Civil Appeal No. 32 of 2014 · The High Court
Case Details
Second Appeal No. 423 of 2019 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.423 of 2019 (Against the Judgment and decree dated 06.09.2019 passed by the learned District Judge -VIII, Giridih in Civil Appeal No. 32 of 2014) ------ 1. Gango Mahto, aged about 73 years 2. Etwari Mahto, aged about 53 years Both sons of Late Toto Mahto 3. Murli Mahto, aged about 44 years, S/o Late Bhikhan Mahto 4. Sobhan Mahto, aged about 50 years 5 (a) Most. Domini Devi, W/o Late Tetu Mahto 5(b) Nitesh Kumar Varma, S/o Late Tetu Mahto 5(c) Sabita Kumari, D/o Late Tetu Mahto All residents of village –Madanpur, P.O. –Lataki, P.S. –Jamua, District – Giridih (Jharkhand) 5(d) Sabina Devi, D/o Late Tetu Mahto, W/o Manoj Kumar Varma, resident of village –Mahanpura, P.O. –Lalaki, P.S. –Jamua, District – Giridih. 5(e) Sunita Devi, D/o Late Tetu Mahto, W/o Rahul Varma, resident of village –Sainyahri, P.O. –Dumma, P.S. –Jamua, District –Giridih 6. Shivlal Mahto, aged about 46 years Above 4 & 6 are S/o Late Balki Mahto 7(a) Most Dulari Devi, W/o Narayan Mahto 7(b) Ravindra Kumar Varma, S/o Late Narayan Mahto 7(c) Jitendra Kumar Varma, S/o Late Narayan Mahto 7(d) Sachin Kumar Varma, S/o Late Narayan Mahto All resident of village –Madanpur, P.O. –Lataki, P.S. –Jamua, District – Giridih (Jharkhand) 8. Chamru Mahto, aged about 41 years 9. Wakil Mahto, aged about 38 years 10. Chhoto Mahto, aged about 35 years Above 8 to 10 are S/o Late Devi Mahto Above all resident of village –Madanpur, P.O. –Lataki, P.S. –Jamua, District –Giridih (Jharkhand) .... .... …. Defendants/Appellants/Appellants Versus 1. Birendra Mahto, 2. Hari Kumar Mahto, 3. Nakuldeo Mahto, 4. Rajendra Mahto, Above 1 to 4 are S/o late Sakur Mahto, Above all resident of village –Madanpur, P.O. –Lataki, P.S. –Jamua, District –Giridih (Jharkhand); 5. Dharana Mahto, S/o Late Talo Mahto, resident of village –Madanpur, P.O. –Lataki, P.S. –Jamua, District –Giridih (Jharkhand) .... …. Plaintiffs/Respondents/Respondents .... For the Appellants : Mr. Manjul Prasad, Sr. Advocate ------ 1 Second Appeal No. 423 of 2019 For the Respondents : Mr. Akhouri Prakhar Sinha, Advocate : Mr. Yogesh Modi, Advocate : Mr. Nilesh Modi, Advocate ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal under Section 100 of Code of Civil Procedure has been preferred against the judgment and decree dated 06.09.2019 passed by the learned District Judge -VIII, Giridih in Civil Appeal No. 32 of 2014 whereby and where under in a judgment of
Legal Reasoning
concurrence, the learned first appellate court has dismissed the appeal on contest but without costs. The said Civil Appeal No. 32 of 2014 was filed challenging the judgment and decree passed by the Civil Judge (Sr. Division) –III, Giridih in Partition Suit No. 119 of 2008 dated 28.07.2014 whereby and where under the learned trial court decreed the suit of the plaintiffs apparently preliminarily holding that the plaintiffs are entitled to a decree of partition for 1/6th share of the Schedule –B property and 1/5th Share of the Schedule –C property of the plaint and passed orders that the lands sold by the plaintiffs prior to passing of the decree by the trial court shall be deducted from the share of the plaintiffs. 3 The case of the plaintiffs in brief is that the plaintiffs and the defendants are the descendants of Sewa Mahto, the common ancestor. It is the further case of the plaintiffs that before the cadastral survey, Todi Mahto separated from the joint family without partition and started cultivation separately from rest of his brothers and also 2 Second Appeal No. 423 of 2019 constructed a separate house. After separation, Todi Mahto acquired 31 decimals of land and came in possession thereof. One of the coparceners Kehar Mahto died leaving behind his four sons who succeeded him. It is also the case of the plaintiffs that before the cadastral survey settlement, sons of Sewa Mahto and other legal heirs started cultivating the land as per their convenience and also separated in mess and earning. The names of the heirs of Sewa Mahto were recorded in the Khatiyan, the details of which has been mentioned in the plaint. The plaintiffs further contented that the plaintiffs have 1/6th share in Schedule-B and 1/5th share in Schedule- C land. The plaintiffs prayed for partition of the joint family property mentioned in Schedule –B and C of the plaint. 4 The defendants challenged the maintainability of the suit on various technical grounds. The defendants further pleaded that there has been partition before the survey settlement by metes and bounds and parties were coming in their respective possession and the same has been mentioned in the Khatiyan by way of separate Kabajbari shown in the remarks column of Khatiyan. In support of their contention of previous partition, the defendants pleaded that Todi Mahto who is one of the recorded raiyat sold his entire land soon after preparation of Khatiyan to different person of village –Madanpur and other legal heirs of Sewa Mahto also sold the land from time to time. 5 The learned trial court considering the rival pleadings of the parties settled the following seven issues:- I. Is the suit maintainable in the present form? 3 Second Appeal No. 