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Judgment
Heard learned counsel for the parties on the question of admission of this Civil Second Appeal.
Shorn of unnecessary details, the relevant facts which are necessary for the disposal of this appeal in brief are; that the respondent herein filed a
suit for permanent prohibitory injunction against the appellants for restraining the latter from interfering into their possession over the property i.e land
measuring 04 kanals 03 marlas comprised in khasra No.269-min-II, 4 kanal 18 marlas comprised in khasra No.270-I, 3 kanals and 10 marlas
comprised in khasra No.284-I, 1 kanal 19 marlas comprised in khsra No.141-min and 1 kanal 12 marlas comprised in khasra No.260 min situated at
village Pathana Tir Tehsil Mendhar District Poonch.
The suit was filed by the respondent on the ground that the suit land was in his peaceful possession and was duly recorded in the revenue record.
The respondent claimed title to the property on the ground that it has been inherited by them from his forefathers. The suit was resisted by the
appellants-defendants in the suit by taking a stand that the suit property was not exclusively in possession of the respondent and that the land falling
under khasra No.269 and 270 was in possession of the respondent, whereas the land falling under survey No.284 was in possession of the appellants
i.e defendants Nos. 2 to 4 in the suit and the land measuring 1 kanal 13 marlas from the same khasra number was in possession of the appellant-
defendant No.5 as per partition which had taken place between the appellant and the respondent-cosharer.
On the basis of pleadings of the parties, the Trial Court framed the following issues:
i) Whether the plaintiff is the owner and in possession of the suit land ?OPP
ii) Whether the defendants 1 to 6 are interfering in the peaceful possession of the plaintiff in suit land without any legal right or sanction ? OPP
iii) In case issue No.1 is not proved in affirmative, whether the defendants are in possession of some part of the suit land.?OPD
iv) Relief .  Â
The trial Court upon appreciation of evidence, oral as well as documentary that had come on record, came to the conclusion that the respondent
was in possession of the suit land and that the appellants were interfering in his peaceful possession without any right, title or interest and accordingly
a decree as prayed for by the respondent, was passed in favour of the respondent.
Feeling aggrieved, the appellants filed civil first appeal before the Court of learned District Judge, Poonch (hereinafter referred to as the First
Appellate Court). The first appellate Court after reappreciating the evidence on record and considering the rival contentions, concurred with the
findings of fact returned by the trial court and consequently upheld the judgment and decree passed by the trial Court vide its judgment dated
08.09.2017. It is this judgment and decree passed by the first Appellate Court, the appellants are aggrieved of and have assailed the same in this civil
second appeal.Â
The learned counsel for the appellants has formulated the following substantial questions of law for adjudication in this appeal:
i) “Whether disposal of the first appeal without following the statutory requirement in terms of order 41 Rule 31 consequently decree deserves to
be set aside.
ii) Whether the findings returned in the point of possession is perverse, if so, the suit of the plaintiffs deserves to be dismissed.
iii) Whether the evidence cane be taken into consideration qua the facts, the ground whereof has not been pleaded in the plaint.
iv) Whether the question relating to the partition of an agricultural land can be decided by the civil court.
v) Whether the failure of the plaintiffs to prove the nature of the land have pleaded oust the jurisdiction of the civil court.   Â
vi) Whether the suit before the civil court is barred in terms of section 193 of land Revenue Act.â€
vii) Whether the trial Court is having the jurisdiction to decide the issue of possession qua the agricultural land in view of section 19-E read with
section 25 of Agrarian Reforms Act.Â
During the course of arguments, the learned counsel for the appellants vehemently urged that the questions of law formulated by him in paragraph
No. 17 of the memo of appeal which arise for adjudication in this appeal, are substantial questions of law, and therefore, the appeal deserves to be
admitted. Elaborating his arguments, the learned counsel for the appellants submits that the judgment of the First Appellate Court is not in
consonance with the provisions of Order 41 Rule 31 of the CPC which provides guidelines for the Appellate Court, as to how the court has to
proceed  and decide the case. It is submitted that the First Appellate Court did not formulate the points for determination nor decided
such points by giving reasons . The learned counsel further submits that the appellants had taken a specific ground before the First Appellate
Court that the partition which was relied upon by the Trial Court to return the finding that the respondent was in possession of the suitÂ
property, could not have been taken into consideration for the reason that the partition had not taken place in accordance with the provisionsÂ
of the Land Revenue Act and the partition rules framed thereunder. He, therefore, submits that the findings of fact with regard to the possession
returned by the Trial Court in favour of the respondent, are perverse which itself is a substantial question of law. Learned counsel also raised the
issue that the land in question was agricultural land and, therefore, the same could not have been made subject matter of partition in suit before
the Civil Court and, therefore, any question relating to the partition of agricultural land could not have been decided by the Trial
Court. This is sum and substance of the arguments raised by the learned counsel for the appellants to demonstrate that the appeal involves
determination of substantial questions of law.
