Heard Shri Mohammad Ehteshma Khan, learned counsel for the appellants and Shri Rakesh Kumar Srivastava, learned counsel appearing on behalf of respondent no.1 caveator.
The instant second appeal has been preferred against the judgment and decree dated 19.09.2020 passed by the Additional District Judge, Court No.3, Faizabad in Civil Appeal No.140 of 1982 whereby it has affirmed the judgment and decree dated 08.02.1982 passed by the Additional Munsif-VIth, Faizabad in Original Suit No.45 of 1973. Thus, the suit which was decreed by the trial court and the appeal of the defendant-appellant has been dismissed and being aggrieved against the aforesaid, the instant second appeal has been filed by the defendant.
Shri M.E.Khan impugning the aforesaid judgment and decree under challenge has submitted that the first appellate court had not considered the evidence which was led before the trial court. The submission is that the first appeal is a valuable right in the hands of the appellants and all the issues both of law and facts are to be considered.
In the instant case, the first appellate court has merely made a reference of having considered the evidence before it. However, from the reading of the judgment, it would indicate that there is no reference to the oral evidence which was led by the witnesses from both sides and merely the findings which were returned by the trial court has been affirmed and thus the first appellate court has abdicated its duty in deciding the first appeal within the parameters as provided under Order 41 Rules 31 CPC. He confines his submission to the aforesaid question of law which has been proposed by him in the memo of appeal at serial no.1.
Controverting the aforesaid submission, Shri Rakesh Srivastava learned counsel for the plaintiff-caveator submits that the first appellate court passing a judgment of affirmance in compliance and the mandate of Order 41 Rule 31 CPC has framed the point of determination which guided the first appellate court to charter it parameter within which it has referred to the evidences which was led before the trial court. It has also expressed its agreement with the findings so returned, hence it cannot be said that the first appellate court has not considered the submission or has not considered the evidence. Accordingly in view of the finding which has been returned and confirmed by the first appellate court, it cannot be said that there is any violation of Order 41 Rule 31 CPC.
Shri Srivastava further submits that the defendant while filing his written statement had raised primarily two grounds of defence, one it had impeached the title of the predecessor in interest of the plaintiff and the other related to claiming right over the property in question on the basis of adverse possession.
Both the aforesaid plea were taken by the defendant in its written statement and in view thereof the issues were framed, the burden to prove the aforesaid issue lay on the defendant himself.
Shri Srivastava has also drawn the attention of the Court to the findings returned by the trial court which has been done so by noticing not only the oral evidence but also the documentary evidence filed by the plaintiff.
Considering the same the trial court has traced the lineage of the predecessor in interest of the plaintiff whose name was duly recorded in the revenue record and considering the same, it held that Bhagelu (predecessor in interest) of the plaintiff was the owner of the property in question which was sold to the original plaintiff of the suit. The trial court also found that though the plea of adverse possession was taken by the defendant. However, no evidence worth its name was led to substantiate the aforesaid plea and thus it was answered in the negative.
In the aforesaid backdrop, it is submitted that once the title of the predecessor in interest of the plaintiff stood proved, meaning thereby that the plaintiff was successful in establishing the title of his vendor, the burden lay on the defendant to discharge the same which has not been done. Considering the aforesaid, the trial court has returned the findings in favour of the plaintiff and decreed the suit. The defendant carried the matter in first appeal and even the first appellate court by noticing the issues framed before the trial court as well as noticing the point for determination having been framed as well as considering the relevant aspect including the material and evidence on record affirmed the findings by means of the judgment dated 19.09.2020.
In the backdrop of the aforesaid, the issue sought to be pressed by the learned counsel for the appellants is whether the first appellate court has abdicated its duties in failing to consider the evidence. In support of his submission, the learned counsel for the appellants has relied upon a decision of this Court in the case of Vijay Bahadur and others Vs. Triloki Nath and others, Second Appeal No.201 of 2015 decided on 14 of March, 2019 wherein the provision of Order 41 Rule 31 CPC has been considered and relying upon the same, it has been held that the first appeal is a valuable right and the first appellate court is required to consider and decide the same noticing the evidence available on record.
The learned counsel for the appellants has also relied upon a decision of the Apex Court in the case of Union of India Vs. K. V. Lakshman and others reported in 2016 Vol.III SCC 124 in respect of a similar controversy regarding the duties and the manner in which the first appellate court is required to decide a first appeal.
The Court has considered the rival submissions and has also perused the record.