423 of 2019 II. III. IV. V. VI. VII. 6 Is the suit barred by law of limitation, adverse possession and also under section 34 of the Specific Relief Act? Is there any cause of action for this suit? Whether the suit is properly valued? Is there unity of title and community of possession between the plaintiffs and defendants on the suit land? Are the plaintiffs jointly entitled for 1/6th share in Schedule-B and 1/5th share in Schedule –C of suit land? Are the plaintiffs entitled for any other relief or reliefs under the law and equity? In support of their contention the plaintiffs examined four witnesses and proved the documents which have been marked Ext. 1 to 1/B. The defendants on the other hand examined two witnesses and proved the documents which have been marked Ext. A to A/13 and Ext. B to B/2 as well as C. 7 The learned trial court first took up issue no.V and after considering the admission that the land of Schedule –B and C mentioned in the plaint was the joint family property of six sons of Sewa Mahto and as Ext. 1, 1/A and 1/B which is the certified copy of the Survey Khatiyan indicated the unity of title and community of possession between the parties over the suit land as well as the admission of defendant nos. 10 to 17, 24 to 26 and 31 to 34 of the unity of title in their written statement; decided the issue no.V in the affirmative by holding that there is unity of title and community of possession between the defendants, in respect of the suit land. The learned trial court next took up issue no.VI and considering the evidence in the record came to the conclusion that the plaintiffs are jointly entitled to 1/6th share of Schedule –B property and 1/5th Share 4 Second Appeal No. 423 of 2019 of Schedule –C land of the plaint. The learned trial court next took up issue no. II & IV together and held that the suit is not barred by law of limitation or adverse possession or for that matter under Section 34 of the Specific Relief Act and also held that the suit is properly valued and decided the issue in favour of the plaintiffs. Lastly, the learned trial court took up issue nos. I, III & VII together and held that the plaintiffs have cause of action for the suit and the suit is maintainable in its present form and decreed the suit and held that the plaintiffs are entitled to a decree of partition for 1/6th share in respect of Schedule – B and 1/5th share of Schedule –C land of the plaint and accordingly decreed the suit preliminarily on contest in favour of the plaintiffs. 8 Being aggrieved by the judgment and decree passed by the learned trial court, the defendants preferred Civil Appeal No.32 of 2014 before the Principal District Judge, Giridih which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 9 The learned first appellate court considering the materials in the record and submissions made before it by the rival parties formulated the following point for determination: I. Whether finding of the learned court below that there is unity of title and community of possession is correct or not? 10 The learned first appellate court considered that the claim of the defendants regarding the previous partition is based only on a separate entry of possession in the remarks column of the Khatiyan and apart from that there is absolutely no evidence to show that the parties have been in separate mess and residence and as according to the first appellate court, the defendants could not satisfy the previous partition 5 Second Appeal No. 423 of 2019 and in view of the undisputed fact that the parties to the suit are the descendants of the common ancestor Sewa Mahto in respect of the Schedule B and C land of the plaint, came to the conclusion that the appeal is devoid of any merit and dismissed the same on contest with
Legal Reasoning
cost by the judgment and decree impugned in this second appeal. 11 Mr. Manjul Prasad, the learned senior counsel appearing for the appellants submits that the learned first appellate court could not exercise the jurisdiction vested upon it under Order XLI Rule 31 of the Code of Civil Procedure and submits that the learned first appellate court has failed to re-appreciate the evidence in the record as is required under Order XLI Rule 31 of the Code of Civil Procedure. 12 Mr. Manjul Prasad, the learned senior counsel appearing for the appellants relies upon the judgment of Hon’ble Supreme Court of India in the case of Manjula 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.” 6 Second Appeal No. 423 of 2019 In this respect, Mr. Prasad also relies upon the Judgment of Hon’ble Supreme Court of India in the case of Malluru Mallappa (D) Through LRs. Vs. Kuruvathappa, reported in AIR 2020 SC 925 para - 14 & 20 of which reads as under:- “14. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re- consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. , Madhukar and others v. Sangram and Others , B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another , H. K. N. Swami v. Irshad Basith (Dead) By Lrs. and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar ]. 20. Keeping in mind the above principles, let us examine the present case. As stated above, the issue relating to readiness and willingness of the plaintiff to perform his part of the contract and issue relating to limitation were held against the plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat has argued that the suit was well within time under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective.” Hence, it is submitted by the learned senior counsel for the appellants that the impugned judgment and decree passed by the learned first appellate court be set aside after formulating appropriate substantial question of law. 13 Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that so far as the submission of Mr. Manjul Prasad, the learned senior counsel for the appellants regarding the non-compliance of the provisions under Order XLI Rule 31 is concerned, in the case of Manjula and 7 Second Appeal No. 423 of 2019 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 being the high 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 In the case of Malluru Mallappa (D) Through LRs. Vs. Kuruvathappa (supra), the Hon’ble Supreme Court has reiterated the settled principle of law regarding the exercise of jurisdiction under Order XLI Rule 31 of the Code of Civil Procedure by the first appellate court and there is absolutely no dispute regarding the said settled principle of law in respect of the power to be exercised by a first appellate court. 15 At this juncture, it is pertinent 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 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice 8 Second Appeal No. 423 of 2019 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 Now coming to the facts of the case, unlike the case of Manjula and Others vs. Shyamsundar and Others (supra) where the first appellate court did not even formulate the point for determination to be adjudicated in the first appeal, in this case, as already indicated above in this judgment itself that the first appellate court has formulated the point for determination. The learned first appellate court has discussed the submissions made by the rival parties before it and considering the undisputed fact of relationship between the plaintiffs and the defendants and the overwhelming evidence in the record that they are descendants of the common ancestor –Sewa Mahto and as the defendants based their claim of previous partition mainly on the entry in the remarks column regarding separate possession of the parties to the suit, came to the conclusion that the same by itself is not sufficient to establish a partition by metes and bounds and dismissed the appeal. 17 It is a settled principle of law as has been held by the 9 Second Appeal No. 423 of 2019 Hon’ble Supreme Court of India in the case of Bharat Singh & Ors. Vs. MST. Bhagirathi, reported in AIR 1966 SC 405 that there is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of the joint family to prove it. The mere fact that after the death of the father, mutation entry was made in favour of three brothers and indicated the share of the each to be one-third, by itself could be no evidence of the severance of the joint family which, after the death of the father consisted of the three brothers who were minors. 18 Now coming to the facts of this case, there is no serious dispute regarding the relationship between the plaintiffs and the defendants nor there is any dispute regarding the entitlement of the plaintiffs to 1/6th share of Schedule –B land and 1/5th share of the Schedule –C land as there is no previous partition between the plaintiffs and the defendants. As already indicated above, the defendants based their claim of prior partition wholly on the entry made in the remarks column of the Khatiyan showing separate possession of the parties to the suit or their ancestors. Hence, after going through the materials in the record, this Court has no hesitation in holding that there has been conscious application of mind by the learned first appellate court and the learned first appellate court has also considered and recorded the submissions made by the rival parties before it and has also given reasoning for not accepting the contention of the appellants before it who were the defendants of the suit regarding their contention of previous partition between the 10 Second Appeal No. 423 of 2019 parties to be accepted. Hence, in the considered opinion of this Court, this is not a fit case where the impugned judgment and decree passed by the learned first appellate court is to be interfered with on the ground of non-application of mind by the learned first appellate court under Order XLI Rule 31 of the Code of Civil Procedure. 19 Now coming to the facts of the case, both the courts below have returned the concurrent finding of facts and the finding of facts arrived at by the learned courts below was not done by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse and in the absence of any perversity in finding of facts, this Court is of the considered view that there is no justifiable reason to interfere with the same. After carefully going through the record, this Court also finds that there is absolutely no substantial question of law involved in this appeal. 20 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 21 Let a copy of this Judgment be sent to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 12th June, 2023 AFR/ Sonu-Gunjan/- 11