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2017 DIGILAW 850 (HP)

Mast Ram (deceased) through LR’s v. Subhash Chand

2017-07-25

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. Having regard to the nature of order this court proposes to pass, after having carefully perusing impugned judgment and decree, passed by learned first appellate Court vis-à-vis pleadings adduced on record, by the appellants, it may not be necessary to give facts and circumstances of the case, save and except that the respondent-plaintiff, filed a suit for declaration to the effect that suit land is owned and possessed by him and defendant has no right, title or interest over the suit land. Plaintiff, by way of suit referred to above, prayed for injunction restraining the defendant from interfering in the suit land and, in the alternative, for possession in case, defendant succeeds in taking possession of suit land or if otherwise found in possession of suit land. 2. Aforesaid suit having been filed by the plaintiff came to be decreed, whereby he was held to be owner in possession of the suit land. Learned trial Court, while holding plaintiff to be owner-in-possession of the suit land also held that defendant has no right, title or interest over the suit land. Entries in favour of defendant are wrong, illegal, hence set aside. Defendant being aggrieved and dissatisfied with aforesaid judgment and decree, preferred an appeal under Section 96 CPC, before the Additional District Judge, Fast Track Court, Una, District Una, which came to be registered as CA No. 21/98 RBT No. 80/04/98. However, the fact remains that the aforesaid appeal was dismissed, as a result of which, judgment and decree passed by learned trial Court came to be upheld. In the aforesaid background, appellants have approached this Court by way of instant proceedings, praying therein for setting aside the judgments and decrees passed by learned Courts below. 3. Appeal at hand was admitted on 8.7.2005, on the following substantial questions of law: “(1) Whether the civil Court has no jurisdiction to entertain the suit in view of the provision of Section 7 of the H.P. Consolidation of Holdings (Prevention and Fragmentation) Act? (2) Whether the findings of the Courts below are dehors the evidence on record?” 4. Before this Court adverts to the records for exploring answer to the aforesaid substantial questions of law, Mr. (2) Whether the findings of the Courts below are dehors the evidence on record?” 4. Before this Court adverts to the records for exploring answer to the aforesaid substantial questions of law, Mr. Rajnish Lal, learned counsel representing the appellants invited attention of this Court to the grounds of appeal filed before first appellate Court, laying therein challenge to the judgment and decree passed by learned trial Court, to demonstrate that no findings, if any, qua issue of jurisdiction of civil court, while entertaining suit against order of Consolidation officer, have been returned, as such, judgment passed by first appellate Court is not sustainable in the eyes of law and same deserves to be set aside. 5. Before ascertaining the merits of the aforesaid submissions having been made by the learned counsel representing the appellants, it would be appropriate to take not of the ground No. 5 of the appeal preferred before the learned Additional District Judge, which is reproduced as under: “5. That the order for correction of entries in the record has been made by the competent court on the admission of the plaintiff and that order has not been challenged by the plaintiffs moreover the order of the Consolidation Officer is final and that cannot be challenged in the civil court. The ld. Lower court below has acted without any power and jurisdiction.” 6. Perusal of averments contained in the aforesaid ground of appeal, clearly suggests that specific plea with regard to jurisdiction of civil court vis-à-vis order of Consolidation Officer was raised by the appellant before the first appellate Court and as such, it was bound to decide the same in accordance with law. 7. After having carefully perused impugned judgment and decree passed by first appellate Court, this Court sees substantial force in the arguments having been made by Mr. Rajnish Lal, that there is no discussion at all in the judgment passed by first appellate Court, qua issue of jurisdiction of civil court. In the case at hand, first appellate Court after recording brief facts of the case as well as submissions having been made by the learned counsel representing the parties, has proceeded to decide the appeal without caring to take note of specific grounds taken in the appeal. In the case at hand, first appellate Court after recording brief facts of the case as well as submissions having been made by the learned counsel representing the parties, has proceeded to decide the appeal without caring to take note of specific grounds taken in the appeal. Perusal of the impugned judgment passed by first appellate Court, nowhere suggests that it had taken note of ground No. 5, as reproduced above, while deciding appeal having been preferred by appellants. 8. By now, it is settled law that first appeal is a valuable right of parties and parties have a right to be heard, both on the question of law and facts and first appellate Court is required to address itself to all the issues and decide the case by giving reasons in support of such findings. 