Chandra Shekhar v. Gur Prasad — 1981 DIGILAW 18 (ALL)

JUDGMENT V.K. Mehrotra, J. - This is a plaintiff's Second Appeal. 2. The suit, out of which the present appeal arises, was for the relief of possession over land denoted by letters E.F.A.D. in the plan at the foot of the plaint by demolition of certain constructions made by the defendants thereon. The case of the plaintiff was that the land in suit adjoined his residential house A B C D and was in his possession since the time of his ancestors as a owner. The defendants, according to the case of the plaintiff, forcibly took possession over the suit land and started raising constructions. They did not desist from doing so in spite of repeated requests and gave out that they had some right in their favour about the land in suit. Hence the necessity for the suit. 3. The plaintiff's case was resisted by the defendants on the ground that there was an agreement between them and the owner of the land in suit and further that in pursuance of that agreement, deed of sale was got executed by them from the widows of the owners after the institution of the suit. The plaintiff, according to the case set up by the defendants, had nothing to do whatsoever with the land in suit. 4. The trial court, on the pleadings of the parties, framed two issues, namely, "whether the plaintiff was the owner of the suit property?" and "the relief, if any, to which he was entitled?" Dealing with the first issue first, the trial court observed that there was practically no documentary evidence to support the case of the two parties and that the only document of title (Ex. A-1) was a sale-deed in favour of the second defendant which was executed in his favour on November 4, 1966 during the pendency of the suit on the date following November 3, 1966 when the defendants obtained time to file written statement. It then proceeded to notice the topography of the land in suit and the circumstances that it adjoined the plaintiff's house and that over it fell the water of the parnala existing in the house of the plaintiff, together with the evidence of the plaintiff, which it believed. The trial court answered the issue in favour of the plaintiff. It then proceeded to notice the topography of the land in suit and the circumstances that it adjoined the plaintiff's house and that over it fell the water of the parnala existing in the house of the plaintiff, together with the evidence of the plaintiff, which it believed. The trial court answered the issue in favour of the plaintiff. It dealt with the evidence of the witnesses of the defendants and gave reasons for not accepting their testimony. On an over all, consideration of the evidence and the circumstances of the case, the trial court gave the plaintiff the decree that was being sought. Aggrieved, the defendants went up against the decree in an appeal. 5. The lower appellate court, on re-appraisal of the evidence on record, answered the question of ownership of the land in suit against the plaintiff. It took the view that, inasmuch as, the plaintiff had failed to establish his title to the land in suit, he was not entitled to the decree which has been passed in his favour. As such, it reversed the decree and dismissed the plaintiff's suit. Hence the present second appeal. 6. Sri K.K. Bajpai, learned counsel for the plaintiff-appellant, has strenuously contended that the judgment of the lower appellate court did not deserve to be upheld for it disclosed that the lower appellate court had not applied its mind judicially to the evidence on record and yet reversed the conclusion of the trial court based upon appreciation of the evidence by it. His submission is that unless it found some special reasons to do so, the lower appellate court was not competent to reverse the conclusion arrived at by the trial court about the evidentiary value of the testimony of the witnesses of the parties. In support of this submission reliance has been placed by him on a number of decisions. The first of these decisions is in the case of Sarju Prasad Ram Deo Sahu v. Jwaleshwari Pratap Narain Singh, ( AIR 1951 S.C. 120 : 1951 All. L.J. 1) in which the Supreme Court observed (in paragraph 15 of the report) that " ...... The first of these decisions is in the case of Sarju Prasad Ram Deo Sahu v. Jwaleshwari Pratap Narain Singh, ( AIR 1951 S.C. 120 : 1951 All. L.J. 1) in which the Supreme Court observed (in paragraph 15 of the report) that " ...... where the controversy related to a pure question of fact which had to be determined by weighing and appraising of conflicting oral testimony adduced by the parties, the duty of the appellate court is to see whether the evidence, taken as a whole, can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the court outweighs such finding." and also (in paragraph 7 of the report) that in such cases, the appellate court has got to: bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. The rule is - and it is nothing more than a rule of practice - that where there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the 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 lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact." 7. These observations were made by the Supreme Court in a case where the High Court had reversed the conclusion of the trial court in a First Appeal, in the opinion of the Supreme Court, on insufficient grounds. The Supreme Court interfered with the decision of the High Court in an appeal to it against that judgment. The observations of the Supreme Court clearly mean that the rule that the first appellate court would not normally interfere with the appreciation made by the trial court of the evidence of the witnesses of the parties is one of practise. In fact this is what was held by H.N. Seth, J. in Vijai Nath v. Damodar Das Chela Shiv Mangal Das, (1970 All. L.J. 1260 : AIR 1971 All. In fact this is what was held by H.N. Seth, J. in Vijai Nath v. Damodar Das Chela Shiv Mangal Das, (1970 All. L.J. 1260 : AIR 1971 All. 109 ) upon which also reliance has been placed by Sri Bajpai. In that case, the learned Judge observed in paragraph 11 of the report that "Sec. 96 of the Code of Civil Procedure enjoins upon an appellate court to hear the appeal and to arrive at its own conclusion about the controversy raised in the suit. It is not bound by the findings recorded by the trial court in the same manner as a second appellate court is bound by the findings of fact recorded by a lower appellate court. It is well