1. By this appeal under section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), the appellant- original plaintiff has challenged the judgement and decree dated 5.5.2009 passed by the learned Presiding Officer, Fast Track Court No.4, Ahmedabad (Rural) in Regular Civil Appeal No.86 of 2006 whereby, he has dismissed the appeal and confirmed the judgement and decree dated 30.9.2006 passed by the learned Sixth Additional Senior Civil Judge, Ahmedabad (Rural) in Regular Civil Suit No.413 of 2003.
2. The appellant-plaintiff instituted a suit in the Court of the learned Additional Senior Civil Judge, Ahmedabad (Rural) contending that deceased Ramaji Becharji had sold land admeasuring 9,004 square metres bearing Block No.213 (old Survey No.199), situated in the sim of Mouje Village Bhadaj, Taluka Dascroi, District & Sub-District Ahmedabad (hereinafter referred to as “the suit land”) to the plaintiff by way of a registered sale deed dated 9.10.1997 which clearly shows that the total amount of consideration has been paid and possession has been handed over to the plaintiff. The original owner has also executed a registered kabulat dated 12.12.1997 in respect of sale deed. It was the case of the plaintiff that the defendant No.5 – Radheshyam A. Patel has created a forged power of attorney of the defendant No.1. Vide public notice dated 12.7.1996 published in the daily newspaper Gujarat Samachar, the original owner has cancelled the power of attorney executed in favour of Radheshyam Patel and as such the defendant No.5, has no authority to act as power of attorney on behalf of the defendant No.1, despite which, the defendant No.5 has executed a registered sale deed in favour of the defendants No.2 and 3. The said deed dated 5.11.1996 is illegal, without authority of law and a nullity, and no transfer can take place on the basis of the said sale deed and that pursuant to the said deed, possession has not been transferred. Moreover, the defendants No.5 and 3 are father and son and they have executed the sale deed in connivance with each other. It was further the case of the plaintiff that on the basis of the aforesaid sale deed dated 5.11.1996, the defendants No.2 and 3 executed a registered sale deed dated 15.12.1997 in favour of the defendant No.4, which they had no authority to do so, hence, there is no valid transfer in favour of the defendant No.4. The sale deed dated 15.12.1997 is, therefore, illegal, without authority of law and nullity and that no consideration as recorded in the said sale deed has ever passed and the mentioning of the consideration in the sale deeds is false and misleading. It was the further case of the plaintiff that the plaintiff is in possession of the suit land and is cultivating the same. According to the plaintiff, the plaintiff is a bona fide purchaser without notice. The defendants want to grab the possession of the suit land from the plaintiff and have been coming to the suit land with brokers for the purpose of selling the same to third parties and are in the process of negotiating with third parties and have threatened the plaintiff to vacate the suit land within three days, which has given rise to the cause of action for instituting the suit. It is the further stated that earlier the plaintiff had instituted Civil Suit No.80 of 1999 against the defendants for permanent injunction which came to be withdrawn with permission to file a new suit.
3. In response to the averments made in the plaint, the defendants No.2 and 3 filed written statement contending that the plaintiff is not a bona fide purchaser with notice. The defendants No.2 and 3 have sold the suit land four years ago to the defendant No.4, and hence, there is no question of their selling the said land again. The plaintiff is not in possession of the suit land, and hence, the question of threatening him does not arise. It was the further case of the defendants that the defendant No.1 – original owner had executed a Banakhat (agreement to sell) as well as a Kabjakarar (possession deed) on 17.8.1995 and had taken full consideration for the suit land after which, the original owner ceased to have any right, title or interest in the suit property. However, since permission to purchase the suit land was required to be obtained under the relevant laws, the sale deed could not be executed at the relevant time, hence, the name of the original owner was reflected in the government records. The original owner, therefore, executed a power of attorney in favour of Radheshyam Ambalal and Rajendrabhai Ramanlal who obtained the necessary permissions, pursuant to which a registered sale deed came to be executed on 5.11.1996. Thereafter, a registered sale deed came to be executed in favour of the defendant No.4 on 5.12.1997 and the possession of the suit land came to be handed over to him. The defendant No.4 had also filed a written statement at exhibit-14 denying the contents of the plaint and reiterating what was stated by the defendants No.2 and 3 in their written statement.
4. The trial court, on the basis of the pleadings of the parties, framed the following issues :
“[1] Whether the plaintiff proves that the plaintiff has existing rights against the defendants as claimed in the plaint?
[2] Whether the plaintiff proves that the defendants have invaded existing rights of the plaintiff as alleged in the plaint?
[3] Whether the plaintiff proves that the action/order of the defendant is illegal, null and void as stated in the plaint?
[4] Whether this Court has jurisdiction to try and decide the suit of the plaintiff?
[5] Whether the suit of the plaintiff is time barred?
[6] Whether the suit of the plaintiff is barred under the principles of delay, latches and acquiescence?
[7] Whether the plaintiff is entitled for the relief for the declaration and perpetual injunction as prayed for in the plaint?
[8] What order and decree?”
