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Janak Pandey v. Sudama Singh And Others

Patna High Court

Aug 7, 1984

Judgment

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Factual and Procedural Background

This opinion concerns an appeal by the plaintiff against the judgment of reversal by the 7th Additional District Judge, Arrah, in Title Appeal No. 78 of 1974. The plaintiff's suit (Title Suit No. 31 of 1969) was originally decreed in his favour by the trial Court (3rd Munsif, Arrah). The defendants appealed the trial Court's decree. The trial Court had granted the plaintiff's claim in full, but recorded some adverse findings against him. The defendants' appeal was allowed by the Additional District Judge who reversed the trial Court's decree in respect of a particular plot (C.S. Plot No. 1137 / R.S. Plot No. 1408), holding that the defendants had title and possession over the disputed plot.

The factual matrix: the plaintiff claimed inheritance and adverse possession of two survey plots (No. 1136 and 1137) that he said belonged to his grandfather, Ram Dhani Pandey. The defendants claimed the land by title and possession through ancestors, including a sale by Jay Pandey in 1883 to the grandfather of defendants 1–4, and subsequent possession arising from that sale. There were disputes about entries in the cadastral (survey) records, claims of mortgage and redemption, and a prior S. 145 Cr.P.C. proceeding decided in favour of the defendants. The Additional District Judge declined to consider oral evidence and found in favour of the defendants based on certain documentary and cadastral-survey-related conclusions.

Procedurally important legislative background: at the time of the appeal (1974) there was no provision enabling a respondent to file cross-objections to findings; a 1976 amendment to Order 41, Rule 22 and a contemporaneous amendment to Rule 33 were later enacted, introducing express provisions for respondents to file cross-objections and confirming broad powers for appellate courts to pass any decree or order appropriate to the case.

Legal Issues Presented

Whether the Court of Appeal (the learned Additional District Judge) could hold that the defendants were thrown out of possession of the land in question without taking into consideration the oral evidence adduced on behalf of the parties and without reconsidering the documentary evidence.
Whether the appellate Court could decline to examine findings recorded by the trial Court (learned Munsif) on the basis that no cross-objection was filed by the respondent, in view of the provisions of Order 41, Rule 33 of the Civil Procedure Code and the relevant (later-amended) Rule 22.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

The learned Additional District Judge erred by refusing to consider oral evidence of possession, which was important to determine whether the cadastral survey record of right was correct and whether the plaintiff was in possession of the property.
The presumption in favour of the cadastral survey entry required that the defendants should have rebutted that presumption; the appellate judge wrongly treated documentary indications of title as sufficient without examining oral or other documentary evidence that might displace the cadastral presumption.
The appellate judge incorrectly treated the trial Court's findings as final merely because no cross-objection had been filed, ignoring the scope and powers of Order 41, Rule 33 of the Code to re-examine findings and pass appropriate decrees or orders.

Respondents' (Defendants') Arguments

Counsel for the respondents (Mr. R.S. Chatterjee) contended that the errors alleged were not substantial and that the amended Section 100 of the Code (relating to second appeals) did not warrant interference with the appellate Court's judgment in the present circumstances.
He relied on precedents, specifically Kshitish Chandra v. The Commr. of Ranchi, AIR 1981 SC 707 and Sree Meenakshi Mills Ltd. v. Commr. I.T, AIR 1957 SC 49, to support the submission that the court should not interfere on the facts before it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kshitish Chandra v. The Commr. of Ranchi, AIR 1981 SC 707	Relied upon by respondents' counsel to argue that the errors were not substantial and did not merit interference by the higher Court.	The Court noted reliance upon this Supreme Court decision by respondents' counsel but did not examine its facts and law in detail for the purpose of the present judgment.
Sree Meenakshi Mills Ltd. v. Commr. I.T., AIR 1957 SC 49	Relied upon by respondents' counsel in support of the contention that this Court should not interfere in the given circumstances.	The Court acknowledged counsel's reliance on this precedent but chose not to go into the detailed facts or law of that decision in this opinion.
Janki Khobi v. Sitaram Singh (Second Appeal No. 504 of 1980), reported AIR 1985 Pat 140	Used by the Court to articulate and apply criteria for what may constitute a "substantial question of law" warranting interference in a second appeal (examples include mistakes of law going to the root of controversy, perverse findings, failure to consider important evidence, or proceedings showing lack of judicial discipline).	The Court explicitly relied on its earlier consideration in this case to frame the standard for interference: it set out that mixed questions of fact and law, perverse findings, and findings made without considering important evidence may constitute substantial questions of law. This formed a key part of the Court's reasoning for interfering and remitting the matter for rehearing.

