This is the plaintiff's second appeal. Being aggrieved by the judgment and decree dated 21.12.1988 whereby the suit of the plaintiff appellant was dismissed by the 7th Additional Munsif, Gonda and his first appeal was also dismissed by means of the judgment and decree dated 27.02.1991 passed by the 4th Additional District Judge, Gonda passed in Regular Civil Appeal No.10 of 1989, this appeal has been preferred.
During the pendency of the appeal the sole appellant Rishikesh expired and he was substituted by his heirs. Smt. Sangari, Ramniwaz, Avinish Kumar and Vivek Kumar.
The plaintiff instituted Regular Suit No.17 of 1987 in the Court of Munsif, Gonda pleading therein that he is the owner in possession of the property which was indicated in the site-plan and its informing part of the plaint in suit situate in Mauja Ramapur Pokhara, Pargana Nawabganj, Tahsil Tarabganj, District Gonda. It was pleaded by him that initially this property in question belonged to one Chhavi Lal and Ram Sumer who sold the same in the year 1973 to Ramrup and Rambadal. The plaintiff purchased the property from Ramrup and Rambadal by means of the sale deed dated 03.06.1976.
Though the sale deed was in the name of Rishikesh and his brother Rajitram. However, in terms of a settlement Rajitram was separated and he was given his share in the property belonging to the father Ramnaresh and in so far as the property the subject matter of the suit is concerned, it was only Rishikesh who was its exclusive owner in possession. It was stated that the defendants who have the property adjacent to the property of the plaintiff, had an evil eye and being of litigious nature attempted to dispossess the plaintiff and off and on made interference in the peaceful use and occupation of the plaintiff. Thus, the suit for injunction was instituted seeking to restrain the defendants from interfering in the peaceful possession or from dispossessing the plaintiff from the property in question which was more fully described in the site-plan and is forming part of the plaint in suit.
At this stage it will be relevant to mention that the plaintiff's amended their plaint including the site-plan and elaborated that the plaintiff was in possession of the same property which initially belonged to the Chhavi Lal and Ram Sumer who subsequently sold it to Ramrup and Rambadal and in turn to the plaintiff. The plea of settlement between the plaintiff and his brother Rajitram was also elaborated and it was mentioned that since the legal heirs of Rajitram had no concern, thus, they were not impleaded as party. However, upon the order passed by the trial court, the legal heirs of Rajitram were impleaded as defendants no.2 to 4 in the suit.
The defendant Harikesh filed his written statement and denied the plea raised by the plaintiff. It was denied that Ramrup and Rambadal were the owners and therefore, since they did not have any right, consequently, they did not have right to execute any deed in favour of the plaintiff Rishikesh. It was also pleaded that father of the plaintiff Ram Naresh had a house wherein the plaintiff was residing but, with evil intention, the plaintiff advanced inside the house of Chhavi Lal which was in a dilapidated condition and encroached the same and thereafter raised construction. The open land in question which is situate on the western side of the plaintiff's house was actually the Sehan of the defendant which has been in his occupation since the time of his father as it vested in terms of Section 9 U.P. Z.A & L. R. Act.
It is on the aforesaid pleading that the trial court framed two issues amongst others. The first issue was framed to the effect as to whether the plaintiff is the owner in respect of the property in question as stated in the plaint and the second issue was as to whether the defendant is the owner in possession of the disputed property.
The trial court while considering the evidence of the parties held that Ramrup and Rambadal were not the owners of the property. Consequently, they did not have the right to execute the sale deed in favour of the plaintiff and his brother Rajitram. The reason for arriving at the aforesaid finding was that the boundaries as indicated in the plaint and the boundaries as indicated in the sale deed did not match. The trial court also recorded a finding that the plaintiff could not prove his possession over the property in suit. Thus, neither he was the owner nor in possession of the disputed property.
In so far as the second issue was concerned, the trial court categorically held that the defendant was also unable to prove its ownership or its possession and therefore issue no.2 was also decided with the aforesaid findings against the defendants and the suit was dismissed by means of the judgment and decree dated 21.12.1988.
