Shanti Devi & Ors vs Chatter Singh & Ors

Chander Bhusan Barowalia, J

By way of the present appeal, the appellants has challenged the judgment passed by the Court of learned Additional District Judge (Presiding

Officer) Fast Track Court, Solan, District Solan, in Case No.6FTC/13 of 2007, dated 26.9.2007, vide which, the learned lower Appellate Court, has

affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Kasauli, District Solan, in Civil Suit No.188/1 of 06/2001, dated

26.12.2006.

Material facts necessary for adjudication of this Regular Second Appeal are that appellants/plaintiffs (hereinafter referred to as ‘plaintiffs’)

maintained a suit for permanent prohibitory injunction restraining the respondents/defendants (hereinafter referred to as ‘defendants’) from

causing obstruction with his right of user of path comprised in Khata/Khatauni No.214/319, Khasra No.2208/1530 measuring 1-13 bigha, situated in

mauza Kasauli, Pargana Basal, Tehsil Kasauli, District Solan, (hereinafter referred to as ‘suit land’) entered in the copy of jamabandi for the

year 1997-98. It is alleged that the plaintiff constructed a residential house in Khasra No.2207/1530 and also installed a gate, which was connecting

the path in dispute passing through Khasra No.2208/1530 and was 5 ft. in width and approximately 150 ft. in length and connecting his house with the

State Highway Garkhal-Kasauli road. The path in dispute was in existence for the last more than 100 years, being used not only by the plaintiff, but by

the villagers. The plaintiff also alleged that he was using the path in dispute since 1971 and the said path was semi mettled by the Gram Panchayat.

The plaintiff also alleged that he was using the path in dispute without any obstruction and there was no path except the path in dispute for his

residential house and thus, he had acquired easementary right to use the path in dispute.

Defendants have contested the suit of the plaintiff by taking preliminary objection that the suit was not maintainable and the plaintiff has no cause of

action to file the present suit. It was also alleged that the suit was bad for non-joinder and mis-joinder of necessary parties and the plaintiff was

estopped by his act and conduct to file the present suit. On merits, the defendants denied the existence of path in dispute. It was also denied that the

plaintiff and other villagers had been using the path in dispute.

From the pleadings of parties, the learned trial Court framed following issues :

“1. Whether the plaintiff is owner in possession of the suit land as alleged ? OPP.

Whether the house of the plaintiff is existing over the suit land, if so, its effect ? OPP.

Whether there is path of width 5 feet and length 150 meters from Khasra No.2208/1530 which connected with the Highway Garkhal- Kasauli road

and which is existing Fasra such 100 years connect to the village Nalwa adjacent to the gate of the plaintiff house and which is used by the plaintiff as

well as villagers from time immemorial without interference and obstruction, if so its effect ? OPP.

Whether the plaintiff using the path since year 1971 which later on semi metalled by Gram Panchayat and plaintiff has easementary rights by way

of prescription and necessity as no alternative path to his house as alleged ? OPP.

If the above issues proved in affirmative whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for ? OPP.

Whether the suit is not maintainable, as alleged ? OPD.

Whether the plaintiff has no cause of action as alleged ? OPD.

Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, if so its effect ? OPD.

Whether the suit is bad for non-joinder and mis-joinder of the necessary parties, as alleged ? OPD.

Whether the plaintiff has not come to the Court with clean hands, if so, its effect ? OPD.

Whether the plaintiff is estopped from filing the present suit by his act, conduct and acquiences, as alleged ? OPD.

Relief.â€​

The learned trial Court after deciding Issue Nos.1 and 2 in affirmative, Issue Nos.3 to 11 in negative, dismissed the suit.

Feeling aggrieved thereby plaintiff maintained first appeal before the learned District Judge, (Presiding Officer) Fast Track Court, Solan, District

Solan, assailing the findings of learned Court below being against the law and without appreciating the evidence and pleading of the parties to its true

perspective. The learned lower Appellate Court affirmed the findings of the learned Court below. Now, the appellants have maintained the present

Regular Second Appeal, which was admitted for hearing on 29.9.2008, on the following substantial questions of law:

“1. Whether on the proper construction of the documents Ex.PA, Ex.PB and Ex.PC and the judgment of the Gram Panchayat, Garkhal Ex.PE

wherein it was admitted and acknowledged by the defendants that there was a passage, which was being used since time immemorial and particularly

since 1971, the denial of the relief by ignoring the subsequent developments, particularly, the judgment Ex.PE, the findings of the Court below are

vitiated for non- consideration of the material evidence and particulars?

That the findings of the learned District Judge are vitiated for not deciding each of the issues involved in the case and not discussing the oral and

documentary evidence independently and under proper perspective. The examining of the judgment of the trial Court only on the fact that the findings

did not suffer from any illegality or irregularity, and thus dismissing the appeal, when the appellate court was to sit as a court of fact and had to decide

the facts in accordance with law and facts and not as if it was a court of revision or second appeal ?

