Reserved on 09.02.2021
Delivered on 12.04.2021
Case :- SECOND APPEAL No. - 409 of 1991
Appellant :- Ram Milan
Respondent :- Rama Devi
Counsel for Appellant :- S.N. Singh,Ashok Kumar Dwivedi,R.N. Singh,Rajeev Kumar Rai,Ram Kishore Pandey
Counsel for Respondent :- Sankatha Rai,K.N. Rai
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellant.
2. The present appeal is directed against the judgement and order dated 25.02.1991 passed by IInd Additional District Judge, Azamgarh in Civil Appeal No.169 of 1990 whereby lower appellate court has allowed the appeal of the plaintiff-respondent and decreed the suit.
3. The plaintiff-respondent instituted a suit for a decree of injunction restraining the defendants-appellants from interfering in peaceful possession of plaintiff-respondent over her 'Sehan' land shown as 'Ra, Sa, Ma, Pa,' in the plaint map and the things existing thereon, and further be restrained from filling 'Nali' 'Cha, Chha, Ha' and making their egress and ingress thereon, and also for a direction to the defendants to close the door 'O' as shown in the plaint map.
4. The plaint case was that plaintiff-respondent was old inhabitant of village Farenda, Tappa, Vindval, Pargana Sagri, District Azamgarh. The house of plaintiff-respondent is shown by letter 'Aa, Ba, Sa, Da' and drawing room (Baithka) was shown as 'Ya, Ra, La, Wa' facing east side shown in the plaint map. In the south, there was courtyard (Hata) of other co-sharer and towards east south of drawing room, there is 'Sehan' of plaintiff-respondent marked as 'Ra, Sa, Ma, Pa'. The plaintiff-respondent is using the 'Sehan' since long back and crop and paddy of plaintiff-respondent are stored on the 'Sehan'.
5. It is further stated in the plaint that plaintiff-respondent and his nephew had two houses at place 'Ta, Tha, Ya, Pha' and Sehan Darwaja of which was towards east as shown by letters 'Ya, Ba, Ma, Pa' and to the north east of the same there was Bardaur as 'Aa, Ba, Sa, Da'. There was partition between plaintiff-respondent and his nephews Indrasan and Singhasan about seven years back and land shown in the map as Tha, Ba, Sa, Ra' came in the share of plaintiff- respondent for construction of house, and land towards south shown as Ra, Sa, Ma, Pa' came in possession of plaintiff-respondent to be used as 'Sehan' over which plaintiff-respondent is in possession.
6. The plaintiff-respondent got the area shown as 'Ya, Ra, La, Va' in the house marked as 'Ta, Tha, Ma, Pa' over which there was drawing room (Baithka) of plaintiff. The nephew of plaintiff- respondent constructed 'Janana Makaan' and 'Sehan' towards south shown as 'Ba, La, Pa, Pha' which was in dilapidated condition and plaintiff and his nephew constructed a courtyard facing east.
7. It is further stated that drawing room (Baithka) of the appellants-defendants was towards south of plaintiff's 'Sehan' which is marked as 'Ka, Kha, Ga, Gha' in the plaint map. On the side of house of-appellants-defendants, there was 'Nali' from which rain water drains out from the house of plaintiff-respondent. It is further stated that there was no door in the drawing room (Baithka) of the appellants-defendants towards North. The appellants-defendants have constructed a wall in the 'Sehan' of plaintiff-respondent marked as 'Ra, Sa, Ma, Pa' and has opened a door in the said wall on 21.12.1985, and when plaintiff-respondent came to know in the morning, he called Gram Pradhan and other people of the village to restrain the appellants-defendants from taking illegal possession over the 'Sehan' of plaintiff-respondent.
8. The suit was contested by the by defendant no.4 namely, Ram Milan Rai by filing written statement contending inter alia that partition between plaintiff-respondent and appellants-defendants had taken place about 12 years back in which appellants-defendants got the house towards south in which defendant-appellant is residing with the family and rest of the defendants got the house towards south. There is a window in the house of appellants-defendants since beginning which was closed by the appellants-defendants for security reasons. The house of the appellants-defendants was being used as drawing room before partition and drawing room was constructed in the north keeping in view the tradition of 'Pardagi' in the village so that ingress and egress of the female members of the family may not be obstructed due to the people sitting in the drawing room (Baithka).
9. It was further stated that keeping in view the convenience of family, a window was opened in the south which has been falsely stated by the plaintiff-respondent as 'Darwaza'. There was no partition of 'Sehan' which is towards north of defendant-appellant's house and towards the south of old house which was in use jointly among all the defendants and defendants are using the 'Sehan' and Khaliyan. The plaintiff-respondent has no concerned with the 'Sehan' of the appellants-defendants and the suit is barred by Section 34 of Specific Relief Act .
