T.S. Rangaswamy and Others vs Mohamad Yusuff and Others

A.V. Chandrashekara, J.—1. Present appeal is filed under Section 100 of C.P.C., is directed against the divergent judgment dated 24.03.2007, passed by the learned Presiding Officer, FTC-3, Tumkuru, in R.A. No. 247/2006 (old No. 63/2002) setting aside the judgment and decree dated 20.04.2002, in O.S. No. 843/1993 passed by the II Additional Civil Judge (Jr. Dn.), Tumkur, filed by the plaintiffs under Section 66 of C.P.C.

The appellants herein are the plaintiffs of original suit bearing O.S. No. 843/1993 and respondents were defendants in the said suit.

Parties will be referred to as the plaintiffs and defendants as per their ranking in the trial Court.

Facts leading to the present appeal are as follows:

"Suit schedule property is an agricultural land measuring 23 1/4 guntas in survey No. 138 and 21 1/2 guntas of land in survey No. 139 of Tavarekere Village, Hebbur Hobli, Tumkur Taluk. Defendants are the owners of the suit schedule property. Smt. Parvathamma, the mother of the plaintiffs intended to purchase the suit schedule property from the defendants and an agreement of sale was entered into on 14.02.1986 for a total consideration of Rs. 10,000/- and on the same day, advance of Rs. 8,000/- was paid and the purchaser had agreed to pay the balance consideration of Rs. 2,000/- at the time of the execution of the registered sale deed before the Tahsildhar. Possession of the property in question was handed over to Parvathamma is the averment. Since the Prevention of Fragmentation and Consolidation of Holdings Act, 1947, was in force, the defendants had agreed to execute a registered sale deed after the cessation of the said act."

A legal notice was got issued by the children of deceased Parvathamma to the defendants on 15.09.1993 demanding them to execute registered by receiving Rs. 2,000/- the balance consideration. Since they did not come forward to perform their part of obligation, a suit was filed for specific performance of the contract based on the agreement of sale dated 14.02.1986.

The defendants had filed detailed written statement denying all the material averments and they had called upon the plaintiffs to prove the contents of the plaint strictly. The averments is that, the defendants executed an agreement of sale, Rs. 8,000/- was paid and handed over the schedule property to Smt. Parvathamma agreeing to execute a registered sale deed after cessation of the above said Act have been specifically denied. Suit is stated to be not maintainable either in law or the facts and requested for dismissal of the suit.

The following issues were framed for consideration by the first Appellate Court:

"1) Whether the plaintiffs proves Sale Agreement entered into by defendants, and Shahajad, the wife of Defendant No. 1, in favour of Parvathamma, the mother of plaintiffs for sale of suit schedule property as per the sale agreement dt.: 14.2.1986 for a sum of Rs. 10,000/-?

2) Whether the plaintiffs further proves Parvathamma was put in possession of suit schedule property in part performance of sale agreement, by receiving part consideration of Rs. 8,000/- from Parvathamma?

3) Whether the plaintiffs are entitled for specific performance of suit sale agreement?

4) Whether the Judgment and decree of Trial Court requires interference?

5) What Order?"

The first plaintiff is examined as PW.1. Three more witnesses are examined on behalf of the plaintiffs and 15 exhibits are marked on behalf of the plaintiffs. Coming to the defendants side, 3 witnesses are examined and 8 exhibits have been got marked. Ultimately, suit came to be decreed granting specific performance of the agreement of sale directing the defendants to execute registered sale deed in favour of the plaintiffs in respect of suit schedule property after receiving the balance consideration of Rs. 2,000/- within three months. This judgment dated 20.04.2002 was questioned in appeal in R.A. No. 63/2002 before the Court of Senior Civil Judge, Tumkuru, and the same was transferred to the Court of Presiding Officer, FTC-3, Tumkuru and renumbered as R.A. No. 247/2006.

The learned Judge of the first Appellate Court has chosen to allow the appeal by answering points Nos. 1, 2 and 4 in the affirmative and point No. 3 in the negative. Ultimately, suit came to be dismissed. Being aggrieved by the said judgment passed by the first Appellate Court, the present appeal is filed under Section 100 of C.P.C. Several grounds have been urged in the appeal memo and several substantial questions of law are laid down for consideration.

