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2012 DIGILAW 510 (UTT)

Hashim Khan v. Salim

2012-08-30

V.K.BIST

body2012
JUDGMENT : Appellants instituted Suit No.208 of 1987 for permanent injunction against the defendants/ respondents for restraining them from interfering in the title and peaceful possession of the plaintiffs over the disputed property described at the foot of the plaint. The defendants/respondents filed a joint written statement, which was subsequently got amended. On the pleadings of the parties, the learned Munsif Magistrate/Civil Judge (Junior Division), Haridwar framed the following issues: (1) Whether the plaintiffs are owners and are in possession of the land in dispute? (2) Whether the disputed property khasra no.34 is a part of khasra no.596 of which Majid and Zahooran were the owners in possession? (3) Whether the suit is barred by Section 34 of the Specific Relief Act? (4) Relief to which the plaintiff is entitled? 2. Both the parties to the suit led documentary and oral evidence in support of their respective cases. The trial Court decided issue nos.1 & 4 against the plaintiffs, whereas the issue no.3 was decided in favour of the plaintiffs. The trial Court did not decide the issue no.2 and observed that after disposal of issue no.1, there was no necessity to decide the issue no.2 and the trial Court cancelled the issue no.2. The suit of the plaintiffs/appellants was dismissed with cost vide judgment and order dated 27.08.1992. Aggrieved by the judgment and decree dated 27.08.1992 passed by the trial Court, the plaintiffs/appellants filed Civil Appeal No.28 of 1992 before the District Judge, Haridwar and the same was dismissed with cost vide judgment and order dated 20.11.1993. Against the judgments passed by the trial Court as well as by the lower Appellate Court, present Second Appeal has been preferred by the plaintiffs/appellants. 3. At the time of admission, two substantial questions of law were framed by this Court. Subsequently, during the course of arguments of the Second Appeal, third substantial question of law was also framed. Same are being reproduced hereunder: (i) Whether the Courts below have grossly erred in law in completely ignoring the statement of DW-1 which clinchingly established that plot no.34 was a abadi plot and Abdul Majid Khan and Majid Khan were one and the same person? Same are being reproduced hereunder: (i) Whether the Courts below have grossly erred in law in completely ignoring the statement of DW-1 which clinchingly established that plot no.34 was a abadi plot and Abdul Majid Khan and Majid Khan were one and the same person? (ii) Whether the Courts below have grossly erred in law in ignoring the fact that even the plaintiffs called Majid Khan as Abdul Majid Khan in their replica and DW-1 and other witnesses also referred Abdul Majid Khan as Majid Khan as he was commonly known in the village? (iii) Whether the lower Appellate Court erred in law by dismissing the appeal without framing points for determination and without giving decision thereon? 4. The learned counsel for the appellants first addressed the Court on the substantial question of law no.3 and submitted that the same is a crucial substantial question of law. The Court also thinks it proper to decide the substantial question of law no.3 first. 5. Shri Lok Pal Singh, learned counsel for the appellants submitted that the District Judge having held that the defendants failed to show any error or mistake in the pedigree set up by the plaintiffs, he was bound to accept their case and decree the suit. He has grossly erred in misreading the statements of the defendants witnesses. He further submitted that the Courts below have completely ignored to look into the statement of DW-1 Salim, who has virtually admitted the case of the plaintiffs/appellants. He also submitted that the Courts below have also failed to note that in the replica, the plaintiffs have mentioned Majid Khan as Abdul Majid Khan as one and same person. DW-1 Salim has also called Abdul Majid Khan as Majid and supported the case of the plaintiffs/appellants. Therefore, the controversy raised by the defendants/ respondents about Majid Khan and Abdul Majid Khan was uncalled for. Shri Lok Pal Singh, learned counsel for the appellants by referring Order XX Rule 5 of the Code of Civil Procedure submitted that issue no.2 was a crucial issue, as the controversy involved in the suit was in respect of the disputed property khasra no.34 and part of khasra no.596. The trial Court should have decided the issue and should have recorded its finding about this issue. By not doing so, no substantial justice was done in the case. The trial Court should have decided the issue and should have recorded its finding about this issue. By not doing so, no substantial justice was done in the case. He also submitted that the judgment of the lower Appellate Court is bad in law for non-compliance of the Order XLI Rule 31 of the Code of Civil Procedure. He submitted that neither the points for determination were framed nor any decision was given on such crucial points, which were relevant for deciding the controversy of the case. In support of his submission, the learned counsel for the appellants relied upon the judgments reported in (2011) 4 Supreme Court Cases 240-H.Siddiqui (Dead) by LRS. Vs. A.Ramalingam, (2011) 8 Supreme Court Cases 670-State of Uttaranchal and another Vs. Sunil Kumar Vaish and others, (2010) 4 Supreme Court Cases 785-Assistant Commissioner, Commercial Tax Department, Works Contract And Leasing, Kota Vs. Shukla and Brothers, JT 2000 (7) SC 379-Shreepat Vs. Rajendra Prasad & others and (2001) 3 Supreme Court Cases 179-Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRS. 6. On the other hand, Shri M.C. Kandpal, Senior Advocate for the respondents submitted that though points for determination were not framed by the lower Appellate Court, but in fact the lower Appellate Court considered the case in detail and found that the plaintiffs/appellants failed to prove their ownership and possession over the property in dispute. He submitted that when the entire case was discussed by the learned lower Appellate Court in detail, there was no necessity for making points for determination and the learned lower Appellate Court has not erred in any manner. He further submitted that the plaintiff nos.1 & 2 are the legal heirs of Majid Khan and the property in dispute belongs to Abdul Majid. He submitted that the Abdul Majid and Majid Khan are different persons. He further submitted that property belongs to Abdul Majid, whereas plaintiffs are the legal heirs of Majid Khan. In view of this fact, the trial Court rightly did not decide the issue no.2. 