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Dooth Nath v. Dev Nandan - SECOND APPEAL No. 1227 of 1977 [2005] RD-AH 771 (17 March 2005)


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Doodhnath and another...................................................Plaintiff/Appellants


Deonandan represented by L.Rs and others............Defendant/Respondents.

Hon. S.N.Srivastava, J.

Present second appeal has been preferred assailing the judgment and decree dated 15.4.1977 passed by Lower Appellate Court whereby Civil Appeal No. 92 of 1976 was allowed and judgment a decree dated 25.3.1976 passed by trial court was reversed.

Plaintiffs instituted suit no. 62 of 1971 with the impetratory relief of permanent injunction restraining defendants from interfering with their possession over the land marked by letters Cha, Chha, Ja, and Jha in the plaint map and also for closing northern door enumerated therein attended with further relief to restrain them to have ingress and egress through Sahan shown by letters Ba, Ya, Ra, and Sa on the ground that the land in suit was their own property which descended to them from their ancestors and further that the defendants had no right to interfere with the possession of plaintiffs. Defendants on the other hand repudiated plaint allegations in the written statement alleging that both the parties descend from common ancestors and that plaintiffs' case as contained in the plaint is wholly wrong. It was further averred by the defendants that they were owners of part of the land as indicated in the written statement and lastly it was claimed that the suit is liable to be dismissed.

The Court while admitting the appeal, gleaned following questions of law for determination, which are abstracted below.

1. Whether the impugned judgment of first appellate court is no judgment in the eye of law inasmuch as the same is in utter disregard and violation of Order 41, Rule 31 of C.P.C.?

2. Whether the first appellate court was justified in dismissing the suit on the theory of partition in the family whereas the defendants failed to adduce any evidence to the effect that the family was common and joint; that the land in question was the ancestral property of the family and the same was acted upon by all the parties?

3. Whether the first appellate court erred in law in basing its judgment solely on the civil Court Amin's report (22-C) and the map (23-C), which was not proved in accordance with law and without production of aforesaid Amin as a witness in the evidence?    

Heard Sri D.P.Singh, appearing for the appellants. There is no appearance for the respondents notwithstanding the fact that case was called out in revised list.

Sri D.P.Singh appearing for the appellants strenuously argued that the judgment rendered by lower appellate court falls short of the requirements of a judgment as envisaged in Order 41, Rule 31 C.P.C. inasmuch as the lower appellate court has not framed any specific point for determination and has omitted to give decision on points which were of pivotal importance and had material bearing on the controversy involved in the case. In aid of his arguments, the learned counsel relied upon a decision in Suraj Singh and another v. Sohan Lal and others .

It would appear from the arguments advanced across the bar that main-stay of the argument of the learned counsel is Order 41 Rule 31 C.P.C. the requirements of which according to the learned counsel are conspicuously wanting in the judgment of the lower appellate court. Order 41 Rule 31 C.P.C. which have been extensively quoted by the learned counsel in the course of arguments may be excerpted below.

"31. 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 at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

From a punctilious reading of the provisions aforestated, it does appear that the underlying object of the Legislature in making incumbent on the appellate court the framing of points for determination is to be to clear up the pleadings and focus the attention of the court and of the parties on the specific and rival contentions of the parties and hence all the decisions on the question have consistently stressed the aspect of stating the points that arise for determination. It is also settled by various decisions that judgment of the appellate court reversing the judgment of the trial court should be adequate and satisfactory inasmuch as the judgment must contain definite findings on the questions involved, it must also assign reasons for reversing the decision of the trial court, it must express an opinion on all the points on which the trial court has based its conclusions. To be precise, the judgment of reversal must clearly suggest that judicial mind has been applied to the appreciation of evidence and it manifestly conveys the process of judicial thinking by which it differs from the conclusions of the courts below.

Coming to the analytical examination of the judgments of the two courts below, it is clear from a perusal of the judgment of the trial court that the trial court framed as many as four issues and decided each and every point by appraising the evidence adduced in the case. I have also been taken through the judgment of the trial court as well as the lower appellate court. It would appear that the trial court analytically scanned the evidence adduced and rightly disbelieved the statements of the D.Ws 1 and 2 noticing glaring discrepancies in their statements and ultimately, converged to the conclusions that the plaintiffs were the owners of the property in question. On the other hand, the lower appellate court heavily relied upon the Amin's report and wandered off into discussing points, which were, in view of controversy involved, less relevant to the controversy involved in the case. Besides one noticeable aspect is that the conclusion of the lower appellate court about possession of plaintiff to the extent of few cubic feet towards east of their eastern door is not a logical one and the conclusion has been drawn without any valid basis and it would appear that the lower appellate court has discounted materials facts on record while converging to the conclusion. It would further appear from a perusal of the judgment that the lower appellate court did not frame any question of law for determination and it would rather appear that the court below jumped from one point to another without traversing upon points which were very material for consideration and therefore judgment does not clearly suggest that the court has applied its judicial mind to the appreciation of the evidence and therefore manifestly conveys the process of judicial thinking by which it differs from the conclusions of the courts below.

In the case of Suraj Singh v. Sohan Lal, which has been cited by the learned counsel for the appellant, may be referred to and in this case, para 18 being relevant may be quoted below.

"On the basis, in particular, of the aforesaid rule, it has been contended by Sri Bhatnagar that the court below was under an obligation to deal with the question of the appellants having notice of the earlier agreement in favour of the plaintiff specifically and to record its reasons, albeit the same that appealed to the trial court, and come to a categorical finding about it. The lower appellate court, in the instant case, has not done so and that on that account, its decision affirming the decree passed by the trial court is vitiated in law."

In view of the above discussion, I am of the view that the judgment of the lower appellate court does not comport with the requirements as envisaged in Order 41, Rule 31 of the C.P.C. and it does appear that the court below has not applied its judicial mind at all while delivering verdict. Therefore, the judgment and decree passed by lower appellate court cannot be sustained and is liable to be set aside. The first substantial question of law is accordingly decided holding that the judgment of the lower appellate court does not comport with the requirements as envisaged in Order 41, Rule 31 C.P.C. and therefore, it is no judgment in the eye of law.

In the result, the second appeal succeeds and is allowed. The judgment and decree dated 15.4.1977 passed by lower appellate court is set aside. In view of the conclusion that lower appellate court has not decided the appeal in accordance with law, the matter is relegated to the lower appellate court for decision afresh after framing of issues and taking into consideration the questions raised by the parties on the basis of their respective pleadings. In the facts and circumstances, there would be no order as to costs.




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