M/S. Raghuram Constructions India Llp vs P. Vengal Rao Died
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Telangana High Court

M/S. Raghuram Constructions India Llp vs P. Vengal Rao Died on 13 February, 2025

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                  SECOND APPEAL No.135 of 2024
JUDGMENT:

This Second Appeal is filed challenging the judgment and

decree dated 14.03.2024 passed in A.S.No.16 of 2023 on the file of the

Principal District Judge, Ranga Reddy at L.B.Nagar, confirming the

judgment and decree dated 21.06.2018 passed in O.S.No.723 of 2003 on

the file of I Additional Senior Civil Judge, Ranga Reddy at L.B.Nagar.

2. Brief facts leading to filing of the present second appeal are that

Plaintiffs filed the suit in O.S.No.723 of 2003 on the file of I Additional

Senior Civil Judge, Ranga Reddy District at L.B.Nagar for specific

performance to execute the registered sale deed(s) either in the name

of the plaintiffs or in the names nominated by the plaintiffs in respect

of the suit schedule property i.e., land admeasuring Acs.6.36 guntas in

Sy.No.447 situated at Puppalguda village, Rajendra Nagar Revenue

Mandal, R.R. District.

3. It is averred that on 02.06.1996, plaintiffs entered into an

agreement of sale with the defendants for purchase of the suit

schedule property for a total consideration of Rs.6,55,000/- i.e.,

Rs.95,000/- per acre, and the plaintiffs paid an amount of Rs.2,05,000/-

towards advance sale consideration in different dates. Though the LNA, J

plaintiffs were ready to perform their part of contract, the defendants

did not come forward to execute the sale deeds by receiving balance

sale consideration and dragging on the matter on one pretext or the

other.

4. It is further averred that on 20.02.2003, when the plaintiffs

approached the defendants and requested to execute the registered

sale deeds, they demanded Rs.40,000/- more per acre in addition to

the agreed amount. Then, the plaintiffs got issued a legal notice on

22.02.2003 and the same was returned un-served. Therefore, the

plaintiffs have no other option except to file the suit. Hence, the suit.

5. The defendants in the suit filed written statement denying the

averments made in the plaint, inter alia, contending that he never

entered into any agreement of sale with the plaintiffs in respect of the

suit schedule property; that the suit schedule property is their

ancestral property and the a suit for partition is pending before the

Court; that plaintiffs never paid any advance towards sale

consideration and finally prayed to dismiss the suit.

6. Before the trial Court, on behalf of the plaintiffs, P.Ws.1 and 2

were examined and Exs.A1 to A10 were marked. On behalf of the

defendants, neither examined any witness nor marked any document.

LNA, J

7. The trial Court, on due consideration of oral and documentary

evidence, decreed the suit vide order dated 21.06.2018 and directed the

defendants to execute registered sale deed in respect of the suit

schedule property in favour of the plaintiffs within a period of two

months by receiving balance sale consideration from the plaintiffs,

which is to be paid within one month from the date of decree.

8. Aggrieved by the said judgment and decree dated 21.06.2018,

the appellants/third parties filed A.S.No.16 of 2023 on the file of the

Principal District and Sessions Judge, Ranga Reddy at L.B.Nagar,

contending that appellants have purchased the property under various

registered sale deeds, which were marked as Exs.B2 to B32, under

which the appellants had acquired rights over the property and are

developing the property and are in possession of the property.

9. It is averred that originally the suit schedule property belongs to

Sattaiah and Shankaraiah and they sold the same to one G.N.Srinivas

and G.Narayana under two registered sale deeds bearing document

Nos.6531 of 1990 and 6532 of 1990, which were marked as Exs.B1 and

B2. Subsequently, the appellants entered into an agreement of sale on

27.08.1993 under Ex.B4 and thereafter a power of attorney was

executed by them in favour of K.Narsimhulu under Ex.B5 and LNA, J

Narsimhulu, and in turn, instead of selling the property as per the

intention of his principals, sold the property to third parties and there

was some litigation and the issue was finally ended in a settlement

and the property was transferred in favour of predecessors-in-title of

the appellants.

10. It is further averred that plaintiffs by placing reliance on an

agreement of sale that was entered subsequent to the agreement of sale

between Sattaiah and Shankaraiah and their family members and the

plaintiffs have no right in the property as their agreements are

subsequent to the agreement of sale under which appellants acquired

rights. It is further averred that appellants also filed O.S.No.301 of

2021 before the II Additional District Judge, R.R. District at L.B.Nagar

against the respondent Nos.1 to 11 seeking declaration that impugned

judgment and decree dated21.06.2018 in O.S.No.723 of 2003 passed by

the trial Court as null and void and also seeking the other relief of

perpetual injunction in respect of the same property.

