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2017 DIGILAW 1181 (ORI)

Bijay Kishore Swain v. Harekrushna Nayak

2017-10-23

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This is a defendant’s appeal against confirming judgment. 2. The respondent as plaintiff instituted T.S. No. 48 of 1992-I in the court of the learned Sub-Judge, Bhadrak for declaration of title, confirmation of possession, eviction and permanent injunction impleading the appellant as defendant. The case of the plaintiff is that one Bhabagrahi Barik was the recorded owner of the suit property as per C.S.R.O.R. After his death, his two sons alienated the land to him by means of a registered sale deed dated 16.8.1966 and delivered possession. The land was mutated in his favour. He used to pay rent. After purchase, he demarcated the land and raised fence. He had constructed a house over the same in the year 1967. He had another house at 24 Pragana in the State of West Bengal. He used to stay outside. The defendant married to his sister. The defendant had purchased a land adjacent to north side of the suit house. The defendant approached him to reside in the suit house temporarily till completion of his house. He agreed to the proposal of the defendant. Thereafter the defendant has been residing in the suit house from the year 1969. The plaintiff requested to the defendant to leave the house whenever the same would be required by him for personal use. The plaintiff evinced an intention to stay in the house to look after the properties of his village. He requested the defendant to vacate the suit house. But then, the defendant did not vacate the house. With this factual scenario, the suit was instituted seeking the reliefs mentioned supra. 3. The defendant filed a written statement contending, inter alia, that the suit plot was purchased by him in the name of the plaintiff as benami. He could not mutate the land and record his name in the M.S.R.O.R. He is in possession of the suit land. After purchase, he constructed a thatched house on the southern side of the suit land. In the year 1969, he had constructed an asbestos house. The plaintiff is not in possession of the suit land. He is in exclusive possession of the suit land peacefully, continuously and to the hostile animus of the plaintiff for more than the statutory period and as such perfected title by way of adverse possession. 4. In the year 1969, he had constructed an asbestos house. The plaintiff is not in possession of the suit land. He is in exclusive possession of the suit land peacefully, continuously and to the hostile animus of the plaintiff for more than the statutory period and as such perfected title by way of adverse possession. 4. On the interse pleadings of the parties, learned trial court struck nine issues. Out of which, issue nos.5, 6 and 7 are pivotal. The same are quoted hereunder. “5. Is the description of the suit land vague and indefinite ? 6. Has the defendant made any contract to purchase the suit land and paid the consideration money to the vendors and purchased the same in “Benami” in the name of the plaintiff ? 7. Has the defendant acquired the suit land by adverse possession ?” 5. Both parties led evidence, oral and documentary, to substantiate their cases. Learned trial court decided issue no.5 in favour of the plaintiff. It further held that the defendant failed to prove that he had purchased the property in the name of the plaintiff as benami. The plea of the defendant that he had perfected title by way of adverse possession was neagtived. Held so, it decreed the suit. Assailing the judgment and decree of the learned trial court, the defendant filed T.A. No. 9 of 2000 before the learned Additional District Judge, Bhadrak. Learned lower appellate court formulated only one question that whether the defendant had purchased the suit land as benami in the name of the plaintiff? It answered the same in negative, confirmed the findings of the learned trial court and dismissed the appeal. 5. The second appeal was admitted on the following substantial questions of law. The same are: “(1) Whether the learned courts below have committed an error of law in decreeing the suit filed by the plaintiff for declaration of right, title and interest and recovery of possession without considering the question of fraud with regard to execution of the registered sale deed dated 16.8.1966 and without appreciating the distinction between fraud and benami transaction within the meaning of Section 17 of the Contract Act and Section 3 of the Benami Transaction and Prohibition Act? (2) Whether the learned lower appellate court has committed an error of law in not addressing itself to all the questions raised before the trial court and in only confirming the judgment by answering one of the issues raised in the suit ? (3) Whether the learned courts below have committed an error in holding that the suit property was described properly so as to identify it even though the suit property constituted a part of a bigger plot, but it has not been mentioned in the schedule of the plaint as to in which direction of the plot, the said suit property is situated ?” 