The first appeal under Section 96 was filed by Rishikesh and it will be significant to note that despite a finding having been recorded by the trial court against the defendants, no cross appeal was filed by the them. The first appellate court affirmed the findings of the trial court. However, while doing so it failed to take note of the evidence of the plaintiff by resorting to Section 92 of Indian Evidence Act stating that since the sale deed which was a document in writing contained the boundaries therefore no oral evidence could be led in order to explain the change in the boundaries and on account of the aforesaid, it held that since the property in suit did not match with the plaint and it could not be established that it belonged to Ramrup and Rambadal therefore the transfer of it by them in favour of the plaintiff would also be treated as unauthorized. It also affirmed the finding regarding possession of the plaintiff on the ground that since the plaintiff did not mention correctly the number of trees planted and there was discrepancy in giving the number of trees planted over the disputed property in question, therefore, the first appellate court considered this to be a grave contradiction and disbelieved the testimony of the plaintiff.
At the same time in absence of any cross appeal, the first appellate court without discussing the evidence or giving cogent reasons for reserving the finding recorded in so far as issue no.2 was concerned, held that the finding of the trial court in so far as issue no.2 was concerned, was erroneous and found that the defendant no.1, namely, Harikesh was in possession of the property in question and with the aforesaid findings the appeal was dismissed.
Being aggrieved against the aforesaid two judgments and decree the plaintiff appellant preferred the second appeal. This Court by means of the order dated 12.12.2017 framed two substantial questions and again on 11.10.2018 framed three more questions, thus, five questions in all were framed by this Court. The substantial questions as framed by the Court are reproduced herein after:
"1. Whether the judgment of lower appellate court is not tenable in law in view of the 6th proviso to Section 92 and Section 95 of the Evidence Act. The learned appellate court ought to have read the entire Section 92 as well as Section 95 of the Evidence Act before excluding the oral evidence adduced in support of sale deed?
2. Whether the lower appellate court has committed manifest illegality in not framing the points of determination while deciding the appeal and thereby not complying the requirements of Order XLI Rule 31 CPC which has resulted into non-sustainability of impugned judgment?
3. Whether the plaintiff-appellant could have been treated to the owner in possession of the disputed property as having acquired it by means of the sale deed especially when the boundaries given therein did not tally with all the boundaries of the disputed property?
4. Whether the interpretation of the learned courts below of the evidence on record can be treated to be perverse?
5. Whether the plea of the land having been settled with the possess or thereof under sec tion 9 of the U.P. Z.A. & L.R. Act can be allowed to be taken without a specific pleading to that effect.
The Court has heard Dr. R. S. Pandey learned counsel for the appellant and Sri Ganga Prasad Mishra learned counsel for the respondents at length.
The main thrust of the argument of the learned counsel for the appellant is that the first appellate court has committed a grave error in resorting to Section 92 of the Evidence Act and has discarded the entire evidence of the plaintiff to hold that the plaintiff was unable to establish the boundaries in respect of the property in question. While there was hardly any serious dispute in so far as the question of title is concerned inasmuch as the plaintiff had adduced documentary evidence bringing on record the original sale deeds by which the property initially was sold by Chhavi Lal and Ramsumer in favour of Ramrup and Rambadal and the subsequent sale deed by which Ramrup and Rambadal had sold the property in question to the plaintiff. The plaintiff had examined himself as P.W.1 while Rampher who is stated to be the elder brother of Chhavi Lal was examined as P.W.2. The plaintiff examined Ram Pratap Dubey as the attesting witness of the sale deed and also the brother-in-law of the defendants and as P.W.4 Harcharan Lal and who was Ex-Pradhan and resident of the village and these witnesses not only established the title but also the possession, the boundaries as well as the status of the land which was disputed in the present suit.
It was urged by the learned counsel for the appellant that even the Commissioner's report bearing paper Nos.Ga.23 and Ga.24 established that the boundaries mentioned by the plaintiff were the same as mentioned in the sale deed and only with the passage of time there was a slight change for which adequate evidence was led and the witnesses of the plaintiff also proved the same.
The evidence of the plaintiff witnesses was not considered properly by the trial court and the first appellate court has gone one step ahead and by resorting to Section 92 of the Evidence Act discarded the entire evidence of the plaintiff to confirm the finding of the trial court and while doing so it ignored the scope of the 6th Proviso appended to Section 92 of the Evidence Act.
