Court No. - 59
Case :- SECOND APPEAL No. - 1102 of 2018 Appellant :- Ram Lal Respondent :- Shyam Lal And 2 Others Counsel for Appellant :- Ravi Chandra Srivastava
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Ravi Chandra Srivastava, learned counsel for the plaintiff-appellant.
The plaintiff-appellant is the son of the defendant-respondent no.2 and brother of the defendant respondent no.1. The defendant-respondent no.3 is the nephew. He had filed Original Suit No.10 of 2017 (Ram Lal v. Shyam Lal and two others) praying for permanent injunction restraining the defendants-respondents not to sell or execute a Will or Gift deed or exchange deed to any one in respect of Arazi Nos.28, 30M and 31 of village Kathauta, Tehsil Gyanpur, District Bhadohi and also not to cut any tree or remove tin shade etc.
Undisputedly, the plaintiff-appellant and the defendants- respondents no.1 and 2 are co-owners of the aforesaid Khasra- plots and their names are accordingly recorded in the revenue records, as evident from copy of Khatauni Khata No.195 for the Fasli Year 1420-1425.
According to the plaintiff-appellant, the major portion of the aforesaid Khasra-plots is the agriculture land and over a portion of it there are some constructions. Issue No.6 was framed in the aforesaid suit as under:
" Kya Dava-vadi Poshniya Nahi Hai"?
The aforesaid suit was dismissed by judgment and order dated 11.10.2017 passed by the trial court in Original Suit No.10 of 2017 holding that no such injunction can be issued against the owner of the property, who is entitled to transfer it to the extent of his/her share. Incidentally, it was also observed that the the suit was also barred by Section 331 of the U.P. Z.A. & L.R. Act.
Against the aforesaid judgment and decree, the plaintiff- appellant preferred Civil Appeal No.38 of 2017 (Ram Lal v. Shyam Lal and 2 others), which was dismissed by the District Judge, Bhadohi by the impugned judgment dated 2.8.2018.
Aggrieved with this judgment, the plaintiff-appellant has filed the present Second Appeal.
The only question involved in this second appeal is "whether the suit was lawfully dismissed" ?
It is not disputed by the learned counsel for the plaintiff- appellant before me that the defendant-respondent nos. 1 and 2, are the co-owner of the disputed property. Learned counsel for the plaintiff-appellant has stated that the plaintiff-appellant and the defendants-respondents are in joint possession of the disputed property. The courts below have recorded concurrent finding that no injunction can be granted against the defendants-respondents, who are co-owners and have right to sell or to execute a will or gift deed with respect to their share in the disputed property. The finding does not suffer from any manifest error of law. Therefore, no substantial question of law arises from the impugned judgment.
Learned counsel for the plaintiff-appellant has relied upon a judgment of Hon'ble Supreme Court in A.M. Sangappa @ Sangappa v. Sangondeppa and another, 2014 (2) AWC 153 and the judgments of this Court in Balbir Singh v. Prabhu (2014)6 All LJ 133 and Satyadev and another v. Mohan Lal and others, 2016 (3) ADJ 249.
In the case of in A.M. Sangappa @ Sangappa (supra) (Paragraph Nos. 7 and 8 ), Hon'ble Supreme Court held as under :
"7. It is not in dispute that the first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open rehearing both on questions of fact and law. Accordingly, the judgment of the appellate court must reflect conscious application of mind and record findings supported by reasons on all the issues arising alongwith the contentions put forth by both the sides. These principles have been reiterated in B.V. Nagesh and another v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530: 2011 (2) AWC 1810 (SC).
8. By applying the above principles, we are of the view that the relevant aspects, as mentioned above, have not been noticed and adverted to by the High Court. The appeal has been decided in an unsatisfactory manner which falls short of considerations which are expected from the court of first appeal".
In Balbir Singh v. Prabhu (supra), the learned single Judge of this Court held as under :
"2. It is contended on behalf of appellant that procedure laid down under Section 331-A of U.P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as the "Act, 1951") having not been followed the proceedings were barred and this is a substantial question of law involved in this matter.
3. However, from perusal of the judgments of courts below I find that no such issue was raised before Trial Court but at the level of Lower Appellate Court this question was raised and Lower Appellate Court has found that there was no such issue raised in pleadings, i.e., written statement, therefore, Section 331-A of Act, 1951 has no application.
5. Under Section 100 of Code, a second appeal can be entertained by this Court only if it involves substantial question of law. In other words it does not confer any jurisdiction on this Court to interfere with pure questions of fact, which have been considered and adjudicated by courts below after appreciation of evidence recording well considered findings. If there is a finding of fact, based on proper appreciation of evidence, and, material on record, and no perversity, illegality or irregularity in those findings are found, the second appeal is not at all entertainable by this Court under Section 100 of the Code. Even mere illegality or irregularity in findings would not permit interference. They require something more.
6. There are two situations in which, ordinarily, interference with findings of fact is permissible, namely, (a) when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion, and (b) where a finding has been arrived at by court below by placing reliance on inadmissible evidence, which if would have been omitted, an opposite conclusion would have been possible. I derive these principles from some of the authorities of Apex Court and, briefly, it would be appropriate to refer the same.
13. Section 100 of the Code, first of all, places an obligation upon appellant to precisely state in the memorandum of appeal a substantial question of law involved therein which he proposes to urge before the Court. After hearing him this Court has to satisfy itself that a substantial question of law is involved in the case and it shall formulate that question. This is the next stage. This Court after hearing appellant may come to the conclusion that the question stated in memorandum of appeal itself constitutes a substantial question of law but then it has to be formulated by Court on its own. It will become a substantial question of law only when the Court has satisfied itself and put its seal by formulating it. The mere substantial question of law is not sufficient but it must be one such question which is involved in the case. An abstract question of law may be substantial but unless it is one which is involved in the case concerned, it will not satisfy the requirement of Section 100(4) of the Code.
14. In Santosh Hazari Vs. Purushottam Tiwari (Dead) by Lrs., the Court considered what the phrase "substantial question of law" means. It says that the phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely".
In Satyadev and another v. Mohan Lal and others (supra), the learned single Judge of this Court held as under :
"11. In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, Hon'ble Apex Court has held as under:-
"44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected."
12. The presiding officer of any court of law is expected to decide the case before it by a proper ''decision' or ''judgment'. In Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396 the Apex Court had held :
" Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment "shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision". It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.
- - - -
A Judge cannot merely say "suit decreed" or "suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other. This infirmity in the present judgment is glaring and for that reason also the judgment cannot be sustained."
13. In present case no reason was given in the judgment of first appeal as to why it is proper to dismiss the appeal or why such judgment was passed. A perusal of impugned order shows that nothing has been written in it that may reflect that learned first appellate Court had understood facts or circumstances of the case to reach decision of dismissing the appeal. Nothing is there which may show that learned presiding officer, before passing of the order under challenge had considered facts of the case or law. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. Apparently such order is liable to be quashed on this count also".
I have carefully perused the three judgments relied upon by learned counsel for the appellant. I find that the law laid down in these judgments do not support the case of the plaintiff-
appellant.
Perusal of the impugned judgment dated 2.8.2018 shows that the District Judge, Bhadohi at Gyanpur has specifically noticed the question of maintainability, which was the sole question before him and recorded sufficient reasons on facts and on law to uphold the dismissal of the suit of the plaintiff. Thus, I do not find any manifest error of law in the impugned judgment.
In view of the above discussions, the second appeal is dismissed.
Order Date :- 29.10.2018 Ak/