6. Heard Mr. P.K. Rath, Mr. P.K. Sahoo, learned counsel for the appellant, Mr. A.C. Mohanty, Mr. B. Pradhan, learned counsel for the respondent. 7. Mr. Rath, learned counsel for the appellant submitted that learned lower appellate court fell into patent error in deciding the appeal in one issue only. The defendant set up the plea of adverse possession, so also non-description of the property. Learned lower appellate court did not delve into the same and affirmed the finding of the learned trial court. He further submitted that when the first appeal was filed, it was the bounden duty of the learned lower appellate court to decide all the issues. Thus the judgment and decree of the learned lower appellate court is perverse. He relied on the decision of the apex court in the cases of Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 and M/s. Fomento Resorts and Hotels Ltd. vs. Gustavo Ranato da Cruz Pinto and others, AIR 1985 SC 736 . 8. Per contra, Mr. Mohanty, learned counsel for the respondent submitted that plaintiff is the owner of the suit house. His brother-in-law, the defendant, requested the plaintiff to remain in house. The plaintiff agreed to the same, whereafter the defendant is residing in his house. The defendant has no semblance of right, title and interest over the suit property. Both the courts below concurrently held that plaintiff is the owner of the suit property. These are essentially finding of facts. There is no perversity in the same. He further contended that the core issue is whether the defendant has purchased the property in the name of the plaintiff. The same was answered in negative by both the courts. Both the courts below concurrently held that plaintiff is the owner of the suit property. These are essentially finding of facts. There is no perversity in the same. He further contended that the core issue is whether the defendant has purchased the property in the name of the plaintiff. The same was answered in negative by both the courts. He further submitted that 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. He relied on the decision of the apex Court in the cases of Thakur Sukhpal Singh vs. Thakur Kalyan Singh and another, AIR 1963 SC 146 , Girijanandini Devi and others vs. Bijendra Narain Choudhary, AIR 1967 SC 1124 and Lisamma Antony and another vs. Karthiyayani and another, (2015) 11 SCC 782 . 9. In Santosh Hazari (supra), the apex Court reminded the duty of the first appellate court. The apex Court held: “… 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) 10. 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) 10. The apex Court in the case of H.K.N. Swami v. Irshad Basith (dead) by LRs, (2005) 10 SCC 243 , held: “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. 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) 11. In M/s. Fomento Resorts and Hotels Ltd. (supra), the apex court held thus: “27. In a matter of this nature where several contentions factual and legal are urged and when there is scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the court should, when dealing with any matter dispose of all the points and not merely rest its decision on one single point.” 12. First appeal is valuable right of the parties. The whole case is 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. It is the duty of the first appellate court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 13. Learned trial court framed nine issues, out of which issue nos.5 to 7 mentioned (supra) are pivotal. It is the duty of the first appellate court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 13. Learned trial court framed nine issues, out of which issue nos.5 to 7 mentioned (supra) are pivotal. Learned lower appellate court formulated one question and concurred with the findings of the learned trial court and dismissed the appeal. It did not delve into other issues. Thus, the judgment is vitiated. 14. The decision in the case of Thakur Sukhpal Singh (supra) is distinguishable on facts. In the said case, the counsel for the appellant stated before the High Court that he had no instruction to represent the appellant. His application for adjournment was rejected. The appellant was not prepared to address the Court. Thereafter the High Court dismissed the appeal. The matter went to the apex Court. The apex Court held that the contention was advanced before the apex Court that High Court had no jurisdiction to decide the appeal after going through the record of the case and judgment of the court below and must have complied with the provisions of Rule 31 Order XLI, C.P.C. when the appellant did not address the Court. The said decision is not an authority for the proposition that the appellate court will hear the appeal on one issue and either affirm or reverse the same. 15. A priori, the judgment and decree of the learned lower appellate court is set aside. The matter is remitted back to the learned lower appellate court for de novo hearing. For the said purpose, parties shall appear before the learned appellate court on 24th November, 2017. Learned appellate court shall conclude the hearing of the appeal by February, 2018. The appeal is allowed. No costs.