It was also urged by Dr. R. S. Pandey that by applying Section 92 and ignoring the effect of the 6th Proviso the first appellate court has committed a grave error and on the meaningful reading of the evidence led before the trial court it was established to the hilt that the property in question belonged to the plaintiff and it was his Sehan land and in his possession and thus the suit has been incorrectly dismissed. Learned counsel for the appellant Dr. R. S. Pandey has further urged that it was the duty of the first appellate court to have adhered to the mandate of Order XLI Rule 31 CPC and by deviating from the same it has resulted in miscarriage of justice, inasmuch as without dealing with the evidence in detail, the first appellate court has committed a grave error in reversing a finding on issue no.2 and that too in absence of any cross appeal filed by the defendants.
It was elaborated by Dr. R. S. Pandey that if at all the first appellate court ought to reverse such a finding it was incumbent upon the appellate court to have dealt with the evidence in detail and by forming its own independent assessment, it could have reversed the finding. However, from the perusal of the judgment delivered by the first appellate court, it would indicate that the first appellate court without considering the evidence at all has reserved the finding in so far as issue no.2 is concerned and even while affirming the findings regarding issue no.1, the first appellate court has moved ahead and has placed the plaintiff appellant in a worse position, then it was, by illegally resorting to Section 92 which was clearly an illegal exercise of jurisdiction vested with it.
Learned counsel for the respondents Sri Ganga Prasad Misra, on the other hand, has contended that the second appeal is concluded by concurrent finding of fact and as such this Court may not interfere, accordingly, the second appeal is liable to be dismissed. It was further argued by the learned counsel for the respondents that the findings regarding the ownership and possession are pure findings of fact. Consequently, they are immune from challenge before this Court under Section 100 CPC.
The Court has given anxious consideration to the submissions of the learned counsel for the parties and have perused the record meticulously.
At the outset it may be stated that the controversy as culled out from the pleading is to the effect whether the disputed land in question actually belonged to Chhavi Lal and Ram Sumer which in turn was sold to Ramrup and Rambadal and thereafter to the plaintiff and that the disputed property was the Sehan of the plaintiff situate on the western side while the defendants have clearly stated that Ramrup and Rambadal were neither the owner nor they had any right to sell the property in question. Moreover, the plaintiff had advanced in the house of Chhavi Lal which was in a dilapidated condition and encircled the house of Chhavi Lal andit opened the door on the western side and actually the land which is disputed is the Sehan of the defendants which has been in their possession since the time of his father with whom it was settled in terms of Section 9 of the the U.P. Z. A. & L. R. Act.
The controversy narrows down to the fact that the case of the plaintiff could not be established before the two courts as the courts found that there was discrepancy in so far as the boundary is concerned and therefore it found that the property which is the subject matter of the sale deed and the property which has been described in the plaint are different. Thus, for the said reason the trial court did not find favour with the case of the plaintiff and found that the plaintiff failed to establish its ownership as well as possession. The trial court also recorded a finding that neither the defendant could establish his possession over the disputed land nor could the defendant establish that the land in dispute was his Sehan land.
The first appellate court instead of considering the effect of the evidence led by the parties to suit arrived at its own independent finding by resorted to Section 90 of the Evidence Act and without discussing the evidence at all held that the evidence of the plaintiff could not be taken note of in view of the embargo laid in Section 92 and for the said reason it affirmed the finding of the trial court. The first appellate court also reversed the finding of the trial court regarding issue no.2 and from the perusal of the judgment it indicates that while reversing the finding it has not considered any evidence at all nor given its reasoning why the first appellate court was not satisfied with the findings of the trial court.
It was incumbent on the lower appellate court to have given its reason why it excluded the evidence under Section 92 and that too without considering the effect of Section 95 and the 6th proviso to Section 92 of the Evidence Act which are an exception to the Sections 91 and 92 of the Evidence Act.
In order to appreciate the first submission regarding applicability of Section 92 of the Evidence Act. It will be beneficial to reproduce the aforesaid Section:-
"92. Exclusion of evidence of oral agreement.--When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 3[want or failure] of consideration, or mistake in fact or law Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts."
Section 92 states that where the terms of any contract grant or disposition of the property or any matter required by law to be reduced to the form of a document, has been proved in accordance with the previous Section i.e. Section 91 then no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument.
The first appellate court in an omnibus fashion, mechanically relied upon Section 92 without considering whether the proviso appended therein gave leverage to the parties to explain the boundary and whether in view of the aforesaid 6th proviso appended to the aforesaid section, the evidence of the parties could be considered or not and whether such evidence could be considered under Section 95 of the Evidence Act.
