Anita Kuer & Ors. v. Chandra Bhushan Sin

the appeal and thereby confirmed the judgment and decree of the trial court dated 04.09.1985 passed by Sri Dinesh Narain Dwivedi, learned 1st Subordinate Judge, Saran in Title Suit No.89 of 1976/15 of 1984.

2. The plaintiff-respondent filed the aforesaid suit for declaration that the suit land are Kasht and Dih Basgit land of the plaintiff and the attachment order passed under Section 146 of the Patna High Court SA No.427 of 2009 dt.24-07-2013 2 Code of Criminal Procedure is illegal. The plaintiff filed the aforesaid suit for declaration of his title on the basis of the fact that the suit property was settled by the ex-landlord in the name of the ancestor of the plaintiffs and thereafter subsequently on partition, the property fell in the share of the plaintiff. After settlement, the ancestors of the plaintiff were paying the rent to the ex-landlord and after vesting, the plaintiffs are paying rent to the State of Bihar and the plaintiffs are continuing in possession of the property. However, in absence of the plaintiff, the defendants dispossessed the plaintiffs from the suit property and forcibly entered the same.

3. The defendants filed contesting written statement denying the case of the plaintiffs and claiming title over the said property on the basis of the fact that they are the descendants of the ex-landlord. The suit property was never settled to the plaintiffs and that the plaintiffs were never in possession of the property. The defendants continued in possession of the same.

4. The trial court elaborately discussed the evidences of the parties and then accepting the case of the plaintiffs, decreed the suit. On appeal, the Lower Appellate Court dismissed the appeal finding that the judgment of the Lower Appellate Court needs no interference.

5. At the time of admission of this Second Appeal on Patna High Court SA No.427 of 2009 dt.24-07-2013 3

04.07.2013, the following substantial question of law was formulated: “Whether the Judgment of the lower appellate Court is vitiated on account of the fact the lower appellate Court Judgment is nothing but copied from the trial Court Judgment and in the last paragraph only the appellate Court has expressed his opinion and he agreed with the trial Court finding and thereby has not complied the mandatory provision of law under Order 41 Rule 31 C.P.C.?”

6. The learned senior counsel, Mr. S.S.Dvivedi submitted that the Presiding Officer of the Lower Appellate Court is not at all the competent officer to dispose of civil matters because he does not know even the procedural law and the duty of the first appellate court as provided under Order 41 Rule 31 C.P.C. The Lower Appellate Court also do not know that the first appeal is a continuation of the suit and the first appellate court is required to independently appreciate the evidences adduced by the parties and record its independent finding on the basis of independent reasonings but in the present case, instead of doing so, the Lower Appellate Court copied the judgment of the trial court and said that he agreed with the judgment of the trial court as if he is sitting in Division Bench or that he is exercising a revisional jurisdiction. The learned counsel in support of his contention relied upon a decision of Hon’ble Supreme Court, 2011(2) B.L.J. 147 Supreme Court(H. Siddiqui vs. A. Ramalingam).

7. On the other hand, the learned counsel for the respondents submitted that when the Lower Appellate Court agreed Patna High Court SA No.427 of 2009 dt.24-07-2013 4 with the judgment of the trial court, there is no requirement of reiterating the same reasonings and evidences, therefore, interference in Second Appeal is unwarranted.

8. From perusal of the impugned judgment of the Lower Appellate Court, it appears that the Lower Appellate Court mentioned the cases of the parties as pleaded in their pleadings. Thereafter, from paragraph 9 onwards upto paragraph 22, he has copied the judgment of the trial court from paragraph 14 to 33. From perusal of the Lower Appellate Court judgment, it appears that the Lower Appellate Court even copied word to word, line to line and even full stop and comma. Lastly, after copying the judgment of the trial court upto paragraph 22, at paragraph 23, the Lower Appellate Court observed that after considering the entire facts and circumstances as well as materials available on the case record and findings of the learned Lower Appellate Court, I fully agree with the judgment of the learned Lower Court.

9. In the case of H. Siddiqui(supra), the decision relied upon by the learned counsel for the appellant, the Hon’ble Supreme Court relying upon the various earlier decisions of the Supreme Court and considering Order 41 Rule 31 C.P.C. at paragraph 18 and 19 held as follows: “18. The said provisions provide guidelines for the Patna High Court SA No.427 of 2009 dt.24-07-2013 5 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 consideration. Thus, it must be evident from the judgment of the appellate court the court has properly appreciated 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. Patna High Court SA No.427 of 2009 dt.24-07-2013 6

19. In B. V. Nagesh & Anr. vs. H.V. Sreenivasa Murthy, JT (2010) 10 SCC 551, while dealing with the issue, this Court held as under: “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 therein is open for re-hearing 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. Sitting as a court of 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."

10. In view of the above settled proposition of law laid down by the Hon’ble Supreme Court, it appears that the judgment of the Lower Appellate Court in the present case do not reflect the conscious application of mind in the facts, evidences and pleadings of the parties and do not show that the Lower Appellate Court recorded Patna High Court SA No.427 of 2009 dt.24-07-2013 7 any of its own finding supported by any independent reasonings on all the issues arisen along with the contentions put forth and pressed by the parties for decision before the Appellate Court. As stated above, the Lower Appellate Court only copied the judgment of the trial court verbatim from paragraph 9 upto paragraph 22 of the Appellate Court judgment. In other words, the judgment of the Lower Appellate Court from paragraph 9 upto paragraph 22 is the true copy of the judgment of the trial court from paragraph 14 to 33. The only independent consideration of the Lower Appellate Court is mentioned at paragraph 23 as above. In my opinion, therefore, in the present case, the Lower Appellate Court has not at all followed the mandatory provision as contained under Order 41 Rule 31 C.P.C. and decided the appeal in the manner which is never permitted by any law. It is settled law that the First Appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on question of law and fact. Here, the Lower Appellate Court has not heard the parties either on fact or on law. He has only copied the judgment and then said I agree which is nothing but is in gross disregard of the settled proposition of law as contained in Order 41 Rule 31 C.P.C. and as has been settled by the Hon’ble Supreme Court in the case quoted here-in-above. Therefore, the judgment of the Lower Appellate Court is vitiated. Thus, the substantial question of law formulated at the Patna High Court SA No.427 of 2009 dt.24-07-2013 8 time of admission is answered in favour of the appellant and against the respondent.

11. In the result, this Second Appeal is allowed and the impugned judgment and decree passed by the Lower Appellate Court is set aside. The matter is remanded to the Lower Appellate Court for passing a fresh judgment and decree according to law after hearing the parties within a reasonable period as soon as possible without giving any unnecessary adjournment to either of the party because the case is of the year 1976. This judgment is being passed in presence of both the parties, therefore, no further notice be issued by the Lower Appellate Court to the plaintiff-respondent and also to the appellant by the court. Both the parties are directed to appear before the Lower Appellate Court with a copy of this judgment within two weeks and the Lower Appellate Court shall fix a date for hearing of the appeal and then proceed according to law. In the facts and circumstances of the case, no order as to cost. Saurabh/- (Mungeshwar Sahoo, J)