Gajju Ram vs Jindu Ram (Deceased Through LRS And Others

Sandeep Sharma, J.

Having regard to the nature of order, this court proposes to pass in the peculiar facts and circumstances of the case, it may not be necessary to give

detailed facts of the case, save and except that the appellant-plaintiff (hereinafter, ‘plaintiff’) filed a suit for possession by way of demolition

and for permanent prohibitory injunction, before the learned Sub Judge 1st Class, (I), Hamirpur, Himachal Pradesh, which came to be registered as

Civil Suit No. 290 of 1992. Suit having been filed by the plaintiff came to be decreed vide judgment and decree dated 25.11.1999, whereby trial court

decreed the suit for possession of the suit land in favour of the plaintiff and against the respondents-defendants (hereinafter, ‘defendants’) by

ordering demolition of structure of the defendant over the suit land. Learned court below further restrained the defendants by way of decree for

permanent prohibitory injunction from raising further construction, enter or claim passage over the suit land comprising of Khata No. 12 min, Khatauni

No. 54, Khasra Nos. 2206 and 2207, measuring 1 Kanal as per Jamabandi for the years 1988-89 situate at Tikka Tarakwari, Tappa Bamsan, Tehsil

Bhoranj, District Hamirpur, Himachal Pradesh.

Being aggrieved and dissatisfied with the judgment and decree passed in favour of the plaintiff, defendants preferred an appeal under Section 96

CPC in the court of learned Additional District Judge, Fast Track Court, Hamirpur, Himachal Pradesh, which came to be registered as Civil Appeal

No. 36 of 2000/ 118 of 2004. Learned Additional District Judge, vide judgment and decree dated 11.5.2006, set aside the judgment and decree passed

by the trial court and dismissed the suit of the plaintiff. In the aforesaid background, plaintiff has approached this Court in the instant proceedings,

praying therein for restoration of the judgment and decree passed by trial Court, after setting aside the judgment and decree passed by the learned first

appellate Court.

I have heard the learned counsel for the parties and gone through the record carefully.

Having heard the learned counsel for the parties and gone through the impugned judgment and decree passed by first appellate Court vis-Ã -vis

material available on record fairly conceded that the judgment passed by first appellate Court is not sustainable because of contradictory findings.

Though perusal of impugned judgment and decree passed by first appellate Court suggests that, while examining correctness and genuineness of the

judgment and decree passed by trial Court, learned first appellate Court has made an endeavour to deal with all the issues, however, no definite

findings have been recorded while setting aside judgment and decree passed by trial Court. Learned first appellate Court, has categorically held that

the plaintiff by way of placing on record, Exhibits P2 and P3 i.e. revenue record, has proved that he is in possession of the suit land as non occupancy

tenant because entries in the revenue record have not been rebutted by defendants by leading cogent and convincing evidence. Learned first appellate

Court has also held that plaintiff is in possession of suit land, as non-occupancy tenant. In nutshell, case set up by the plaintiff while filing suit for

possession by way of demolition and permanent prohibitory injunction is that he is owner-in-possession of the land comprising of Khata No. 12,

Khatauni No. 54, Khasra Nos. 2206 and 2207, measuring 1 Kanal. Plaintiff has specifically pleaded before the learned Court below that defendants

being head strong persons, have forcefully encroached the suit land by way of construction as reflected in the site plan as mark “A, B, C, D, E, F,

G, and H†and mark “J, K, L and Mâ€. Allegedly, plaintiff had taken demarcation in the month of April, 1992, wherein defendants were found to

have encroached upon the suit land by way of construction. Since despite objections, defendants failed to stop the construction activity over the suit

land, suit as referred to herein above came to be filed in the civil court.

Defendants resisted the aforesaid claim of the plaintiff on the ground that revenue entries depicting ownership and possession of plaintiff over suit

land are palpably wrong and plaintiff is in possession of Khasra No. 2206 and defendants are in possession of Khasra No. 2207, by way of

construction of Abadi and remaining portion is being used by them as courtyard. It is quite apparent from the pleadings adduced on record by the

defendants that there is no dispute, if any, qua ownership and possession of plaintiff over Khasra No. 2206. Dispute, if any, is with regard to Khasra

No. 2207, qua which definitely entries in revenue record are in favour of the plaintiff. Since report of demarcation allegedly taken by the plaintiff in

April, 1992, was not placed on record by plaintiff, learned first appellate Court arrived at a conclusion that the findings returned by trial Court that

defendants forcibly encroached upon 5 Marla of suit land, are not sustainable. Since, it has been specifically averred in the plaint that the defendants

have forcibly encroached upon the suit land by way of construction as shown in the site plan as “A, B, C, D, E, F, G and H†and “J, K, L and

Mâ€, findings returned by the learned Court below that the plaintiff has not specified and described particularly, which portion of suit land was

encroached upon by the defendants, appear to be contrary to the record and no cogent and convincing reason has been assigned while differing with

the findings recorded by the learned trial Court in this regard.

