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2012 DIGILAW 1168 (PAT)

Sabiban v. Mahidani

2012-08-23

MUNGESHWAR SAHOO

body2012
JUDGMENT Mungeshwar Sahoo, J. (1) The plaintiffs have filed this Second Appeal against the judgment and decree dated 08.10.1991 passed by the Lower Appellate Court i.e. 3rd Additional District Judge, Siwan in Title Appeal No.92 of 1986 dismissing the appeal and confirming the judgment of the trial court dated 30.07.1986 passed by 3rd Additional Subordinate Judge, Siwan in Title Suit No.26 of 1979 dismissing the plaintiff’s suit. (2) The plaintiffs-appellants filed the aforesaid suit claiming partition of half share of plaintiff nos.1 to 3 and 1/4th share of plaintiff nos.4 to 6 in the suit property. According to the plaintiffs, Bhinik Mian had 4 sons. The plaintiffs represent the 2 sons namely Gudar Mian and Fatingan Mian. The defendants are the descendants of second son, Dasa Mian. The first son, Asha Mian was issueless. According to the plaintiffs, Asha Mian gifted his property through oral Hiba to the plaintiff nos.1 to 3, therefore, they are entitled to half share. On the other hand, the defendant’s case is that there had already been partition between four sons. Asha Mian never made any oral Hiba. Asha Mian had a son, Jhagru Mian who was living with Hukum Mian jointly. Jhagru Mian made oral Hiba in favour of Hukum Mian and Hukum Mian gifted his property by registered deed of gift dated 06.12.1916 to Rajbali Mian and put him in possession. (3) After trial, the trial court considering the evidences recorded a finding that there had already been partition as such, there is no unity of title and possession between the parties without giving any finding as to whether Asha Mian had any son or not. The plaintiffs filed appeal before the Lower Appellate Court and the Lower Appellate Court dismissed the suit. (4) On 05.05.1994, the following substantial question of law was formulated: “Whether the judgment and decree of the appellate court will be vitiated for non-consideration of the evidence adduced on behalf of the parties.” (5) In support of the aforesaid substantial question of law, the learned senior counsel, Mr. Raghiv Ahsan submitted that no doubt, the judgment of the Lower Appellate Court is a judgment of affirmation but then from perusal of the judgment of the Lower Appellate Court, it is clear that not a single evidence of the parties has been considered by the Lower Appellate Court and only decided the correctness or otherwise of the trial court judgment. According to the learned counsel, the mandatory provision as envisaged under Order 41 Rule 31 C.P.C. has not at all been complied with by the Lower Appellate Court. The learned counsel further submitted that there is no honest endeavour on the part of the Lower Appellate Court to consider the controversies between the parties and there is no proper appraisement of the respective cases and the Lower Appellate Court did not weigh and balance the evidences and facts of the parties as such, the judgment of the Lower Appellate Court is liable to be set aside. (6) On the other hand, the learned senior counsel, Mr. S.S.Dvivedi appearing on behalf of the respondents submitted that when the Lower Appellate Court agreed with the finding of the trial court, it is not necessary to restate the evidences and the reasonings of the trial court and it is sufficient if the Lower Appellate Court expressed his agreement in general term. The learned counsel further submitted that now after such a long period, on this technical ground that Lower Appellate Court has not complied with the provision of Order 41 Rule 31 C.P.C., the judgment cannot be set aside rather for doing complete justice, this second appellate court may consider the evidences and give finding. In support of his contention, the learned counsel relied upon a decision of the Apex Court reported in (2011) 1 Supreme Court Cases 158(D.R. Rathna Murthy v. Ramappa). (7) In the decision relied upon by the learned counsel for the respondents, the Apex Court has held that undoubtedly, the High Court can interfere with the findings of fact even in Second Appeal provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. In the present case, it is not the substantial question of law that the finding of both the courts below or the finding of the Lower Appellate Court is perverse. The substantial question of law relates to the appreciation of evidence. In the present case, it is not the substantial question of law that the finding of both the courts below or the finding of the Lower Appellate Court is perverse. The substantial question of law relates to the appreciation of evidence. Order 41 Rule 31 C.P.C. lays down that 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. This provision has been interpreted by the Apex Court many a times. In