established that an appeal is continuation of the suit and the appellate court has got to re-assess the evidence produced in the case. It would therefore be incorrect to say that lower appellate court commits an error of law if it re-assesses the oral evidence and comes to a conclusion different from that of the trial court." The learned Judge noticed the above observations of the Supreme Court (in paragraph 14 of the report) and then declined to interfere with the conclusions arrived at by the lower appellate court on questions of fact after reversing those arrived at by the trial court. In paragraph 15 of the report, the learned Judge observed in respect of the observations made by the Supreme Court in the case aforesaid that "the rule is that when there is a conflict of oral evidence of the parties on any matter in issue, then, unless there is some special feature about the evidence of a particular witness which has escaped the notice of the trial Judge or there is sufficient balance of probability to displace the opinion of the trial Judge as to where credibility lies, the appellate court should not interfere with a finding of fact recorded by the trial Judge. This is nothing more than a rule of practice. This is nothing more than a rule of practice. It is, therefore, generally desirable that while appraising evidence of witnesses the appellate court should (keep the aforesaid rule in mind, but it does not mean that it should) not appraise the evidence for itself and it commits a mistake of law if it arrives at a conclusion different from that arrived at by a trial court." (The words which have been mentioned in brackets above appear to have been omitted in paragraph 15 of the report contained in All. L.J.) 8. For the reasons given by me in Pheroo v. Umrao (Second Appeal No. 218 of 1980 decided on 28-7-1980 Reported in AIR 1981 All. 27 ), the decisions in Keluni Dei v. Kanhei Sahu (A.I.R. 1972 Orissa 28) and Sarjug Rai v. Maheshwari Devi (A.I.R. 1975 Pat. 192) which have also been cited by Sri Bajpai, cannot be said to assist him in his submission. In Gopi Tihadi v. Gokhei Panda (A.I.R. 1954 Orissa 17) the observations contained in paragraph 8 of the report have to be confined to the context in which they have been made. They do not lay down a rule different from the one laid down by the Supreme Court in Sarju Prasad's case (1951 All. L.J. 1) (supra) that the rule about the scope of interference with the assessment of evidence of the trial court by the lower appellate court is one of practice. 9. In Ramachandra Ayyar v. Ramalingam Chettiar (A.I.R. 1963 S.C. 302 : 1963 All. L.J. 67) it has been laid down by the Supreme Court in unmistakable terms that it is not permissible for the High Court while hearing an appeal under section 100 C.P.C. to interfere with the finding of fact recorded by the lower appellate court, where the finding is one sustainable on the evidence on record, merely on the ground that the judgment of the lower appellate court was not as elaborate as that of the trial court or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate court. It negatived the submission made before it that the judgment of the appellate court "must come into close quarters" with the judgment of the trial court. The Supreme Court observed thus (in paragraph 17 of the report): "We must, therefore, hold that Mr. It negatived the submission made before it that the judgment of the appellate court "must come into close quarters" with the judgment of the trial court. The Supreme Court observed thus (in paragraph 17 of the report): "We must, therefore, hold that Mr. Chatterjee is not right in contending that because the judgment of the lower appellate court was not as elaborate as that of the trial Judge, or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate court, the High Court was entitled to interfere with the conclusions of the lower appellate court. The question which arose for the decision of the courts of fact was a simple question of fact - Was the release deed executed by respondent No. 2 in favour of the appellants justified by adequate consideration? Had respondent no. 2 independent advise at the time when he signed the said document? Did he act bona fide, or was he imposed upon?- these were the points that arose between the parties on their pleadings. It would be noticed that these points present pure question of fact their decision depended in the present case on appreciating the oral evidence adduced in support of the rival contentions, documents produced by the parties, their conduct and surrounding circumstances. In other words, what the courts of fact were called upon to consider and decide were questions of fact in the light of all relevant evidence. That being so, we do not think the High Court was justified in interfering with the finding of fact recorded by the lower appellate court in favour of the appellants." 10. As in the case before the Supreme Court, the only question which was to be gone into by the courts below in the instant case was as to whether the plaintiff had succeeded in establishing that he was the owner of the land in suit. The determination of this question depended entirely upon appreciation of oral evidence of the parties for, as noticed by both the courts below, there was no documentary evidence in support of the plaintiff's title and that a sale-deed in favour of defendant no. 2 had been obtained during the pendency of the suit. The lower appellate court, for reasons given by it in its judgment, did not find the testimony of the plaintiff's witnesses reliable. 2 had been obtained during the pendency of the suit. The lower appellate court, for reasons given by it in its judgment, did not find the testimony of the plaintiff's witnesses reliable. Further, it accepted the defendants evidence in regard to there being an earlier agreement for the sale of the property in suit to the defendants by the deceased owner Fakire and Smt. Heera, his brother's, widow. The lower appellate court was entitled to come to its own conclusion about the credibility of the witnesses of the plaintiff. 11. On the finding arrived at by the lower appellate court, namely, that the plaintiff had failed to establish that he was the owner of the land in suit, it is obvious that the plaintiff could not claim any relief in respect thereof. The suit in these circumstances, was rightly dismissed. 12. In sum, the appeal lacks merit and is dismissed but, in the circumstances of the case, without any order as to cost.