Interestingly, first appellate Court on one hand has returned the finding that the plaintiff has not been able to prove encroachment over the suit land

by the defendants and, on the other hand, has returned categorical finding that defendants have also not been able to prove their adverse possession

over the suit land. Learned first appellate Court has also recorded findings that tenancy as pleaded by the defendants has also not been proved on

record. Since defendants, with a view to prove that their ancestors were recorded as non-occupancy tenants over suit land, have placed reliance upon

exhibit DW-6/A, learned first appellate Court, while dealing with aforesaid claim, has returned categorical finding that defendants have not brought

any record pertaining to the years 1914-15 and 1989-90, to show that how their/ancestors’ names were omitted from the revenue record by the

revenue officials. Since, no evidence was brought on record by the defendants to prove their allegations that names of their ancestors were omitted

from the suit land by mischief of revenue officials, learned first appellate Court arrived at a conclusion that tenancy of the defendants has also not

been proved on record.

Most importantly, learned first appellate Court on the basis of evidence led on record has also rejected the claim of the defendants that they are in

possession of Khasra No. 2207 out of suit land and they had raised their Abadi thereupon since the time of their forefathers, these findings appear to

be totally contradictory in the teeth of findings returned by the learned first appellate Court that plaintiff has not been able to prove encroachment over

the suit land. Since, first appellate Court did not find the defendants to be in possession over Khasra No. 2207, aforesaid findings that plaintiff was not

able to prove encroachment over suit land by the defendants, could not be returned by the court below because defendants in the written statement

have claimed their possession over Khasra No. 2207.

Lastly, learned first appellate Court has arrived at a conclusion that revenue record placed on record clearly proves plaintiff to be in possession over

the suit land as non-occupancy tenant but despite that learned first appellate Court has proceeded to record totally contradictory findings that the

plaintiff has failed to prove any encroachment over the suit land by the defendants. Since the learned first appellate Court had arrived at a definite

conclusion that defendants have not been able to prove by leading cogent and convincing evidence that they are in possession of Khasra No. 2207 and

they have raised their Abadi thereupon since the time of their forefathers, aforesaid findings with regard to encroachment, having not been proved by

the plaintiff, could not be recorded by the first appellate Court.

As has been already observed the learned counsel representing the parties, while assisting this Court during proceedings of the case have fairly

conceded that learned first appellate Court has erred in returning contradictory findings as such matter needs to be remanded back to the learned

Additional District Judge, Fast Track Court, Hamirpur for fresh decision.

At the cost of repetition, it may be observed that though the learned first appellate Court has attempted to deal with all the issues but has failed to

give definite and specific findings, as a consequence of which, claims as set up by both the parties in the suit at hand have not been decided in either

way.

At this stage, this Court deems it fit to refer to the judgment rendered by Hon'ble Apex Court in Laliteshwar Prasad Singh & Ors. vs. S.P.

Srivastava (D) Thr. LRs. (Civil Appeal No. 4426 of 2011) decided on 15.12.2016, whereby the Hon'ble Apex Court has held that an appellate court is

the final court of facts and as such it should deal with all the issues. The judgment of the appellate court must therefore reflect application of mind and

findings should be supported by reasons. It would be apt to reproduce following paragraphs of the aforesaid judgment:

“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. 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:

 “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.â€​

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, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC

756 SCC p. 758, para 5.)

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.â€​

Consequently, in view of the discussion above and with the consent of the learned counsel representing the parties, judgment and decree dated

11.5.2006 passed by the learned Additional District Judge, Fast Track Court, Hamirpur, Himachal Pradesh in Civil Appeal No. 36 of 2000/118 of 2004

are set aside and matter is remanded back. Learned Additional District Judge, Fast Track Court, Hamirpur is directed to decide the matter afresh in

view of the aforesaid observations made in the instant judgment, within a period of two months from today. Learned counsel for the parties undertake

to cause presence of their clients before the learned Court below on 30.7.2018. Learned Additional District Judge, after having heard the parties on

the basis of material available on record, shall decide the appeal afresh, within stipulated period.

Since the matter is to be decided afresh on the basis of pleadings and evidence already available on record, observations, if any, made in the

instant judgment qua correctness and genuineness of the impugned judgment and decree passed by learned first appellate Court, shall have no bearing

on the judgment to be passed by the court below. Learned Court below shall decide the matter afresh, strictly in accordance with law as well as

evidence adduced on record by respective parties.

Registry is directed to send a copy of instant judgment alongwith records of the case forthwith to the learned Court below, enabling it to do the

needful within stipulated period.

That appeal stands disposed of accordingly. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated.