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2001 DIGILAW 697 (PNJ)

Baldev Singh v. Malkiat Singh

2001-07-17

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. (Oral) - After hearing the learned counsel for the appellant, I am of the opinion that the judgment and decree passed by the first appellate Court cannot be sustained in the eyes of law for a moment. Some facts can be noticed in the following manner : 2. This is a defendants appeal and has been directed against the judgment and decree dated 6.8.1987 passed by the Court of Additional District Judge, Patiala, who affirmed the judgment and decree dated 23.11.1987 passed by the Court of Sub Judge Ist Class, Fatehgarh Sahib who decreed the suit of the plaintiff-respondents. 3. The brief facts of the case are that the plaintiffs filed a suit for declaration to the effect that the decree passed in Civil Suit No. 464 dated 5.12.1984 titled Baldev Singh vs. Amar Singh is null and void, inoperative, against the rights of the plaintiffs and the plaintiffs further sought a declaration that they have become owners and in possession of the property mentioned in the head note of the plaint. It was further prayed by the plaintiffs that the decree for permanent injunction be passed in their favour and against the defendants restraining the defendants from interfering into the possession of the plaintiffs over the property and further the defendants be restrained from alienating the same in any manner whatsoever. The case set up by the plaintiffs in the trial Court was that plaintiff No. 1 and defendant No. 5 are the sons while plaintiff Nos. 2 and 3 and defendant Nos. 6 and 7 are daughters of defendant No. 1 and they are the members of Joint Hindu Family governed by Mitakshra School of Hindu Law. The plaintiffs are unmarried and the lands mentioned in letters C and D in the head note of the plaint are out of land mentioned in letters A and B and that the land mentioned in letters A and B was Joint Family coparcenary/ancestral property of the plaintiffs and defendant Nos. 1, 5, 6 and 7. The plaintiffs are unmarried and the lands mentioned in letters C and D in the head note of the plaint are out of land mentioned in letters A and B and that the land mentioned in letters A and B was Joint Family coparcenary/ancestral property of the plaintiffs and defendant Nos. 1, 5, 6 and 7. It is further alleged by the plaintiffs that about five years back a family dispute arose between the parties regarding the land which was resolved with the intervention of the relatives and friends and the same ended into oral family settlement in which defendant No. 1 declared the plaintiffs to be owners and in possession of the land mentioned in letters C and D of the head note of the plaint and was fully acted upon by the parties in good faith and bona fide intention and since then the plaintiffs are in continuous possession of the same. It is alleged that against the aforesaid settlement, defendant No. 1 suffered collusive decree dated 17.12.1984 in Civil Suit No. 464 dated 5.12.1984 against him and in favour of defendant No. 5 in respect of the land including the suit land. It is alleged that in case the family settlement is not proved, then the land is still Joint Hindu family coparcenary/ancestral property of the parties and the decree passed in favour of defendant No. 5 against defendant No. 1 is illegal, null and void, collusive, inoperative and ineffective qua the rights of the plaintiffs as the same is the result of fraud, mis-representation and undue influence exercised by defendant No. 5 to defendant No. 1. It is further alleged by the plaintiff that the defendants are threatening to oust the plaintiffs from the suit land. 4. Notice of the suit was given to the defendants who filed the written statement and denied the allegations. According to the defendants the plaintiffs have no concern with the suit property nor they have any joint Hindu family with the defendants. The suit property is not joint coparcenary property of the parties, rather it is a self-acquired property of defendant No. 1. According to the defendants the plaintiffs have no concern with the suit property nor they have any joint Hindu family with the defendants. The suit property is not joint coparcenary property of the parties, rather it is a self-acquired property of defendant No. 1. However, defendant No. 1 admitted the filing of the suit by defendant No. 5 and also passing of the decree and stated that the decree is valid one which is based on family settlement which took place in the family of defendant No. 1 and, as such, the decree confers valid title on defendant No. 5. Since the plaintiffs have no concern with the suit land, therefore, there was no necessity to have their consent before entering into any family settlement in favour of defendant No. 5. 5. On the pleadings of the parties, the trial Court framed the following issues : 1. Whether the decree passed by Sub Judge Ist Class Fatehgarh Sahib in suit No. 464/5 dated 5.12.1984 titled Baldev Singh Vs. Amar Singh is collusive, null and void and illegal and against the rights of the plaintiffs ? OPP 2. Whether the plaintiffs are owners of the property in dispute on the basis of alleged family settlement as mentioned in sub-para (4) of the plaint ? OPP 3. Whether the plaintiffs are entitled to the declaration and injunction prayed for ? OPP 4. Whether the property in dispute is coparcenary property of the parties ? OPP 4-A Whether plaintiff No. 1 is the son and plaintiff Nos. 2 and 3 are daughters of Amar Singh defendant No. 1 ? OPP 5. Relief. The parties were given opportunities to lead evidence in support of their case. On the conclusion of the trial, the trial Court decreed the suit vide impugned judgment dated 23.11.1987. Not satisfied with the