5. After appreciating the evidence on record, the trial court answered Issues No.1, 2, 3, 5, 6 & 7 in the negative and Issue No.4 in the affirmative, and dismissed the suit. The appellant carried the matter in appeal before the learned Presiding Officer, Fast Track Court No.4, Ahmedabad (Rural) in Regular Civil Appeal No.86 of 2006, which came to be dismissed by the impugned judgement and decree. Being aggrieved, the appellant has challenged the judgement and decree passed by the lower appellate court by proposing the following questions :
“[1] Whether the judgement and decree of the Lower Court are vitiated as the same are passed by not following Order 41, Rule 31 and Civil Manual para 410 and in breach of them?
[2] Whether the sale – deeds, Exhs. 99, 140, 141 are legal, authorized or valid and do they confer title in the defendant Nos.2, 3 and 4 to the suit land in them in law?
[3] Whether the plaintiff has got title to suit land by sale- deed, Exh.103, as ratified by Exh.97?
[4] Whether the respondent No.5 can execute sale-deed in favour of the defendant Nos. 2 and 3 as a power of attorney holder of the defendant No.1 after cancellation of power of attorney by Exh.98?
[5] Whether section 202 and section 206 of the Contract Act can be resorted to without proof of ingredient of section 202?”
6. Mr. S. M. Shah, learned counsel for the appellant assailed the impugned judgement and decree passed by the lower appellate court mainly on the ground that the lower appellate court has failed to comply with the provisions of rule 31 of Order XLI of the Code and Paragraph 410 of the Civil Manual, thereby vitiating the impugned judgement and decree. It was submitted that the lower appellate court being the final fact finding court, is required to adjudicate upon all the issues decided by the trial court. Referring to the impugned judgment and decree, it was submitted that the lower appellate court has not discussed the evidence in detail, nor has it adverted to the issues decided by the trial court and as such, there is no compliance with the provisions of rule 31 of Order XLI of the Code. It was submitted that in paragraph 19 of the judgement, the lower appellate court has merely referred to the provisions of law without referring to the relevant evidence on record and as such, the judgement suffers from the infirmity of non- appreciation of the evidence on record. It was submitted that in the entire judgement and decree, the lower appellate court has not referred to the evidence of a single witness, nor to any piece of evidence and that the entire stress of the lower appellate court is on ulterior motive and mala fides, whereas there is no issue framed in this regard. It was, accordingly, submitted that the approach of the lower appellate court is unfair and unjust. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of B. M. Narayana Gowda v. Shanthoma (Dead) by LRs and another, (2011) 5 Scale 143, for the proposition that 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 reconsideration. The court placed reliance upon its earlier decision in the case of H.K.N. Swami v. Irshad Basith (Dead) By LRs, (2005) 10 SCC 243, wherein it was held that the first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law, as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. It was submitted that in the facts of the present case, the order passed by the first appellate court is cryptic and without assigning any reasons and as such cannot be sustained.
7. Reliance was also placed upon the decision of the Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs, (2001) 3 SCC 179, for the proposition that first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgement 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. Referring to the impugned judgement and decree, it was submitted that the judgement does not reflect conscious application of mind, nor does it record findings supported by reasons on all the issues arising. It was submitted that the rule 31 of Order XLI of the Code is mandatory in nature and if there is a breach, the matter has to be remanded to the lower appellate court for deciding the same afresh. According to the learned counsel, the lower appellate court is required to deal with the evidence; however, the lower appellate court has not done its job as required, which gives the appellant a right of being heard by that court on merit. Reliance was also placed upon the decision of the Supreme Court in the case of Nicholas V. Menezes v. Joseph M. Menezes and others, (2009) 4 Scale 182 = (2009) 4 SCC 791, wherein the court had observed that it is well settled that while deciding a first appeal, the High Court must consider the evidence on record, oral and documentary and also the questions of law raised before it and at the same time, it was the duty of the court to consider the reasons given by the trial court against which the first appeal was filed and thereafter dispose of the same after passing a speaking and reasoned order in accordance with law. Reliance was also placed on the decision of the Supreme Court in the case of H. Siddiqui (Dead) by LRs v. A. Ramalingam, (2011) 3 Scale 290 = (2011) 4 SCC 240, for a similar proposition of law. Reliance was also placed upon the decision of this High Court in the case of Prajapati Ambaram Nagarbhai and another v. Prajapati Harjibhai and others, (2010) 2 GLH 551, wherein the court, after considering the provisions of rule 31 of Order XLI of the Code and Rule 414 of the Civil Manual, had found that in the judgement impugned before it, the lower appellate court had not strictly followed rule 31 of Order XLI of the Code. The court observed that the impugned judgement passed by the lower appellate court was absolutely non-reasoned and the points for determination had not been properly framed. It was further observed that the lower appellate court was required to frame the points for determination considering the issues involved in the matter which were dealt with and considered by the trial court and accordingly, set aside the judgement.
8. Reference was made to an order dated 12.10.2004 made by this court in Second Appeal No.53 of 2003 wherein the Court had admitted the appeal on the following substantial questions of law:
“(i) Whether the lower Appellate Court committed an error in not framing points for determination and not giving a finding on aspect of non-joinder of necessary parties ?
