State of Himachal Pradesh vs Jagmohan Singh and Others

Tarlok Singh Chauhan, J—Taking into consideration the nature of order I propose to pass, it is not necessary that facts in detail be noticed.

Suffice it to say that plaintiffs/respondents filed suit for declaration to the effect that they were absolute owners in possession of the land comprised in Khasra No. 592, 599 and 647 Kitas 3 measuring 199 bighas 5 biswa situated in mauza Fatehpur Sadhuri, Hudbast No. 123, Tehsil Rajgarh, District Sirmaur, HP and the revenue entries showing the defendant/appellant (hereinafter referred to as ''appellant/respondent), showing the appellant/defendant as owners in possession along with respondents was wrong, illegal, null and void and not binding upon the respondents.

The appellant/defendant had contested the suit by filing written statement wherein preliminary objections like maintainability, locus standi, limitation, non joinder of necessary parties, jurisdiction and valuation were taken. On merits, appellant not only claimed to be in possession, but also claimed to be the sole owner of the entire suit land.

On 30.5.2011, learned trial court framed the following issues:

"1. Whether the plaintiffs are co owner in possession of the suit land ? OPP.

Whether the revenue entries showing the defendants as co owner in possession are wrong, illegal, null and void and not binding on the plaintiffs ? OPP.

Whether the suit is not maintainable ? OPD

Whether the plaintiffs have no locus standi ? OPD.

Whether the suit is barred by limitation? OPD

Whether the suit is bad for non joinder of necessary parties ? OPD

Whether the court has no jurisdiction, as alleged ?.

Whether the suit is not valued properly for the purpose of court fee and jurisdiction? OPD.

Relief."

After recording evidence and evaluating the same, learned trial court dismissed the suit, constraining the plaintiffs/respondents to file an appeal before the learned lower appellate court, which allowed the same and it is against this judgment and decree that the appellant has filed the instant appeal.

The appellant has framed the following substantial questions of law:

"1. Whether the judgment and decree under challenge as passed by first appellate court is vitiated for mis appreciated of evidence as lead by the appellant.

Whether the suit as filed before the court below as barred by limitation.

Whether the learned first appellate court mis appreciated law involved and arrived at wrong conclusion that too by ignoring vital documents and pleadings of the appellant."

I have would assume that this appeal has been admitted on all the aforesaid substantial questions of law as the order of admission only reads "Appeal admitted".

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

Admittedly, as per issue Nos. 1 and 2, plaintiffs were required to prove their ownership over the land and at the same time controvert the entries as appearing in the revenue record. The learned trial court admittedly had dismissed the suit by holding against the plaintiffs on both these issues. Whereas, the learned lower appellate court has recorded a specific finding whereby it reverses the findings on issues No. 1, 2, 3 and 5 as being erroneous in para 54 of the judgment which reads thus:

"54. For these reasons, therefore, I have no hesitation to hold that the findings of the learned trial court on issues No. 1, 2, 3 and 5 are erroneous and liable to be set aside. As such, this point is decided in favour of the plaintiffs and against the defendant."

Now in case the entire judgment is perused, it is evident that no specific findings on any of the aforesaid issues have been recorded. Rather, the operative portion of judgment as contained in paragraph 55, in fact, runs contrary to what is recorded in para 54 of the judgment and at this stage, it is apt to reproduce para 55 of the judgment which reads thus:

"55. In view of my findings on point No. 1 above, the appeal succeeds and is hereby allowed, however, leaving the parties to bear their own costs. With the result, the impugned judgment and decree dated 15.5.2003 of the learned Sub Judge 1st Class, Rajgarh are set aside and the plaintiffs suit for declaration seeking to impugn the revenue entries in favour of the defendant being wrong and illegal and inoperative qua the rights of the plaintiffs and further suit for permanent injunction restraining the defendant from claiming any right as also causing any damage/waste and interfering in the peaceful ownership and possession of the plaintiffs over the suit land till the plaintiffs are dispossessed, in due process of law, stands decreed. A decree sheet be drawn up accordingly File be completed and consigned to the record room. Lower Court''s record be returned with a copy of this judgment."

Now, in case the findings on issues No. 1 and 2 were reversed as held in para 54 (supra) then the necessary corollary of the same is that the plaintiffs/respondents are the owners of the suit land. If that is so, then how could they be ordered to be dispossessed even by due process of law is not forthcoming.

It cannot be disputed that first appeal has to be decided on facts as well as on law. In first appeal, the parties have the right to be heard both on questions of law and also on facts and the first appellate court is required to address itself on all issues and decide the case by giving reasons.

The scope, ambit and power of the first appellate court while deciding the first appeal have been subject matter of various judicial pronouncements and I only need to refer to the recent pronouncement of the Hon''ble Supreme Court in Shasidhar Vs. Ashwini Uma Mathad(2015) 1 AD 505 : AIR 2015 SC 1139 : (2015) 1 RCR(Civil) 616 : (2015) 1 SCALE 341 : (2015) 2 SCJ 620 where the Hon''ble Supreme Court held as follows:

"11. Having heard learned counsel for the parties and on perusal of the record of the case and examining the issue arising in this appeal, we find force in the submissions of the learned counsel for the appellants.

