Smt. Kaushalya Devi vs Ramautar Yadav and Others

Mungeshwar Sahoo, J.—The defendant appellant has filed this Second Appeal against the Judgment and Decree dated 29.05.1010 passed by the learned 3rd Addl. District Judge, Katihar in title appeal No. 28 of 1997 whereby the learned lower appellate Court dismissed the appeal and thereby confirmed the Judgment and Decree dated 27.09.1997 passed by the learned Munsif, Katihar in title suit No. 48 of 1986. The plaintiff filed aforesaid suit for declaration of title and for recovery of possession of the suit property. Further prayer was made for declaration that the defendant first party have no right, title over the suit land as their purchase of Sikmi land is voidable and their possession is that of trace passers.

The plaintiff prayed the aforesaid relief alleging that the lands were kayami land of late Bulaki Gope. Plot No. 281 was recorded in occupation of Mostt. Suriji as Sikmidar. Plot No. 282 and 283 were in possession of late Suraj Paswan as Sikmidar. Mostt. Surji left the village 10 years ago and Bulaki Gope came in possession of the property. Suraj Paswan died leaving his widow Dhuria Devi. On 02.04.1983 Dhuria Devi illegally sold plot No. 282 and 283 without permission of the defendant second party. She also died on 16.4.1983 without any issue. The defendant No. 3 sold the land of plot No. 281 and 282 to the plaintiff by sale deed dated 23.12.1985. On 17.02.1986, the defendant No. 1 and 2 dispossessed from revisional survey plot No. 281 and are continuing in illegal possession.

The defendants filed contesting written statement denying all the allegations of the plaintiff. Besides taking various legal please, mainly it was contended that Mostt. Surji Devi acquired status of Raiyat and he gave homestead land to Dhuria Devi 25 years ago. The defendants have also perfected their right title by adverse possession. Surji Devi is alive but she has lost her mental balance, she has a daughter Lukhri Devi. The defendant No. 1 and defendant No. 2 are the adopted daughter and son of Suraj Paswan and Dhuria.

The trial Court decreed the plaintiff''s suit finding the case of the plaintiff to be true.

The appellate Court dismissed the appeal.

On 05.08.2013, at the time of admission the following substantial question of law was formulated:-

(i) Whether the Judgment of the lower appellate Court can be said to be in conformity with the mandatory provision of Order XLI Rule 31 of the CPC as from perusal of the same prima facie it appears that the lower appellate Court has copied the judgment of the trial Court without independent assessment of relevant evidence on all important aspects of the matter and findings of learned appellate Court are based on no independent reasonings?

The learned counsel appearing on behalf of the appellant submitted that the appellate Court has only copied the Judgment of the trial Court and in support of the submission, the learned counsel placed the Judgment of the trial Court as well as the Judgment of the lower appellate Court. According to the learned counsel, the lower appellate Court is required to give its independent consideration of the evidences which are relevant for decision of the case and also record independent finding with reasons but the lower appellate Court instead of doing so has only copied the Judgment and dismissed the appeal, therefore, the Judgment is vitiated and is not in conformity with order 41 Rule 31 of the Code of Civil Procedure. The appellate Court failed/avoided to perform his duty.

On the other hand, the learned counsel for the respondent submitted that from paragraph 22 onwards, the lower appellate Court has recorded its finding independently.

I perused the Judgment of the lower appellate Court as well as the Judgment of the trial Court and compared the same. It appears that the Judgment of the trial Court starting from page 9 in the bottom portion "similarly 10 witnesses have been examined upto page 24 end of paragraph 6 has been quoted by the appellate Court from page 8-"Similarly 10 witnesses have been examined...". Upto page 22 end of paragraph 24. It further appears that even the issues of the trial Court have been copied in the lower appellate Court Judgment. Therefore, there is no independent consideration by the lower appellate Court.

Hon''ble Supreme Court interpreted Order 41 Rule 31 C.P.C. in the case of H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam, at paragraph 18 has held as follows:-

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 view of the aforesaid settled proposition of law laid down by the Hon''ble Supreme Court in various cases referred to above it is now settled that the Judgment of the appellate Court must 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 before the appellate Court. In the present case at our hand as stated above instead of applying the mind and recording finding supported by reason on the controversies between the parties, the lower appellate Court has only copied the Judgment of the trial Court, i.e., he has copied the reasons and considerations of the trial Court. In other words, the Judgment of the lower appellate Court suffers from non-consideration independently the pleadings of the parties, the evidences produced by the parties and there is no independent findings supported by any reason.

In view of the above facts and circumstances of the case, the Judgment, of the lower appellate Court is unsustainable as it is not in conformity with the provision as provided under Order 41 Rule 31 of the Code of Civil Procedure. In the result, this second appeal is allowed. The Judgment and Decree of the lower appellate Court is set aside. The matter is reminded back to the lower appellate Court for a fresh decision according to law after hearing the parties. The parties are present here, therefore, the parties are directed to appear before the Court below within one month from today. The lower appellate Court shall fix a date in presence of both the parties. Thereafter, without adjourning the case unnecessarily shall try to dispose of the appeal as early as possible.