10. On the basis of aforesaid pleadings, trial court has framed following issues:-
“1- क्या वादी िववािदत भूमिमि का स्वामिी एवं अधिधिपत्य भोगी है?
2- क्या वाद काल वािधित है?
3- क्या वाद िववन्धिन के िसिद्धान्त सिे वािधित है?
4- क्या वाद धिारा 34 िविशिष्ट अधनुतोशि िनयमि सिे वािधित है?
5- क्या वाद का मिूमल्यांकन िकया गया ह। है। और प्रदत्त न्यायाशिुल्क अधपयार्याप 6- क्या वादी िकसिी भी अधनुतोष को पाने का अधिधिकारी ह।ै 7- क्या वादपत्र मिे िदये गये आधिार पर प्रितवादी गण का उत्तरी दरवाजा बन्द िकये जाने योग्य है?
8- क्या वाद आदेशि 7 िनयमि 11 जाफ्ता दीवानी के अधन्तगर्यात िनरस्त िकये जाने योग्य है?
11. The trial court decided the issue nos.1 & 7 jointly and after appreciating the evidence in detail and particularly the statement of PW-1 Rama Rai and P.W.2-Vindyachal, it found that plaintiff- respondent has failed to prove his title and possession over the property in dispute. In recording the aforesaid finding, the trial court noticed that P.W.-1 and P.W.2 in their testimony have admitted that disputed property is Sehan of appellants-defendants. The trial court further considered the report of advocate commissioner, and after appreciating the testimony of P.W.-1 and P.W.2 that there was contradiction in the testimony of P.W.1 and P.W.2 in respect of flow of water from 'Nabdan' held that plaintiff-respondent has failed to prove that there was discharge of water from 'Nabdan'. The trial court further held that since plaintiff-respondent has failed to prove his title and possession over the disputed property, therefore, it was of the opinion that suit for injunction cannot be decreed, and accordingly, it dismissed the suit by judgement and order dated 27.01.1990.
12. The plaintiff-respondent, thereafter, preferred Civil Appeal No.169 of 1991 against the judgement and order dated 27.01.1990 which was allowed by the appellate court by judgement and order dated 25.02.1991.
13. The appellate court in allowing the appeal held that testimony of plaintiff in cross examination could not be disbelieved as far as right over the suit property is concerned. The appellate court further noticed the report of advocate commissioner and also complaint submitted to the police Kandharapur on 22.11.1985 about the alleged incident of the night when appellants-defendants had opened the door in absence of plaintiff-respondent. The appellate court further held that testimony of D.W.1 is not convincing as he has not correctly stated about the spot position which is contrary to the report and map submitted by the advocate commissioner.
14. The appellate court on the basis of evidence and material on record found that plaintiff-respondent proved the existence of 'Nabdan' and also opening of new door in the north of the drawing room (Baithka) towards disputed 'Sehan' land of plaintiff-respondent. The appellate court accordingly, allowed the appeal and decreed the suit.
15. Challenging the judgement and order passed by appellate court, learned counsel for the appellant has argued on three substantial question of law which calls for adjudication by this Court in exercise of power under Section 100 of C.P.C:-
(i). Whether lower appellate court without formulating points for determination as required under Order 41 Rule 31 of C.P.C. has erred in allowing the appeal?
(ii). Whether lower appellate court without reversing the finding of fact by the trial court in respect of partition and possession of property in dispute by the parties was justified in allowing the appeal?
(iii). Whether the finding of lower appellate court that no objection was raised by the appellants-defendants against the report of advocate commissioner is perverse and against the record inasmuch as the objection has been filed by the appellants-defendants against the report of advocate commissioner which was on record?
16. In elaborating the first question of law, learned counsel for the appellant has placed reliance upon order 41 Rule 31 of C.P.C. to contend that it is the basic duty of the first appellate court to frame points for determination and decide each points for determination with reasons.
17. In respect of aforesaid submission, learned counsel for the appellant has also placed reliance upon the judgement of Apex Court in the case of Malluru Mallappa (D) through L.Rs. Vs. Kuruvathappa & Others 2020 (4) SCC 313 and judgement of this Court in the case of Nihal Singh Vs. Dungar Singh and Others 2020 (146) RD 258.
18. The Apex Court relying upon various judgements in the case of Malluru Mallappa (D) (supra) held that compliance of Order 41 Rule 31 of C.P.C. which provides for formulation of points for determination and decision on each point of determination with reasons are mandatory, and if first appellate court has failed to comply with the Order 41 Rule 31 of C.P.C in deciding the appeal, the appellate court has committed error of law. The paragraphs 18 & 19 of the said judgement of Apex Court in the case of Malluru Mallappa (D) (supra) are being extracted hereinbelow:-
“18. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr (2015) 11 scc 269, it was held as under:-
“21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law.”