Excluding the evidence of a party has severe repercussions and thus before doing so the court ought to have considered and applied its judicial mind to the provisions of law to ensure that its act may not prejudice a party. However, the due care and caution has not been exercised by lower appellate court to discard the evidence.
Thus this Court finds that the first appellate court has failed in its duty as being the final court of fact and it failed to consider the evidence which was available on the record and discarded the same by applying incorrectly the provision of Section 92 of the Evidence Act without discussing the exception inasmuch as Section 95 of the Act is based on latin maxim "Ambiguitas Vaborum Latens Verificatione suppletur Nom quod ex facts Dnttur Ambiguum, Verification facts Tollitur"... which means that a latent ambiguity in the words, written instrument or order may be explained later on, if it is in the written instrument by evidence (See 1986 ALL J page 785) The object of admissibility of evidence as contained in the circumstances mentioned under the 6th proviso to Section 92 of the Evidence Act is to assist the court to get the real intention of the parties and thereby over come the difficulty caused by the ambiguity. In such cases, the subsequent conduct of the parties furnishes evidence to clear the blurred area and to ascertain the true intention of the document. (See AIR 1950 Supreme Court page 15 Abdulah Ahmad Vs. Aminendra Kisan Mitter and 1990 (4) SCC page 320, Raj Kumar Rajinder Singh Vs. State of H.P.).
Under the terms of the 6th proviso appended to Section 92 of the Evidence Act it permits and does not fetter the courts power to arrive at the true meaning and effect of a transaction in light of the surrounding circumstances. (See AIR 1925 PC page 75).
This provision came up for interpretation before the Bombay High Court wherein it was held as under:-
"It is well-settled that though a proviso to a section is, as a general rule, added to qualify or create an exception to what is contained in the section to which it relates, proviso are often added, not as exception or qualifications to the main enactment but as savings clauses, in which cases they will not be construed a controlled by the section (Shah Bhojraj Vs. Subhash Chandra), and in exceptional cases, a proviso may not really be a proviso in the accepted sense, but may be a substantive provision itself (Board of Revenue Madras Vs. R. S. Jhaver). In my opinion, proviso (6) to Section 92 of the Evidence Act is of that exceptional nature in so far as it is not an exception to the rule laid down in the main part of the section that no evidence of any oral agreement or statement can be admitted for the purpose of contradicting, varying adding to or subtracting from the terms of a written document. It is a substantive provision itself laying down the law relating to the admissibility of extrinsic evidence as an aid to the construction of a document in case in which it is necessary to find out how the document is related to existing facts. It has nothing whatsoever do with the question of contradicting, varying, adding to or subtracting from the terms of the document with which the main part of section 92 deals. Proviso (6) to section 92 does not take away or qualify anything that would, but for that proviso, have fallen within the substantive portion of that section. It is significant that unlike the main portion of section 92, proviso (6) is not restricted to extrinsic evidence of an "oral agreement or statement. Proviso (6) cannot, therefore, be construed as being an exception to section 92 and controlled the main part of that section, or even as being a savings clause to the substantive portion of that section since it does not purport to save anything therein contained from the applicability of the substantive portion of the section. I, therefore, hold that extrinsic evidence would be admissible in the present case under proviso (6) to section 92 of the Evidence Act for the purpose of showing what was intended by the parties when, in regard to the price to be charged by the defendant-Corporation to the plaintiff-company, they used in the contract the expression "Governed by the notifications issued by the Government of India from time to time."
Thus in so far as the exact boundary of the land of property in dispute is concerned, the parties are entitled to lead oral evidence and the same will not hit by the Section 92 rather the same is permissible by the 6th proviso of Section 92 and 95 of the Evidence Act. It has now been well settled that the 6th proviso appended to Section 92 of the Evidence Act is no more an exception to the general rule rather it operates as a substantive provision. (AIR 1969 Bombay 231 Belapur Company Vs. Maharashtra State Farming Corporation).
When the language is clear but the statement does not refer to the existing facts or circumstances, the question of latent ambiguity arises and in that case under Section 95 oral evidence or circumstances are admissible to clarify the meaning of the document. (See AIR 1972 Patna page 87) Thus in light of the legal position as extracted above it is clear that the first appellate court by discarding the evidence completely by resorting to Section 92 and ignoring the effect of 6th proviso and Section 95 of the Evidence Act and without discussing its application has committed an error and therefore the basis upon which it has affirmed the finding of the trial court, is erroneous and cannot be sustained. Thus, the substantial question of law at serial No.1 is answered accordingly.
