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2016 DIGILAW 429 (JK)

PRATAP KRISHAN v. DHAR SABHA VAISHNO DEVI, KATRA

2016-08-12

DHIRAJ SINGH THAKUR

body2016
JUDGMENT : Dhiraj Singh Thakur, J. The present Civil Second Appeal has been filed against the judgment and decree dated 22.12.2012 passed by learned District Judge, Reasi whereby the Civil First Appeal of the appellants herein had been dismissed and the judgment and decree dated 22.02.2010 passed by the trial court upheld. 2. Briefly stated the material facts are as under: 3. A civil suit for permanent prohibitory injunction was filed by Shri Dhar Sabha, Vaishno Devi, Katra through its Secretary, restraining the defendants i.e., appellants herein and one Kedar Nath, father of the appellants from interfering into the peaceful possession of the plaintiff-respondents herein over a piece of land measuring one kanal and one maria comprising Khasra No. 204 min situate at Katra Tehsil Reasi. 4. The case set up by the plaintiff-Shri Dhar Sabha was that it was a registered society, which had purchased the suit land in the year 1975 through Defendant No. 1-Kedar Nath by virtue of an agreement to sell dated 02.06.1975. 5. It was stated that the plaintiff raised a boundary wall and tin shed and had been in continuous and uninterrupted ownership and possession of the suit land, which fact also came to be reflected in khasra Girdawari of Kharief 1992. 6. It was further alleged that the defendants were interfering in the possession of the suit land will rout any right or title and committed criminal trespass over the suit land and threatened to raise construction over the same as also dispossess the Sabha from the suit property. 7. In para 4, the plaint mentioned the factum of the purchase of land in the year 1975 by virtue of an agreement to sell dated 2nd of June, 1975 through Defendant No. 1 being one of the members of the Shri Dhar Sabha. In paragraph 5 of the plaint, it was specifically stated that the plaintiff had raised a boundary wall and tin shed and that the plaintiff had been continuously and uninterruptedly in exclusive possession of the same as owner thereof. 8. As against this, the defendants in reply to paragraph 4 admitted the contents thereof but at the same time denied that no title in the suit property had since been conferred on the plaintiff as the agreement to sell did not confer any right or title in the demised property. 9. 8. As against this, the defendants in reply to paragraph 4 admitted the contents thereof but at the same time denied that no title in the suit property had since been conferred on the plaintiff as the agreement to sell did not confer any right or title in the demised property. 9. In reply to para 5, the defendants yet again admitted the correctness of the contents and further went on to state that the boundary wall and the tin shed had been constructed in the suit land by Defendant No. 1 (Kedar Nath) on his own expenses for the protection and preservation of the suit land itself. Further it was stated that the construction raised was not prejudicial to the interest of Shri Dhar Sabha and that the said construction had been made for the benefit and proper use of the said land, which was never objected to by the plaintiff or any other executive member of the Sabha. However, in paragraph 6, of the written statement, contrary to the admission of possession of the plaintiff over the suit land, the defendants raised a plea that the Defendant No. 1, had been in peaceful possession of the suit land to the knowledge and with the consent of all other members of the executive committee of Shri Dhar Sabha and that the question of dispossessing the plaintiff forcibly did not arise at all. 10. Based upon the pleadings, the trial court framed the following issues: (i) Whether the suit is not maintainable in the present form in view of the provision of Section 92 of CPC? OPD (ii) Whether the plaintiff has no locus standi to file the suit? OPD (iii) Whether the plaintiff is in possession of the suit property comprising Khasra No. 204 min measuring 1 kanal 1 maria of land? OPP (iv) In case issue No. 3, is proved in affirmative, whether defendants are interfering in the possession of the plaintiff? OPP (v) Whether the defendants have constructed shed in the suit property with the consent and knowledge of the plaintiff, if so, what is its effect? OPD (vi) In case issue No. 3, is proved in negative, what is its effect on the suit? OPD (vii) Relief. 11. OPP (v) Whether the defendants have constructed shed in the suit property with the consent and knowledge of the plaintiff, if so, what is its effect? OPD (vi) In case issue No. 3, is proved in negative, what is its effect on the suit? OPD (vii) Relief. 11. The trial court relied upon the statement of the witnesses appearing for the plaintiff, who unequivocally had stated that the suit land was fenced by Shri Dhar Sabha and a gate was also installed on it and further that the suit land was in possession of the plaintiff. Most importantly, the patwari-Mohd. Aslam, who was the custodial of the revenue record, stated that the suit land was recorded in the name of Shri Dhar Sabha through Kedar Nath. In addition to this, and most importantly, Munshi Ram, the vendor stated that he had sold One kanal and One Marla of land for construction of the Sabha and that the amount of consideration was given by one Kedar Nath with whom an agreement to sell was also executed. 