11. Before the first appellate Court, on behalf of the appellants,

XW.1 was examined and Exs.B1 to B76 were marked. On behalf of the

respondents, P.W.1 was examined and Exs.A11 to A17 and Ex.C1 were

marked.

LNA, J

12. The first appellate Court on re-appreciation of the evidence and

the material available on record, vide judgment and decree dated

14.03.2024 dismissed the first Appeal confirming the judgment and

decree passed by the trial Court. Hence, the present Second Appeal.

13. Heard Sri P.Sri Raghuram, learned Senior Counsel representing

Sri S.Malla Rao, learned counsel for the appellants on record and

Sri Chandrasen Reddy, learned Senior Counsel appearing for

respondent Nos. 2 to 6/plaintiffs.

14. The learned senior counsel for the appellants had contended

that the appellants herein are third parties to the judgment and decree

in O.S.No.723 of 2003 and the first appellate Court admitted the

A.S.No.16 of 2023 filed by the third parties granting leave. He further

contended that the Court grants leave to third parties only when it is

found that such party has locus standi and first appellate Court had

granted leave to the appellants/third parties by recognizing their

locus and therefore, appellants have stepped into the shoes of the

party aggrieved by the judgment and decree in O.S.No.723 of 2003.

15. Learned senior counsel further contended that first Appellate

Court has failed to follow the procedure laid down in Order XLI Rule LNA, J

31 of CPC and thus, the judgment and decree passed by the first

appellate Court is contrary to Order XLI Rule 31 of CPC since it failed

to consider the pleadings, assess the evidence of the parties, frame

relevant issues, which arise for adjudication; that first Appellate Court

without taking pains to analyze the grounds of appeal and also

re-appreciate the evidence being final Court on facts, had dismissed

the appeal, depriving the rights of the appellants/third parties by not

adverting to the pleadings, evidence and documents on record.

16. Learned senior counsel had further contended that the

appellants filed the documents before the first Appellate Court, which

are marked as Exs.B1 to B76 and the same were neither referred nor

considered by the first Appellate Court. Further, he contended that the

first Appellate Court erred in not framing the issues for consideration

while adjudicating the first appeal in clear contravention of Order XLI

Rule 31 of CPC.

17. In support of his contention, learned senior counsel for

appellants/third parties relied on the following decisions of the

Hon'ble Supreme Court:

LNA, J

i) Malluru Mallappa (dead) thorugh Legal Representatives v. Kuruvathappa and others 1

ii) A.V.G.P.Chettiar & Sons and others v. T.Palanisamy Gounder 2

18. In Malluru Mallappa (supra), the Hon'ble Apex Court held as

under:

"13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazariv. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , B.M. Narayana Gowda v. Shanthamma [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476 : (2014) 2 SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC 259] ]."

19. In A.V.G.P. Chettiar and Sons (supra), the Hon'ble Apex Court

held as under:

(2020) 4 SCC 313

(2002) 5 SCC 337 LNA, J

"22 ...First, an objection to the maintainability of the appeal, like other points of demurrer, may be relevant at the time of the admission of the appeal. Once the appeal is admitted without reserving the issue of maintainability and the matter is heard on merits, such a preliminary objection does not survive. ...."

20. On the other hand, the learned counsel for the respondents/

plaintiffs vehemently contended that the trial Court, after considering

the oral and documentary evidence, has rightly decreed the suit and

the same was confirmed by the first Appellate Court by giving cogent

reasons. He further contended that mere omission to frame point(s) for

determination does not vitiate the judgment of the first Appellate

Court. However, when it was pointed out that no independent issues

were framed by the first Appellant Court and that there is no re-

appreciation and independent analysis of evidence and also grounds

urged by the appellant were not even referred to by the first Appellant

Court, he fairly conceded that matter can be remanded to the first

Appellant Court for fresh adjudication.

Consideration:

21. The principal contention raised by the appellants herein is that

the first Appellate Court did not consider the material available on

record in proper perspective and had not framed points for

determination and further, the grounds raised and submissions made LNA, J

on behalf of the appellants have not been referred to in the judgment.