(ii) Whether the lower Appellate Court was required to frame points for determination before hearing the parties in light of provisions contained in Order 41 Rule 11, 14, 15, 31 and Para.414 of Civil Manual ?
It was submitted that once a Bench of this High Court has admitted an appeal by formulating similar questions of law as involved in the facts of the present case, this Court should follow the said decision and formulate similar questions of law.
9. The learned counsel for the appellant further submitted that rule 31 of Order XLI of the Code mandates that the appellate court should independently assess the evidence on record and that the first appellate court must not only concur with the findings recorded by the trial court, but the entire evidence must be considered. Reliance was also placed upon various other decisions of the Supreme Court laying down a similar proposition of law. It was, accordingly, contended that the lower appellate court having failed to formulate proper points of determination and having failed to give its findings on the issues involved in the case by independently appreciating the evidence on record, the impugned judgement and decree passed by the lower appellate court stands vitiated and as such, the impugned judgement and decree deserves to be quashed and set aside. It was, accordingly, submitted that the impugned judgement and decree does give rise to substantial questions of law, as proposed by the appellant or as may be formulated by this court and that the appeal deserves to be admitted.
10. Opposing the appeal, Mr. Mihir Joshi, Senior Advocate, learned counsel for the respondent No.4 – original defendant No.4, invited the attention of the court to the facts of the case, to submit that by virtue of a sale deed dated 20.12.1996, the suit land came to be transferred in favour of the respondents No.2 and 3 by the original owner, that is, the defendant No.1 (now deceased) through his power of attorney holder – defendant No.5 – Radheshyam Patel. It was submitted that on 24.12.1996, the defendant No.1 instituted a suit being Civil Suit No.1992 of 1996 challenging all the documents executed in respect of the suit land as not being binding upon him. Thereafter, on 15.2.1997, the defendants No.2 and 3 sold the suit land to the defendant No.4 by a registered sale deed. It was submitted that on 9.10.1997, a sale deed came to be executed by the defendant No.1-Shri Rambhai Bharwad as power of attorney in favour of the appellant-plaintiff after the execution of the aforesaid sale deeds dated 20.12.1996 and 15.2.1997. It was submitted that thereafter on 15.12.1997, Civil Suit No.1992 of 1996 came to be withdrawn by the defendant No.1, and thereby his challenge to the transaction by Radheshyam Patel was given up. It was submitted that the original owner has executed independent documents confirming the sale in favour of the defendants No.2 and 3. It was submitted that on 1.5.1999, the present plaintiff – Maheshbhai Rambhai Bharwad instituted a suit being Civil Suit No.280 of 1999 against the original owner as well as subsequent purchasers for cancellation of mutation entry recording the transactions and for declaration that Radheshyam Patel was not authorized to make the sale deeds. On 3.11.2001, Civil Suit No.280 of 1999 came to be withdrawn and thereafter, the present civil suit being Civil Suit No.331 of 2001 came to be instituted on 8.11.2001 and was re-numbered as Civil Suit No.413 of 2003 which came to be dismissed on 30.9.2006. It was submitted that the plaintiff is not a bona fide purchaser. Referring to the impugned judgement and decree, it was submitted that in the context of the controversy involved in the present case, the lower appellate court has independently discussed that the original owner has not sold the land to the plaintiff. That the purchase by the plaintiff is collusive and that the earlier sale deed would stand vitiated. It was submitted that when the lower appellate court concurs with the findings of the trial court, it is not necessary to give elaborate reasoning. It was submitted that the fact regarding execution of the sale deed dated 15.2.1997 in favour of the respondent No.4 as well as dated 24.2.1996 in favour of the predecessor in title as well as the mutation entry which was made on 24.3.1998, were challenged in the suit, which was withdrawn. Thus, the plaintiffs were aware of the sale in the year 1996, whereas the suit has been instituted on 8.11.2011 after a delay of eight years and hence, the suit was barred by limitation. It was submitted that the withdrawal of the first suit would not extend limitation under rule 2 of Order XXII of the Code. Reference was made to the provisions of rule 22 of Order XLI of the Code to submit that without cross objections, the rule permits the respondents to say that the findings of the court on the question of limitation should have been in his favour. Reliance was placed upon the decision of the Supreme Court in the case of Ravinder Kumar Sharma v. State of Assam and others, (1999) 7 SCC 435, for the proposition that the respondent- defendant in an appeal can, without filing cross-objections, attack an adverse finding upon which a decree in part has been passed against him, for the purpose of sustaining the decree to the extent the lower court had dismissed the suit against the respondent-defendant. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory. It was submitted that the plaintiff himself has withdrawn the suit where he could have challenged the sale deed; under the circumstances it was not open for the plaintiff to institute a second suit.