9. True, it is that it is always open for the first appellate Court to take a different view on question of facts after adverting to the reasons given by trial Court in arriving at findings in question. It has been repeatedly held by Hon'ble Apex Court as well as this Court that court of first appeal being the last court of facts, must address all the questions involved in the case and, by no means, they should be general and vague. Similarly, it is well settled by now that whenever, appellate court intends to reverse the findings of trial Court, it is expected to record findings in clear terms, specifically stating therein in what manner, reasoning of trial court is erroneous. As has been observed above, first appeal is a valuable right of parties and unless restricted by law, the whole case therein is open for re-hearing on questions of law and facts, as such, judgment of first appellate Court must therefore reflect its conscious application of mind and must record findings supported by reasons on all the issues arrived from pleadings of the parties. 10. In this regard, reliance is placed upon judgment of Apex Court in Laliteshwar Prasad Singh v. S.P. Srivastava reported in (2017) 2 SCC 415 , wherein Hon'ble Apex Court has held as follows: “13. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court’s application of mind and record its findings supported by reasons. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court’s application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of first appellate court, in Vinod Kumar v. Gangadhar (2015) 1 SCC 391 , it was held as under:- “12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 , this Court held as under: (SCC pp. 188-89, para 15) “15. … 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. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.” The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (2001) 4 SCC 756 , wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243 , this Court stated as under: (SCC p. 244, para 3) “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. 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.” 14. Again in Jagannath v. Arulappa (2005) 12 SCC 303 , while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2) 15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) “3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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. 4. 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 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. 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. 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. 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 , SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.” 14. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court are erroneous.” 11. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court are erroneous.” 11. In the instant case, as has been noticed above, no findings, if any, qua issue of jurisdiction of civil court, specifically raised in grounds of appeal by appellants have been returned by first appellate Court, rather, first appellate Court proceeded to agree with the findings returned by learned trial Court, reiterating reasoning given by learned trial Court while decreeing suit of the plaintiff. Needless to say that if first appellate Court agrees with the findings of trial Court, it need not re-state effect of evidence or reiterate reasons given by trial Court, expression of general agreement with reasons given by trial Court, would ordinarily suffice, but while agreeing with the judgment passed by trial Court, it is incumbent upon first appellate Court to take into consideration all the issues raised before it by the parties. 12. But, in the instant case, this Court, after having carefully perused impugned judgment passed by first appellate Court, is in agreement with the arguments having been made by Mr. Rajnish Lal, learned counsel representing the appellants that first appellate Court failed to take into consideration specific grounds with regard to jurisdiction having been raised by the appellants while agreeing with the judgment passed by learned trial Court. Keeping in view of controversy involved in the case, it was all the more important for the first appellate Court to consider specific plea of jurisdiction raised in appeal and then record its findings, regarding maintainability, if any, of the suit having been filed by the plaintiff. 13. In this regard, reliance is placed upon judgment of Hon'ble Apex Court in Shasidhar and others versus Ashwini Uma Mathad and another, (2015) 11 SCC 269 , wherein it has been held as under: “10. The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. 11. The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. 11. As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under: "1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. 3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation....." (Emphasis supplied) 12. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate Court under Section 96 of the Code. We consider it apposite to refer to some of the decisions. “16. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179 , this Court held (at pages 188-189) as under: ".........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. We consider it apposite to refer to some of the decisions. “16. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179 , this Court held (at pages 188-189) as under: ".........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......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it............" The above view has been followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756 , wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 14. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243 , this Court (at p.244) stated as under: "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." 15. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303 , while considering the scope of Section 96 of the Code this Court (at pp. 303-04) observed as follows: "2. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303 , while considering the scope of Section 96 of the Code this Court (at pp. 303-04) observed as follows: "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........." 16. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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. 4. 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 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. 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. 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 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law." 17. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 . This Court has recently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, 2014(12) Scale 171 . 18. Applying the aforesaid principle to the facts of the case, we find that the High Court while deciding the first appeal failed to keep the aforesaid principle in consideration and rendered the impugned decision. Indeed, it is clear by mere reading of the impugned order quoted below: "1. The appellants are defendants in the suit. The plaintiffs are the respondents. The respondents are the children of 1st appellant born in the wedlock between 1st appellant and his divorced wife Smt. Uma Mathad. It is admitted fact that the 1st appellant has married the 2nd respondent after the divorce and in the wedlock he has two children and they are appellant Nos.3 and 4. The suit properties at item Nos.1 and 4 are admitted to be the ancestral properties. Item Nos.2 and 3 are the properties belonging to the mother of the 1st appellant and after her demise the said properties are bequeathed to 1st appellant. Therefore, the said properties acquired the status of self-acquired properties. 2. The respondents filed a suit for partition. The parties are governed by Bombay School of Hindu Law. Item Nos.2 and 3 are the properties belonging to the mother of the 1st appellant and after her demise the said properties are bequeathed to 1st appellant. Therefore, the said properties acquired the status of self-acquired properties. 2. The respondents filed a suit for partition. The parties are governed by Bombay School of Hindu Law. In view of the provisions of Hindu Succession Amendment Act of 2005, the respondent Nos. 1 and 2 are entitled to a share as co-parceners in the ancestral properties. The wife who is the second appellant also would be entitled to a share in the partition. In that view, the appellant Nos. 1 and 2 and respondent Nos.1 and 2 will have 1/4th share each in item Nos.1 and 4 of the suit properties. 3. The learned counsel for the appellants submitted that the appellants 2 to 4 would not claim any independent share in item Nos.1 and 4 of the suit properties, but they would take share in the 1/4th share allotted to their father. 4. In view of the said submissions, the appellant Nos.1 and 2 and respondent Nos.1 and 2 would be entitled to 1/4th share in item Nos.1 and 4 of the suit properties. 5. Accordingly, a preliminary decree to be drawn and the appeal and cross objections are disposed of in the terms indicated above." 19. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellants and/or respondents nor it took note of the grounds taken by the appellants in grounds of appeal nor took note of cross objections filed by plaintiffs under Order XLI Rule 22 of the Code and nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case laws applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial Court can be sustained or not and if so, how, and if not, why? 14. Though Mr. N.K. Thakur, learned Senior Advocate, duly assisted by Mr. 14. Though Mr. N.K. Thakur, learned Senior Advocate, duly assisted by Mr. Nitish, Advocate, on behalf of respondents No.1 and 2, made an attempt to persuade this Court, to agree with his contention that in light of the finding returned by trial Court, there was no requirement as such for the learned first appellate Court to return specific finding with regard to jurisdiction raised by appellants, but aforesaid argument having been made by Mr. N.K. Thakur, learned Senior Advocate can not be accepted in light of aforesaid law laid down by the Hon'ble Apex Court as well as this Court. 15. Consequently, in view of detailed discussion made herein above, as well as salutary principles, as have been laid down by Hon'ble Apex Court in judgments referred to above, as well as judgments passed by this Court, this Court is of the view that first appellate Court has failed to discharge its obligation being a court of first appeal. 16. Accordingly, without going into merits of the claims of both the parties, impugned judgment and decree passed by first appellate Court, are set aside and matter is remanded back to the first appellate Court, with the direction to decide the same afresh, in accordance with law. It may be observed that observations, if any, made by this Court, while passing instant order/judgment, may not be considered as opinion of this Court, especially qua issues involved in the present case, rather, first appellate Court may proceed to decide appeal afresh, without being influenced by any of the observations made in this judgment. 17. Parties through their counsel are directed to remain present before first appellate Court on 30.8.2017. Since parties are litigating in the courts of law since 1981, this Court hopes and trusts that first appellate Court shall decide the matter preferably on or before 31.12.2017. 18. Registry is directed to send a copy of instant order alongwith records of the case forthwith to the learned Court below, enabling it to do the needful within stipulated period. 19. That appeal stands disposed of accordingly. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated.