Dharnidhar Tiwary v. Hirshakesh Tiwary — 1984 DIGILAW 28 (PAT)

JUDGMENT ASHWINI KUMAR SINHA, J. 1. This Second appeal is by the defendants against the judgment of affirmance. 2. The plaintiffs brought a representative suit for declaration of customary right of user on a village path over an area of 1 kathas 2-1/2 dhurs comprised of Revisional Survey plot nos. 3169, 3178 and 3179 (as described in the plaint). 3. In short, the case of the plaintiffs was that mauza Surajpura consisted of two Tolas 'Ta' and 'Tha' and they were contiguous to each other. The plaintiffs' case was that their houses were situate in the said Tolas. According to the plaintiffs, there were two roads, one Chapra Salempur District Board road and another, a village road in plot no. 3182 and both these roads run north to south. According to the plaintiffs there was one more village road over an area of 1 katha 2.1/2 dhurs comprising of plot nos. 3169, 3178 and 3179 running east to west and also connecting the District Board road and the village road in plot no. 3182, just mentioned above. The road in quest on comprising of plot nos. 3169, 3178 and 3179 was a very old village path used by the inhabitants of both the Tolas and also by public in general since time immemorial. The plaintiffs' case was that defendant no. 5 closed this path way by cultivating the suit plot nos. 3179 and 3178. The plaintiffs' case was that despite a complaint by the plaintiffs' before the Land Reforms Deputy Collector no action was taken and thereafter the plaintiffs served notice under section 80 of the Code of Civil Procedure upon the Collector and it is only thereafter that the suit was filed. 4. The suit was contested by the defendant–appellants. The defendants did not dispute the existence of the village road in plot no. 3169 but their case was that there was no road in existence in plot nos. 3178 and 3179. The main defence was that Harihar Tiwary, father of defendant no. 1, took settlement of these two plots 3178 and 3179 from the ex–landlord having paid najranas of Rs. 20/- and Rs. 25/- respectively, before the settlement operation and since then both these plots have been coming in peaceful cultivating possession of the defendants. The defendants further claimed that in course of enquiry the possession of the defendants was found by the authorities over these two plots. 20/- and Rs. 25/- respectively, before the settlement operation and since then both these plots have been coming in peaceful cultivating possession of the defendants. The defendants further claimed that in course of enquiry the possession of the defendants was found by the authorities over these two plots. 5. It is pertinent to note that the State of Bihar through the Collector of Siwan was also made a party to this suit as defendant no. 6. The State of Bihar (defendant no. 6) also filed a written statement and denied the allegations made in the plaint and, the State of Bihar, in its turn, claimed these two plots to be in its possession since the date of vesting, and claimed that it had full right to make the settlement. It was averred by the State of Bihar that these two plots were not public road and therefore, the suit filed by the plaintiffs under Order 1 Rule 8 of the Code of Civil Procedure was not legal. 6. The trial court framed seven issues out of which Issue Nos. 4, 5 & 6 were as follows:– "4. Whether the suit land is rasta and whether it has been used as such since time immemorial by the plaintiffs and residents of village Surajpura and the adjoining villages? 5. Whether the plaintiffs have got customary right to use the suit land as rasta? 6. Whether the story of settlement and possession as alleged by the defendants 1 to 5 is correct?" The trial court tried these issues together and on a detailed discussion of the materials on the record decided these issues in favour of the plaintiffs and held as follows:– "I therefore hold that the rasta has been in existence through out survey plot no. 3178 and 3179 from east to west and that the width of this rasta has been 15 links from north to south beginning from the southern boundary line of these two plots namely; plot nos. 3178 and 3179. The issues under discussion are decided accordingly." The trial court while considering these three main issues went into detail of the oral and documentary evidences that were on the record. 7. Thereafter the defendants preferred an appeal and this appeal was numbered as Title Appeal No. 141/144 of 1966/75. 3178 and 3179. The issues under discussion are decided accordingly." The trial court while considering these three main issues went into detail of the oral and documentary evidences that were on the record. 7. Thereafter the defendants preferred an appeal and this appeal was numbered as Title Appeal No. 141/144 of 1966/75. The court of appeal below, when it disposed of the title appeal, just mentioned above, allowed it and set aside the judgment and the decree of the trial court and remanded the suit to the trial court with a direction to add and frame one more issue, viz. Whether notice under section 80 of the Code of Civil Procedure was properly served on the State of Bihar or not? And directed the trial court to allow the parties to adduce evidence on this point and only thereafter to deliver a fresh judgment in the suit. For the purpose of the instant second appeal if is very pertinent to quote the operative part of the judgment of the court of appeal below which disposed of Title Appeal No. 141/144 of 1966/75. "Ordered that the appeal is allowed on contest. The judgment and decree of the lower court is set aside and the suit is remanded to the lower court to add a new issue as directed above and after allowing the parties to adduce evidence on this point to deliver a fresh judgment in the suit. No cost of the appeal is awarded. Each party would bear its own cost of the appeal." Though it is true that the court of appeal below while disposing of Title Appeal No. 141/144 of 1966/75 did not go into any other issues decided by the trial court, yet, none the less on a substantial point raised by the defendant–appellants the court of appeal below set aside the judgment and the decree of the trial court, as just stated above and as just also quoted above. 