judgment and decree, the defendants filed an appeal before the Court of Additional District Judge, Patiala, who vide his judgment and decree dated 6.8.1994 dismissed the appeal. The learned District Judge, Patiala, dismissed the appeal for the reasons given in paragraphs 6, 8 and 9 which are reproduced as under : "I have heard the learned counsel for the parties on the application under Order 6 Rules 7 C.P.C. as well as application under Order 1, Rule 20 C.P.C. and also in the main appeal and have gone through the record. The learned counsel for the appellants have not assailed the findings of the learned trial Court on all the issues. Otherwise also I have gone through the judgment of the trial Court and find no ground to interfere with the findings of the trial Court. Hence the findings of the trial Court are correct and the same stand affirmed. The net result is that the appeal fails and is hereby dismissed." Not satisfied with the judgment and decree of the learned Additional District Judge, hence the second appeal. 6. I have heard Shri R.S. Mittal, learned Senior Advocate appearing for the appellants and with his assistance, have gone through the record of the case. No assistance has been given from the side of the respondent. 7. Learned counsel for the appellants has rightly submitted at the very outset that the so-called judgment dated 6.8.1994 is no judgment in the eye of law as the alleged judgment is not in conformity with the provisions of Order 20 Civil Procedure Code. In support of his contention, learned counsel for the appellant relied upon Rule 20, Order 4(2) C.P.C. which lays down that "judgment of every court shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision". The counsel submits that the reading of judgment dated 6.8.1994 shows that the first appellate Court never applied its mind to the controversy in dispute and has wrongly stated in the order that the counsel appearing on behalf of the appellants before the first appellate Court has not assailed the findings of the learned trial Court on all the issues. He further submits that as per Order 20, Rule 5, it was obligatory upon the Court to give its finding or decision with reasons on each and every separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. 8. There is a merit in the contentions of the learned counsel for the appellants. Admittedly, in this case, the issues were framed and the appellants have assailed the findings of the trial Court on various issues and in these circumstances, it was obligatory on the part of the first appellate Court to give specific finding with regard to the contentions raised before him. Admittedly, in this case, the issues were framed and the appellants have assailed the findings of the trial Court on various issues and in these circumstances, it was obligatory on the part of the first appellate Court to give specific finding with regard to the contentions raised before him. The record of the first appellate Court further shows that the first appellate Court heard the arguments on 3.8.1994 judgment reserved and the order was pronounced on 6.8.1994. When the arguments were addressed and were heard by the Presiding Officer, it was obligatory upon him to write the judgment with reasons clearly indicating the controversy involved and by dealing the submissions raised by the learned counsel for the parties. Nothing has been done in the present case. The first appellate Court has simply written in paragraph 8 of the judgment that the learned counsel for the appellants did not assail the findings of the learned trial Court on all the issues. Otherwise, he had gone through the judgment of the trial Court and found no ground to interfere with the findings of the trial Court. This cryptic and casual dealing by the first appellate Court is not in conformity with the provisions of Order 20, Rules 4 and 5 C.P.C. Even the Order 41, Rule 31 C.P.C. lays down that the judgment of the appellate Court shall be in writing and shall state - the points for determination; the decision thereon: the reasons for the decision; and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. No sanctity has been granted by the learned first Appellate Court to the mandatory provisions of Order 41, Rule 31 of the Civil Procedure Code. 9. There is one more ground to set aside the judgment and decree of the first appellate Court. The record of the first appellate Court shows that the defendants made an application under Order 41, Rules 27 C.P.C. for leading additional evidence. This application was moved on 18th October, 1989. Reply was taken but no separate order was passed. 10. In view of the totality of the circumstances highlighted above, I am of the considered opinion that the impugned judgment is no judgment in the eye of law and cannot be acted upon. This application was moved on 18th October, 1989. Reply was taken but no separate order was passed. 10. In view of the totality of the circumstances highlighted above, I am of the considered opinion that the impugned judgment is no judgment in the eye of law and cannot be acted upon. Resultantly, the appeal is allowed, the judgment and decree dated 6.8.1994 is hereby set aside and the case is remanded back to the successor Court at Patiala to restore the appeal to its original number and decide the same in accordance with law after giving notice to both the parties within six months from the receipt or copy of this order. The first appellate Court shall also decide the application pending under Order 41, Rule 27 C.P.C. 11. Learned counsel for the appellants has been directed to appear before the first appellate Court on 1.8.2001. The records of the trial Court as well as the first appellate Court be sent forthwith to the court of the Additional District Judge, Patiala. Appeal allowed.