Court's Reasoning and Analysis

The Court first framed the statutory context: at the time the defendants appealed (1974) respondents could not file cross-objections to findings; however, a 1976 amendment to Order 41, Rule 22 and a contemporaneous amendment to Rule 33 were subsequently enacted. The amendment to R.22(1) allowed a respondent to support a decree and also to state that a finding against him ought to have been in his favour and to take cross-objections within a limited timeframe. The amendment to R.33 confirmed that the appellate Court has power to pass any decree or make any order which ought to have been passed and to pass further or other decrees or orders as required, and that this power may be exercised even in favour of respondents who have not filed appeals or objections.

Turning to the facts, the Court reviewed findings at trial and on appeal: the Munsif had decreed the plaintiff's suit while recording some adverse findings; the Additional District Judge set aside the plaintiff's title with respect to C.S. Plot No. 1137 / R.S. Plot No. 1408 and declined to examine oral evidence, relying instead on certain documents and cadastral survey conclusions. The appellate judge expressly stated that he did not deem it proper to deal with oral evidence of individual witnesses, and rested his conclusion on documentary discussion and cadastral survey entries.

The Court criticized that approach on multiple grounds:

The Additional District Judge was obliged, as a Court of fact, to give parties a full opportunity to place material on all issues of fact and law; he could not treat trial findings as closed merely because no cross-objection had been filed by a respondent.
Order 41, Rule 33 (as it stood before and after the 1976 amendment) confers broad power on the appellate Court to pass any decree or make any order which ought to have been made; this power was not inhibited by the procedural constraints concerning cross-objections. Thus the appellate judge erred in assuming he could accept trial findings as conclusive simply because there was no cross-appeal.
The oral evidence of possession was material to the correctness of cadastral survey entries and to the question of possession. The Additional District Judge's refusal to examine oral evidence and to reconsider documentary evidence produced a flawed adjudication of the key issues.
The appellate judge examined some documentary findings in isolation and treated documentary demonstration of title by defendants as sufficient to rebut the cadastral presumption, without examining the whole record (documentary and oral evidence) — an approach the Court described as casual, irresponsible, and possibly indicative of ignorance of the law.

The Court then addressed the sufficiency of these errors for intervention in a second appeal. Relying on its earlier exposition (Janki Khobi v. Sitaram Singh), the Court identified types of errors that constitute substantial questions of law: mistakes of law going to the root of the controversy, ignorance of law perverting adjudication, conclusions of fact recorded without considering important aspects or evidence, perverse findings, and findings made without judicial consideration of facts and evidence. The Court found that the Additional District Judge had committed such errors of law and approach: refusing to consider oral evidence, failing to consider material documentary evidence, and treating trial findings as final despite the appellate forum being open to rehearing.

For these reasons the Court concluded that interference was warranted. Rather than deciding the merits itself on the full evidence, the Court considered the appropriate remedy to be remittal to the learned Additional District Judge for rehearing and disposal in accordance with law so that the issues could be properly examined with due regard to both oral and documentary evidence and the appellate Court's powers under the Code.

