Gadigeppa vs Smt. Basavva Rayappa Gurlahosur

A.N. Venugopala Gowda, J.—This appeal is by the plaintiffs. An appeal filed by the defendant having been allowed and the suit dismissed by the lower Appellate Court, this appeal was filed assailing the Judgment and Decree dated 16.12.2005 passed in R.A. No. 228/2002 by the I Addl. Civil Judge (Sr. Dn.), Dharwad.

The appellants filed O.S. No. 103/1998 against the respondent No. 1 to pass a decree of declaration that they have become the absolute owners of the suit schedule property by virtue of a Will executed in their favour on 30.03.1984 by deceased Ramappa Gadigeppa Guralhosur. A declaration was also sought that the defendant is not the legally wedded wife of deceased Ramappa Gadigeppa Guralhosur. Consequential decree of permanent injunction was sought against the defendant from interfering with the possession and enjoyment of the suit schedule property. The suit was contested. The Trial Court raised seven issues and two additional issues. The parties led their evidence. The Trial Court by a judgment dated 23.11.2002 decreed the suit in part and declared the plaintiffs as having become the owners of the suit properties by virtue of the Will dated 30.03.1984 and the defendant was restrained from interfering with the plaintiffs'' possession and enjoyment of the suit properties. The prayer of the plaintiffs to declare that the defendant is not the legally wedded wife of Ramappa Gadigeppa Guralhosur was rejected.

An appeal having been filed by the sole defendant, which was registered as R.A. No. 228/2002, the I Addl. Civil Judge (Sr. Dn.), Dharwad, raised the following points for consideration:

Whether the Judgment and Decree passed by the Trial Court in O.S. 103/98 is proper and legal one?

Whether plaintiffs entitled for declaration and injunction as granted by the Trial Court?

What order?

The Appellate Judge by recording findings on points Nos. (1) and (2) in the negative, allowed the appeal and dismissed the suit.

This appeal was admitted to consider the following substantial question of law:

" Whether the lower Appellate Court was justified in holding that the Will is not proved because the attesting witnesses are not examined and that the attesting witnesses have not spoken about the mental condition of the testator at the time of executing the Will?

Heard the learned advocates for the parties and perused the records.

Sri.Rohit S. Patil, learned advocate contended that the Court below while allowing the appeal has committed a jurisdictional error. He submitted that the case has not been considered in its proper perspective and there being non compliance with the requirements of Order 20, Rule 4 (2) and Rule 5 read with Order 41, Rule 31 , CPC. the impugned Judgment and Decree is liable to be set aside. He further submitted that the findings recorded are perverse since the relevant points were not raised and the material evidence has not been appreciated. He submitted that the findings entered are perfunctory.

Sri. K. L. Patil, learned advocate for respondent No. 1, on the other hand submitted that the impugned judgment is sustainable on account of the evidence brought on record of the suit and hence, no interference is called for.

Point for consideration is, whether the impugned Judgment and Decree passed by the lower Appellate Court suffers from fundamental errors and is against the spirit of Order 41, Rule 31 , CPC and is unstainable?

Perusal of the impugned judgment shows that the Court below has failed to examine the case in the context of the legal provisions governing the issues and has not appreciated the evidence brought on record of the suit by the parties. It has failed to deal with the rival contentions and there is failure to record categorical findings by raising the relevant points for consideration. The points raised are general in nature and hence, cannot be termed as the relevant points which arise for determination. The lower Appellate Court is required to decide the appeal by keeping in view the guidelines as per Order 41, Rule 31 , CPC and its judgment should be in conformity with Order 20, Rule 4 (2) and Rule 5, CPC.

In Ligakath Ali Khan v. Sri. Syed Wazeed and others, ILR 2012 Kar 2035 : (2012 (4) AIR Kant HCR 301), with regard to the fundamental rules governing the exercise of jurisdiction under Section 96, CPC, while reversing the Trial Court judgment and decree by the First Appellate Court, it was held as follows:

"18. Section 96 of the Code provides the right of an appeal. Order 41, Rule 31 of the Code provides guidelines for the appellate Court as to how it has to proceed and decide the appeal. The first appellate Court should independently assess the relevant evidence on all the important aspects of the case and record findings on the points raised for consideration. Being the final Court of facts, the First Appellate Court must assign reasons for its decision on the point/s which have been formulated for consideration. The first appeal being a valuable right and the parties having been conferred with right to be heard both on questions of fact and law, the judgment in the first appeal must address all the issues of law and fact and decide the appeal by giving reasons in support of the findings."

In Shasidhar and others v. Smt. Ashwini Uma Mathod and another, (2015) 11 SCC 269 : (AIR 2015 SC 1139), Apex Court has held that appeal is an invaluable right of the parties and the first appeal has to be decided on questions of law and of facts. The First Appellate Court is the final court of facts and hence, independent consideration of evidence at that stage is necessary. It is the duty of the First Appellate Court to deal with all the issues and the evidence led by the parties before recording its findings. It has been held that the judgment of the First Appellate Court must reflect conscious application of mind and reasons must be assigned for recording of any finding since the First Appellate Court can re-appreciate entire evidence and come to different conclusion. It has been further held that if the First Appellate Court reverses findings of Trial Court, then, it has to assign its own reasons for such conclusions.

The impugned judgment does not show conscious application of mind by the learned Judge. There is no independent appreciation of evidence and the findings are not supported by cogent reasons. The impugned judgment is perfunctory and does not satisfy the requirement of Order 41, Rule 31 , CPC. The case has been cursorily decided, which should not be the approach of a final Court of facts. The impugned Judgment and Decree of the lower Appellate Court being flawed cannot be sustained. In the said view of the matter, it is unnecessary to decide the substantial question of law raised for consideration.

In the result, the appeal is allowed and the impugned Judgment and Decree is set aside. Case having not been decided in accordance with law, R.A. No. 228/2002 is restored and I shall be decided by the Senior Civil Judge at Kalghatgi. It is made clear that the merit of the case of either party has not been considered and decided and the appeal shall be decided by the Court below, in accordance with law.

Both parties are directed to appear on 25.06.2016, in the Court of Senior Civil Judge, Kalghatgi and receive further orders. The suit having been instituted on 17.12.1998 and the case being quite old, lower Appellate Court shall decide the case with expedition and before 30.11.2016.

Registry is directed to send both LCRs to the Court of Senior Civil Judge, Kalghatgi, forthwith.