Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 804 (AP)

Vegesna Ratnamma v. Chinta Venkateswarlu

2007-08-24

G.YETHIRAJULU

body2007
JUDGMENT This Second Appeal has been preferred by the plaintiff in O.S.No.7 of 1982 on the file of the District Munsiff, Narsapur. The respondent is the defendant in the suit. The plaintiff filed the suit for permanent injunction restraining the defendant and his men from interfering with the lane between the houses of the plaintiff and the defendant and to grant mandatory injunction directing the defendant to remove the eves of his tiled house extended to the lane. 2. The defendant contended that the disputed land is his exclusive lane and the plaintiff has no manner of right over the same. He further contended that there is used to be a thatched house by the time of his purchasing the house and after obtaining permission from the municipality, he constructed a tiled house in the same place at which the thatched house used to exist and as the lane exclusively belongs to him, the plaintiff has no right to ask for any relief against the defendant. Therefore, the suit is liable to be dismissed. 3. Both the parties adduced oral and documentary evidence. After perusal of the same, the trial Court dismissed the suit holding that the plaintiff is not entitled for the relief as prayed for. Being aggrieved by the same, the plaintiff preferred A.S.No.6 of 1992 on the file of the Subordinate Judge at Narsapur and the appeal was also dismissed confirming the judgment and decree of the trial Court. Being aggrieved by the same, the plaintiff preferred the present appeal. 4. The learned counsel for the appellant/plaintiff contends that the appellate Court while disposing of the appeal failed to frame appropriate points for consideration and also failed to discuss the evidence adduced by both parties and that the grounds raised by the appellant are not answered by the appellate Court. He further contends that the appellate Court did not take into consideration the failure of the defendant to file a mediators report that there is no discussion regarding the reliefs sought for and that the defendant failed to file the sale deed through which he purchased the property. He further contends that no document was filed by the defendant to show that the municipality granted permission for construction of wall at the house and that the appellate Court failed to follow Order 41, Rule 31 of C.P.C. in writing the judgment. He further contends that no document was filed by the defendant to show that the municipality granted permission for construction of wall at the house and that the appellate Court failed to follow Order 41, Rule 31 of C.P.C. in writing the judgment. Therefore, the learned counsel requested to allow the appeal and remand the matter to the appellate Court for disposal after considering the above points, after giving opportunity to both parties. 5. The learned counsel for the appellant relied on a judgment of the Supreme Court in Madhukar and others v. Sangram and others1 wherein it was held that it is the duty of the first appellate Court to deal with all issues and evidence led by parties before recording any finding and as the judgment rendered by the first appellate Court is hopelessly falling short of considerations which are expected from the court of first appeal. Therefore, the impugned judgment and decree of the High Court are liable to be set aside and accordingly, remanded the first appeal to the High Court for fresh disposal in accordance with law. 6. In Gorrella Durga Vara Prasada Rao v. Indukuri Ram Raju and others, a Division Bench of this Court while considering the scope of Order 41, Rule 31 of C.P.C. held that even without framing specific points for determination, if the appellate Court in its judgment deals with all grounds taken in the memorandum of appeal and gives decision on those grounds with reasons, amounts to sufficient compliance with order 41 Rule 31 of C.P.C. The Division Bench of this Court while answering the reference whether Order 41 Rule 31 C.P.C. is mandatory, gave the above judgment. 7. For proper adjudication, it is appropriate to extract Order 41, Rule 31 C.P.C., which reads as follows: "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 pronounced be signed and dated by the Judge or by the Judges concurring therein." 8. In the normal course, the judgment of the appellate Court should state the points for determination and decision thereon. In the normal course, the judgment of the appellate Court should state the points for determination and decision thereon. The judgment shall also state the reasons for the decision. The first appellate Court has to consider all the disputed questions of fact and law and record its findings thereon. 9. In Girijanandini v. Bijendra Narain3 the Supreme Court held as follows: "We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate Court 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. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice." 10. In V. Venkataswami v. G. Venkataswami4, the Madras High Court held as follows: "where the appellate Judge had failed to frame points and discuss each point separately and record the finding separately but had adopted the easier method of stating that he agreed with the conclusions of the Subordinate Judge, that was no doubt not a very satisfactory way but on that ground the High Court would not reverse the decision of the lower appellate Court." 11. In Ali Mohamood v. Special Court under A.P. Land Grabbing (Prohibition) Act5 a Division Bench of this Court held as follows: "The idea behind Order 41, Rule 31 Code of Civil Procedure is that the Court while passing the judgment shall apply its mind to the evidence made available on record and secondly, whether both the parties did understand on what point they have to submit their case. While in some cases the Courts have held that non-compliance of anyone of the requirements of Order 41 Rule 31 C.P.C. vitiates the proceedings but in some cases the courts have taken the view that non- compliance of anyone of the requirements of Order 41 Rule 31 C.P.C. does not vitiate the proceedings. The purpose of framing the points for consideration by the lower appellate Court is to clear up the pleading and focus the attention of the Court and of the parties on the specific and rival contentions which arise for determination. The purpose of framing the points for consideration by the lower appellate Court is to clear up the pleading and focus the attention of the Court and of the parties on the specific and rival contentions which arise for determination. Time and again it is said that it is not necessary that the judgment should record all the facts in detail and should deal mechanically with all points. It would be sufficient if the Court renders its independent judgment. A reading of the judgment of the lower appellate Court reflects application of mind on its part and failure to frame points for consideration at best can be said to be only a technical defect or a procedural irregularity which can be cured if the judgment is in substantial compliance of all other requirements. In other words, it is desirable that the first appellate Court should comply with all the requirements of Order 41 Rule 31 C.P.C. but if there is any slight deviation that itself is not a ground to hold that the judgment is vitiated." 12. In the light of the above legal position, it can be concluded that if the judgment reflects the application of mind to the evidence available on record and if the appellate Court discusses various points raised by the parties by answering the rival contentions, it is not necessary that the judgment should record all the facts in detail and should deal mechanically with all points. It would be sufficient if the Court renders its independent judgment on the basis of the material available on record and if there is slight deviation to the requirements of Order 41, Rule 31 CPC that itself is not a ground to hold that the judgment is vitiated. 13. In the light of the above legal position, let us examine the judgment of the appellate Court. 14. It is a suit for permanent injunction and mandatory injunction. Therefore, the appellate Court is supposed to look into the aspect of prima facie title and possession as on the date of the suit. The plaintiff is contending that she is the exclusive owner of the lane whereas the defendant is contending that he is the exclusive owner of the lane and the plaintiff has no manner of right over the lane. The plaintiff is contending that she is the exclusive owner of the lane whereas the defendant is contending that he is the exclusive owner of the lane and the plaintiff has no manner of right over the lane. When there are rival contentions regarding the ownership of the property, the plaintiff ought to have sought for declaration that the lane is her exclusive property. But, she did not choose to amend the plaint. There is no dispute regarding the ownership of the house properties of the respective parties. The dispute is only regarding the extension of eves of the tiled house into the lane. The appellate Court while referring to the arguments advanced by both parties, it refers to O.S.No.139 of 1978 filed by the defendant against the plaintiff wherein the plaintiff categorically undertook to remove the sunshade on one side and to erect a ventilator with the permission of the defendant. The suit was decreed. Therefore, the sunshade has to be removed. 15. The plaintiff did not dispute the judgment and decree in O.S.No.139 of 1978 and in pursuance of the mediation, the plaintiff constructed a sunshade and the defendant raised a wall on his side and the plaintiff also installed a bamboo stick gate. The photographs also indicate the existence of bamboo stick gate. In view of the terms mentioned in the compromise memo, the plaintiff has no exclusive right over the disputed lane. The plaintiff without establishing her right over the disputed property cannot fall back on the weakness of the case of the defendant. The appellate Court further observed that the trial Court rightly came to a conclusion on the basis of the admissions made by the plaintiff besides Exs.B.3, B.4 and B.7 documents which were signed by the plaintiff and accordingly dismissed the appeal confirming the judgment of the trial Court. 16. In order to test whether there is any perversity in the judgment of the appellate Court, I have perused the entire record. Though the plaintiff averred that she is the owner of the property, there is no documentary evidence in support of her contention and simply because it was mentioned in the sale deed that one of the boundaries to the suit house purchased by the plaintiff is a lane that itself is not sufficient to hold that the plaintiff is the exclusive owner of the property. 17. 17. Exs.A.8 and A.9 photographs indicate that there is a sunshade to the wall of the plaintiff's house projecting to the lane and eves of the house of the defendants projecting into lane. There is no dispute between the parties that the walls of any of the house are extended to the lane. When once the plaintiff failed to establish that it is her exclusive lane and so also the defendant, it has to be treated as a common lane. Since both the parties extended the eves and the sunshade of their respective houses into the lane and as the plaintiff failed to establish that the defendant occupying any portion of the lane under her exclusive right and possession, the trial Court held that the plaintiff is not entitled for the injunction as prayed for. 18. Since there is a concurrent finding of fact, this Court is not inclined to once again reopen the findings on factual aspects unless there is some perversity noticed in the judgments of the Courts below. However, this Court have gone through the pleadings, depositions and documents and found that the plaintiff failed to establish as to how she claimed exclusive right over the vacant site between the two houses, what is the width of the vacant site, what is the extent of the projection of the eves etc. In the absence of such material, the plaintiff cannot succeed in this matter. 19. In the light of the settled position of law and in the light of the concurrent findings of fact given by the Courts below and as there is no other substantial question of law to be considered by this Court, I do not find any valid ground either to remand the matter to the appellate Court or to set aside the judgments of the Courts below. 20. In the result, the Second Appeal is dismissed. No order as to costs.