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2025 DIGILAW 241 (JHR)

Jirwa Devi, w/o. Ambika Ram v. Bangali Ram @ Bangali Dusadh

2025-02-04

ANUBHA RAWAT CHOUDHARY

body2025
JUDGMENT : (Anubha Rawat Choudhary, J.) Heard counsel appearing on behalf of the parties. 2. This appeal was admitted for hearing on 31.10.2018 on the following substantial questions of law: “A. “Whether the Findings of the learned court of appeal below on Ext A , a true copy of the partition deed and as a consequence there of reversing the judgment and decree of the trial court partly and there by decreeing the suit in part even without meeting the reasonings of the learned trial court, is legally and factually sustainable ? B. Whether the learned court of appeal below has applied correct principle of law and was justified in relying upon the Ext 4 a true copy of the partition deed and also has further misconstrued with the admissibility of the said document as taking secondary evidence when in absence of attracting the foundational facts u/s 65 of the Indian Evidence Act and more particularly denial of its execution by the defendants? C. Whether the learned court of appeal below misdirected himself relying upon EX 1, 1/1. &1/2 the rent receipt, though not a document of title in holding that plaintiff have right title over 0-56 acres out of suit land? D. Whether the learned court of appeal below was justified in giving the finding beyond pleadings merely on conjecture and surmises and such a finding can be sustained in the eye of law?” 3. Learned counsel appearing on behalf of appellant has submitted that in 1 st substantial question of law number (A), the Exhibit Number has been wrongly mentioned as Ext. A, it ought to have been Ext. 4. This aspect of the matter has not been disputed by learned counsel appearing on behalf of respondents. Accordingly substantial question of law No. A is to be read as under: A. “Whether the Findings of the learned court of appeal below on Ext.4 , a true copy of the partition deed and as a consequence there of reversing the judgment and decree of the trial court partly and there by decreeing the suit in part even without meeting the reasonings of the learned trial court, is legally and factually sustainable ? 4. The learned counsel appearing on behalf of the appellant has submitted that two material documents were subject matter of consideration before the learned Trial Court, Ext. 2 and Ext. 4. 4. The learned counsel appearing on behalf of the appellant has submitted that two material documents were subject matter of consideration before the learned Trial Court, Ext. 2 and Ext. 4. So far as the claim of the plaintiffs in connection with the property involved in Ext. 2 is concerned, the same has been concluded against the plaintiff inasmuch as the learned Trial Court as well as the Appellate Court has negated the claim of the plaintiff with respect to the property of 6 decimal of land contained in Ext. 2. He submits no cross-appeal has been filed and therefore, the finding with respect to Ext. 2 has become final and binding on the parties. 5. With respect to Ext. 4 [in connection of which the substantial question of law has been framed], the learned counsel has submitted that the learned Trial Court has cited numerous reasons to disbelieve the Ext. 4 but those reasons have not been met with by the learned Appellate Court while reversing the judgment and decree passed by the learned Trial Court. He has submitted that this also applies to the other substantial questions of law including the rejection of secondary evidence by the learned Trial Court inasmuch as the plaintiff had tried to make out a specific case that the original sale deed was produced in relation to proceeding under Section 145 Cr.PC and was lost but the learned Trial Court recorded that the documents which was produced before the S.D.O. under Section 145 Cr.PC was the same document which was exhibited by the plaintiff before the learned Trial Court. 6. He has also submitted that the learned Trial Court has also recorded that execution of the document was being disputed by the defendants. He submits that the reasons for not accepting the secondary evidence in connection with Ext. 4 has not been met by the learned Appellate Court by accepting the secondary evidence. 7. With respect to the substantial question no. (C), the learned counsel for the appellant has submitted that Exts. 1, 1/1 & 1/2 were recent receipts issued in the year 2007 and suit was pending since 2004. He has also submitted that the learned Trial Court has rejected the exhibits on the ground that the said exhibits did not give the details of the land for which the rent receipts were issued. 