Dwarika Prasad Marwari v. Sudarshan Pd. Chaudhary And Others

1. This second appeal is at the instance of defendant-2nd party against the judgment of affirmance, the trial Court having decreed the plaintiffs' suit and the lower appellate Court having dismissed the appeal.

2. Since I propose to remand this case to the lower appellate Court, the facts need not be stated in detail. It would suffice to say that the plaintiffs-respondents instituted the instant suit for declaration of title and recovery of possession as also for mesne profits with respect to certain lands described in the Schedule to the plaint. According to the plaintiffs, the suit property was sold at auction in execution of rent decree and purchased by the decree-holder ex-intermediary, who obtained delivery of possession thereon on 20-3-1943. The ex-intermediary, namely, defendant 5th party, is said to have sold the suit land to the plaintiffs under a registered sale deed dated 11-8-1959 and the plaintiffs claimed title and possession by virtue of that sale deed. There was a proceeding under Section 144 Cr. P.C, in respect of the suit land, which was converted into one under Section 145 Cr. P.C, and which was decided against the plaintiffs; and the defendants 1st and 2nd party are said to have dispossessed the plaintiffs from the suit land on 19-7-1963 leading the plaintiffs to file the suit.

3. The defendant 1st party and the plaintiffs compromised the matter admitting the claim of the plaintiffs. The suit was contested by the defendant 2nd party, who claimed to be purchaser of six dhoors of land, out of the suit property by virtue of sale. The auction sale, the sale certificate and delivery of possession in consequence thereof, were all described as paper transaction and it was asserted that neither the ex-intermediary, defendant 5th party, nor the plaintiffs came in possession of the suit land.

4. Amongst the issues framed in the trial Court, some of them are as follows:—

(1) Whether the suit was barred by limitation?

(2) Whether the sale deed alleged to have been executed in favour of the plaintiffs as also defendant 2nd party was genuine?

(3) Whether the story of possession and dispossession set up by the plaintiffs was correct?

The suit was a hotly contested one. The parties filed a good number of documents. In addition to these, as many as 15 witnesses were examined on behalf of the plaintiffs and 14 on behalf of the defendant 2nd party. The trial Court held that the story of possession and dispossession, as set up by the plaintiffs, was correct and that the defendant 2nd party had not acquired title to the suit land by adverse possession. On these and other findings, the plaintiff's suit was decreed including their claim for mesne profits. Defendant 2nd party carried the matter in appeal before the first appellate Court. The lower appellate Court dismissed the appeal confirming the judgment and decree of the trial Court. Although the lower appellate Court discussed the documentary evidence adduced by the parties, it is undisputed that it did not at all discuss the oral testimony of any of the witnesses either for the plaintiffs or the defendant.

5. The sole substantial question of law that was framed for decision in this appeal at the time of its admission may be found in Order No. 12 dated 14-5-1979 which runs as follows:—

“Whether the decision of the lower appellate Court given without considering the oral evidence led by the appellant is in accordance with law?”

6. Sri P.S Sinha, learned counsel for the appellant, vehemently submitted that the judgment of the lower appellate Court stood vitiated for non-consideration of the oral evidence adduced by the parties and as such the judgment and decree of the lower appellate Court was liable to be set aside and justice necessitated a remand of the case. Shri R.S Chatterjee, learned counsel for the respondents, relying on a decision of this Court reported in AIR 1973 Pat 386 (Shiva Narayan Sah v. Baidya Nath Pd. Tiwary) faintly argued that as the lower appellate Court merely affirmed the findings of the trial Court and as there was discussion of the oral evidence in the judgment of the trial Court, the judgment of the lower appellate Court need not be interfered with. On the admitted position that the lower appellate Court, surprisingly enough, did not at all discuss the oral evidence of any of the witnesses for the plaintiffs or the defendant, I find myself unable to accept the argument of Sri R.S Chatterjee.

7. Order 41, R. 31 of the Civil P.C lays down as follows:—

“Contents, date and signature of judgment:— The judgment of the Appellate Court shall be in writing and shall state—

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall…………”

The object of this rule in making it incumbent upon the appellate Court to raise points for determination and to state reasons for the decision is to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions which arise for determination as also to offer the litigant parties an opportunity of knowing and understanding the grounds upon which the decision proceeds with a view to enable them to exercise, if they see fit, and are so advised, the right of second appeal conferred by S. 100 Civil P.C

The matter involved determination of important questions of fact raised in the pleadings which necessitated a careful consideration of the oral evidence adduced. What to speak of careful consideration, there is no whisper at all about the oral evidence in the judgment of the lower appellate Court.

8. Section 100 C.P.C provides for second appeal, which is to be entertained if the High Court is satisfied that the case involves a substantial question of law. A finding of fact arrived at by the lower appellate Court on due consideration of the evidence becomes final and is binding on this Court. This necessitates due consideration of the evidence, both oral and documentary, by the lower appellate Court before recording a finding of fact.

9. It is the finding of fact duly recorded by the lower appellate Court, be it a judgment of either affirmance or reversal, which is binding on this Court. This necessitates observance by the lower appellate Court of the mandatory provisions of Order 41 Rule 31, C.P.C, even in cases where the lower appellate Court affirms the finding of the trial Court. While it may, not be necessary that the judgment should record all the facts in great, detail and it should deal mechanically with all the points, it must show that the Court has brought its independent judgment on a consideration of the relevant evidence, both oral and documentary, to bear on the decision. This being not the position in the instant case, serious infirmity has crept in the judgment of the lower appellate Court and it must stand vitiated. The decision of this Court in Shiva Narayan Sah v. Baidya Nath Pd. Tiwary (AIR 1973 Pat 386) (supra) cannot come to the rescue of the respondents. Paragraph 10 of that judgment would show that in that case the evidence of the witnesses had not been discussed (in detail) which implied that there was some discussion of the oral evidence. The facts too are also distinguishable.

10. On the facts and in the circumstances of this case, the submission of Sri. Sharan that Non-consideration of the oral evidence by the lower appellate. Court would have the effect of vitiating the whole judgment of the lower appellate Court appears to be sound and must prevail.

11. The result is that the appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set, aside and the matter is remanded to the lower appellate Court for fresh decision on consideration of the evidence, both oral and decumentary in accordance with law. The cost of this appeal shall abide the decision to be arrived at by the lower appellate Court on remand.

12. An application under Order 1, Rule 10 and Order 22 Rule 10 C.P.C has been filed before this Court by one Om Prakash Gupta praying therein for substitution or addition in place of respondent Sudarsan Choudhary. After keeping a copy of the petition on the record of the second appeal, the original petition should be sent back to the lower appellate Court and the lower appellate Court shall, after hearing the parties, consider this petition and pass orders in accordance with law.

Appeal allowed.