) ------ 1. Bimla Devi, aged about 65 years, wife of Ganga Viswakarma 2 v. 1. Rampati Devi wife of Late Kedar Nath Sao 2. Sunil Chourasia 3. Sailendra
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.386 of 2018 ------ (Against the judgment dated 20.04.2018 passed by learned District Judge-XIV, Dhanbad in Title Appeal No.11 of 2015) ------ 1. Bimla Devi, aged about 65 years, wife of Ganga Viswakarma 2. Uttam Viswakarma aged about 45 years, son of Late Ganga Viswakarma, both residents of Rajganj, P.O. and P.S. Rajganj, District Dhanbad. .... .... …. Plaintiffs/Appellants/Appellants. Versus 1. Rampati Devi wife of Late Kedar Nath Sao 2. Sunil Chourasia 3. Sailendra Chourasia sons of Late Kedarnath Sao 4. Baby Chaurasia wife of Late Birendra Chaurasiya 5. Shibani Chourasia, Daughter of Late Birendra Chaurasia, minor being represented through her mother Baby Chaurasia, all residents of village Rajganj, P.O. and P.S. Rajganj, District Dhanbad 6. Abated 7. Nutan Devi wife of Dilip Chaurasia, resident of Manai Tanr, P.O. Dhanbad, P.S. Dhansar, District Dhanbad 8. Jitendra Chourasia son of Late Kedar Nath Sao, resident of Rajganj, P.O. and P.S. Rajganj, District Dhanbad ....
Legal Reasoning
.... …. Defendants /Respondents/Respondents ------ For the Appellants For the Respondents
Legal Reasoning
: Mr. Amar Kr. Sinha, Advocate Mr. Kundan Kr. Ambastha, Advocate : Mr. Birendra Kumar, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 1 S.A. No.386 of 2018 2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of concurrence dated 20.04.2018 passed by learned District Judge-XIV, Dhanbad in Title Appeal No.11 of 2015 whereby and where under the learned first appellate court has dismissed the appeal and upheld the judgment and decree passed by the learned Civil Judge, Junior Division-I, Dhanbad in Title Suit No.67 of 2000. 3. The brief facts of the case is that the plaintiffs/appellants filed Title Suit No.67 of 2000 in the court of Civil Judge, Junior Division-I, Dhanbad for declaration that the plaintiff No.1 has acquired valid title and possession over the property mentioned in Schedule D (including Schedule E) and also for confirmation of possession of plaintiffs over the same and if during the pendency of the suit, the plaintiffs are found dispossessed then recovery of possession, permanent injunction over Schedule E properties, cost of the suit and other reliefs. During the pendency of the suit, by way of amendments, the plaintiffs sought relief for restoration of vacant possession over Schedule E property by demolishing the illegal construction made by the defendant during the pendency of the suit and for a mandatory injunction and payment of damages. 4. The case of the plaintiffs in brief is that 0.14 acres of plot Nos.1433 and 1435 of Khata No.227 stood recorded in the name of Latu Lohar and Mahadeo Lohar during the cadastral survey operation. Latu Lohar sold his share in favour of his brother Mahadeo Lohar through a registered sale-deed. Mahadeo Lohar became the owner of the property and Mahadeo Lohar @ Mistry died leaving behind four daughters namely Champa Devi, Kamla Devi, Asha Devi and Bimla Devi and his widow Lila Devi who jointly inherited the property. 2 S.A. No.386 of 2018 Lila Devi, Champa Devi, Kamla and Asha Devi sold 0.63 decimals of land out of plot No.1433 to Matan Lal and also sold 4.39 decimals of land of plot No.1433 and 1435 to Shankar Prasad. They gifted 5.25 decimals of land out of 8.98 decimals of plot No.1433 and 1435 through registered gift deed to Uttam Vishwakarma son of Bimla Devi. The defendants demolished southern wall of boundary of Mahadeo Mistry for taking forceful possession of plot Nos.1433 and 1435. Kedar Prasad was found guilty in C.P. Case No.21/71 filed by Mahadeo Mistry for having committed the offence punishable under Section 427 of the Indian Penal Code and a fine was imposed upon him with a default sentence. Criminal Appeal No.35/73 was filed against the judgment of conviction, which was dismissed by the Sessions Judge, Dhanbad. Due to false claim of the defendant as a doubt was cast upon the title and possession of the plaintiffs, hence, the plaintiffs filed the suit. 5. The defendants challenged the maintainability of the suit on various technical grounds. Besides it was pleaded by the defendants that the plot Nos.1433 and 1435 belongs to the defendants’ family and in the partition of the property, the northern portion of the property fell to the share of Kedar Sao. Mahadeo Mistry and his descendants never let any portion of plot Nos.1433 and 1435 towards the South. The disputed land mentioned in Schedule E of the plaint is part and parcel of plot No.1436. The defendants have pleaded that in a proceeding under Section 145 of Cr.P.C., the plaintiffs were found to be in possession but the said order was set aside by the High Court. The defendants claim that the plaintiffs have not got any right, title and interest over the said plot. 3 S.A. No.386 of 2018 6. On the basis of the rival pleadings of the parties, the learned trial court framed the following