Learned counsel for the appellant has further urged that the findings recorded by the first appellate court are erroneous and in ignorance of powers conferred under Order XLI Rule 31 CPC.
Upon the consideration of the aforesaid submissions and looking into the judgment rendered by the first appellate court, it is found that the first appellate court has not adhered to the mandate of Order XLI Rule 31 CPC. The Hon'ble Supreme Court in the case of H Siddiqui Vs. A Ramalingam 2011 (4) SCC page 240 has held as under:-
"21. The said provisions 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 judgment 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 of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect 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 judgment 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. (Vide: Sukhpal Singh vs. Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. vs. Bijendra Narain Choudhary, AIR 1967 SC 1124; G.Amalorpavam & Ors. vs. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma vs. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. vs. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380).
22. In B.V. Nagesh & Anr. vs. H.V. Sreenivasa Murthy, JT (2010) 13 SCC 530, while dealing with the issue, this Court held as under:
"The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment 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 decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and Others vs. Sangram and Others, (2001) 4 SCC 756]""
The ratio of the aforesaid judgment has further been considered by the Hon'ble Supreme Court in the case of Sudarsan Puhan Vs. Jayanta Kumar Mohanty and another (2018) SCC on line SC page 1588, wherein it was held as under:-
"21) The powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
22) As far back in 1969, the learned Judge-V.R. Krishna Iyer,J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned judge held as under:
"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation....." (Emphasis supplied)
23) This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal.
24) We consider it apposite to refer to some of the decisions.
25) In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188-189) as under:
".........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. 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 judgment 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, of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it............"
26) The above view was followed by a three-Judge Bench decision of this Court in & Ors. vs. Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
27) In H. K. N. Swami vs. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3) "3. 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. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.""
Thus if the judgment passed by the first appellate court is tested on the touch stone of the principles laid down by the Apex Court in the above mentioned judgments, it would indicate that it has fallen short of its duty while acting as the court of first appeal. This court finds that the first appellate court abdicated its duty; inasmuch as it failed to consider the evidence by incorrectly applying the provision of Section 92 of the Evidence Act to discard the entire evidence of plaintiff-appellant and ignoring Section 95 of the Evidence Act while considering the issue no.1 and further failed to consider in detail to come at an independent findings as far as issue no.2 is concerned. No reason has been given as to under what circumstances, in absence of a cross appeal preferred by the defendants, the first appellate court could reverse the finding and that too without considering the evidence and recording its reasons in detail.
Learned counsel for the appellant has impressed upon the court that from the perusal of the oral evidence led before the trial court. It would be found that there is no discrepancy regarding the boundary nor there is any material contradictions in the testimony of the plaintiff witnesses which could lead the trial court or the first appellate court to have come to a finding which is negating the case of the plaintiff. Learned counsel for the appellant has relied upon the judgment of the Supreme Court reported in (2013) 15 SCC page 161 Sebastiao Luis Fernandes Vs. K. V. P. Shastri and has stressed that the Supreme Court while relying upon an earlier decision of Heera Lal (1990) 3 SCC page 285 held that where the courts have erred in assuming certain facts which are non-existent and come to an erroneous conclusion and by wrongly assuming facts on contentious issue which results in miscarriage of justice. Such findings even though concurrent would be open to the challenge before the High Court under Section 100 CPC. Since the High Court has already framed substantial question as required under Section 100 CPC, therefore, the same was well within the ambit of power of the High Court to consider this aspect of the matter and merely because there are concurrent finding, will not make the appeal illusory and such findings can be interfered with under Section 100 CPC. The relevant portion of the judgment relied by the learned counsel for the appellant is being reproduced hereinafter:-
"13. The relevant portion of paragraph 8 from the aforesaid judgment reads thus:-
"8....if in dealing with a question of fact that the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure. When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision."
With reference to the statement of law laid down by this Court in the aforesaid case, the learned single Judge of the High Court proceeded to answer the substantial questions of law Nos. 1 and 2 together by recording its reasons in paragraphs 7, 8 and 9 of the impugned judgment.
14. In the second appeal, the High Court on the basis of the statement of law laid down by this Court in Hira Lal case (supra) examined the correctness of the concurrent findings of fact recorded by the first appellate court to answer the substantial questions of law referred to supra. The High Court has re-appreciated the evidence in the backdrop of the statement of law laid down by this Court after noticing the fact that the courts below ignored the pleadings of the defendants-respondents and the weight of their evidence and allowed its judgments to be influenced by inconsequential matters, therefore, the High Court was of the view that it is justified in re- appreciating the evidence and coming to its independent decision and answered the substantial questions of law Nos. 1 and 2 in favour of the defendants holding the findings of the courts below on the relevant contentious issues as perverse. In this regard, at paragraph 7, the High Court considered the evidence on record and non-appreciation of the same by the courts below, particularly, the finding recorded by the first appellate court that the plaintiff-appellants have established their title in respect of the suit schedule property, that the defendant Shastri had not denied the claim of ownership of the plaintiff-appellants and further that there is no specific denial of the ownership by Tereza, holding that the lower courts have erroneously recorded findings on these aspects."
"34. In our considered view, the substantial questions of law framed by the High Court at the time of the admission of the second appeal is based on law laid down by this Court in the above referred case of Hira Lal which view is supported by other cases referred to supra. Therefore, answer to the said substantial questions of law by the High Court by recording cogent and valid reasons to annul the concurrent findings that the non-appreciation of the pleadings and evidence on record by the courts below rendered their finding on the contentious issues/points as perverse and arbitrary, and therefore the same have been rightly set aside by answering the substantial questions of law in favour of the defendants."
To further buttress his submission, the learned counsel for the appellant has also relied upon the decision of the Apex Court reported in (2014) 4 SCC page 693, Rajasthan State Road Transport Corporation and another Vs. Bajrang Lal to persuade the court that where the findings are based on surmises and is a result of misreading of evidence they are perverse and accordingly are liable to be interfered with under Section 100 CPC.
The proposition as canvased by the learned counsel for the appellant in so far as the power and ambit of this Court under Section 100 CPC is concerned, requires no elaboration. However, this court need not dwell on this aspect of the matter as this Court is of the considered view that the first appellate court has erred in exercise of its power and has not adhered to the mandate under Order XLI Rule 31 CPC and thus the matter is liable to be remanded to the lower appellate court where it shall be open to the parties to agitate the matter afresh.
This Court finds that the first appellate court has incorrectly discarded the evidence by resorting to section 92 and has failed to record its reasons upon consideration of the evidence in detail as to the fact whether the plaintiff could establish its case regarding its ownership and possession and further the reversal of finding on the issue no.2 in a cryptic and slip shod manner in absence of any cross appeal leaves a lacuna and raises a question mark over the manner in which the first appellate court has decided the first appeal. Accordingly question of law formulated at serial no.2 is answered in the aforesaid manner.
In view of the aforesaid, this Court is of the opinion that the lower appellate court did not evaluate the oral evidence of the parties and it is not proper for this Court to evaluate the same in exercise of its powers conferred under Section 100 CPC. as the question, whether the land in question is appurtenant to the plaintiff's house, is an essentially a question of fact and it would not be appropriate for this Court to evaluate the oral evidence and give a finding. Thus, it is under these circumstances that the matter is being remitted to the lower appellate court to consider the case of the respective parties and decide the appeal upon proper evaluation of the evidence and submissions after giving a proper opportunity of hearing to the respective parties.
Since this appeal is being allowed primarily on question of law answered at serial Nos.1 and 2 and matter is being remitted to the lower appellate court for a fresh consideration thus this court refrains from expressing any opinion on question of law formulated at Serial Nos.3 to 5 lest it may prejudice any party before the court below.
Accordingly, the present second appeal is allowed and the judgment of the lower appellate court dated 27.02.1991 passed by the 4th Additional District Judge, Gonda is set aside and the matter is remanded to the lower appellate court to decide the appeal being Regular Civil Appeal No.107 of 1989 afresh in the light of the observations made above.
Since the suit in question relates to the year 1987 and the appeal before the first appellate court is of the year 1988, thus this Court deem it appropriate to direct the lower appellate court to make all endeavours and as far as possible to decide the above first appeal within a period of three months from the date a certified copy of this judgment is placed before the lower appellate court.
The Registry is directed to transmit the record of the case to the lower appellate court within a period of two weeks from today.
In the circumstances, there shall be no order as to costs.
The second appeal is allowed accordingly.
Order Date :- December 20, 2018 ank/-