AI Structured Summary
Not yet generated for this judgment
Judgment
A.I.S. Cheema, J.—This Second Appeal is by original Plaintiff (hereinafter referred as "Plaintiff"). The suit having Regular Civil Suit No. 56 of 2002 was brought by Plaintiff against Respondent co-operative society (hereinafter referred as "Defendant") before the Civil Judge, Junior Division, Tuljapur for declaration of his title and injunction. The suit was decreed by the trial Court. The Regular Civil Appeal No. 38 of 2007 brought by the Defendant, was allowed by the District Judge, Osmanabad and the Judgment and decree of the trial Court was set aside and the suit was dismissed.
In the Second Appeal, the substantial question of law raised is:
"Whether the Judgment of the First Appellate Court suffers for not recording points required and complete reasons in support of decision."
Before adverting to the arguments, a brief reference needs to be made to certain facts for understanding the dispute. Plaintiff Mahamad Sharif filed the suit claiming to have purchased an area of 40 ft. X 25 ft. land from Survey No. 380 Gut No. 296/1 at Naldurg, Tq Tuljapur, bounded as under:
"East: Government road,
West: Municipal House No. 1013 of Defendant having area of 66 ft. X 33 ft.
South: Land from Gut No. 296/1 and
North: Space from Gut No. 296/1 owned by one Mahamad Nawaz Mehbub Shaikh."
Plaintiff claimed that he had purchased such suit property of 40 ft. X 25 ft. from one Mahamad Hamid Ali Khan s/o Mahamad Dule Khan by registered sale deed dated 22nd August, 1995 and had also received possession at that time. Plaintiff claimed that the suit property is non agricultural and within the limits of Naldurga Nagar Parishad. Plaint referred to various efforts made by the Plaintiff to get his name entered into the Municipal record which was objected to by the Defendant. Plaintiff claimed that when he tried to put fence to portion of land purchased by him on 24th March, 2002, Defendant obstructed and hence the suit was filed for declaration of ownership and injunction.
The Defendant resisted the suit claiming that the said transaction done by the Plaintiff was illegal and that Plaintiff was never in possession of the suit property. The Defendant Society is in possession of land of 33 ft. X 66 ft. as claimed in the Plaint is correct. According to the Defendant, adjoining the land of Defendant, there is no land of Plaintiff. Defendant claimed that in Survey No. 380/1 present Gut No. 296/1, Mahamad Hamid Ali Khan Dule Khan had ancestral land but said Mahamad Hamid and his ancestors shifted 80 90 years back to Hyderabad and their family did not have any possession on the land. The land got converted into Gaothan and the co-operative society of the Defendant was allotted land 43 44 years back in public interest by two documents of Kabala and Defendant was in possession. On the land allotted to the Defendant, the Defendant has office, godown, kerosene distribution center and from the eastern side of the land since last 15 20 years there are "Tapris" i.e. tin sheds of Defendant for storing seeds for sale. The land claimed by Plaintiff is part of Government Gaothan and at that place Defendant is having office. The original owner Mahamad Hamid Ali Khan s/o Mahamad Dule Khan had filed suit against Municipal Council claiming possession but the said Regular Civil Suit No. 9 of 1975 was rejected on 16th March, 1977. According to the Defendant, Plaintiff never got possession of the suit land.
On such pleadings, the issues were framed by the trial Court and Plaintiff examined himself and one Ahmed Ali Mainoddin Kazi as PW 2. For the Defendant, three witnesses were examined resisting the claim of Plaintiff. The trial Court considered the issues, whether Plaintiff proved lawful possession over the suit plot and whether the possession of the Plaintiff had been obstructed and if the Plaintiff was entitled to the relief sought. The issues were answered in the affirmative and the trial Court discussed the evidence brought by the parties and decreed the suit declaring the Plaintiff to be owner of the suit plot and Defendant was restrained from disturbing lawful right of the Plaintiff on the suit plot.
In the Appeal, the District Judge considered the arguments advanced and raised points for consideration relating to the title claimed by the Plaintiff and found that the Plaintiff had not proved the title. District Judge recorded reasons and apart from finding that the title was not proved, District Judge also held that the Plaintiff had failed to prove possession over the suit plot as received from the lawful origin.
At the time of arguments, learned counsel for Appellant Plaintiff submitted that the Defendant claimed that the suit plot was part of the land which was in possession of the Defendant but Defendant did not bring on record any document of title. According to the learned counsel, the First Appellate Court did not meet all the issues. The counsel placed reliance on the reported Judgment in the case of Barnes School and Bombay Education Society Vs. Smt. Arzoo Allan Baker, Learned counsel submitted that the matter should be sent back to the District Court to specifically deal with all the issues.
Against this, learned counsel for Respondent Plaintiff submitted that the Defendant is in possession of the land having Municipal House No. 1013 which was given to the Defendant by way of Kabala. According to the learned counsel the First Appellate Court has discussed the evidence. According to him, the claim of ownership and possession was not established and this has been rightly found by the District Court.