seven issues:- (1) Is the suit maintainable as framed? (2) Have the plaintiffs valid cause of action for the suit? (3) Is the suit barred by law of limitation? (4) Is the suit barred under the provisions of specific relief Act? (5) Is the suit barred by principle of estoppel, waiver and acquiescence? (6) Whether the defendants have encroached the Schedule E land and the same is part and parcel of plot No.1433-1435 belonged to the plaintiffs? (7) Whether the plaintiffs are entitled to get the relief as claimed for? 7. In support of their case, the plaintiffs altogether examined eight witnesses and proved the documents which have been marked as Ext. 1 to 6/a. The defendants also examined nine witnesses and proved the documents which have been marked as Ext. A to C/1. 8. The learned trial court first took up issue No.6 and after considering the evidence in the record, held that it cannot be said the plaintiffs have full right, title and interest over the Schedule E land and decided the same against the plaintiffs and on the basis of the said findings, disposed of the remaining issues against the plaintiffs and dismissed the suit on contest. 9. Being aggrieved by the judgment and decree passed by the Civil Judge, Junior Division-I, Dhanbad, the plaintiffs/appellants preferred Title Appeal No.11 of 2015 in the court of learned Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned District Judge-XIV, Dhanbad by the impugned judgment. 10. The learned District Judge-XIV, Dhanbad on the basis of the materials and submissions made before it, formulated the following two points for consideration:- (1) Is Schedule E property, part and parcel of plots nos.1433 & 1435 of 4 S.A. No.386 of 2018 village Rajganj belong to the Plaintiffs/Appellants and encroached by the defendant? (2) Have the Plaintiffs/Appellants got any right, title, interest, and possession over the suit land? 11. The learned first appellate court took up both the points for consideration together and after considering the materials available in the record considered that the bone of contention between the parties is Schedule E property out of Schedule D property which is a strip out of land measuring 60 ft. x 4‰ ft. in between plot No.1436 of defendant/respondent and plot No.1433 and 1435 of the plaintiffs/appellants. The learned first appellate court also considered that survey knowing advocate measured the land in dispute and produced the report vide Ext. 1. In the report marked Ext-1; the Advocate Commissioner did not give the details of the measurement of the plot Nos.1433 and 1435 nor the measurement of eastern boundary walls of the said plots were mentioned. No fixed point in the north-east corner of plot No.1435 has been taken which was essential to decide the case. The learned first appellate court further observed that the learned trial court has rightly disbelieved the Ext. 1 and Ext. C and the oral evidence in the case are not of enough help; because the issue is solely based on documentary evidence. The learned first appellate court lastly observed that the learned trial court has rightly disbelieved the case of the plaintiffs and dismissed the appeal. 12. Mr. Amar Kumar Sinha- learned counsel for the appellants submits that the impugned judgment and decree passed by the learned first appellate court was vitiated due to non-compliance of the mandatory provisions of Order XLI Rule 31 of Code of Civil Procedure. Learned counsel for the appellants relies upon the judgment of Hon’ble Supreme Court of India in the case of Manjula 5 S.A. No.386 of 2018 and Others vs. Shyamsundar and Others reported in (2022) 3 SCC 90 paragraphs-7 and 8 of which read as under:- “7. As noticed above, the trial court had framed as many as six issues. The appeal before the High Court involved questions of law and facts. However, the High Court, without examination of any of these aspects save for the medical evidence at Ext. D-4, has dismissed the appeal by a cryptic order. The High Court has not adverted to any of the contentions of the parties. The High Court has also not appreciated the oral evidence adduced by the parties. 8. Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) (b) (c) (d) points for determination; the decision thereon; the reasons for the decision; and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.” and submits that as the learned First Appellate Court has not supported its finding with reason, hence, the impugned judgment and decree be set aside and the suit be remanded back to the learned First Appellate Court for deciding the appeal fresh after providing fresh opportunity of being heard to the appellants. In this respect, Mr. Sinha also relies upon the judgment of the Hon’ble Supreme Court of India in the case of K. Karuppuraj vs M. Ganesan reported in (2021) 10 SCC 777. 13. Having heard the rival submissions made at the Bar and after going through the materials available in the record, this Court finds that so far as 6 S.A. No.386 of 2018 submission of Mr. Amar Kumar Sinha - the learned counsel for the appellants regarding the non-compliance of the provisions under Order XLI Rule 31 is concerned, in the case of Manjula and Others vs. Shyamsundar and Others (supra), the learned first appellate court being the High Court, without examination of any of the aspects of the contention of the appellants before it dismissed the appeal by a cryptic order. The High Court in that case did not advert to any of the contentions of the parties and did not discuss or consider the oral evidence adduced by the parties and thus the judgment of the learned first appellate court could not reflect conscious application of mind nor were the findings supported by reasons for such decision in respect of all the issues along with the contentions put forth and pressed by the parties, hence the Hon’ble Supreme Court of India set aside the judgment passed by the High Court in the First Appeal and remanded the case to the High Court for fresh decision in accordance with law. 14. Similarly, in the case of K. Karuppuraj vs M. Ganesan (supra) para-11 of which read as under:- “11. Applying the law laid down by this Court in the aforesaid decisions, if the impugned judgment and order passed by the High Court is considered, in that case, there is a total non-compliance of the provisions of Order 41 Rule 31 CPC. The High Court has failed to exercise the jurisdiction vested in it as a first appellate court; the High Court has not at all re-appreciated the entire evidence on record; and not even considered the reasoning given by the learned trial court, in particular, on findings recorded by the learned trial court on the issue of willingness. Therefore, as such, the impugned judgment and order passed by the High Court is unsustainable and in normal circumstances we would have accepted the request of the learned Senior Counsel appearing on behalf of the respondent to remand the matter to the High Court for fresh consideration of appeal. However, even on other points also, the impugned judgment and order passed by the High Court is not sustainable. We refrain from remanding the matter to the High Court and we decide the appeal on merits.” 7 S.A. No.386 of 2018 the High Court failed to exercise the jurisdiction vested in it in that case as a First Appellate Court and the High Court has not at all re-appreciated the entire evidence on record and not even considered the reasoning given by the learned trial court in particular on findings recorded by the learned trial court on the issue of willingness. But the Hon’ble Supreme Court of India instead of remanding the matter back to the High Court for fresh consideration of the appeal decided the appeal on its merit. Hence, in the considered opinion of this Court, the ratio of Manjula and Others vs. Shyamsundar and Others (supra) is not applicable to the facts of this case as the impugned judgment of the learned First Appellate Court is neither cryptic nor the same falls within any of the shortcomings as mentioned in paragraph-8 of the judgment of Manjula and Others vs. Shyamsundar and Others (supra) or for that matter the ratio of judgment of K. Karuppuraj vs M. Ganesan (supra) is not applicable; because the First Appellate Court, not only framed the 2 points for determination, as already indicated above in the foregoing paragraphs of this judgment, but also appreciated the evidence in the record, hence, is mandated in law by order XLI, Rule-31 of the Code of Civil Procedure. 15. It is pertinent in this respect to refer to the judgment of Hon’ble Supreme Court of India in the case of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others reported in (2006) 3 SCC 224 paragraph-9 of which reads as under:- “9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non- compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 8 S.A. No.386 of 2018 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.” (Emphasis supplied) 16. Keeping in view the ratio of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others (supra) as was done by the Hon’ble Supreme Court of India in the case of K. Karuppuraj vs M. Ganesan (supra) that where there is substantial compliance of the Order XLI Rule 31 of the Code of Civil Procedure by the learned First Appellate Court by considering the entire evidence on record and discussing the same in detail, coming to conclusion and its findings are supported by reasons; such judgments are not to be set aside and remanded. In view of the discussions made above, as both the courts below have come to the conclusion that the exhibit-1 is not reliable for cogent reason mentioned in their respective judgements, this Court is of the considered view that there is no justifiable reason to interfere with such concurrent finding of fact. Thus, this Court is of the considered view that there is no substantial question of law involved in this appeal. 9 S.A. No.386 of 2018 17. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances without any costs. 18. Let the copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 16th of July, 2024 AFR/ Animesh (Anil Kumar Choudhary, J.) 10 S.A. No.386 of 2018