Municipal Board Through Ex. Director, Fatehpur vs Tehsildar, Fatehpur

Judgment

6. Versus Municipal Board, Fatehpur Through Chairman Executive Officer, Municipal Board, Fatehpur S.d.o., Fatehpur Tehsildar Fatehpur Patwari, Halka, Fatehpur State Of Rajasthan Through Chief Secretary, Jaipur Connected With ----Respondents S.B. Civil Second Appeal No. 387/1999 Bhanwaroo Khan Since Deceased Through His Legal Representatives-

1/1. Smt. Batul aged 68 years wife of Late Shri Bhanwaroo Khan 1/2. Kasam aged 49 years s/o Late Bhanwaroo Khan 1/3. Khurshid aged 40 years s/o Late Bhanwaroo Khan 1/4. Shabbir aged 38 years s/o Late Bhanwaroo Khan 1/5. Farooq aged 35 years s/o Late Bhanwaroo Khan 1/6. Aslam aged 32 years s/o Late Bhanwaroo Khan 1/7. Muslim aged 30 years s/o Late Bhanwaroo Khan 1/8. Smt. Jannat aged 52 years w/o Shri Iqbal Khan d/o Late Bhanwaroo Khan 1/9. Smt. Jubeda aged 45 years w/o Shri Hussain Khan d/o Late [2025:RJ-JP:23648] (2 of 11) [CSA-325/1998] Bhanwaroo Khan 1/10. Smt. Khatun aged 28 years w/o Shri Farooq Khan d/o Late Bhanwaroo Khan All resident of Ward No. 19, Fatehpur, District Sikar (Raj.). ----Appellant Municipal Board Through Ex. Director, Fatehpur Versus Tehsildar, Fatehpur Patwari Halka, Fatehpur State Of Rajasthan Through Collector, Sikar

4. ----Respondents For Appellant(s) : Mr. Parag Rastogi For Respondent(s) : None HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 26/05/2025

1. These two civil second appeals were preferred by appellants plaintiffs aggrieved from judgment dated 26.11.1997 in two different civil regular appeal nos. 30/1995 and 66/1995 passed by learned Additional District Judge, Sikar. These two appeal raises a common and identical question so they are clubbed together and we are disposing them with common order.

2. Civil Regular Appeal No. 325/1998 is preferred by appellants plaintiffs aggrieved from judgment dated 26.11.1997 in civil regular appeal no. 30/1995 passed by learned Additional District Judge, Sikar whereby an appeal preferred by respondents defendants was allowed and judgment and decree dated

08.07.1992 in civil suit no. 5/1986 passed by learned Munsif Magistrate, Fatehpur, District Sikar was set aside.

3. Civil Regular Appeal No. 387/1999 is filed against the judgment dated 26.11.1997 in civil regular appeal no. 66/1995 [2025:RJ-JP:23648] (3 of 11) [CSA-325/1998] passed by learned Additional District Judge, Sikar whereby judgment and decree dated 08.07.1992 in civil suit no. 92/1985 passed by learned Munsif Magistrate was set aside on an appeal preferred by respondent defendant.

4. Learned counsel for appellants has filed written submission in both the matters and submitted that the appellants plaintiffs have filed a civil suit for permanent injunction against the forcible dispossession from a residential property situated in Ward no.11 at Fatehpur. He further submitted that after considering the evidence both oral and documentary the trial court has passed a decree of injunction in favour of appellants (plaintiffs) but on an appeal preferred by respondent defendant the appellate court without any cogent reason has set aside the findings on issue nos. 1 to 3 and after allowing the appeal has dismissed the suit preferred by plaintiff(s). He further submitted that the appellate court has failed to consider the evidence submitted by plaintiff which includes electricity bills and other relevant documents including voter list but same were not considered by the appellate court. He also submitted that he has filed several documents along with application under Order 41 Rule 27 of CPC which clearly shows that these documents were of year 1971 and 1980 and relevant documents to decide the lis between the parties. He also submitted that the appellate court has not assigned a single reason to set aside the findings recorded by the trial court and treated appellants plaintiffs as an encroacher without any evidence.

5. Learned counsel for appellant further placed reliance upon judgment in case of Kanti Lal Vs. Smt. Shanti Devi and Ors. [2025:RJ-JP:23648] (4 of 11) [CSA-325/1998] AIR 1997 Rajasthan 230 and submitted that whether a person is in possession of a piece of land or not same has to be decided on the basis of evidence available on record. He submitted that the courts in the country has recognized possessionary title as good title to seek injunction to protect the possession of a person. He further referred judgment in case of Sardar Amarjit Singh Kalra (dead) by LRs. Vs. Pramod Gupta (Smt.) (Dead) by LRs. & Ors. Reported in 2003 (3) SCC 272 = AIR 2003 SC 2588 and submitted that the entire issue was before the appellate court but the court has not taken note of legal position. He further placed reliance upon judgment in case of K.N. Nagarajappa Vs. H. Narasimha Reddy AIR 2021 SC 4259 and submitted that the duty lies upon the appellate court to decide issue of fact as well law on the basis of evidence. At last, he referred the judgment in case of Lehna Singh (D) by LRs. Vs. Gurnam Singh (D) by LRs 2024 INSC 429 and submitted that the appellate court without considering the legal position as mandated under Order 41 Rule 31 of CPC has set aside the findings recorded on issue nos. 1 and 2, therefore, the judgment of appellate court is perverse and illegal.