At the very outset, it may be noted that the suit for permanent injunction and possession was instituted by the plaintiff against the defendant which was registered as Regular Suit No.45 of 1973. After the parties exchanged their pleadings the trial court framed nine issues. Primarily issue nos.1, 2, 7 and 8 were relevant to decide the controversy in question. The parties led both oral as well documentary evidence. The trial court while dealing with issue no.7 which related to the fact whether the predecessor in interest of the plaintiff namely Bhagelu was a licencee of the property in question or its owner. After noticing the discrepancies in the oral evidence of the defendant witnesses and thereafter considering the documentary evidence which related to revenue record wherein the name of Bhagelu and his predecessor was recorded. The trial court returned a finding that Bhagelu was the owner of the property in question. It also considered other documents which related to some litigation which engaged both the defendant as well as Bhagelu at some earlier point of time and on the basis of the same it also held that Bhagelu was declared or acknowledged as the owner of the property alongwith the fact that the boundary of the disputed property was similar to the one which has been mentioned by the plaintiff in the instant regular suit. Thus, considering all aspect of the matter regarding the title it returned a finding in favour of the plaintiff holding that Bhagelu was the owner and not the licencee. Thereafter the trial court proceeded to consider issue nos.2 and 8 together and thereafter it found that since the oral evidence led by the defendant witness did not inspire confidence, accordingly the same were decided in negative.
Taken as overall consideration of the evidence, the trial court by means of judgment dated 08.02.1982 decreed the suit which was assailed by the defendant by preferring the regular civil appeal under Section 96 CPC bearing No.140 of 1982. From the perusal of the judgment passed by the first appellate court, it would indicate that the first appellate court has also considered the pleadings of the parties, it has noticed the issue framed as well as the fact the decision which were relied upon by the respective parties in support of their submissions. The first appellate court has also framed the point for determination and though it may be true to say that each and every witness which was examined before the trial court has not been considered but the fact remains that the first appellate court has also noticed the evidences especially the documentary evidence upon which the findings have been arrived at by the trial court. The issue before the first appellate court primarily rested on the fact whether the plaintiff had the title or not. This aspect of the matter was the crux of the controversy and the same stood resolved on the basis of documentary evidence which was led by the parties before the trial court and so also the first appellate court has considered the same and affirmed the said findings.
Once the title of the plaintiff stood confirmed and that being a finding of fact. This Court is of the opinion that the aforesaid finding being a finding of fact, is not open to be assailed primarily on technical ground as raised by the appellants in terms of Order 41 Rule 31 CPC. No material has been pointed out by the learned counsel for the appellants to indicate or to persuade this Court to take a different view to suggest that some material evidence has been omitted to be noticed. In the instant case the entire case of the defendant-appellants hinges on the fact that the defendant set up title in himself and in the alternate pleaded adverse possession. Neither he could establish his title nor could he plead or lead evidence regarding adverse possession.
Needless to say in the current circumstances on the perusal of written statement which has been brought on record setting up title in himself and then taking a plea of adverse possession was a mutually destructive plea which in the first place could not have been taken. Having said that the Court is of the considered view that no prejudice has been indicated by the appellants to establish that merely by non considering each and every witness by the first appellate court has resulted in any miscarriage of justice. The decision relied upon by the learned counsel for the appellants if considered, would indicate that in all the aforesaid two cases, the first appellate court had returned very cursory finding. In the case of Vijay Bahadur (supra) the trial court had not considered the evidence at all and the same mistake was committed by the first appellate court and in the aforesaid circumstances the matter was remitted. Even in the case of K. V. Lakshman (supra) the parameters of Order 41 Rule 31 CPC has been considered but the learned counsel for the appellants could not indicate as to how the aforesaid principle is applicable in the present facts and circumstances.
It will be apposite to notice that in the instant case the first appellate court has passed a judgment of affirmance. The Apex Court in the case of Malluru Mallappa Vs. Kuruvathappa reported in 2020 (4) SCC page 313 wherein para 18 it has been held as under:-
"18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice."
Thus in view of aforesaid the submissions of the learned counsel for the appellants fails.
Another plea has been raised by the learned counsel for the appellants that the evidence which was led by the plaintiff was not in consonance with the pleadings. This Court is not impressed with the aforesaid submission as well for the reason that there is sufficient foundation in the plaint for which the evidence was led. Consequently, the aforesaid plea also stands rejected.
Considering the aforesaid, this Court is of the view that no substantial question of law arises in the aforesaid second appeal and it is concluded by concurrent findings of fact and no infirmity could be pointed out which could persuade the Court to take a different view hence the appeal is consequently dismissed. The judgment and decree dated 08.02.1982 and 19.09.2020 are affirmed.There shall be no order as to cost.
Order Date :- 20.1.2021 ank