11. Dealing with the contention as regards non-compliance of the provisions of rule 31 of Order XLI of the Code, it was submitted that the said provision is not mandatory and that the compliance should be in substance. Referring to the impugned judgement and decree, it was submitted that there is no sweeping observation that what the trial court has done is correct. It was submitted that three issues were mainly involved in the present case, namely, whether the plaintiff had any existing right in the suit land; if yes, whether the defendants have in any manner interfered with the said rights of the plaintiff; and whether the plaintiff was entitled to the declaration and perpetual injunction as prayed for. Referring to the impugned judgement and decree, it was submitted that the lower appellate court has independently applied its mind to the evidence on record and as such, there is substantial compliance with the provisions of rule 31 of Order XLI of the Code. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (2008) 2 SCC 728, wherein the court after perusing the judgement of the first appellate court found that the findings arrived at by the first appellate court affirming the judgement of the trial court were neither cryptic nor based on non- consideration of arguments advanced by parties before it. The court held that in the case of reversal, the first appellate court ought to give some reason for reversing the findings of the trial court whereas in the case of affirmation, the first appellate court accepts the reasons and findings of the trial court. It was submitted that emphasis is on the substantial compliance with the provisions of rule 31 of Order XLI of the Code and that no injustice is caused to the appellant thereby. Reliance was also placed upon the decision of the Supreme Court in the case of G. Amalorpavam and others v. R. C. Diocese of Madurai and others, (2006) 3 SCC 224, for the proposition that non- compliance with the provisions of rule 31 of Order XLI of the Code may not vitiate the judgement and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher 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 judgement that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient.
12. Reliance was also placed upon the decision of this High Court in the case of Kikubhai Parshottambhai Patel v. Babubhai Vallabhbhai Patel, (2005) 1 GLH 602, wherein the court has held that Rule 414 of the Civil Manual is based on Order XVI Rule 31 of the Code and since this court has held that non- framing of points for determination by itself cannot vitiate the well-reasoned judgment of the appellate court, the said contention is also required to be rejected.
13. It was urged that in the context of the controversy raised being a narrow one, the earlier sale deeds were bad and therefore, the sale deeds were required to be set aside. he Courts below have found that the power of attorney made in favour of the respondents No.2 and 3 had not been validly terminated and that the lower appellate court had itself found that the sale deed executed in favour of the appellant is not by the owner, but by of his own father. It was submitted that the trial court has given detailed reasons after appreciating the evidence on record and the lower appellate court having concurred with the findings of fact after re-appreciation of the evidence on record, the present appeal does not give rise to any substantial question of law.
14. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Boodireddy Chandraiah and others v. Arigela Laxmi and another, AIR 2008 SC 380 wherein the court has laid down as to what is a substantial question of law. It has been held that to be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case”, there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
15. In rejoinder, Mr. S. M. Shah, learned counsel for the appellant submitted that it is a settled position of law that if there are contradictory decisions of the Supreme Court on the same issue, the last decision is required to be followed. It was submitted that the provisions of rule 31 of Order XLI of the Code can be said to be substantially complied with only if the evidence is discussed. It was submitted that the lower appellate court despite being a fact finding court, has not discussed the evidence on record and as such, there is no compliance with the provisions of rule 31 of Order XLI of the Code. It was further submitted that the factual data should be reflected in the judgement of the appellate court and it must appear from the judgement of the appellate court only and not anything else, which is not so in the present case. It was submitted that insofar as the findings regarding collusion are concerned, the court must frame an issue as regards collusion, whereas no such issue has been framed despite which, the lower appellate court has stressed upon it.
16. In the background of the facts and contentions noted hereinabove, the main question that arises for determination is as to whether the impugned judgement and decree fails to comply with the provisions of rule 31 of Order XLI of the Code and Paragraph 410 of the Civil Manual.
17. In this regard, it may be germane to refer to the provisions of rule 31 of Order XLI of the Code, which reads thus:
“31. Contents, date and signature of judgement. - The judgment of the Appellate Court shall be in writing and shall state -
(a) the points of determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
Provided that where the Presiding Judge is specially empowered by the High Court to pronounce his judgments by dictation to a shorthand writer in open Court, the transcript of the judgement so pronounced shall after such revision as may be deemed necessary be signed by the Judge.”
18. Thus, the said rule lays down that the judgement of the appellate court shall inter alia state the points for determination. Paragraph 410 of the Civil Manual lays down that when an appeal is dismissed summarily under Order XVI Rule 11 of the Code, the court shall record a brief judgement, stating reasons for dismissal. A formal decree should also be drawn up in such case.
19. On a plain reading of Paragraph 410 of the Civil Manual, it is apparent that the same would be applicable in case where an appeal is summarily dismissed under rule 11 of Order XLI of the Code. Thus, in a case where a judgement is rendered under rule 11 of Order XLI of the Code, it appears that the provisions of Paragraph 410 of the Civil Manual would not be applicable. In the facts of the present case, the lower appellate court has decided the appeal on merits and has not dismissed the same summarily under rule 11 of Order XLI of the Code, hence, what is required to be looked into is as to whether the lower appellate court has substantially complied with the provisions of rule 31 of Order XLI of the Code.
20. Before adverting to the facts of the case, it will be necessary to refer to the legal position in this regard. In H. Siddiqui (Dead) by LRs v. A. Ramalingam, (supra), the Supreme Court has held that that the provisions of rule 31 of Order XLI of the Code provide guidelines for the 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 taken into consideration. Thus, it must be evident from the judgement of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgement is based on the independent assessment of the relevant evidence on all important aspects 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 judgement 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. In B. V. Nagesh and another v. H.