the case of Amalorpavam and others v. R.C. Diocese of Madurai, (2006)3 Supreme Court Cases 224, the Apex Court has held as follows: “The question whether in a particular case there has been substantial compliance with the provisions of Order 41, Rule 31, CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate Court should comply with all the requirements of Order 41, Rule 31, CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate Court having considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41, Rule 31, CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest. Where there is an honest endeavour on the part of the lower appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest. By the perusal of the judgment of the lower appellate Court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate Court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and, if so considered appropriate and so advised, to avail the remedy of second appeal conferred by Section 100, CPC.” This decision of the Apex Court has again been reiterated by decision of the Apex Court in the case of Union of India & Anr. v. Ranchod & Ors., AIR 2008 Supreme Court 938 vide paragraph 6. (8) It appears that in the case of Union of India(supra), the High Court in First Appeal affirmed the judgment of the reference court i.e. reference made under Section 18 of the Land Acquisition Act without discussing a single evidence. At paragraph 9, the Apex Court has held that “the High Court has not at all adverted to even a single piece of evidence and there is absolutely no indication in the judgment as to how it has come to a conclusion that the findings recorded by the reference court requires to be affirmed.” In this decision, the Apex Court also considered the case of Santosh Hazari v. Purushottam Tiwari, (2001)3 Supreme Court Cases 179 and it has held that the observation of the Apex Court in Girja Nandini Devi vs. Bijendra Narain Choudhury, AIR 1967 Supreme Court 1124 is often misunderstood and sometimes the courts while delivering a judgment of affirmation has adopted a shortcut method for not considering the evidence but merely expressing a general agreement with the reasons given by the trial court in the case of Santosh Hazari(supra). The Apex Court has held that the judgment of the Appellate Court must therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contention put forth and pressed by the parties for decision of the Apex Court. The Apex court also held that the expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the Appellate Court for shirking the duty cast on it. (9) In the present case, from perusal of the judgment of the Lower Appellate Court, it is clear that the Lower Appellate Court has not at all adverted to a single evidence adduced by the parties either oral or documentary. No independent finding has been recorded by the Lower Appellate Court on the controversies between the parties regarding the oral Hiba or the death of Asha Mian issueless or living behind a son or whether there was partition by metes and bounds or not. The Lower Appellate Court has also not considered Exhibit 1 nor has considered Exhibit C, the so called gift deed. (10) Now, if the submission of the learned counsel for the respondents is accepted that for doing justice the second appellate court can also appreciate the evidence is concerned, then in such cases, the High Court will be performing the duty of the first appellate court. Therefore, I do not agree with the submission of the learned counsel for the respondents that if the duty cast on the first appellate court is not performed according to law by the first appellate court that should be done by the second appellate court. In the decision referred to above by the learned counsel for the respondents also, the Apex Court has held that in exceptional circumstances, the High Court is entitled to look into the evidences when the finding is perverse. In the present case, as stated above, from the Lower Appellate Court judgment, it is clear that the Lower Appellate Court has not at all discussed any evidences and thereby he has not performed his legal duty as provided under Order 41 Rule 31 C.P.C. In my opinion, therefore, the substantial question of law formulated in this case is purely covered by the decision of the Apex Court reported in the case of Amalorpavam (supra) and Union of India (supra). (11) In view of the above settled principles of law, the substantial question of law formulated is thus answered in favour of the appellants. Therefore, the impugned judgment and decree of the Lower Appellate Court is hereby set aside. This Second Appeal is allowed and the matter is remanded back to the Lower Appellate Court for fresh decision according to law on the basis of evidence available on record as early as possible. No order as to cost.