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2011 DIGILAW 2353 (HP)

Ram Dev v. Dhani Ram

2011-08-01

V.K.AHUJA

body2011
JUDGMENT V.K. Ahuja, J. This Regular Second Appeal has been filed by the Appellant/Defendant u/s 100 CPC against the judgment and decree of the Court of learned Additional District Judge, Solan, dated 6.10.2000, who had reversed the judgment and decree passed by the learned trial Court, dismissing the suit of the Plaintiff/Respondent. 2. Briefly stated, the facts of the case are that Respondent No. 1 hereinafter also referred to as the Plaintiff filed a suit for declaration that he is one of the co-owners in exclusive possession of land comprised in Khasra No. 84 measuring 6-15 Bighas. It was alleged that the suit land is irrigated and is recorded as such and it is being irrigated through a water source known as "water of Jabal". It was alleged that said Khasra No. 83/1 is owned and possessed by Defendants No. 1 to 3 and the water is being used by the Plaintiff for sowing of rice. The Plaintiff along with co-owners is exercising the right of irrigation since the time immemorial. The Defendants are threatening to obstruct flow of water flowing from portion of Khasra No. 83 and running through Kuhal. Hence, the suit for declaration filed by the Plaintiff. 3. The Defendants denied the allegations. 4. On the pleadings of the parties, the following issues were settled : 1. Whether the Plaintiff is entitled to irrigate his land from the disputed source in Kh. No. 83/1 as alleged? ... OPP 2. Whether in the alternative, the Plaintiff has a right to irrigate his land from the disputed source by way of easement of necessity, as alleged? .... OPP 3. Whether the Plaintiff has locus standi to sue? ... OPP 4. Whether the suit is bad for non-joinder of necessary parties? ... OPD 5. Whether the suit is not maintainable in the present form? ... OPD 6. Whether the Plaintiff is stopped from filing the present suit by his act and conduct? .... OPD 7. Whether the Plaintiff has a cause of action? ... OPP 8. Whether the suit is time barred? ... OPD 9. Whether the suit of the Plaintiff has not been properly valued for the purposes of Court fee and jurisdiction? ... OPD 10. Relief. 5. .... OPD 7. Whether the Plaintiff has a cause of action? ... OPP 8. Whether the suit is time barred? ... OPD 9. Whether the suit of the Plaintiff has not been properly valued for the purposes of Court fee and jurisdiction? ... OPD 10. Relief. 5. On conclusion of the trial, the learned trial Court dismissed the suit of the Plaintiff and while dismissing the suit, decided Issues No. 1, 2, 4, 5, 6 and 8 as against the Plaintiff. 6. On appeal, those findings were reversed by the learned Additional District Judge vide its judgment. 7. I have heard the learned Counsel for the parties and have gone through the record of the case. 8. It is clear from a perusal of the findings of the learned trial court that it had given reasoning while deciding these above mentioned issues against the Plaintiff and in favour of the Defendants. However, when the learned Additional District Judge reversed those findings, these were reversed in a slipshod manner without giving any reasons for not agreeing with the findings of the learned trial Court on all these issues. 9. A perusal of the impugned judgment shows that the judgment runs into 29 pages and the learned Additional District Judge has referred to the report of the Local Commissioner and some documents as well as case law up to Page No. 27. Thereafter, the discussion is mainly in Para-32 at page No. 28 and the final conclusion is at Para-33 reversing the judgment of the learned trial Court. 10. A perusal of Para-32 and other paras of the judgment show that the appellate Court has not given any reasons for disagreeing with the findings of the learned trial Court on the above mentioned issues. It has not referred to these issues also, which were very material including the issues of limitation, maintainability etc. and the right of the Plaintiff, but in a slipshod manner without referring to the conclusions drawn by the learned trial Court and without referring to the evidence as to why these issues are being reversed, the learned Additional District Judge had reversed the findings by drawing his conclusion in the paras mentioned above. 11. This Court had earlier an occasion to consider the judgment passed by the same Additional District Judge in RSA No. 380 of 2000, decided on 28.6.2011. 11. This Court had earlier an occasion to consider the judgment passed by the same Additional District Judge in RSA No. 380 of 2000, decided on 28.6.2011. It was also observed in that case while deciding the case that the learned First Appellate Court has not referred to the oral and documentary evidence led on record by both the parties and discussed by the learned trial Court. In that case also, reliance was placed upon the decision of the Hon'ble Supreme Court as well as learned single Judge of this Court and the observations made therein are relevant and are being reproduced below: 5. During the course of hearing the learned Counsel for the Appellant has relied upon the decision of the Hon'ble Apex Court in State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., (2000) 5 JT 546 wherein it has been mentioned that it is the duty of the First Appellate Court to make the critical analysis of the matter before it. It cannot mechanically affirm the findings of the trial court without due and proper application of mind. 6. The learned Single Judge of this Court had the occasion to consider the similar question in case Ramji Vs. State of H.P. and Others, (2008) 2 ShimLC 60 in which the learned Single Judge has made a reference of the judgment referred to above as well as other cases of the Hon'ble Apex Court and had observed that judgment passed by the First Appellate Court shows that it hopelessly falls short on considerations which are expected from the Court of first appeal. It was clearly concluded by the learned Single Judge that first appeal has to be decided on facts as well as on law in view of the various decisions. It is clear that the learned Additional District Judge while deciding the appeal has not performed his statutory duties, which were required to be performed in deciding an appeal. He should discuss the oral as well as documentary evidence led by both the parties and should have given the reasoned findings having regard to the judgment passed by the learned trial Court.... 12. In view of the above discussion, it is clear that the findings recorded by the learned Additional District Judge cannot be sustained since it is the final Court of appeal. 12. In view of the above discussion, it is clear that the findings recorded by the learned Additional District Judge cannot be sustained since it is the final Court of appeal. Insofar as the facts are concerned and until and unless the reasoning had been given by the said Court in disagreeing with the findings of the learned trial Court, this Court cannot conclude that the findings of learned trial Court were in correct. I hope and trust that the learned Additional District Judge will consider his position as First Appellate Court and should consider the requirements, which are expected from the Court of First Appellate Court. I have no option but to remand the case to the First Appellate Court for re-hearing the matter and decide the same after discussing the oral as well as documentary evidence. I agree that the appeal has been filed in the year 2000 and it is being decided after a period of ten years, but this cannot be a ground to uphold the findings recorded by the learned First Appellate Court. The impugned judgment and decree passed by the learned First Appellate Court are set aside. Parties through their learned Counsel are directed to appear before the learned Additional District Judge on 25th August, 2011 and the learned Additional District Judge shall try to dispose of the case within three months from the date fixed for hearing. 13. In view of the above, the appeal stands allowed accordingly. A copy of the judgment along with record be returned to the learned Additional District Judge forthwith. 14. In view of the disposal of the main appeal, all the pending miscellaneous application(s), if any, also stand disposed of. Interim order, if any, also stands vacated.