V. Sreenivasa Murthy, (2010) 13 SCC 530, the Supreme Court held that the first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgement 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 the decision of the appellate court. In Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (supra), the Supreme Court held that in the case of reversal, the first appellate court ought to give some reason for reversing the findings of the trial court, whereas in the case of affirmation, the first appellate court accepts the reasons and findings of the trial court. It was further held thus:
“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 judgement delivered in each case. Non-compliance with the provisions may not vitiate the judgement and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher 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 judgement 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 judgement 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 judgement 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.”
21. In the aforesaid backdrop, the facts of the present case may be taken note of. In its judgement and decree, the trial court has noted that the plaintiff, in his cross-examination, has stated that he has not paid any amount of consideration to his father for executing the sale deed and that before the sale deed was executed and at the time when the sale deed was executed, he did not have any amount. The plaintiff has further stated that the consideration had been paid five days after executing the sale deed, and possession had been handed over thereafter, however, no possession deed had been executed. Whereas, the plaintiff's father in his deposition, has stated that when the power of attorney was executed on 12.8.1993, he had paid Rs.62,500/- and a receipt had been issued in respect thereof. It was agreed that the sale deed would be executed upon payment of the remaining amount of consideration. That the remaining 50% of the consideration was paid after getting writing in that regard by Prajapati, Sarpanch of Village Bhadaj. The trial court took note of the fact that the Sarpanch had not been examined and that Ramaji Ukaji (the plaintiff’s father) has further stated that, on the day prior to the execution of the sale deed, he had gone to the house of Ramaji Becharji (the original owner) and paid the consideration and that no amount remained outstanding after registration of the deed. Though he has stated that the sale deed was executed after payment of full consideration to the original owner, the consideration does not appear to have been paid. It was further noticed that the plaintiff had admitted that he was aware of the earlier registered sale deed and that the defendants No.2 and 3 had taken steps to get the tenure of the land changed and by order dated 1.11.1996, the tenure had been changed. The trial court has further found that the original owner- defendant No.1 took full consideration towards sale of the suit lands from the defendants No.2 and 3, and executed Banakhat and Kabjakarar in favour of the defendants. The trial court was of the view that once the defendant No.5 as power of attorney holder of the defendant No.1 had executed sale deed in favour of the defendants No.2 and 3 on 5.11.1996, thereafter the defendant No.1 had no right to enter into any transaction in respect of the suit land and any transaction effected thereafter was null and void. The trial court found that the suit land was of new tenure and was of the ownership and possession of the defendant No.1-Ramaji Becharji Thakor. On 17.8.1995, the defendant No.1 decided to sell the suit land to Mukeshbhai Radheshyam, Bhikhabhai Ambalal and Ramanlal Ambalal and after taking full amount of consideration, executed an agreement to sell in their favour and handed over the possession of the suit land and executed a possession receipt evidencing the same. Hence, thereafter the defendant No.1 was only a nominal owner despite which, so as to obtain necessary permissions for transfer of the suit land, a power of attorney was executed by the defendant No.1 in favour of the defendant No.5. In respect of the said transaction, the aforesaid three persons had given a public notice in the daily newspaper on 29.2.1996 wherein it was clearly stated that Ramaji Becharji had executed an agreement to sell in favour of the aforesaid three persons and had handed over the possession and had sold the suit land to the defendants No.2 and 3 by virtue of the power of attorney.
Accordingly, the defendant No.5, on the basis of the said power of attorney, had executed a registered sale deed in favour of the defendants No.2 and 3 on 5.12.1997.
22. The trial court has further recorded that the plaintiff in his deposition has stated that the registered sale deed dated 9.10.1997 came to be executed in his favour by Ramabhai Ukabhai Bharwad, power of attorney of the defendant No.1 and that the original owner had executed registered Kabulat dated 12.12.1997 in respect of the sale deed. In the cross- examination of the plaintiff, it has come out that he was running a pan-galla since the last one year and that prior thereto, he was neither in service, nor was engaged in any business. His family was being maintained through the income of his father and there was no other property in his name, nor did he have any funds. He has admitted that Ramabhai Ukabhai Bharwad who had executed sale deed in his favour as power of attorney of Ramaji Becharji Thakor is his father and that document exhibit-103 can be said to have been executed in connivance by him and his father. Exhibit-103 is the sale deed executed in favour of the plaintiff by Ramabhai Ukabhai Bharwad (the plaintiff’s father) as power of attorney of defendant No.1. The trial court has further noted that in the sale deed exhibit-103, it has been recorded that the vendee has paid the vendor an amount of Rs.1,25,000/- as recorded in the receipt and the actual possession at site without any encumbrance has been handed over. However, the said facts are contrary to what has been stated by the plaintiff in his deposition wherein he has stated that he had paid the amount of consideration as per the sale deed five days after the execution thereof and that no amount had been paid prior to the execution of the sale deed. That the plaintiff has further stated in his cross-examination that at the time of execution of the sale deed, he had not paid any amount of consideration to his father as power of attorney of defendant No.1 and that at the time when the sale deed came to be executed, he had no funds and no amount of consideration had been paid on or before the date of execution of the sale deed. He has further stated that the amount was paid five days after execution of the sale deed and thereafter the possession was handed over in respect of which, no deed had been executed. On the other hand, the plaintiff's father- Ramabhai Ukabhai Bharwad, in his cross-examination, has made contradictory statments. He had stated that when the power of attorney was executed on 12.8.1993, consideration of Rs.62,500/- had been paid and a receipt was executed in respect thereof. There was a condition that the remaining amount was to be paid when the sale deed was executed. The remaining 50% of the consideration was paid by executing a writing of the Sarpanch of Bhadaj in that regard. The trial court took note of the fact that the Sarpanch had not been examined and that in his cross-examination, Ramabhai Ukabhai Bharwad had stated that the said amount had been paid by him personally by going to the residence of the original owner-Ramaji Becharji Thakor on the previous day of execution of the sale deed. That after the sale deed was executed, no amount remained to be paid. Based upon the aforesaid evidence, the trial court has come to the conclusion that the plaintiff has not paid any amount of consideration in respect of the suit land.