The judgments referred to by the appellants emphasizes the duty cast

upon the first Appellate Court to formulate the points for

determination and to undertake full, fair and independent

consideration of evidence and record reasons for its decision. The first

Appellate Court being final Court on facts, shall undertake

independent analysis of evidence, pleadings and record reasons for its

conclusion.

22. In Santosh Hazari vs. Purushottam Tiwari 3, the Hon'ble Apex

Court held as under:

"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. 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 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

(2001) 3 SCC 179 LNA, J

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 [1950 SCC 714 : 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......"

23. The above view has been followed by a three-Judge Bench

decision of this Court in Madhukar v. Sangram [(2001) 4 SCC 756],

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.

24. In Shasidhar and others vs. Aswini Uma Mathad and

another 4, the Hon'ble Apex Court at paragraph-11 had referred to

(2015) 11 SCC 269 [2015 (2) ALD 182 (SC] LNA, J

judgment passed in Kurian Chacko v. Varkey Ouseph 5, wherein it

was held that duty is casts upon the first Appellate Court to decide the

first appeal in accordance with Section 96 of CPC and further referred

to the observation made in the said judgment, which is reproduced as

under:

"11. ......

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."

24.1. At paragraph-16, the Hon'ble Apex Court had referred to

judgment of Hon'ble Apex Court in B.V.Nagesh v. H.V.Sreenivasa

Murthy 6, wherein it was observed as under:

"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

(2001) 3 SCC 179

(2010) 13 SCC 530: (2010)4 SCC (Civ) 809 LNA, J

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled."

24.2. Ultimately, at paragraph 21, the Hon'le Apex Court held as

under:

"21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law."

25. In Laliteshwar Prasad v. S.P. Srivastava (D) through L.Rs 7, the

Hon'ble Apex Court held as under:

"11. As per Order XLI Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order XLI Rule 31 CPC reads as under:

Order XLI Rule 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 propounded be signed and dated by the Judge or by the Judges concurring therein.

(2017) 2 SCC 415 LNA, J

It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision.

However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties."

26. In H.Siddiqui (Dead) by L.Rs. v. A.Ramalingam 8, the Hon'ble

Apex Court 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 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 consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions."

27. In Jalendra Padhiary v. Pragati Chhotray 9, the Apex Court held

as under:

(2011) 4 SCC 240

(2018) 16 SCC 773 LNA, J

"Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case, which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings recorded based on appreciation of evidence on all the material issues arising in the case."

28. Perusal of the judgment and decree dated 14.03.2024 passed by

the first Appellate Court would show that the first Appellant Court

has framed two issues i.e.,1) Whether the appeal is maintainable ? and

2) Whether the decree is liable to be set aside for fraud ?. Except this,

no independent points were framed by the first Appellate Court.

29. However, first Appellate Court failed to frame proper points for

determination, which is mandatory under Order XLI Rule 31 of CPC.

Further, the first Appellate Court being the final Court on facts, did

not undertake the exercise of detailed analysis of the evidence as well

as findings of the trial Court, contrary to Order XLI Rule 31 of CPC.

30. It is evident from the impugned judgment and decree that the

first Appellate Court failed to discuss all the grounds raised by the

appellants and record its findings. Further, the documents, which are

marked as Exs.B1 to B76 on behalf of the appellants herein are neither

referred to nor considered by the first Appellate Court.

LNA, J

31. In the light of the law laid down by the Hon'ble Apex Court,

referred to above, in considered opinion of this Court the first

Appellate Court failed to exercise its power under Order XLI Rule 31 of

CPC in proper perspective and had failed to formulate points for

consideration and to undertake full, fair and independent analysis of

evidence. Therefore, the impugned judgment and decree dated

14.03.2024 passed by the first Appellate Court is liable to be set aside

and accordingly, set aside.

32. In the result, the Second Appeal is disposed of and the matter is

remanded back to the first Appellate Court for fresh adjudication with

a direction to frame points for consideration, and pass a reasoned order

in accordance with law, by duly taking into consideration the evidence

and material placed on record. Observations made by this Court are

only for the purpose of disposal of present appeal and the first

appellate Court shall not be influenced by the observations if any,

made by this Court, while adjudicating the appeal. Since the suit is of

the year 2003, the first Appellate Court shall make an endeavour to

dispose of the first appeal as expeditiously as possible.

LNA, J

The interim stay granted by this Court on 27.03.2024 shall be in

operation till the disposal of the First Appeal on remand. There shall

be no order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

_________________________________ LAXMI NARAYANA ALISHETTY, J

Date: 13.02.2025 kkm