19. 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 (2015) 11 SCC 269 with the requirement of Order XLI 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 trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.”
19. The same proposition of law has been reiterated by this Court in the case of Nihal Singh (supra) wherein this Court held that judgement rendered without complying with the requirement of Order 41 Rule 31 of C.P.C is patently illegal and not a valid judgement. Paragraph 12 of the said judgement is being extracted hereinbelow:-
“12. Apparently, judgment of LAC is not consistent with requirement of Order 41 Rule 31 CPC, since, framing of point of determination is mandatory and it has been said repeatedly by Apex Court as well as this Court that, Appellate Court, if has passed a judgment which is not consistent with Order 41 Rule 31, it is patently illegal and is not a valid judgment. LAC has to render the judgment consistent with provision of Order 41, Rule 31 C.P.C.. The findings recorded and inference drawn as also reasons assigned by Trial Court must have to be reversed by LAC after discussing the same. An otherwise judgment of reversal cannot be passed.”
20. Now coming to the facts of the present case, it is relevant to mention that trial court has framed as many as eight issues, which have been extracted above, and it has decided issue nos.1 & 7 jointly. In deciding the aforesaid two issues, the trial court in detail considered the testimony of P.W.1 and P.W.2 and after appreciating in detail their testimony and other evidences on record, it held that both the witnesses i.e. P.W.1 and P.W.2 have admitted that disputed property belongs to defendants-appellants. The trial court on consideration of testimony of P.W.1 and P.W.2 and also the report of advocate commissioner found that there was no 'Nabdan' on the side of defendant-appellants' house, and thereafter, it dismissed the suit.
21. Perusal of judgement of lower appellate court reveals that lower appellate court did not formulate any point of determination as required under Order 41 Rule 31 of C.P.C rather, it proceeded to decide the case without formulating points of determination, and without recording any reason as to how the trial court has misread the testimony of P.W.1 and P.W.2, concluded that plaintiff- respondent has established his case. The appellate court in decreeing the suit has not considered the case of defendants-appellants, which was duly considered by the trial court, that there was partition between plaintiff-respondent and defendants-appellants and the disputed property came in possession of defendants-appellants.
22. The appellate court found that no objection was filed by the defendants-appellants against the report of advocate commissioner which finding is also perverse as the objection of the defendants- appellants against the report of advocate commissioner is on record which is paper no.31C-2. Further, the appellate court without giving any reason as to how the testimony of DW-1 is not convincing disbelieved the same.
23. Thus, from the aforesaid facts, it is evident that appellate court has not complied with the requirement of Order 41 Rule 31 of C.P.C. in deciding the suit, and accordingly, in the opinion of the Court, the judgement of the appellate court is patently illegal and not a valid judgement. Accordingly, I answer the first substantial question of law in favour of appellant.
24. Now coming to other substantial questions of law as raised by learned counsel for the appellant.
25. It is evident that trial court has returned a finding on the basis of evidence that partition in respect of disputed property had taken place in which disputed property had fallen into the share of defendants-appellants and is being in use of defendants-appellants. The trial court also found that there is contradiction in the testimony of P.W.1 and P.W. 2, and accordingly, it held that there was no 'Nabdan' in the side of house of defendants.
26. Perusal of judgement of lower appellate court shows that lower appellate court has not reversed the finding of trial court in respect of partition of suit property, and further, it has disbelieved the testimony of D.W.1 without any reason. It has placed reliance upon the report of advocate commissioner on the pretext that no objection had been filed by the defendants against the report of advocate commissioner. Accordingly, it held that there was no 'Nabdan' in the side of house of defendants which finding in the opinion of the Court is not correct and is perverse for the reason that appellate court has not noted any reason as to how the finding of the trial court based upon statements of P.W.1 and P.W.2 which according to trial court are contradictory regarding non existence of 'Nabdan' was wrong and perverse. Further, the lower appellate court has failed to consider that defendant-appellant has filed objection, paper no.31C-2 against the report of advocate commissioner and yet it recorded the finding that no objection was filed by the defendant-appellant against the report of advocate commissioner.
27. In view of aforesaid fact, this Court finds that finding of the appellate court that plaintiff-respondent has proved his title and possession over the property in dispute is not sustainable and is vitiated in law being perverse and against the record.
28. Thus, for the reasons given above, I answer the substantial question nos.2 & 3 in favour of appellant.
29. Thus, in view of the aforesaid discussion, the judgement of appellate court dated 25.02.1991 cannot be sustained in law, and is accordingly, set aside.
30. The second appeal is allowed and suit no. 1255 of 1985 of plaintiff-respondent is dismissed. There shall be no order as to cost.
Order Date :- 12.4.2021 Sattyarth