The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well by various judicial pronouncements of this Court and are, therefore, no more res integra.

As far back in 1969, the learned Judge -V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko Vs. Varkey Ouseph, AIR 1969 Ker 316 , reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under:

"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff''s title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.

An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation..... "

(Emphasis supplied)

This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate Court under Section 96 of the Code.

We consider it apposite to refer to some of the decisions.

In Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 , this Court held (at pages 188-189) as under:

"......... 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............ "

The above view has been followed by a three Judge Bench decision of this Court in Madhukar and Others Vs. Sangram and Others, AIR 2001 SC 2171 : (2001) 5 JT 72 : (2001) 3 SCALE 489 : (2001) 4 SCC 756 : (2001) 3 SCR 138 : (2001) 2 UJ 846 : (2001) AIRSCW 1804 : (2001) 3 Supreme 518 , wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under:

"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."

Again in Jagannath v. Arulappa & Anr. (2005) 12 SCC 303, while considering the scope of Section 96 of the Code this Court (at pp. 303-04) observed as follows:

"2. A court of first appeal can re-appreciate the entire evidence and come to a different conclusion......... "

Again in B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy, (2010) 10 JT 551 : (2011) 1 RCR(Civil) 802 : (2010) 10 SCALE 222 : (2010) 13 SCC 530 : (2010) AIRSCW 6184 : (2010) 7 Supreme 438 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:

"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules,

Rule 31 mandates that the judgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

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 putforth, 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 Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 and Madhukar and Others Vs. Sangram and Others, AIR 2001 SC 2171 : (2001) 5 JT 72 : (2001) 3 SCALE 489 : (2001) 4 SCC 756 : (2001) 3 SCR 138 : (2001) 2 UJ 846 : (2001) AIRSCW 1804 : (2001) 3 Supreme 518 .

In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."

The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India and Another Vs. Emmsons International Ltd. and Another, AIR 2011 SC 2906 : (2011) 4 BC 244 : (2012) 1 CTC 216 : (2011) 9 JT 316 : (2011) 4 RCR(Civil) 662 : (2011) 9 SCALE 68 : (2011) 12 SCC 174 : (2011) 10 SCR 436 : (2011) AIRSCW 4810 . This Court has recently taken the same view on similar facts arising in Vinod Kumar Vs. Gangadhar, (2015) 1 RCR(Civil) 598 : (2014) 9 SCJ 292 ."

The learned lower appellate court has though reversed the findings of the learned trial court, but it has not at all adverted to the reasoning as given by the learned trial court and has therefore not discharged its duties as cast upon it under the law.

The learned lower appellate court was required to come into close quarters with reasoning assigned by the learned trial court and then assign its own reasons for arriving at a different findings. This was a duty expected to be discharged by the learned first appellate court being not only a final court whose findings remain immune from challenge in this court, but being also a final court of law because even an erroneous decision may not be vulnerable before this court in second appeal.

Applying the aforesaid principles to the facts of the instant case, I find that the learned first appellate court while deciding the first appeal failed to keep any of the aforesaid principles in mind while rendering the impugned decision. Had it kept any one of these principles in mind, finding of the present kind would not have come to be recorded.

Indisputably first appeal has a valuable right of the parties and unless restricted by law, the whole case is therein open for re-hearing both on question of fact and law. Therefore, the judgment of the appellate court, must reflect its conscious application of mind and record findings supported by reasons, on all issues arising along with the contentions put-forth, and pressed by the parties for decision of the appellate court. While rendering judgment of reversal, the appellate court must remain of two principles; Firstly, the finding of fact based on conflicting evidence arrived at by the trial curt 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. Secondly, the appellate court must take into consideration the reasons assigned by the trial court and then assign its own reasons for arriving at a different finding. This was so observed by the Hon''ble Supreme Court in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 in the following terms: -

"15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. 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 putforth, and pressed by the parties for decision of the appellate Court. The task of an appellate court affirming the findings of the trial Court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, AIR 1967 SC 1124 : (1967) 1 SCR 93 . We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. 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. (See: Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, AIR 1983 SC 114 : (1982) 2 SCALE 1096 : (1982) 2 SCALE 1083 : (1983) 1 SCC 35 : (1983) 1 SCR 851 : (1983) 15 UJ 25 . The rule is -and it is nothing more than a rule of practice -that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, AIR 1951 SC 120 : (1950) 1 SCR 781 . 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. 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."

Since the learned lower appellate court has given conflicting findings regarding ownership of the property, therefore, its findings have been rendered vulnerable and cannot be sustained.

The substantial questions of law are accordingly answered in favour of the appellant.

Consequently, the appeal succeeds and the judgment and decree passed by the learned lower appellate court are set aside and the case is remanded to the said court for decision afresh on all issues. The parties through their learned counsel are directed to appear before the learned first appellate court on 21.9.2015. The records be remitted back so as to reach the concerned court well before the date fixed. Costs easy.