12. Based upon the evidence so recorded, the court below came to record a finding that the covenants of the said agreement to sell clearly implied that land, in fact, was sold to Shri Dhar Sabha through Kedar Nath and that the possession was with the plaintiff and in that view of the matter, proceeded to pass a decree in favour of the plaintiff. 13. The learned District Judge, Reasi dismissed the Civil 1st Appeal filed by the plaintiffs and upheld the judgment and decree passed by the court below. It is in these circumstances that the present Civil Second Appeal has been preferred. 14. In the present Civil Second Appeal, although some questions of law have been framed, yet the counsel for the appellants questioned the judgment and decree on the ground that while deciding the first appeal, the 1st Appellate Court had failed to appreciate the evidence on record and without discussing the evidence in the minutest detail had proceeded to decide the first appeal by generally affirming the evidence recorded by the trial court below. 15. It was stated that by doing so, the court had gone contrary to the mandate of Order 41, Rule 31 of the Civil Procedure Code as also the ratio of the judgment of the Apex Court in B.V. Nagesh and Anr. 15. It was stated that by doing so, the court had gone contrary to the mandate of Order 41, Rule 31 of the Civil Procedure Code as also the ratio of the judgment of the Apex Court in B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy, JT (2010) 10 SCC 551. Reliance was also placed upon on a judgment of this court rendered in the case of Ravi Kumar v. Shashi Kumar, CSA No. 31/2012, decided on 29.03.2016 : 2016 (3) JKJ 732 [HC] in the same effect. 16. Heard learned counsel for the parties. 17. Order 41, Rule 31 of the CPC envisages that the judgment of the appellate court shall be in writing and shall state: a. the points for determination; b. the decision thereon; d the reasons for the decision; and, d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 18. In Girijanandini Devi and Ors. v. Bijendra Narain Choudhary, (1967) 1 SCR 93 , the view expressed by the Apex Court was that it was not necessary for the appellate court when it agrees with the view of the trial court either to restate the effect of evidence or to reiterate the reasons given by the trial court and expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. What was observed by the Apex Court in paragraph 12, of the judgment (supra) is relevant and reproduced hereunder: "12. The Trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed. It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. 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. 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." 19. However, in Madhukar and Ors. v. Sangram and Ors., 2001 (3) Supreme 518 , the Apex Court highlighted the need for the appellate court to discuss the oral and documentary evidence as also emphasized the need of the appellate court to deal with all the issues and the evidence led by the parties before recording its findings. Paragraph 5 of the judgment (supra) is relevant and is reproduced below:- "5. We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had been placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (OS No. 93/71). Oral evidence had also been led by the parties before the trial Court, which was noticed and appreciated by the trial Court. However, the impugned judgment in the first appeal, is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that though trial court had dismissed the suit on ground of limitation as also on the ground that the decision in the earlier suit (OS No. 93/71) operated as res judicata against Defendant No. 1 only the High Court has not even considered, much less discussed, correctness of either of the two grounds on which the trial Court had dismissed the suit. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings." 20. Subsequently, in B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy, JT (2010) 10 SCC 551, the Apex Court held as under:- "The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. 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 contentions put forth and pressed by the parties for decision of the appellate court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and Ors. v. Sangram and Ors., (2001) 4 SCC 756 ]" 21. From a reading of the judgment and decree impugned in the present appeal, it will be seen that although the 1st Appellate Court had not reproduced verbatim the statement of every witness recorded by the trial court, yet it cannot be said that the court below had not discussed the evidence on record or that the findings arrived at were not supported by reasons. In fact, the averments made in paragraphs 4 and 5 of the plaint and the admission of such averments in the written statement pertaining to the factum of execution of agreement to sell in regard to purchase of the land in question as also the factum of the admission of the plaintiff being in continuous and uninterrupted exclusive possession of the land as an owner was itself sufficient as an admission and decree could have been passed based thereupon yet the courts below proceeded to discuss the evidence and arrived at the conclusion of the plain tiff being in possession even on the basis of the evidence on record. 22. The assertion that the appellate court had not discussed the evidence or that the same was contrary to the provisions of Order 41, Rule 31 CPC in the facts and circumstances of the case is untenable. 23. For the reasons mentioned above, no substantial questions of law arise in the instant Civil Second Appeal and the same is accordingly dismissed along with connected applications, if any.