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2003 DIGILAW 111 (AP)

Thummala Kanakamma v. Vottikala Venkataswamy

2003-01-22

DUBAGUNTA SUBRAHMANYAM

body2003
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS appeal is filed against the judgment and decree dated 17th August, 1989 passed in A. S. No. 85 of 1986 (A. S. No. 82 of 1985 on the file of the Sub Court, Kavali) on the file of the Subordinate Judge, Kovur confirming the judgment and decree dated 28-8-1985 in O. S. No. 101 of 1981 on the file of the Additional District Munsif, Kovur in Nellore District. ( 2 ) NECESSARY facts, for the disposal of this appeal, are as follows: Plaintiffs and defendants are owners of adjacent lands. The plaintiffs claimed that the defendants encroached into Ac. 0. 03 Cents of land belonging to the plaintiffs. They filed the suit for declaration of their title and possession of the said land. The defendants contested the suit taking the plea that they did not encroach into any land belonging to the plaintiffs. During the pendency of the suit the Trial Court appointed a local Advocate as Commissioner to take measurements of the disputed lands, note the physical features and file his report. The Commissioner filed his report. He gave evidence as PW. 2. His report and plan are marked as Exs. C2 and C3. On a consideration of evidence adduced by both the parties the trial Court came to the conclusion that the defendants encroached into the land of the plaintiffs. However, the trial Court dismissed the suit on the ground that plaintiffs failed to establish the total extent of the land encroached by the defendants and to localize the area encroached by the defendants. Aggrieved by the said judgment and decree of the trial Court the plaintiffs preferred an appeal. The lower Appellate Court concurred with the findings of the trial Court and dismissed the appeal. Aggrieved by the judgment of the lower Appellate Court the plaintiffs preferred the present appeal. ( 3 ) AT the time of admission of this appeal the learned Admission Judge treated the following points formulated in the memorandum of appeal as substantial questions of law that arise for consideration in the present appeal. (I) Whether the judgment of the appellate Court can be considered to be a judgment in law, when there is no discussion either to the oral evidence or to the documentary evidence much less even any reference to both. (I) Whether the judgment of the appellate Court can be considered to be a judgment in law, when there is no discussion either to the oral evidence or to the documentary evidence much less even any reference to both. (ii) Whether the judgment of the appellate court can be considered to be a judgment in law when there is no statement of reasons while confirming the findings of the trial Court. (iii) Whether the appellate Court, as the final Court on findings of fact can render a judgment without discussing any oral or documentary evidence adduced in the case or without giving any reasoning while confirming the findings of fact. ( 4 ) IN its judgment the lower appellate Court briefly referred to the pleadings of both the parties. Thereafter, it referred to the contentions advanced by both the parties before it. It did not frame any point for consideration for disposal of the appeal. Para 7 of the judgment of the lower Appellate Court is the purported discussion made by the lower appellate Court. For better appreciation of the dispute involved in the present appeal I extract hereunder the entire Para 7 of the judgment of the lower appellate Court. " In Para 12 the lower Court has discussed the evidence on record. The lower Court has observed that the plaint schedule contains that the eastern boundary is 3 cents east to the defendants land, that the western boundary is only to the extent of 3 cents of land to the tank bund, that D. W. 2 deposed that on the west of the plaintiffs land there is donka and that on the west of the donka there is tank bund, that the plaintiffs allege that on the east of the encroached portion there is garden land of the defendants and to the west there is land of the plaintiffs, that the plaint schedule property does not tally with the evidence, that the plaintiffs have not taken steps to localize the encroachment and that the declaration cannot be granted. This Court agrees with the findings of the lower Court on issue No. 1. " ( 5 ) IN Para 8 of its judgment the lower appellate Court stated that the lower Court held the 2nd issue in favour of the defendants and it agrees with the finding of the lower Court on issue No. 2. This Court agrees with the findings of the lower Court on issue No. 1. " ( 5 ) IN Para 8 of its judgment the lower appellate Court stated that the lower Court held the 2nd issue in favour of the defendants and it agrees with the finding of the lower Court on issue No. 2. Accordingly, the lower appellate Court dismissed the appeal. ( 6 ) THE learned counsel for the appellant contended that the requirements of Order 41 Rule 31 C. P. C. are not complied with by the lower appellate Court and as no points for consideration are settled by the lower appellate Court, the said judgment is vitiated and it is liable to be set aside. He requested this court to remit back the entire appeal to the lower appellate Court with a direction to frame appropriate points for consideration and dispose of the appeal on merits. In this connection he placed reliance on a judgment of a Division Bench of this Court reported in ALI MOHAMOOD v. SPECIAL COURT. In this judgment the Division Bench did not categorically hold that non-framing of points for consideration vitiates the judgment of the lower appellate Court. This court further held that if there is discussion of the points involved it will satisfy the requirements of Order 41, Rule 31 C. P. C. ( 7 ) THE learned counsel for the respondent relied upon three judgments. This Court in a decision reported in SIVA