6. No one is present on behalf of respondent despite service of notice.

7. The facts giving rise to instant second appeals are that plaintiff(s) has filed a civil suit for injunction before learned Munsif Magistrate and same was decreed by the trial court but the defendant(s) Municipality, Fatehpur has filed an appeal under Section 96 of CPC and the appellate court set aside the findings [2025:RJ-JP:23648] (5 of 11) [CSA-325/1998] recorded on issue nos. 1 and 2 and after setting aside the judgment and decree, rejected the suit of plaintiff.

8. A perusal of record indicated that plaintiff Maqbool and others have led oral evidence in civil suit no. 5/1986 but defendants have not submitted any evidence and plaintiff Bhawaroo Khan have also led oral evidence in civil suit no. 92/1985 and the defendants have also submitted two defence evidence. In idential manner, the appellate court has set aside the findings on issue nos. 1 and 2 in both the matters which resulted into dismissal of civil suit.

9. In both the appeals the appellants have filed an application under Order 41 Rule 27 of CPC and documents such as voter list, receipt of PHED, Bills of RSEB etc. We are deciding the application under Order 41 Rule 27 of CPC along with present appeals.

10. While considering appeal no. 325/1998 on 02.03.2000 following substantial questions of law were framed by a Co- ordinate Bench of this Court: i) Whether the learned first appellate court has shirked its responsibility in formulating point for determination within the meaning of Order 41 Rule 31 of Civil Procedure Code? ii) Whether the learned first appellate court without meeting the reasons given by the trial court has set aside the finding recorded on issue no. 1 and 2? iii) Whether the plaintiffs are entitled for grant of permanent injunction in the facts and circumstances of the case on the basis of their possessory title? iv) Whether due to abatement of appeal against plaintiff respondent No.2 Mustaq (now deceased) there was no competent [2025:RJ-JP:23648] (6 of 11) [CSA-325/1998] appeal and inconsistent decree could not be passed in that appeal? v) Whether the first appeal filed by respondent no. 1 and 2 under Section 96 of Civil Procedure Code against the judgment and decree passed by trial court without impleading respondent no.2 to 6 lead to the conclusion to the effect that the judgment and decree passed by trial court against them become final and first appellate court has no jurisdiction to pass conflicting decree?

11. While considering appeal no. 387/1999 on 20.12.2000 following substantial questions of law were framed by a Co- ordinate Bench of this Court: (1) Whether oral evidence is as good as documentary evidence unless it is excluded under the Indian Evidence Act? (2) Whether the learned first appellate court has shirked its responsibility in formulating point for determination within the meaning of Order 41 Rule 31 CPC, which has resulted into miscarriage of justice in the present case? (3) Whether the first appellate court without meeting the reasons given by the learned trial court set-aside its findings recorded on issue no. 1 to 3?

12. In case of Lehna Singh (supra), Hon’ble Supreme Court observed that it is settled law that the first appellate court while setting aside the judgment and decree of trial court is required to meet the reasoning given by the trial court in rejecting the Will, which in present case has not been done by the appellate Court. After referring judgment in case of Chinthamani Ammal vs Nandagopal Gounder And Anr (2007) 4 SCC 163 highlighted following paragraphs: [2025:RJ-JP:23648] (7 of 11) [CSA-325/1998] “18. Furthermore, when the learned trial Judge arrived at a finding on the basis of appreciation of oral evidence, the first appellate court could have reversed the same only on assigning sufficient reasons therefor. Save and except the said statement of DW 2, the learned Judge did not consider any other materials brought on record by the parties. 19. In Madholal Sindhu v. Official Assignee of Bombay, it was observed: (AIR p. 30, para 21) “It is true that a judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on questions of fact, but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly interfere with the judgment.” 20. In Rajbir Kaur v. S. Chokesiri and Co., this Court observed: (SCC pp. 39-41, paras 48-52) “48. Reference on the point could also usefully be made to A.L. Goodhart's article in which, the learned author points out: ‘A judge sitting without a jury must perform function. The first function consists in the establishment of the particular facts. This may be described as the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from a conclusion. It is obvious that, in almost all cases tried by a judge without a jury, an appellate court, which has not had an opportunity of seeing the witnesses, must accept his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him.’ 49. The following is the statement of the same principle in ‘The Supreme Court Practice’: ‘Great weight is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. But the parties to the cause are nevertheless entitled as well on questions of fact as on questions of law to demand the decision of the court of appeal, and that court cannot excuse itself from the task of weighing conflicting evidence, and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. (pp. 854-55) …Not to have seen witnesses puts Appellate Judges in a permanent position of disadvantage against the trial Judge, and unless it can be shown that he has failed to use or has palpably misused his advantage—for example has failed to observe inconsistencies or indisputable fact or material probabilities (ibid.)and Yuill v. Yuill; Watt v. Thomas —the higher court ought not take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and [2025:RJ-JP:23648] (8 of 11) [CSA-325/1998] criticisms of the witnesses, and of their view of the probabilities of the case. … (p. 855) …But while the court of appeal is always reluctant to reject a finding by a judge of the specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or bearing of a witness, it is willing to form an independent opinion upon the proper inference to be drawn from it. … (p. 855) 50. A consideration of this aspect would be incomplete without a reference to the observations of B.K. Mukherjea, J., in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120 : 1950 SCR 781] which as a succinct statement of the rule, cannot indeed be bettered: ‘The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. 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. 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 the 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 lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. 51. The area in which the question lies in the present case is the area of the perceptive functions of the trial Judge where the possibility of errors of inference does not play a significant role.The question whether the statement of the witnesses in regard to what was amenable to perception by sensual experience as to what they saw and heard is acceptable or not is the area in which the well-known limitation on the powers of the appellate court to reappreciate the evidence falls. The appellate court, if it seeks to reverse those findings of fact, must give cogent reasons to demonstrate how the trial court fell into an obvious error. 52. With respect to the High Court, we think, that, what the High Court did was what perhaps even an appellate court, with full- fledged appellate jurisdiction would, in the circumstances of the present case, have felt compelled to abstain from and reluctant to do. Contention (c) would also require to be upheld.”