After hearing the parties, the appeal was admitted on 05.02.2016, to consider the following question of law by this Court.

"Whether the First Appellate Court has committed a serious error in not framing proper and valid points for consideration in terms of the Order 41 Rule 31(a) of CPC and therefore, the judgment of the First Appellate Court is perverse and illegal?"

REASONS

Framing proper points for consideration by the first Appellate Court under Order 41 Rule 31(a) of C.P.C. is a legal requirement. The first Appellate Court is an original civil court for all practical purpose and has to frame points for consideration on the basis of the grounds urged in the appeal memo and also on the grounds urged during the course of advancing arguments on merits. The first Appellate Court has framed the following points for consideration:

"1. Whether the plaintiffs proves Sale agreement entered into by defendants, and Shahajad, the wife of Defendant No. 1, in favour of Parvathamma, the mother of plaintiffs for sale of suit schedule property as per the sale agreement dt: 14.2.1986 for a sum of Rs. 10,000/-?

Whether the plaintiffs further proves Parvathamma was put in possession of suit schedule property in part performance of sale agreement, by receiving part consideration of Rs. 8000/- from Parvathamma?

Whether the plaintiffs are entitled for specific performance of suit sale agreement?

Whether the Judgment and decree of Trial Court requires interference?

What Order?"

The learned Judge of the first Appellate Court has allowed the appeal essentially on the ground that the father of the minor child had no right to alienate the minor''s property and such an alienation would be binding only where the provisions to Section 63 of the Mohammedan Law are complied with. Necessary discussions is found in paragraph No. 19 at page No. 14 of the impugned judgment. In fact, no ground is urged in the first appeal filed under Section 96 of C.P.C. to that effect. It was argued for the first time before the first Appellate Court and that is taken into consideration. On going through the written statement of the defendants it is seen that no such plea is taken and it is un-understandable as to how the first Appellate Court could consider a plea which does not finds space in the pleadings.

The substantial compliance of requirement of Order 41 Rule 31(a) of CPC is necessary and the judgment of the first Appellate Court should disclose detailed discussions regarding the materials based on record. The first Appellate Court is the final Court of facts and should examine all the relevant facts and reassess the evidence based on the important averments made in the pleadings by the respective parties in the trial Court. Since, pleadings are the foundation in any civil suit.

It is useful to refer the judgment of the Supreme Court in the case of B.V. Nagesh and Another v. H.V. Sreenivasa Murthy reported in , (2010) 13 SCC 530. Section 96 and Order 41 Rule 31 of C.P.C. have been dealt with at length. It is held that without framing points for determination and without proper discussion and assigning reasons, the first Appellate Court cannot decide the matter.

Relying upon the decision rendered by the Apex Court in the case of Santosh Hazari v. Purushottam Tiwari reported in , (2001) 3 SCC 179, it is held that 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 put forth, and pressed by the parties for decision of the appellate court. 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.

Though the learned Judge of the first Appellate Court has given the finding about the applicability of Section 63 of Mohammedan Law, there is no pleading to that effect in the written statement and the same is not found in the grounds raised under Section 96 of C.P.C.

In this view of the matter, Order 41 Rule 31(a) of C.P.C. mandates that proper points will have to be specifically formulated for determination and decision should be given with proper reasons. Unless, proper points are framed and dealt with, the second Appellate Court will be denied of an important opportunity to examine the case, since reassessment of evidence is not normally done in the second Appellate Court. The judgment passed by the first Appellate Court is incorrect and improper. Hence, the matter needs to be sent back to the trial Court to formulate proper grounds mentioned in the appeal memo and valid grounds which may be urged by the parties while advancing arguments. Substantial question of law framed on 05.02.2016 is answered in the affirmative.

In the result, appeal is allowed and the judgment of the first Appellate Court is set aside.

The matter is remitted to the first Appellate Court with a direction to frame appropriate points for consideration keeping in mind the observations made by this Court.

Parties to appear before the first Appellate Court on 31.03.2016 without fail and thereafter, the Court decide the same within a period of four months thereafter, without fail.

Parties and their Counsel to co-operate with the first Appellate Judge.

Office is directed to send the entire LCR at the earliest.

Parties to bear their own costs.

Requisite court fee is ordered to be refunded as per law to the appellants.