8. When the matter went back by way of remand to the trial court to dispose of the suit afresh after framing of a new issue, as mentioned above and after allowing the parties to adduce evidence on that point, the trial court this time, as directed by the lower appellate Court, framed new issue as issue no. 7 and with regard to the main issues, that is, issue nos. 7 and with regard to the main issues, that is, issue nos. 4, 5 and 6, (which have been quoted in the beginning of this judgment) gave a very sketchy finding in these terms:– 9. Issue nos. 4, 5 & 6. These three issues have been already framed and considered very thoroughly by Shri Mahendra Prasad Singh, Munsif 2nd, Siwan, in his judgment dated 27th of April, 1966. I have gone through the entire evidences oral and documentary of both sides on these three issues and come to the same conclusion to which the learned Munsif reached at that time of writing judgment in the first trial. Like the learned Munsif 2nd I also declare these issues in favour of the plaintiffs without discussing the evidences once again because it will be nothing but the repetition of the same discussions. Discussion was indispensable in case of differences with the learned Munsif on these three issues. These three issues are therefore decided once again in favour of the plaintiffs." 9. It is really very surprising and in my opinion, shocking as well, that even though the court of appeal below had set aside the judgment as well as the decree of the trial court and directed it to deliver the judgment afresh, the trial court gave no independent finding on these three main issues involved in the suit and only in a very sketchy manner, held, as quoted above. This finding on the main issues (issue nos. 4, 5 & 6), as just quoted above, is absolutely un-understandable unless one links the present judgment of the trial court with the judgment delivered by it initially before the order of remand by the court of appeal below. I have already stated above that the first judgment of the trial court was set aside by the lower appellate court and when the judgment and the decree of the trial court were set aside, there was no finding on any issues which could be looked into in the eye of law, and there was no judgment and there was no decree and for the trial court, while delivering the judgment after the order of remand, to say that it comes to the same conclusion to which it had come earlier, is, in my opinion not only surprising but shocking at the same time. The trial court should have realised that if the first judgment and the decree of the trial court were set aside this time, after the order of remand was passed, it had to apply its judicial mind once again and had to appraise the oral and documentary evidence on the record in its correct perspective, and, only thereafter it could come to a positive, categorical and unequivocal finding, which was not to suffer from any vagueness or perversity. Learned counsel for the defendant–appellants has taken me through the judgment of the trial court (delivered at the second time after the order of remand) and I do not find as to actually what findings were arrived at on the main issue nos. 4, 5 and 6 by the trial Court. One has to link it up necessarily with the earlier judgment which was a dead one (having already been set aside). 10. On the newly framed issue (as directed by the court of appeal below at the first instance) the trial court decided the issue against the defendant/appellants and held that the State of Bihar (defendant no. 6) was properly served and it has further held in paragraphs 12 and 13 of its judgment, which are almost concluding paragraphs as follows:– "12. On the score of the above findings it has been found that there has been a rasta through survey plot nos. 3178 and 3179 from east connecting the village road bearing plot no. 3182 throught out the length of the plot from east to west in continuation of the rasta over plot no. 3169 which emerges from Chapra–Salempur Road. It has been further found that the width of this rasta is 15 links from the southern boundary line of 3179 and 3178. The defendants are restrained permanently from interfering in the right of easement of the plaintiffs. 13. As a result of the above observation it is held that the plaintiffs are entitled for the, adjudication as prayed for and he is consequently entitled to the reliefs sought for in the plaint." Though, as just quoted above, it has been said that "it has been found" there is no finding at all in the trial court judgment .as stated in paragraph 12, just quoted above. If what has been held in paragraph 12 of the judgment of the trial court can be said to be a finding, then it cannot be sustained in law as it is not in accordance with law, because, there is no discussion, whatsoever, on what has been stated in paragraph 12. The trial court, it seems, thought even though the judgment and the decree of the trial court, which were passed initially, were set aside by the court of appeal below, the findings were still good findings. If the trial court felt as such and the way it has disposed of the suit (after the order of remand) it cannot be said that it thought otherwise. It passes mental comprehension that the trial court took the findings arrived at by it initially still good findings, even though its judgment and the decree were set aside. Any way, the trial court this time as well (after the order of remand) decreed the plaintiffs' suit. 11. Thereafter the defendants again preferred an appeal against the judgment and the decree of the trial court (passed after the order of remand). This appeal was numbered as Title Appeal No. 56/2 of 1978/81. The court of appeal below dismissed the defendants' appeal and affirmed the