23. The trial court has further observed that the plaintiff was aware of the sale deed executed in favour of the defendants No.2 and 3 and had also admitted in his cross-examination that the defendants No.2 and 3 had taken steps for getting the tenure of the land changed on 1.11.1996 and that he has seen the order in respect of the change of tenure of the suit lands. The trial court further observed that though Ramabhai Ukabhai Bharwad had stated that 50% of the consideration had been paid and that he had obtained a receipt in respect thereof, no such receipt had been produced by him. Apart from the aforesaid, no evidence was produced to show payment of the remaining 50% of the consideration. Ramabhai Ukabhai had also stated in his cross-examination that the original land owner had told him to get the sale deed executed by the defendant No.5 in favour of the defendants No.2 and 3 cancelled before executing any sale deed in his own favour. The trial court took note of the fact that the plaintiff has neither examined the original owner-defendant No.1 or his heirs. Insofar as the public notice for cancellation of power of attorney executed in favour of the defendant No.5 is concerned, the trial court observed that the plaintiff has not examined the original owner or his successors to establish that they had actually issued any such notice. It was found that just like the original owner had executed a registered Kabulatnama in favour of the plaintiff, the original owner has also executed a Kabulatnama in respect of the registered sale deed executed in favour of the defendants No.2 and 3, that is, confirmation deed which is produced at exhibit-152 wherein it has been accepted that the registered sale deed dated 5.11.1996 is true and correct. Moreover, vide exhibit-154, the original owner Ramaji Becharji, Kanaji Ramaji and Mohanji Ramaji had executed a declaration in favour of the defendants No.2 and 3 and have stated that the power of attorney executed in favour of Radheshyam was never cancelled and that by virtue of the said power of attorney, Radheshyam had executed the sale deed dated 5.11.1996 in favour of the defendants No.2 and 3 which had been registered and that despite the fact that the power of attorney was in force at the time when the sale deed came to be executed, since they did not have a copy of the power of attorney, Regular Civil Suit No.992 of 1996 had been instituted for cancellation of the same.
24. The trial court has further observed that keeping in mind the document exhibit-154, the original owner Ramaji Becharji and his sons, namely, Kanaji Ramaji and Mohanji Ramaji have stated that a general power of attorney came to be executed in favour of Radheshyam Ambalal Patel and Rajendra Ramanlal Patel on 17.8.1995 authorizing them to perform all acts in connection with the suit land. The said power of attorney is an irrevocable one and that they have never cancelled it. They have further stated that all acts done by them for cancellation of the power of attorney would stand cancelled. They have also accepted the document exhibit-152. The trial court has referred to the provisions of section 202 of the Indian Contract Act and held that if an irrevocable power of attorney has been executed, then the same cannot be cancelled, more so, when it has not been established that the original owner had in fact issued such public notice. Placing reliance upon the provisions of section 206 of the Contract Act, the trial court was of the view that reasonable notice as contemplated thereunder had not been given to the respondent No.5 for cancellation of the power of attorney. The trial court was of the view that if the principal had executed power of attorneys in favour of two agents, the sale deed executed by the agent first in point of time would be binding upon the principal. According to the trial court, when one agent had executed a registered sale deed on the strength of the power of attorney executed in his favour, any subsequent sale deed executed by another agent, knowing full well about the execution of the earlier sale deed was at his own peril. The trial court was of the view that the plaintiff being aware of the execution of the earlier registered sale deed cannot be said to be a bona fide purchaser and that unless and until the original owner got the earlier sale deed cancelled, his power of attorney was not competent to execute the subsequent sale deed.
25. Upon an appreciation of the evidence on record, the trial court was of the view that the plaintiff had not been able to establish that the power of attorney in favour of the respondent No.5 was a forged and fabricated one, more so, in view of the fact that the original owner had accepted the registered sale deed in favour of the defendants No.2 and 3.
