Shankar Ram Jaiswara @ Shankar Ram Jaswara v. Sita Devi Jaiswar
2019-03-26
S.N.PATHAK
body2019
DigiLaw.ai
ORDER : This Second Appeal has been preferred against the Judgment dated 06.02.2014 and Decree sealed and signed on 20.02.2014, passed by District Judge-3rd, Dhanbad whereby and whereun Judgment dated 26.02.2010 and Decree sealed and signed on 09.03.2010, passed by Subordinate Judge – VI, Dhanbad has been upheld and the appeal stood dismissed. 2. The defendant is the appellant and the suit was brought by plaintiffs/respondents for declaration of their title, confirmation of possession and alternatively its recovery of possession with respect to Schedule-B land and cost of suit against the defendant. 3. Learned Trial Court after leading proper evidences and perusing records of the case, came to a finding that there is no document to show that Bhaglu Ram had acquired the suit land nor any attempt was ever made by him for getting back the suit land from Ramdular Jaiswara as falsely alleged that the suit land was purchased by him in favour of his minor son Ramdular Jaiswara. Thus the Trial Court found the plaintiff dispossessed from the suit property and rightly it was held that she is entitled for recovery of possession from the defendants and suit was decreed in favour of the plaintiff. The first appellate court has also come to the conclusion that there is no perversity in findings of trial court and plaintiff is entitled to get a decree for cancellation of defendant’s Sale Deed No. 22994, dated 29.08.1974 by declaring the same as illegal, void, ineffective and inoperative. 4. Mr. Sachidanand Das, learned counsel appearing on behalf of the appellant, referring to the grounds mentioned in the memo of appeal submits that appeal may be admitted after formulating substantial question of law and appeal may be allowed. Learned counsel has relied upon a decision passed in the case of Ramlal and another Vs. Phagua and others reported in (2006)1 SCC 168 and submits that though this is a case of concurrent findings of both the courts below but the High Court sitting in second appeal may interfere to reverse the error and remove the injustice done by the courts below. Learned counsel has relied upon paragraphs 19 and 22 of the said Judgment which is relevant to be quotred herein: “19. In Mohan Lal v. Nihal Singh, the trial court dismissed the suit for the reasons recorded therein on the basis of the record and oral evidence.
Learned counsel has relied upon paragraphs 19 and 22 of the said Judgment which is relevant to be quotred herein: “19. In Mohan Lal v. Nihal Singh, the trial court dismissed the suit for the reasons recorded therein on the basis of the record and oral evidence. The lower appellate court, as noticed earlier, had not considered oral and documentary evidence properly. The lower appellate court which is the final court of fact mechanically confirmed the findings of the trial court and upheld the judgment of the trial court dismissing the suit. The High Court for the cogent and convincing reasons recorded in the judgment has rightly interfered with the concurrent findings of both the courts. In our view, both the lower courts have concurrently erred in not appreciating the oral and documentary evidence properly and, therefore, the High Court is at liberty to reappreciate the evidence and record its own conclusion for reversing the orders passed by the lower court. The judgment of this Court in the case of Mohan Lal v. Nihal Singh is cited by the learned counsel for the appellant will not be of any assistance to the appellant herein. 22. The case of Indira Kaur v. Sheo Lal Kapoor was cited by the learned Senior Counsel appearing for Respondent 1 in regard to the scope of Article 136. In the above judgment, this Court in para 7 held that Article 136 does not expressly forge any fetters on the power of this Court to interfere with the concurrent findings of fact. Though, this power had to be exercised sparingly but if and when the Court is satisfied that grave injustice has been done it is not only the right but also the duty of the Court to reverse the error and the injustice and to upset the finding notwithstanding the fact that it has been affirmed earlier. This Court also held that it is not the number of times that a finding has been reiterated that matters. What really matters is whether the finding is a manifestly unreasonable and unjust one in the context of the evidence on record. This judgment squarely applies to the case on hand. In the instant case, the High Court has rightly exercised its right and discharged its duty to reverse the error and removed the injustice done by the courts below.
What really matters is whether the finding is a manifestly unreasonable and unjust one in the context of the evidence on record. This judgment squarely applies to the case on hand. In the instant case, the High Court has rightly exercised its right and discharged its duty to reverse the error and removed the injustice done by the courts below. The High Court is right in exercising its duty, rightly so in interfering with unreasonable and unjust findings by both the courts below.” 5. Learned counsel submits that in view of the aforementioned facts and circumstances and the observation of Hon’ble Supreme Court, this is a fit case where this Hon’ble Court may reverse error and remove the injustice done by the courts below. 6. Mr. Jai Prakash, learned Senior Counsel submits that there is concurrent findings of both the courts below. The Judgments cited by the learned counsel for the appellant is of no help to him. The appellant has not been able to formulate substantial question of law to be decided by this Hon’ble Court. From the impugned Judgments it appears that substantial compliance and justice has not suffered. 7. I have heard rival submission of the parties and perused the record. The Appellate Court has considered entire evidence on record and discussed the same in details, came to a conclusion and its finding are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance and the judgment is not in any manner vitiated by the absence of point of determination. Where there is an honest endeavour on part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and other considerations appearing on both sides is clearly manifest by perusal of the Judgment of the lower appellate court, it would be a valid Judgment even though it does not contain the points for determination. The Hon’ble Apex Court in the case of Girja Nandini Devi Vs. Bijendra Narain Choudhury reported in AIR 1967 SC 1124 has held as under: “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.
Bijendra Narain Choudhury reported in AIR 1967 SC 1124 has held as under: “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.” 8. The same view was reiterated in the case of Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179 . 9. Admittedly the first appellate court continues, as before, to be a final court of facts, pure findings of fact remain immune from challenge before the High Court in Second Appeal. The first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous, may not be vulnerable before the High Court. It is found that the first appellate court had considered the evidence led on part of parties and has given finding to come to the conclusion arrived at. Detailed reasons have been assigned for affirming decision of the Trial Court. As there is concurrent finding of facts by both the Court, the Second Appeal is devoid of merits. 10. The grounds taken by the appellant as mentioned in the memo of appeal and argued by learned counsel for the appellants is not sustainable. The first appellate court dismissed the appeal affirming the Judgment and decree passed by the trial court. There is concurrent findings of both the Courts. 11. In the circumstances, I do not find any substantial question of law to be framed. This Second Appeal is devoid of any merits and, therefore, the same stands dismissed at the stage of ‘Admission’ itself. 12. As a sequel of aforesaid, pending Interlocutory Applications also stand disposed of.