Holding and Implications

Holding: The appeal is allowed. The Court set aside the judgment and decree in Title Appeal No. 78 of 1974 of the Court of the 7th Additional District Judge, Arrah, and remitted the case to that court for rehearing and disposal in accordance with law. Appeal allowed.

Implications:

Direct effect on the parties: The reversal by the Additional District Judge is vacated and the matter must be reheard by that appellate Court, which is to consider oral and documentary evidence and exercise its powers under Order 41, Rule 33 of the Code as appropriate.
The Court identified the refusal to consider material oral evidence and the improper reliance on selected documentary points as errors of law sufficient to warrant intervention in a second appeal and caused remittal for proper adjudication.
The opinion does not state that it establishes any new binding precedent beyond the application of the principles described (the Court relied on and restated criteria articulated in its prior decision, Janki Khobi v. Sitaram Singh). The immediate and stated consequence is the remittal for rehearing and no order as to costs.

Order as to costs: There shall be no order as to costs.

Show all summary ...

1. Could the Court of appeal below hold that the defendants were thrown out of possession of the land in question without taking into consideration the oral evidence adduced on behalf of the parties and without also reconsidering the documentary evidence and could it not examine the findings recorded by the trial Court although no cross-objection was filed on behalf of the plaintiff respondents before it, in view of the provisions under O. 41, R. 33, Civil P.C (in short the ‘Code’), are precisely the questions involved in this appeal?

2. The plaintiff has moved this Court against the judgment of reversal of the Court of the 7th Additional District Judge, Arrah, in Title Appeal No. 78 of 1974. The suit being Title Suit No. 31 of 1969 was decreed by the trial Court, namely the 3rd Munsif, Arrah. Although the whole claim of the plaintiff was granted by the learned Munsif, he recorded nonetheless some finding against him. The defendants preferred an appeal which was eventually heard by the 7th Additional District Judge, Arrah, plaintiffs, however, preferred no cross-objection. The appeal was filed in the year 1974. At that time there was no provision for preferring any appeal or cross-objection against a finding. In the year 1976, however, by an amendment Act, R. 22 of O. 41 has been amended. The amendment states, inter alia, that “any respondent though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow”. The amendment Act also introduced an explanation to R. 22(1) of the Code which says that a respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may file cross-objection in respect of the decree in so far as it is based on that finding notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is wholly or in part, in favour of that respondent. The 1976 amendment thus introduced for the first time a provision for a cross-objection or appeal by a respondent in an appeal preferred by any other party against a finding which he seeks to question. A contemporaneous amendment has also been made in R. 33, O. 41 and, after the amendment the said rule, says that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is to the part of the decree only and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees although appeal may not have been filed against such decrees.

3. Before, however, I advert to consider the questions that have arisen in this appeal let me state a few relevant facts.

4. According to the plaintiff, lands in Khata No. 233 in village Udwant Nagar, district Bhojpur, were recorded in the name of his grandfather namely Ram Dhani Pandey. The plaintiff inherited the said property including 41 decimals of land in survey plot No. 1136 and 51 decimals of land in survey plot No. 1137 appertaining to said Khata the said two plots, according to the plaintiff, were amalgamated only a year or two after the cadastral survey. Ram Dhani Pandey mortgaged these plots in favour of one Mathura Singh under an unregistered deed, but he subsequently redeemed the mortgage. Unfortunately, according to the plaintiff, the mortgage deed was not traceable, although the same was returned to Ram Dhani Pandey on redemption. The plaintiff claimed the suit land (the said two plots) by inheritance from Ram Dhani Pandey (recorded tenant) as also by adverse possession against any and every person who could have any interest in the property. During the revisional survey, however, the defendants claimed the land. According to the written statement filed on behalf of defendants 1 to 7 one Salik Pandey had three sons namely, Jay, Ramdhani and Ramsharan who all had separated and partitioned their properties. In the year 1983 Jay Pandey sold one bigha of land for Rs. 49/- to one Ratan Singh, grandfather of the defendants 1 to 4 through a registered deed and these defendants came in possession by inheritance upon the said purchased land. Jay Panday and Ram Sharan Pandey died issueless before the cadastral survey. In 1336 FS the defendants mortgaged part of the suit land purchased by them in favour of Mathura Singh for Rs. 75/-. Although the said mortgage was redeemed and in token on the redemption a receipt was granted by the mortgagee but the mortgage deed was lost. Name of the ancestor of the plaintiff was wrongly entered in the cadastral survey and the name of the ancestor of the defendants was similarly wrongly omitted; but according to the defendants they were in possession before and after the redemption of the mortgage except the part upon which the mortgagee Mathura Singh was in possession. A proceeding under S. 145, Cr. P.C, was fought between the parties resulting in a decision in favour of the defendants. During the revisional survey also when the plaintiff found that his claim was ignored and the defendants were shown as the raiyat of the land in question, he filed the present suit.