7. I have considered the respective submission advanced by the learned counsel for the parties and have perused the papers available on record. 8. In the matter of State of Uttaranchal and another Vs. In view of this fact, the trial Court rightly did not decide the issue no.2. 7. I have considered the respective submission advanced by the learned counsel for the parties and have perused the papers available on record. 8. In the matter of State of Uttaranchal and another Vs. Sunil Kumar Vaish and others reported in (2011) 8 Supreme Court Cases 670, the Hon’ble Supreme Court has observed that the Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based mainly on events which happened in the past. Courts’ clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided. 9. In the matter of Assistant Commissioner, Commercial Tax Department, Works Contract And Leasing, Kota Vs Shukla and Brothers reported in (2010) 4 Supreme Court Cases 785, the Hon’ble Supreme Court has observed that reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases (Wharton’s Law Lexicon). Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. As a matter of fact it helps in the observance of law of precedent. Absence of reasons on the contrary essentially introduces an element of uncertainty, dissatisfaction and give entirely different dimensions to the questions of law raised before the higher/appellate courts. The Hon’ble Supreme Court in the said judgment further observed that our procedural law and the established practice, in fact, imposes unqualified obligation upon the courts to record reasons. There is hardly any statutory provision under the Income Tax Act or under the Constitution itself requiring recording of reasons in the judgments but it is no more res integra and stands unequivocally settled by different judgments of this Court holding that the courts and tribunals are required to pass reasoned judgments/orders. There is hardly any statutory provision under the Income Tax Act or under the Constitution itself requiring recording of reasons in the judgments but it is no more res integra and stands unequivocally settled by different judgments of this Court holding that the courts and tribunals are required to pass reasoned judgments/orders. In fact, Order 14 Rule 2 read with Order 20 Rule 1 of the Code of Civil Procedure requires that, the court should record findings on each issue and such findings which obviously should be reasoned would form part of the judgment, which in turn would be the basis for writing a decree of the court. 10. In the matter of H.Siddiqui (Dead) by LRS. Vs. A.Ramalingam reported in (2011) 4 Supreme Court Cases 240, the Hon’ble Supreme Court has held that Order 41 Rule 31 of the Code of Civil Procedure, 1908 provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court’s judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. 11. Order XLI Rule 31 of the Code of Civil Procedure provides about the contents, date and signature of judgment. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. 11. Order XLI Rule 31 of the Code of Civil Procedure provides about the contents, date and signature of judgment. Same is being reproduced hereunder: “31. 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.” 12. Bare perusal of this provision suggests that the judgment of the Appellate Court must state points for determination, and decision thereon. It should also state the reasons for the decision. I have carefully perused the judgment of the learned lower Appellate Court. The learned judge has simply discussed the facts of the case and reached to the conclusion that the plaintiffs have failed to prove their title and possession over the property in question. The learned lower Appellate Court has neither framed any points for determination nor had given any decision thereon. Even the finding given by the trial Court on various issues has not been discussed. Thus, I find that the lower Appellate Court completely failed to comply the provision contained in Order XLI Rule 31 of the Code of Civil Procedure. 13. In view of the above discussion, the substantial question of law no.3 is answered in affirmative. It is held that the judgment of the lower Appellate Court is bad in law for non-compliance of Order XLI Rule 31 of Code of Civil Procedure. Appeal is allowed. The judgment-dated 20.11.1993 passed by the lower Appellate Court is quashed and the matter is remanded back to the lower Appellate Court to decide the Civil Appeal No. 28 of 1992 “Hashim Khan & another Vs. Saleem & others” very very expeditiously, preferably within a period of three months, in accordance with law by keeping in mind the observations made in this judgment. The lower Appellate Court shall also consider the arguments of the learned counsel for the parties in respect of issue no.2. Saleem & others” very very expeditiously, preferably within a period of three months, in accordance with law by keeping in mind the observations made in this judgment. The lower Appellate Court shall also consider the arguments of the learned counsel for the parties in respect of issue no.2. Since the appeal has been allowed on question no.3, there is no requirement to answer the question nos.1 & 2 framed in the present appeal. 14. No order as to costs.