That the Court below has drawn wrong inferences from the facts proved on record and has wrongly ignored the admissions of the defendants

which proved the existence of the path, more particularly, as was evident from Ex.PW2/A, Ex.PW3/G, Ex.PW3/B and PE. The learned District Judge

erred in law in dismissing the suit and not deciding all the points urged before him and when the existence of the alternative path did not mitigate the

plea of the plaintiffs of the right of passage which they had acquired by the passage of time and having used the same continuously, openly and

uninterruptedly as of right for a period of 20 years ?

Mr. K.D. Sood, learned Senior Counsel appearing on behalf of the appellants has argued that the learned Court below has not acted as first

Appellate Court and decided the appeal, after going through the facts of the case, however, the evidence has not been discussed at all. He has further

argued that the findings are perverse, as the documents and the pleadings are neither considered nor any reasoned person comes to the conclusion

arrived at before the learned lower Appellate Court.

To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail.

The Hon’ble Apex Court in H. Siddiqui (dead) by Lrs. vs. A. Ramalingam, 2011 (4) Supreme Court Cases, 240, has held as under :

“The High Court failed to realise that it was deciding the First Appeal and that it had to be decided strictly in adherence with the provisions

contained in Order 41 Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called “CPCâ€) and once the issue of alleged power of attorney

was also raised as is evident from the point (a) formulated by the High Court, the Court should not have proceeded to point (b) without dealing with

the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother

enabling him to alienate his share in the property.

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 of the said provisions if the appellate court's judgment is based on the independent assessment of

the relevant evidence on all important aspect 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 State Bank of India & anr. vs. M/s Emmsons International Ltd. & anr, AIR 2011 Supreme Court, 2906, it has been held as under :

“Having regard to the controversy set up by the parties in the course of trial, in our view, it cannot be said that issue No.5 is immaterial or finding

of the trial Court on that issue is inconsequential. The High Court was hearing the first appeal and, as a first appellate court it ought to have considered

and addressed itself to all the issues of fact and law before setting aside the judgment of the trial court. The judgment of the High Court suffers from a

grave error as it ignored and overlooked the finding of the trial court on issue No.5 that the seller accepted the encashment of bill and document on

collection basis. The High Court was required to address itself to issue No.5 which surely had bearing on the final outcome of the case.

In our view, the High Court failed to follow the fundamental rule governing the exercise of its jurisdiction under Section 96 of the Code of Civil

Procedure, 1908 that where the first appellate court reverses the judgment of the trial court, it is required to consider all the issues of law and fact.

This flaw vitiates the entire judgment of the High Court. The judgment of the High Court, therefore, cannot be sustained.

For the above reasons, we accept the appeal, set aside the impugned judgment of the High Court and restore First Appeal No.225 of 2002 : (Reported

in AIR 2007 (NOC) 832 (MP) for re-hearing and fresh decision. All contentions of the parties are kept open to be agitated at the time of the hearing

of the first appeal. No order as to costs.â€​

In Madhukar and ors. vs. Sangram and others, AIR 2001 Supreme Court 2171, it has been held as under :

“We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had

been placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (O.S.

No. 93/71). Oral evidence had also been led by the parties before the trial court, which was noticed and appreciated by the trial court. However, the

impugned judgment in the first appeal, is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that

though trial court had dismissed the suit on ground of limitation as also on the ground that the decision in the earlier suit (O.S. No. 93/71) operated as

res-judicata against defendant No. 1 only the High Court has not even considered, much less discussed, correctness of either of the two grounds on

which the trial court had dismissed the suit. 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 It has failed to discharge the obligation placed on a first appellate court. The judgment under

appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. 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.

The salutary principle referred to above in Santosh Hazari's case (supra) have been respected in their breach.

Our careful perusal of the judgment in the first appeal shows that it hopelessly falls short of considerations which are expected from the court of first

appeal. We, accordingly, set aside the impugned judgment and decree of the High Court and remand the first appeal to the High Court for its fresh

disposal in accordance with law.â€​

Applying the aforesaid law (supra) to the facts and circumstances of the present case, learned lower Appellate Court enumerated upto para-6 of

the judgment, para-7 of the Grounds of Appeal, para -9, and para-10, 11 and 12 of the judgment and without discussing the evidence, dismissed the

appeal. The learned lower Appellate Court was required to discuss the oral as well as documentary evidence led by the parties. It is a settled

propositions of law that the learned lower Appellate Court should have taken into consideration the oral as well as documentary evidence led by the

parties. There is nothing on record which shows that the learned lower Appellate Court has considered the oral as well as documentary evidence.

Accordingly, substantial question of law No.1, is decided holding that the learned lower Appellate Court has not taken into consideration the oral as

well as documentary evidence led by the parties. In these circumstances, the judgment and decree passed by the learned lower Appellate Court is

required to be set aside and the appeal is required to be remanded back to the learned lower Appellate Court with a direction to dispose of the case

after analyzing the oral as well as documentary evidence led by the parties in accordance with law. Ordered accordingly. The appellants through his

counsel is directed to appear before the learned lower Appellate Court on 25th July, 2019.

With the above observations, the appeal stands disposed alongwith pending application(s), if any. There shall be no order as to costs. Record of the

learned Court below be sent back forthwith.