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2017 DIGILAW 1142 (ORI)

Sabita Mahapatra v. Kasinath Das

2017-10-12

A.K.RATH

body2017
JUDGMENT : DR.A.K. RATH, J. 1. This is a plaintiff’s appeal against affirming judgment. 2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the appellant as plaintiff instituted T.S. No. 41/89 for declaration of title, recovery of possession and confirmation of possession in the court of the learned Civil Judge (Senior Division), Bargarh. She also instituted T.S. No. 53/89 in the same court for confirmation of possession and permanent injunction. The defendants filed their written statements in both the suits. 3. On the inter se pleadings of the parties, the learned trial court struck four issues in T.S. No. 53/89 and five issues in T.S. No. 41/89. Both the parties led evidence, oral and documentary, to substantiate their cases. The suits were dismissed. Felt aggrieved, plaintiff filed T.A. No. 43/1996 before the learned Additional District Judge, Bargarh, which was subsequently transferred to the court of learned Additional District Judge (FTC), Bargarh and re-numbered as T.A. No. 43-58/1996-2001. Learned appellate court did not delve into the issues. Curiously the learned appellate court solely placing reliance on the report of the survey knowing commissioner, dismissed the appeal. 4. The second appeal was admitted on the following substantial question of law:- “Whether the learned lower appellate court has erred in law in not deciding the appeal on merit ?” 5. Heard Mr. S.R. Das, learned counsel for the appellant, Mr. H.S. Mishra, learned counsel for the respondent no.1 and Mr. M. Mohanty, learned counsel for the respondent no.2. 6. Mr. Das, learned counsel for the appellant submits that once an appeal has been filed, the duty of the first appellate court is to decide the same on merit. Even if the leaned appellate court affirmed the finding of the learned trial court, it has to assign reasons. The learned appellate court decided the appeal solely basing on the report of the survey knowing commissioner. According to him, report of the survey knowing commissioner has to be considered along with other evidence on record. But the same has not been done. 7. Per contra, Mr. Mishra, learned counsel for the respondent no.1 submits that the learned counsel for the appellant did not press all issues and confined his argument with regard to the report of the survey knowing commissioner. But the same has not been done. 7. Per contra, Mr. Mishra, learned counsel for the respondent no.1 submits that the learned counsel for the appellant did not press all issues and confined his argument with regard to the report of the survey knowing commissioner. Thus no fault can be found by the learned appellate court. The learned appellate court affirmed the finding of the learned trial court and dismissed the appeal. There is no perversity or illegality in the findings of the courts below. Mr. Mohanty, learned counsel for the respondent no.2 supports the argument of Mr. Mishra. 8. In Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 , the apex Court held thus:- “… The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing 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. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or 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 (See Girijanandini Devi v. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. 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. …” (Emphasis laid) 9. The apex Court in H.K.N. Swami v. Irshad Basith (dead) by LRs, (2005) 10 SCC 243 , held thus:- “3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. The order of the High Court is cryptic and the same is without assigning any reason.” (Emphasis laid) 10. Learned trial court framed four issues. On an analysis of the evidence on record and pleadings, learned trial court dismissed the suit. But then, the learned appellate court solely relying on the report of the Survey Knowing Commissioner dismissed the appeal. As held by the apex Court in the decisions cited supra, sitting as the first appellate court it was the duty of the Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 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. 11. In the wake of aforesaid, the judgment and decree of the learned appellate court are set aside. The matter is remitted back to the learned appellate court for de novo hearing. To avoid further delay, the parties shall appear before the learned District judge, Bargarh on 16th November, 2017, on which date, the learned District Judge, Bargarh shall fix a date of hearing and dispose of the appeal within a period of three months thereafter.