In the matter of Barnes School and another (supra) relied by the learned counsel for Appellant Plaintiff, on the facts of that matter it was found that the Lower Appellate Court dismissed the Appeal without recording findings in respect of issues which were framed and Order 41 Rule 31 of C.P.C. had not been complied and so the matter was relegated back to the Lower Appellate court for de novo consideration of the appeal.
If the paper book which was used before the First Appellate Court is perused and the Judgment of the trial Court is seen, it can be appreciated that Plaintiff had examined two witnesses and Defendant examined three witnesses. The trial Court framed issues, whether the Plaintiff proved lawful possession and whether the Defendant obstructed the Plaintiff and if the Plaintiff was entitled for the relief sought. After discussing the evidence, trial Court decreed the suit declaring the Plaintiff as owner and passed orders restraining the Defendant from interfering with the lawful rights of the Plaintiff. The reasoned Judgment of the trial Court has been reversed by the First Appellate Court with short reasoning given. In fact the point for determination framed was only one, "Whether the Plaintiff acquires the title under the sale deed?" No other points were framed.
In this regard, in the matter of H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam, the Hon''ble Supreme Court observed in Para 21 as under:
"Order 41 Rule 31 CPC
The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court''s judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions."
In the matter of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., the Hon''ble Supreme Court, in Para 15 observed as under:
"15................................. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact."
It was further observed by the Hon''ble Supreme Court that:
"................................... Secondly, 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. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. 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. Now 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 in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."
If the Judgment of the District Judge is perused, in the reasonings, in can be seen that in Para 6 District Judge in four sentences declared the sale deed to be against public policy holding that it related to plot carved out from land consolidated and so a fragment.
The pleadings were not discussed where Plaintiff had in Plaint Para 3 mentioned that the suit property is non agricultural and within the limits of Naldurg Nagar Parishad and there was also evidence where against the claim of Plaintiff, the Defendant was also claiming that just abutting the land in dispute, it was allotted property, and had Municipal House No. 1013.
In Para 7 of the Judgment, reference is made to the 7 X 12 extract and in Para 8 it is mentioned that the Plaintiff did not show relation between Mahamad Ali Khan and the holder Hamid Ali Khan recorded in 7 X 12 extract. In Para 10 it was observed that the defence is probable and that the Defendant is claiming to be holder of lease in perpetuity (Kabala) from 1966. The sale deed and 7 X 12 extracts are discussed in Para 11 and Para 12 mentions that the burden is on Plaintiff. Para 13 mentions that the Plaintiff''s possession over suit plot is not proved to be from lawful origin. Then a finding is recorded that the trial Court accepting the title of vendor of Plaintiff and the delivery of possession is erroneous finding and against the principles of law.
Thus, reasonings, hardly in two pages, (not that, number of pages matters but lack of reasonings does matter) have been recorded and decree has been reversed.
If the above referred principles enunciated by the Hon''ble Supreme Court are considered and impugned Judgment of the District Court referred in brief as above is seen, it is quite clear that neither the points for consideration were recorded so as to cover all the issues which were dealt with by the trial Court, nor there are complete reasons given in support of the decision arrived at by the District Judge. While reversing the Judgment of the trial Court, almost no reasons are given as to why the reasonings recorded by the trial Court were wrong.
District Court held Plaintiff''s possession over suit plot is not proved to be from lawful origin without recording basis for the finding. The evidence of witnesses was not discussed at all and the Judgment of the trial Court was set aside and the suit was dismissed. Looking to the legal position that the District Court, as First Appellate Court is the last Court of facts, it should appear from record that the justice has been done to the parties by the District Court, by discussing the oral and documentary evidence brought by the parties in the trial Court and independently arriving at findings and where he is differing from the trial Court, reasons need to be recorded as to why the District Judge is differing. It is not sufficient to cursorily refer to findings of the trial Court and say that the same are not correct.
For the above reasons, the Second Appeal succeeds. Hence I pass following order:
O R D E R
(A) The impugned Judgment and order dated 6th March, 2012 passed by the Principal District Judge, Osmanabad in Regular Civil Appeal No. 38 of 2007, is set aside.
(B) The Judgment and decree dated 10th January, 2007, passed by the Civil Judge, Junior Division, Tuljapur in Regular Civil Suit No. 56 of 2002 is restored.
(C) The matter is remanded back to the District Judge, Osmanabad.
(D) Regular Civil Appeal No. 38 of 2007 shall be restored to its original number.
(E) The parties be given opportunity of hearing.
(F) The Regular Civil Appeal No. 38 of 2007 be de novo decided according to law, keeping in view the observations of the Hon''ble Supreme Court, referred above.
(G) Parties to appear before Principal District Judge, Osmanabad on 25th March, 2014. The Appeal be then decided within THREE MONTHS of 25th March, 2014.