13. In Jagannath Vs. Arulappa and Anr. (2005) 12 SCC 303 and H.K.N. Swami Vs. Irshad Basith (Dead) by LRS. (2005) [2025:RJ-JP:23648] (9 of 11) [CSA-325/1998] 10 SCC 243 Hon’ble Supreme Court has observed that it would be wholly improper to allow first appeal without adverting to specific findings by the trial court and that the first appellate court is required to address all the issues and determine the appeal upon assignment and cogent reasons.

14. In a recent judgment dated Nafees Ahmad vs Soinuddin 2025 INSC 520 Hon’ble Supreme Court while considering provision of Order 41 Rule 31 of CPC has held that failure to frame points of determination by the appellate court does not invalidate its judgment provided there is substantial compliance with the rule and the appellant has not raised any specific issues from the trial court judgment that requires reconsideration.

15. Herein this case, the judgment of the appellate court clearly indicated that the learned appellate court has set aside the findings on issue nos. 1 and 2 which resulted into dismissal of civil suit. The appellate court has disbelieved the oral evidence but has not assigned any reason before disbelieving the evidence of plaintiff, particularly in one of the case only plaintiff has adduced the evidence and there is no contradictory claim of defendants. The requirement of the appellate court is to decide the appeal in accordance with Order 41 Rule 31 of CPC. Both the parties have led their arguments before the appellate court and the duty lies upon the appellate court to address the same but the appellate court has failed in its duty while deciding the appeal in both the matters.

16. Herein this case, in both the appeals, an application under Order 41 Rule 27 of CPC is filed to bring on record certain documents so as to decide the controversy in question though [2025:RJ-JP:23648] (10 of 11) [CSA-325/1998] appellant plaintiff was required to bring these documents at the time of filing of civil suit. Since, the trial court has believed the oral evidence of plaintiff and passed a decree in the suit and the appellate court has set aside only for want of documentary evidence. If a party unable to produce any evidence despite due diligence during trial then appellate court may allow additional evidence oral or documentary so as to render a proper and just judgement. The provision has to be exercised in exceptional circumstances to ensure justice between the parties. Therefore, I am of the considered view that in the interest of justice it is necessary to permit the appellant(s) to adduce the evidence about these additional documents by taking them on record.

17. Having considered the entire material on record, it is appropriate to allow both the appeals as the judgment of appellate court does not confirms to the standard as provided under Order 41 Rule 31 CPC, therefore, after setting aside the judgment of appellate court it is appropriate to remit back the matter to the appellate court.

18. In view of discussion made hereinabove, both the second appeals are partly allowed and the judgment dated 26.11.1997 in civil regular appeal no. 30/1995 and 66/1995 passed by learned Additional District Judge, Sikar are hereby set aside and the matter is remitted back to the appellate court for decision afresh. An application under Order 41 Rule 27 in both the appeals are also allowed and the documents are taken on record and appellant(s) plaintiff(s) is permitted to adduce additional evidence before the first appellate court. The appellate court shall either itself record the evidence to admit these documents in evidence and also [2025:RJ-JP:23648] (11 of 11) [CSA-325/1998] provide opportunity to opposite party to contradict the same to or sent it to the trial court to record the additional evidence in time bound manner. After recording evidence, the appeals shall be considered on merits.

19. The appellate court shall decide the appeals after all formalities within a period of four months from date of receipt of copy of this order. The parties are directed to appear before the learned Additional District Judge no.2, Sikar on 15.09.2025. CHETNA BEHRANI /110-111 (ASHOK KUMAR JAIN),J