I have given anxious consideration to the contention of the learned counsel appearing for the parties. It is true that in terms of Rule 31 Order 41 of
the Code of Civil Procedure, the First Appellate Court is required to formulate the points for determination in the appeal and adjudicate the same by a
decision supported by reasons. The said provision provides guidelines for the Appellate Court as to how it should proceed and decide the appeal.Â
The provision should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. From the
judgment of the Appellate Court, it is evident that the court has not only reproduced but has properly appreciated the evidence, applied its mind and
decided the same considering the material on record. It would be substantial compliance of the aforesaid provision, if the judgment of the
Appellate Court is based on independent assessment of the relevant material on record in the shape of oral and documentary evidence
and the findings of the Appellate Court are reasoned and well founded. The First Appellate Court is final court of fact and, therefore, must not
record mere general expression or concurrence with the Trial Court judgment.  Â
From a bare reading of the judgment, it is clearly discernible that the Appellate Court has applied its independent mind, re- appreciated the
evidence on record and has come to the conclusion of his own and this is substantial compliance of the provision of Order 41 Rule 31 CPC. The
learned counsel for the appellant could not point out as to how the aforesaid provisions have been violated by the Appellate Court. The Appellate
Court in the first part of the judgment has referred to the controversy between the parties, reproduced the evidence in extenso and has re-appreciated
the same to return its own finding of fact. It is, however, the different matter that the Appellate Court too came to the same findings of fact as had
been returned by the Trial Court. The contention of the learned counsel for the appellants that the judgment and decree impugned is not in consonance
with the provision of Order 41 Rule 31, is devoid of any merit and hence rejected.  Â
The next question that has been strenuously urged by the learned counsel for the appellants that the finding of fact concurrently returned by the
Trial Court and the Ist Appellate Court are perverse, is also without any substance. Both the courts  below have returned the concurrent
findings of fact that the respondent has been proved to be in peaceful possession of the suit property. To arrive at just conclusion, both the courts
below have relied upon not only the factum of partition between the parties but also oral evidence brought on record in the shape of several witnesses
by the respondent. As a matter of fact, the witnesses of the appellants too have stated about the factum of partition between the parties. It has also
come on record that not only there was partition between the parties to the suit but the same had been duly mutated in the revenue record. The
witnesses have also spoken about the litigation between the parties with regard to the partition. The Trial Court as also the Ist Appellate Court after
considering the oral evidence as also the documentary evidence in the shape of revenue record produced by the concerned Patwari, came to be
conclusion that the respondent was in possession of the suit property and, therefore, deserved to be protected by granting decree of permanent
prohibitory injunction and restraining the appellants from interfering or causing any interference in his possession. The plea of the learned counsel for
the appellants that the partition which the witnesses of both the parties  had been referring to, was the partition not effected in
consonance with the provisions of the Land Revenue Act and the partition rules framed there-under, is totally misconceived and deserves
consideration only for rejection. It may be stated that the Trial Court in the suit was not called upon to adjudicate upon the validity of the partition
effected by the revenue officer but was supposed to adjudicate on the factum of possession of the respondent over the suit property. There was
ample oral evidence before the Trial Court to return aforesaid finding. The oral evidence inter alia included evidence with regard to the
partition that had actually taken place between the parties, pursuant to which the parties to the partition were in possession of their respective share.
Be that as it may be, both the courts below have concurrently found that the respondent is in peaceful possession of the suit property and, therefore,
deserved to be protected. I do not find perversity  in these findings which are well supported by legally admissible evidence on record.Â
In view of aforesaid discussion, it is concluded that the appeal does not involve determination of any such substantial question of law
warranting its admission. Consequently, the appeal is dismissed.Â