judgment and the decree of the trial court (after the order of remand by the court of appeal below at its first instance). The court of appeal below took the view that the order of remand passed by it at its first instance having been made merely on the omission of framing of an issue by the trial court, no finding on any issue decided by the trial court initially was given and hence the findings of the trial court given at the first instance were not set aside by the appellate court even though the judgment and the decree of the trial court were set aside. Such a view taken by the court of appeal below is more shocking and more surprising than the view taken by the trial court. The view taken by the court of appeal below this time (second time) that the judgment of the trial court delivered at the first instance was still a good judgment and the findings given by the trial court then were still good findings, is not only perverse but, in my opinion, also most unreasonable. 12. The view taken by the court of appeal below this time (second time) that the judgment of the trial court delivered at the first instance was still a good judgment and the findings given by the trial court then were still good findings, is not only perverse but, in my opinion, also most unreasonable. 12. The court of appeal below, it is true, took into consideration the main issue with regard to the claim of the plaintiffs and discussed the oral evidence adduced by the plaintiffs and has held as follows:– "The above referred evidence proves beyond all reasonable doubt that there was a public road running east to west connecting 2 main roads and that was used by public in general including the inhabitants of villages, Ta and Tha of village Surajpura. The existence of the road on plot No. 3169 creates a favourable circumstance in support or the existence of the village road in plot Nos. 3179 and 3178 (wrongly typed as 1378)." 13. I have already stated above that the trial Court, when it was directed by the court of appeal below in its first instance to frame a new Issue and to decide the suit afresh after hearing the parties, should have applied its judicial mind once again on all the material issues involved in the suit based upon oral and documentary evidences on the record and only then should have taken one view or the other; but though it will bear repetition, it somehow or the other, under wrong notion of law, took the findings given by the trial court given by the first instance (before the order of remand) to be still subsisting and valid findings in law and did not deal with any evidence, whatsoever, on the record and just said that it would only be a repetition as discussion has already been made in the first judgment given by the trial court. The court of appeal below thus had no occasion to know the reasoning of the trial court, as there is no reasoning, whatsoever, except the finding (as if the reasoning given by the trial court in its first judgment were still valid and proper in law). The court of appeal below thus had no occasion to know the reasoning of the trial court, as there is no reasoning, whatsoever, except the finding (as if the reasoning given by the trial court in its first judgment were still valid and proper in law). In the circumstances of the case the appropriate order for the court of appeal below was only to direct the trial court to allow the parties to adduce evidence on the new issue framed by the court of appeal below itself and to direct the trial court to give its own finding upon that newly framed issue after hearing the parties and to send its finding on that issue back to the court of appeal below, instead of setting aside the judgment and the decree of the trial court and thereafter the court of appeal below should have disposed of the appeal on the materials already on the record and in accordance with law. What is surprising is that the court of appeal below took the same, wrong view of law that even though the judgment and the decree of the trial court were set aside, the findings given by the trial court (in its first judgment) were still good findings. To take such a view was not expected from the court of appeal below. 14. Thus, for the foregoing reasons, I hold that the trial court judgment is wholly perfunctory as it has not given any reason for the findings arrived at on the main issues (issue Nos. 4, 5 & 6) except telling that the reasoning were already there in its judgment delivered at the first instance. 15. Learned counsel appearing for the defendant–appellants has submitted that the court of appeal below has committed a serious error in law by taking a view that the findings of the trial court given in its first judgment were still good findings in law, even though the judgment was set aside by the court of appeal below. In my opinion, there is enough force in the submission advanced by the learned counsel for the appellants. In my opinion, there is enough force in the submission advanced by the learned counsel for the appellants. Once the judgment and the decree of the trial court were set aside and the matter was remanded to it and the trial court was directed to decide the suit afresh, the findings given earlier did not subsist and those findings could not be looked into or accepted by the court of appeal below. 