5. Defendants although claimed survey plot No. 1136 also but they relinquished the same in favour of the plaintiff.

6. Learned Munsif who tried the suit held that Jay Pandey was brother of Ram Dhani Pandey; Jay Pandey sold the disputed land in the year 1883 in favour of the grandfather of the defendants; cadastral survey entry with respect to plot No. 1137 was wrong and it was wrongly prepared in the names of the ancestors of the plaintiff, but found on the basis of certain documents that the ex-intermediaries had acknowledged the ancestors of the plaintiff as tenants and the defendants had not been so acknowledged as tenants in respect of the said land and decreed the suit accordingly. On appeal by the defendants, the learned Additional District Judge, however, proceeded with the presumption that since there has been no cross-appeal of the respondents (the appellant before this Court) with respect to the findings recorded by the learned Munsif that the ancestors of the appellants had purchased one bigha of land in the year 1883 and that at least the area of the land in plot No. 1137 was wrongly shown in the cadastral survey entries and said “I do not find it necessary to reproduce the details of the documents dealt with by the learned Munsif andsuffice it to say that cadastral survey entry with respect of C.S plot No. 1137 was wrong and although the purchased area was one bigha but on the spot that area was found during the cadastral survey to the extent of only 51 decimals and accordingly plot No. 1187 was prepared and now that plot is reproduced in the revisional survey as plot No. 1408 with the same area”. The learned Additional District Judge rejected the plaintiffs' case of any title or possession in and upon plot No. 1137 (cadastral survey) stating the law in the following words:— “The learned lawyer for the appellants has rightly urged that when title of the defendants appellants over plot No. 1137 was established by the learned Munsif, it will have to follow that the appellants were in possession over the same through their rehandars who after receiving consideration money granted receipt Ext. B and gave possession of the orchard to the appellants.”

7. Learned Munsif, while considering the case and evidence of the parties at one stage said that the oral evidence on behalf of both the parties was not satisfactory and it was in the shape of oath against oath. But the learned Additional District Judge declined to go to the oral evidence stating, “I do not deem it proper to deal with oral evidence of individual witness examined on behalf of both sides. The documents having been relied upon by both parties have been discussed in greater details and on the basis of the aforesaid discussions I come to a conclusion that the plaintiffs respondents have failed to establish their title over C.S Plot No. 1137 which is now R.S plot No. 1408 as against this the defendants appellants have been able to prove their right, title, interest in and possession over the said plot and accordingly they have rightly been recorded in the revisional survey.”