REDDY v. NAZAMUDDIN, while considering the contention that the judgment of the lower appellate Court was so brief and did not satisfy the requirements of judgment rendered under Order 41, Rule 31 C. P. C. , observed that the said contention overlooks the important fact that the lower appellate Court only confirmed the judgment of the trial Court and in a confirming judgment, it is not necessary to go into every fact and every piece of evidence at length and adduce all the reasons for the conclusion. This Court followed a judgment of Madras High Court in VALI VENKATASWAMI v. GANNABATHULA VENKATASWAMI ( 8 ) RELIANCE was placed on the judgment of the Apex Court reported in NAVANEETHAMMAL v. ARJUNA CHETTY. This Court followed a judgment of Madras High Court in VALI VENKATASWAMI v. GANNABATHULA VENKATASWAMI ( 8 ) RELIANCE was placed on the judgment of the Apex Court reported in NAVANEETHAMMAL v. ARJUNA CHETTY. In Para 10 of the judgment, the Apex Court pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 C. P. C. must be avoided unless warranted by compelling reasons. Another decision relied upon by the learned counsel for the respondent is a judgment of the Apex Court in GIRIJA NANDINI v. BIJENDRA NARAIN. In Para 12 of the judgment, the Apex Court observed that it is true that the High Court did not enter upon a re-appraisal of the evidence but it generally approved all the reasons adduced by the trial Court in support of its conclusion. It further observed that it is not the duty of the appellate Court that when it agrees with the view of the trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court. It was further observed that expression of general agreements with reasons given by the Court decision of which is under appeal would ordinarily suffice. ( 9 ) KEEPING in view the principles of law stated in the above decisions I propose to examine the issue involved in the present appeal. It is significant and pertinent to stress one important aspect. In the above decisions it was not observed even remotely that first appellate Court Judge need not at all consider any of the relevant grounds raised in the memorandum of Appeal or at the time of hearing of the appeal and in a confirming judgment a one line judgment that the first Appellate Court Judge agrees with the findings of the trial Court would serve the purpose of the provision in Order 41 Rule 31 C. P. C. What all is stated in the above judgments is that elaborate reference to the evidence on record and lot of discussion on the effect of evidence are not necessary in a confirming judgment. The procedure laid down in the above provision cannot be treated as an empty formality. The trial Court in its judgment stated categorically that the defendants in fact encroached into the land of the plaintiffs. The procedure laid down in the above provision cannot be treated as an empty formality. The trial Court in its judgment stated categorically that the defendants in fact encroached into the land of the plaintiffs. However, it did not grant the decree in favour of the plaintiffs on the sole ground that the plaintiffs failed to establish that the extent of the encroachment and also to localize the area encroached by the defendants. In this regard, in para 5 of its judgment, the lower appellate Court itself stated that it was contended by the appellants-plaintiffs before it that the Commissioner s report and personal Inspection supports the case of the plaintiffs. This is undoubtedly an important contention raised before the lower Appellate Court. In para 7 of its judgment the lower appellate Court did not focus its attention on the said crucial contention raised by the appellant before it. It is the duty of the appellate court to consider all relevant and tenable contentions raised in the grounds of appeal or at the time of oral or written arguments and decide the appeal on merits. If the lower appellate Court had considered that contention with reference to evidence on record and negatived the said contention for any reason whatsoever there would be no need for this Court to interfere with the findings of fact recorded by the lower appellate Court. The lower appellate Court failed in its duty in considering the crucial contention advanced before it and looking at the judgment of the trial Court from the point of view on which the judgment of the trial court was challenged by the appellant before it. Normally, if all relevant points for consideration are not framed as such by the appellate Court, at least there would be one usual and general point namely, whether the judgment of the trial Court is to be confirmed or set aside. Even that usual point for consideration is not framed by the lower appellate Court. It is to be stated that if the procedure adopted by the present lower appellate Court is approved by this Court then in many of the appeals the first appellate Court judges may not at all discuss any evidence on record and simply say that he or she agrees with the findings of the trial Court and confirm the judgment of the trial Court. I am therefore of the opinion that it is necessary to set aside the judgment of the lower appellate Court and remit back the appeal to the lower appellate Court for fresh consideration and disposal of appeal on merits. The impugned judgment is not being set aside on the sole ground that points for consideration are not framed. ( 10 ) IN the result the appeal is allowed without costs. The judgment of the lower appellate Court is set aside. A. S. No. 85 of 1986 is remitted back to the file of Senior Civil Judge, Kovur in Nellore District with a direction to frame appropriate points for consideration in the appeal, consider every tenable and relevant contention advanced by both the parties and decide the appeal on merits. The Senior Civil Judge is directed to dispose of the appeal within a period of three months from the date of receipt of records by it. No order as to costs.