26. Before the trial court, on behalf of the plaintiff, it had been contended that the plaintiff had become the owner of the suit land on the basis of the sale deed dated 12.12.1997 executed in his favour by the power of attorney of the original owner. In this regard, the trial court placed reliance upon the provisions of section 48 of the Transfer of Property Act, which lays down that where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised over their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created, and has held that the original owner had executed a power of attorney in favour of Ramabhai Ukabhai Bharwad in the year 1993 and in the year 1995 he had executed power of attorney in favour of the defendant No.5. That the defendant No.5 has on the strength of the power of attorney executed in his favour executed a registered sale deed dated 5.11.96 in favour of the defendants No.2 and 3, who in turn have executed a registered sale deed dated 15.12.97 in favour of the defendant No.4, whereas the sale deed on the basis of which the plaintiff claims title came to be executed on 9.10.97 after the suit lands came to be transferred in favour of the defendants No.2 and 3. Under the circumstances, the transfer in favour of the plaintiff would be subject to the rights previously created in favour of the defendants No.2 and 3.
27. As regards the say of the plaintiff that the defendants want to grab the possession of the suit land from the plaintiff and have been coming to the suit land with brokers for the purpose of selling the same to third parties and are in the process of negotiating with third parties and have threatened the plaintiff to vacate the suit land within three days, which has given rise to the cause of action for instituting the suit, the trial court took note of the fact that the defendant No.4 in his deposition has stated that the defendants No.2 and 3 have sold the suit land to him and no longer have any right, title or interest in the suit land and that he is in possession of and is cultivating the same and is paying the revenue assessment in respect thereof and that RTS proceedings have also taken place. He has also accepted that as the suit land does not belong to the defendants No.2 and 3, he has also taken the responsibility of contesting the suit on their behalf. In his cross-examination, the plaintiff has stated that he has never seen the defendant No.4 as well as the defendants, Ranchhodbhai Ambalal and Arvindbhai Radheshyam Patel. Under the circumstances, the plaintiff has not proved that the defendants had come to the suit land and threatened him. Thus, after duly appreciating the evidence on record, the trial court has held that the plaintiff has not established that he is the owner and in possession of the suit land and has further failed to prove that the registered sale deed dated 5.11.1996 executed by the defendants No.2 and 3 is null and void and that the plaintiff was not entitled to the grant of permanent injunction as prayed for. However, on the question of limitation, the trial court has held that the suit was not barred by limitation.
28. As can be seen from the impugned judgement and decree passed by the lower appellate court, the lower appellate court has referred to the facts of the case appearing in the plaint as well as in the written statements filed by the defendants. From the facts reproduced by it, it is apparent that the lower appellate court was conscious of the controversy involved in the present case. The lower appellate court has briefly referred to the evidence led by the respective parties and has made reference to the submissions advanced on behalf of the appellants as well as the respondents which cover all the points involved in the present case. The lower appellate court also appears to have perused and applied its mind to the decisions cited by the parties and has found that it was difficult to apply the same to the facts of the present case. The lower appellate court has also referred to the deposition of the plaintiff as well his cross examination wherein it has been admitted that the sale deed had been executed in connivance with his father. In the light of the fact that the plaintiff had admitted execution of the sale deed in connivance with his father, the lower appellate court was of the view that the plaintiff had not come to the court with clean hands. The lower appellate court has discussed the alleged cancellation of the power of attorney executed in favour of the respondent No.5 and was of the view that in view of the provisions of sections 202 and 206 of the Contract Act, reasonable notice was required to be given for revoking the power of attorney and that it had not been established that the original owner had given reasonable notice for cancellation of the power of attorney. The lower appellate court, upon appreciation of the evidence on record, held that the plaintiff had not come to the court with clean hands inasmuch as, he has got the sale deeds executed in his favour in collusion with his father who was the power of attorney. On the basis of the evidence on record, the lower appellate court formed the opinion that the plaintiff had not succeeded in proving his case. Concurring with the findings recorded by the trial court, the lower appellate court dismissed the appeal.
29. The facts of the present case are required to be examined in the light of the law laid down by the Supreme Court in the above referred decisions.
30. At the outset, it may be noted that in the present case, the lower appellate court has affirmed the findings of the trial court. The Supreme Court in the above referred decisions has held that the judgement of the appellate court must 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. In the present case, from the issues framed by the trial court, it is apparent that the only issues framed in the present case are as to whether the plaintiff has proved existence of rights against the defendants and as to whether the action of the defendants is illegal, null and void. Insofar as the jurisdiction of the trial court to decide the suit as well as on the question of limitation, the trial court has held in favour of the appellant herein. Under the circumstances, the sole controversy before the appellate court in the light of the findings recorded by the trial court was as to whether the plaintiff had proved that the sale deed executed in favour of the defendants No.2 and 3 was null and void, and as to whether the power of attorney executed in favour of the defendant No.5 was fabricated and had been cancelled by the defendant No.1 by issuance of public notice. It is based upon these issues that the trial court has dismissed the suit of the plaintiff.