16. Learned counsel for the defendant–appellants has further submitted that the defendants, in support of their case, examined as many as ten witnesses and also adduced the material documentary evidences, which were considered by the trial court at the first instance (though that judgment was upset by the court of appeal below) and neither the trial court nor the court of appeal below has discussed the defendants' material evidences-oral and documentary-and in that view of the matter the learned counsel for the defendant–appellants has submitted that the judgments and the decrees of the courts below need to be interfered with by this Court. In my opinion, there is sufficient force in the submission advanced by the learned counsel for the defendant-appellants. The court of appeal below without discussing the vidence of the defendant–appellants and without applying its judicial mind independently has just said as follows:– "So far the evidence adduced by the defendants-appellants in denial of the existence of village road over plot no. 3179 and 3178 inspires no confidence. Not only this the story of settlement of those plots 3179 and 3178 with the defendant by the ex–landlord before the survey settlement operation has not been proved by the defendants–appellants. The mere omission of rasta over plot no. 3179 and 3178 does not dispel the truth of the existence of the village road over the same as part of that road still in existence over plot no. 3169 (wrongly typed as 3159)." 17. The instant case is not a case where the trial court bas discussed the evidence of the parties and then came to the conclusion. The trial court gives no reasoning, whatsoever, except just the findings and I have already held above that such a judgment of the trial court is most perfunctory. 3169 (wrongly typed as 3159)." 17. The instant case is not a case where the trial court bas discussed the evidence of the parties and then came to the conclusion. The trial court gives no reasoning, whatsoever, except just the findings and I have already held above that such a judgment of the trial court is most perfunctory. If the trial court could have discussed evidence on the record (oral and documentary) and then come to findings, in that case it was not necessary for the appellate court to deal with each and every reasons given by trial court or discuss in detail or covering in detail the same grounds as were given by the trial Court. It is again well settled that if on a perusal of the appellate court's judgment one comes to a conclusion that the appellate court has fully and adequately applied its mind to all the relevant materials and evidence in connection with the particular issues and then has given its own reasoning's then this Court in second appeal would not upset the findings of the appellate court as if the appellate Court discharges its duties in the way as just stated above, it is enough in law and the High Court sitting in second appeal would not interfere with the findings of the lower appellate court. 18. It is also well settled that simply recording findings of fact, without any discussion of the evidence, is no judgment at all. It must appear from the judgment itself that the court of appeal below has considered all the reasoning given by the trial court, if it comes to the contrary conclusion or if it affirms the findings of the trial court, the well settled principle has just been stated above. The appellate court being final court of fact has been entrusted with a very important duty and it is for that court to decide finally all questions of fact on which the disposal of the suit might depend and it must appear from the judgment of the lower appellate court that it has made an honest endeavour to make proper appraisement of the merits of the case put forward by the parties and it should never appear to the litigant public or to the superior Court that it has agreed with the trial court because it was not inclined to take the trouble over the case. The judgment must show that it has applied its own judicial mind to the evidence adduced by the parties. 19. As I have already stated above, the lower appellate court has totally ignored the oral and material documentary evidence adduced by the defendant–appellants and there is no whisper about the same, much less any discussion about it, except that as quoted above. In view of the settled principle, as stated above, in my opinion, the lower appellate court has failed to discharge its duty being final court of fact. I may have been reluctant to accept the submission advanced by the learned counsel for the defendant–appellants if the trial court, after the order of remand, would have discussed the evidence of the parties on the main issues involved in the suit, and then would have come to a finding. As already stated above, the trial court (after the order of remand) does not give any reason whatsoever. The judgment of the trial court delivered at the first instance stood set aside and no finding given by it at the first instance could be looked into. 20. Thus, in my opinion, both the submissions advanced by the learned counsel for the defendant appellants succeed and I hold that neither the judgment of the lower appellate court nor the judgment of the trial court is in accordance with law. 21. In the result, the appeal is allowed and the judgments and the decrees of the courts below are set aside, but in the facts and the circumstances of the case, there will be no order as to costs. Ordinarily I would have sent the matter back to the lower appellate court itself, but, as the trial court judgment, as stated above, is wholly perfunctory and not in accordance with law, giving no reasons whatsoever for the findings arrived at, the case is sent back to the trial court for a fresh judgment. The trial Court will hear the parties and decide all the issues involved in the suit afresh in accordance with law on the materials (oral and documentary) already on the record. The parties will be entitled to argue all the points available to them. 22. The trial Court will hear the parties and decide all the issues involved in the suit afresh in accordance with law on the materials (oral and documentary) already on the record. The parties will be entitled to argue all the points available to them. 22. As the case has a very chequered history and the suit is old by 22 years (having been filed in 1961) the trial court is directed to dispose of the suit as expeditiously as possible, preferably within four months .from the date of the receipt of a copy of this judgment and the records of the case. 23. Let the records of the case be sent down to trial court at once, without any delay. Appeal allowed.