

own reasons which reflects from paragraphs 14 to 30 of the

impugned judgment. Paragraph 31 referred by the learned

counsel has only summed up what has been discussed and

considered by the learned appellate court. It is not a fact that the

learned appellate court jumped to a conclusion without

recording its own reasons.

Patna High Court SA No.34 of 2015 dt.04-08-2023

14. Since the learned appellate court affirmed the

judgment and decree of the learned lower court, I do not think it

was required to discuss each and every issue with reference to

findings or reiterate the reasons given by the learned trial court.

The Hon'ble Supreme Court in the case of Malluru Mallappa v.

Kuruvathappa reported in (2020) 4 SCC 313 has discussed this

issue in paragraph 18 which reads as under :

"18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non- observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice".

15. Even submission of learned counsel for the

appellant about need to refer the matter to the learned trial court

for issuance of a new commission since it set aside the report of

the Survey Knowing Pleader Commissioner by implication, Patna High Court SA No.34 of 2015 dt.04-08-2023

does not seem to be correct. If the provision is considered in its

totality, the Order 26 deals with Commissions and Order 26

Rule 13 and Rule 14 are concerned with Commissions in the

case of partition decree. Even the heading of the Code of Civil

Procedure is quite explicit and the plain reading of the

provisions substantiate this fact. It deals with the situation where

the Court confirms or varies the report or reports, it shall pass a

decree in accordance with same as confirmed or varied. But

when the Court set aside the report or reports it shall either issue

a new commission or make such other Order as it shall thinks

fit. Thus, passing a decree based on report of the Survey

Knowing Pleader Commissioner has been provided where the

commission has been granted prior to preparation of decree in a

partition suit and it is not true for all cases where a Pleader

Commissioner has been appointed. So, the contention of the

learned counsel for the appellant is without any substance.

Moreover, when the learned appellate court has considered the

other evidence, documentary as well as oral, I do not think

much reliance could be placed on Exhibit 3 series. This

document has been contradicted by another document, which is

Exhibit H, the report of the Circle Amin, which specifically

mentions that the total area of the appellant was only 2343 Patna High Court SA No.34 of 2015 dt.04-08-2023

sq.kari whereas, his construction was on 2365 sq. kari. So, the

house of the appellant exceeds his purchased land and this

document was not opposed by the plaintiff-appellant.

16. From the discussions made hereinabove, it is

apparent that the learned counsel for the appellant has tried to

challenge the concurrent findings of two courts mostly on the

facts of the case and the appreciation of evidence by the learned

appellate court. The Hon'ble Supreme Court on a number of

occasions has held that the High Court is not expected to re-

appreciate the evidence just to replace the findings of the lower

courts. Reliance could be placed in the case of Karnataka

Board of Wakf Vs. Anjuman-E-Ismail, reported in (1999) 6

SCC 343 wherein it has been held by the Hon'ble Supreme

Court that pure question of fact are not amenable to the

jurisdiction of second appeal. If the learned court below arrived

at a finding which does not suffer from any infirmity or

perversity, this Court will not look into the matter to re-

appreciate the evidence to take a contrary view.

17. Hence, in the light of the discussions made so

far, the decision relied upon by the learned counsel for the

appellant is of no help to his case.

18. Since the learned counsel for the appellant has Patna High Court SA No.34 of 2015 dt.04-08-2023

not been able to point out any perversity in the judgment of the

learned appellate court and as the grounds raised by the learned

counsel for the appellant as discussed hereinbefore do not make

out a case for admission of this second appeal, I do not find that

any substantial questions of law arises in the present matter.

19. Accordingly, the instant second appeal is

dismissed at the stage of admission itself.

(Arun Kumar Jha, J) V.K.Pandey/-

AFR/NAFR                A.F.R.
CAV DATE                N/A
Uploading Date          11.08.2023
Transmission Date