31. On a perusal of the impugned judgement and decree passed by the lower appellate court, as noticed hereinabove, it is apparent that the lower appellate court has passed a speaking order and that it has applied its mind to the controversy in issue. As noted hereinabove, insofar as the issues involved in the present case, the lower appellate court has consciously applied its mind to the issues and has found that the plaintiff has not proved the execution of the sale deed in his favour and has not been able to prove that the sale deed executed by the defendant No.5 in favour of the defendants No.2 and 3, as well as the subsequent sale deed executed by the defendants No.2 and 3 in favour of the defendant No.4, are invalid. The lower appellate court has also applied its mind on the question as regards cancellation of the power of attorney executed in favour of the defendant No.5 and has found that in the facts of the present case, the plaintiff has not been in a position to establish that the power of attorney had been cancelled. Thus, on both the issues, the lower appellate court has given its independent findings after applying its mind to the facts of the case.
32. On behalf of the appellant, it has been contended that the lower appellate court has not discussed the evidence in detail and as such, the requirements of rule 31 of Order XLI of the Code are not satisfied. In this regard, a perusal of the impugned judgement and decree indicates that the lower appellate court has affirmed the findings of the trial court, which were based on total consideration of the material evidence – documentary and oral on record. On a perusal of the impugned judgement of the lower appellate court, it is clear that the same reflects conscious application of mind on the part of the lower appellant court. The lower appellate court has recorded findings supported by reasons on all the issues arising in the appeal, along with the contentions put forward by the parties. From the findings arrived at by the lower appellate court affirming the judgement and decree of the trial court, it does not appear that the said findings are either very cryptic or based on non-consideration of the arguments advanced by the parties before it. Under the circumstances, though it is true that the lower appellate court has not discussed the evidence on record in great detail, however, it is not possible to state that the findings of the lower appellate court are so cryptic that none of the relevant aspects were noticed.
33. The Supreme Court in the case of G. Amalorpavam and others v. R. C. Diocese of Madurai and others, (supra), has held that non-compliance with the provisions of Order XLI Rule 31 of the Code may not vitiate the judgement and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher 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 judgement that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient.
34. From the above discussion, it is apparent that in the facts of the present case, this court is certainly in a position to ascertain the findings of the lower appellate court. Insofar as non-compliance with the provisions of rule 31 of Order XLI of the Code is concerned, it is not as if that the lower appellate court has not framed any points for determination. It is only that the points of determination have not been framed in terms of the issues involved in the present case. However, the points for determination take within its sweep entire controversy involved in the present case. As held by the Supreme Court in the above referred decisions, what is required to be looked into is as to whether it is possible to make out from the judgement that there is substantial compliance with the requirements of rule 31 of Order XLI of the Code and that justice has not thereby suffered. In the present case, the lower appellate court, while concurring with the findings recorded by the trial court, after appreciating the evidence on record, has restricted the discussion in the judgment to only the relevant part of the evidence which cannot be equated with non-compliance with the provisions of rule 31 of Order XLI. Under the circumstances, it is not possible to state that the impugned judgement and decree stands vitiated on the ground of non-compliance of rule 31 of Order XLI of the Code.
35. On behalf of the appellants, strong reliance has been placed on the decision of the Supreme Court in the case of H. Siddiqui (Dead) by LRs v. A. Ramalingam, (supra), wherein it has been inter alia held that being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgement 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. According to the learned counsel for the appellants, the lower appellate court has failed to discuss the entire evidence in details and as such, there is no compliance with the provisions of rule 31 of Order XLI of the Code. As noticed hereinabove, from the impugned judgement and decree of the lower appellate court, it is apparent that the lower appellate court has perused the record and proceedings of the case and has considered the submissions advanced by the learned counsel for the respective parties and has referred to the relevant evidence and given its findings thereon. The only issues which arose before the lower appellate court were as to whether the plaintiff had proved that the sale deed executed by the defendant No.5 as power of attorney of defendant No.1 was illegal, null and void, and as to whether the power of attorney executed in favour of the defendant No.5 was forged and fabricated and was cancelled by the defendant No.1 by giving a public notice. The lower appellate court upon an independent appreciation of the evidence on record, has found that the plaintiff had not proved the sale deed executed in his favour, nor was the plaintiff in a position to prove that the defendant No.1 had not executed power of attorney in favour of the defendant No.5 or that the defendant No.1 had cancelled the power of attorney executed in favour of the defendant No.5 by issuing a public notice. Based upon its findings in respect of the said issues, the lower appellate court had concurred with the findings recorded by the trial court. Under the circumstances, it is not possible to state that there is no sufficient compliance with the provisions of rule 31 of Order XLI of the Code so as to hold that the judgement and decree passed by the lower appellate court stands vitiated. The conclusions arrived at by the lower appellate court are based upon findings of fact recorded by it, after appreciating the evidence on record, under the circumstances, the impugned judgment and decree being based upon concurrent findings of fact recorded by the lower appellate court, in the absence of any perversity being pointed out in the findings recorded by it, the impugned judgement and decree does not give rise to any substantial question of law so as to warrant interference.
36. In the light of the aforesaid discussion, this court is of the view that the impugned judgement and decree passed by the lower appellate court does not suffer from any legal infirmity so as to give rise to any question of law, much less, a substantial question of law so as to warrant interference. The appeal is, accordingly, dismissed.
[HARSHA DEVANI, J.] parmar*