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2013 DIGILAW 173 (ORI)

Rajesh Kumar Agarwal v. Satyabhama Behera

2013-06-28

S.PANDA

body2013
JUDGMENT S. PANDA, J. 1. This Second Appeal has been filed challenging the Judgment dtd. 20.10.2012 passed by the learned Second Additional District Judge, Cuttack in R.F.A. No.83 of 2011 dismissing the First Appeal of the Appellant & confirming Judgment & decree of the Learned Civil Judge (Senior Division), 1st Court, Cuttack dtd 22.11.2010 & 08.12.2010 respectively passed in Civil Suit No.571 of 2006. 2. The substantial question of law are to be considered in this appeal are as follows: i) Whether the Judgment & decree of the lower Appellate Court is sustainable as the mandate of Order 41, Rule 31 of the Code of Civil Procedure has not been followed, i.e. the points for determination, the decision thereon, the reasons for the decision etc, & ii) Whether in view of Proviso of Section 34 of the Specific Relief Act, the Judgment & decree of the Courts below are sustainable as the Plaintiff is not in. possession over the suit property & he prayed for declaration & mandatory injunction. 3. The brief facts of the case are that the Appellant is the Defendant No.1 in the suit filed by Respondent No.1 Plaintiff of declaration of her right, till & interest over the suit land & for declaration that the Sale Deed No. 2086 dtd. 03.6.2000 executed by Chandra Sekhar Mohapatra along with his daughter Suprama Mishra in favour of the Plaintiff in respect of Ac.0.011 decimals of land is valid with further declaration that the Registered Sale Deed No.2878 dtd. 11.8.2000 executed by Smt. Kalyani Patra Defendant No.2 in favour of Defendant No.1 is illegal & be declared void & further the mutation of suit land in favour of Defendant No.1 is illegal & for permanent injection & also for mandatory injunction against Defendant No.1 for removal of boundary wall from the suit land along with other constructions, which Defendant No.1 have constructed during pendency of the suit. 4. Admittedly Defendant No.2 is the recorded owner in respect of Plot No.440 measuring an area of AC.0.034 decimals of land situated in Mouza-Tulasipur south in the district & town of Cuttack, Unit No.8. 4. Admittedly Defendant No.2 is the recorded owner in respect of Plot No.440 measuring an area of AC.0.034 decimals of land situated in Mouza-Tulasipur south in the district & town of Cuttack, Unit No.8. The plea of the Plaintiff is that a part area of the said plot with specific boundary as per the scheduled mentioned in the plaint & as per the sketch map attached to the sale deed measuring an area of AC.0.011 decimals is the disputed property in the suit. The recorded owner has sold the entire AC.0.034 decimals to different purchasers, including one Chandra Sekhar Mohapatra, S/o Gopinath Mohapatra of Kanika Road & his daughter Suprama Mishra. After death of Chandra Sekhar Mohapatra his daughter Suprama was initially impleaded as Defendant No.3 & subsequently her name was deleted. The land purchased by Chandra Sekhar Mohapatra & his daughter Suprama Mishra is AC.0.017 decimals & they for their legal necessities sold AC.0.011 decimals along with other undisputed Ac. 0.059 decimals from other plot to the Plaintiff by virtue of Registered Sale Deed as state above. While matter stood thus out of the suit land Defendant No.2 sold Ac.0.008 decimals to Defendant No.1 even through she has no saleable right at the time of execution of the said Sale Deed on 11.8.2000. 5. After receiving notice Defendant No.1 appeared & filed his Written Statement traversing the allegation of the Plaintiff. The specific plea of Defendant No.1 is that he has purchased Ac.0.008 decimals of land by Registered Sale Deed dtd. 11.8.2000 from Defendant No.2 along with structures standing thereon after obtaining permission under Section 27 of the Urban Land Ceiling Act. After purchase he has constructed the boundary wall thereof. He also taken a plea that the suit land along with other undisputed land of Defendant No.1 are within one enclosure along with the boundary wall & Defendant No.1 is in exclusive possession thereof. The Trial Court taking into consideration the respective pleas of the parties formulated as many as fourteen issues & parties have adduced their evidence in support their respective pleas. Considering the materials available on record, the Trial Court decreed the suit on contest against Defendant No.1 & ex parte against Defendant No.2 with cost. The Trial Court taking into consideration the respective pleas of the parties formulated as many as fourteen issues & parties have adduced their evidence in support their respective pleas. Considering the materials available on record, the Trial Court decreed the suit on contest against Defendant No.1 & ex parte against Defendant No.2 with cost. The Trial Court further restrained Defendant No.1 not to make any construction whatsoever 'over the suit plot & to remove the boundary wall situated over the above plot within three months from the date of the order, failing which the Plaintiff is entitled to remove such construction & boundary wall by demolition of the same through the process of law. 6. Being aggrieved by the said Judgment & decree, Defendant No.1 filed RFA No.83 of 2011 before the Learned Second Additional District Judge, Cuttack, which was dismissed vide Judgment dtd.20.10.2012. 7. On perusal of the First Appellate Court Judgment, it appears that the Appellate Court has narrated the facts & respective contention raised by Learned Counsel for both parties as well as evidence adduced by the parties. The Appellate Court recorded finding that in view of Section 48 of Transfer of Property Act the earlier purchaser has priority over the suit property inasmuch as sale deed executed is prevailing. It further appears from the impugned Judgment of the First Appellate Court that it being the final Court of facts & law, has not followed the procedure prescribed under Order 41, Rule 31 of the Code of Civil Procedure. 8. The Apex Court in the case of M/s. United Engineers & Contractors Vs. Secretary to Govt. A.P. & Others reported in 2013 (1) SCALE 530 considering the either decision of the Apex Court in the case of H. Siddiqui (dead by LRs. Vs. A. Ramalingam reported in AIR 2011 SC 1492 held that: "Order 41, Rule 31 of C.P.C. provide guidelines for the Appellate Court as to how the Court has to proceed & decide the case. The provisions should 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 & decided the case considering the material on record. The provisions should 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 & decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the Appellate Court's Judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter & the findings of the Appellate Court are well founded & quite convincing. It is mandatory for the Appellate Court to independently assess the evidence of the parties & consider the relevant points which arise for adjudication & 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. This the entire evidence must be considered & discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions & the Court must proceed in adherence to the requirements of the said statutory provisions." 9. In view of the above settled position of law & as the First Appellate Court has not followed the aforesaid procedure, this Court while setting aside the Judgment dtd. 20.10.2012 passed by the Learned Second Additional District Judge, Cuttack in R.F.A No. 83 of 2011 remits the matter back to the said Court for fresh disposal after following the aforesaid procedure. 10. As the matter is remitted back by this Court, the second substantial question of law in respect of Specific Relief Act is not required to be answered. The R.F.A is accordingly disposed of.