1, 1/1 & 1/2 were recent receipts issued in the year 2007 and suit was pending since 2004. He has also submitted that the learned Trial Court has rejected the exhibits on the ground that the said exhibits did not give the details of the land for which the rent receipts were issued. He has submitted that the Appellate Court has not considered this aspect of the matter and has not returned any finding while relying upon Ext. 1, 1/1 & 1/2 and thus, the Appellate Court has not met with the reasons assigned by the learned Trial Court in respect to all these exhibits also. 8. With respect to substantial question no (D), learned counsel for the appellant has submitted that the learned Trial Court had given specific finding that the plaintiff was trying to plead his case beyond pleadings but this aspect of the matter has not been considered by the learned Appellate Court rather, the learned Appellate Court has given the findings beyond pleadings. He submits that if the matter is remanded to the learned Appellate Court in view of the judgment passed by the Hon’ble Apex Court in case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRS, reported in (2001) 3 SCC 179 and also S.A. No. 28 of 2017 (Sangram Basky & Anr. Vs. Hauwa Hembrom & Ors.), where all the questions of law which have formulated are requires to be revisited and the reasons which have been assigned by the learned Trial Court to deal with each of the matter is required to be considered by the learned Appellate Court. 9. He submits that in the case of the judgment of reversal, the appellate court is under a legal obligation to deal with the reasons which has been assigned by the learned Trial Court in judgement to pass the decree. Learned counsel has submitted that the 1 st Appellate Court is duty bound to deal with both question of fact and law and it is the final Court so far as the question of fact is concerned. He has also submitted that no specific point of determination has formulated by the learned appellate Court. Learned counsel has submitted that the original Ext. 4 is not a public document so its certified copy is not required. 10. He has also submitted that no specific point of determination has formulated by the learned appellate Court. Learned counsel has submitted that the original Ext. 4 is not a public document so its certified copy is not required. 10. The learned counsel appearing on behalf of the respondents on the other hand vehemently opposed the prayer and has submitted that the judgment passed by this Court in S.A. No. 28 of 2017 and also the judgment passed by the Hon’ble Supreme Court in the case of Santosh Hazari (supra) do not apply to the facts and circumstances of the present case. He has submitted that the learned Appellate Court has formulated specific point for determination and for that purpose he has referred to the internal page 8 of the Appellate Court's judgment wherein the Appellate Court has recorded that “ however, there is no counter-claim and therefore, the only point required to be considered in this case regarding rights of plaintiffs- appellants” 11. The learned counsel has submitted that so far as Ext. 4 is concerned, everything depended upon the fact that the Trial Court had rendered Ext. 4 inadmissible in evidence and the Appellate Court has held that the same was admissible in evidence. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Appaiya Vs. Andimuthu @ Thangapandi & Ors., Civil Appeal No. 14630 of 2015, decided on 20.09.2023 to submit that the registered documents have been held to be public documents and they were admissible in the evidence. He submits that it was not mandatory for the plaintiff to proof the original registered document Ext. 4 to sustain his case. He has also submitted that it was the specific case of the plaintiff that the original deed was lost while the same was produced before the Court in 145 Cr.PC proceeding. The learned counsel submits that not only the registered document was admissible in evidence but the plaintiff had duly explained the reasons for non-production of original deed. Learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court in the case of Sirajudhen Vs. Zeenath & Ors., Civil Appeal No. 1491 of 2023 , decided on 27.02.2023 , to submit that the principle of remand has been dealt with by the Hon’ble Supreme Court in the said judgment. Learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court in the case of Sirajudhen Vs. Zeenath & Ors., Civil Appeal No. 1491 of 2023 , decided on 27.02.2023 , to submit that the principle of remand has been dealt with by the Hon’ble Supreme Court in the said judgment. The learned counsel has further submitted that the rent receipts were rightly considered by the learned Appellate Court and it is not necessary to give the exact plot number, as mentioning of khata number was itself sufficient to rely upon the exhibits to show that plaintiff was in possession of the property. He has further submitted that finding of the Appellate Court is not beyond the pleadings and therefore, the substantial question no. (D) is also fit to be answered in favour of the respondents. 12. Learned counsel has further submitted that the Appellate Court has committed no illegality in passing and reversing the decree and all the substantial questions of law are fit to be answered in favour of the respondents and this Second Appeal is fit to be dismissed. 13. Arguments concluded. 14. Post this case for judgment on 31 st March 2025.