8. I have noticed with some concern the observations and the approach of the learned Additional District Judge because it is obvious that the learned Additional District Judge has been either ignorant of the law or unaware approached the case in a casual and irresponsible manner. As a Court of fact all issues of facts and law were open for decision before him and he was duty bound to give to the parties full opportunity to place any and every material on all issues whether of fact or of law. As noticed in the language of R. 22(1), O. 41 of the Code, since the learned Munsif has decreed the plaintiffs suit in the year 1974, no cross-appeal could be filed on his behalf. The 1976 amendment could not retrospectively take away his right to not only support the decree but also to assail the findings against him while supporting the decree recorded in his favour. Constraints introduced as to the filing of the cross-objection by a respondent in terms of R. 22(1), O. 41 of the Code and explanation thereto notwithstanding the appellate Court's power was not inhibited in any manner. It could go behind the findings, whether for or against a party, whether a party questioned its correctness or not. Repository of this power is R. 33, O. 41 of the Code as it was before the amendment and as it is even after the amendment of the year 1976. Learned Additional District Judge, by assuming that he could just accept the findings of the trial Court as concluded, because there has been no cross-appeal by the respondents before him, (the appellant before this Court) closed his eyes to a pervasive provision under R. 33, O. 41 of the Code.

8A. This error apart, the appellant, in my opinion legitimately has complained that the oral evidence of possession is important at least for judging whether cadastral survey record of right was correct or not and whether the plaintiff was in possession of the property or not. The learned counsel for the appellant is also right in submitting that the presumption arising out of the cadastral survey entry in favour of the plaintiff had/is to be rebutted by the defendants if they wanted/want to show that it was wrongly made.

9. The unfortunate part, however, is that the learned Additional District Judge has examined the correctness or otherwise of some of the findings recorded by the learned Munsif on the basis of certain documents without looking into any other part of the case. This he has done with a further error in his approach that by showing their title the defendants sufficiently rebutted the cadastral survey entry. Learned Additional District Judge has neither considered the documentary evidence nor considered the oral evidence.

10. Mr. R.S Chatterjee learned counsel for the respondents has tried to persuade me to hold that these errors are not substantial and the amended S. 100 of the Code shall not entitle this Court to interfere in such a situation. He has placed reliance upon the judgment of the Supreme Court in Kshitish Chandra v. The Commr. of Ranchi, AIR 1981 SC 707 and Sree Meenakshi Mills Ltd. v. Commr. I.T, AIR 1957 SC 49. I am not going into the details of the facts and the law stated in these cases only because recently I have considered as to what may constitute a substantial question of law for interference by this Court in Second Appeal No. 504 of 1980 (Janki Khobi v. Sitaram Singh), disposed of on 27-4-1984: (reported in AIR 1985 Pat 140). After examining various decisions and the scheme of the law after the 1976 amendment I have concluded as follows:—

“I have my preference for the principle and interpretation that shall make the law real and living. A mistake of law going to the root of the controversy ignorance of law exhibited by the Court perverting its adjudication, a Court of law acting without judicial discipline and committing error of judgment in regard to the issues involved in a case if allowed to stand, would make the law and the Court incompetent and illegitimate. Such questions may be mixed questions of fact and law like cases in which a conclusion of fact is recorded without considering the case in certain important aspects and/or without considering important evidence. A question of law which is not dependent upon examination of the evidence and requires no fresh investigation of facts, a finding based on evidence but perverse in the sense that no normal person could arrive at that finding, a finding based on legal evidence or without judicial consideration of the facts in issue and the evidence on the record, in my view, are substantial questions of law. Depending of course on the effect caused by it on the adjudication of the issues between the parties”.

11. In view of my discussions above I am of the opinion that the learned Additional District Judge has committed such errors of law that his judgment and decree cannot be allowed to stand. On the facts and in the circumstances of this case, however, the only proper way to deal with the situation will be to remit the case to the Court of the learned Additional District Judge for a rehearing and decision in accordance with law.

12. In the result this appeal is allowed, the judgment and decree in Title Appeal No. 78 of 1974 of the court of the 7th Additional District Judge, Arrah, are hereby set aside. The case is remitted to the court of the 7th Additional District Judge for a rehearing and disposal in accordance with law. There shall be no order as to costs.

Appeal allowed.