Ligakath Ali Khan and S.K. Mohammed Khan Vs Sri Syed Wazeed Kathum, Sri Kamal Pasha S. and Sri Syed Fazal

A.N. Venugopala Gowda

1. This second appeal filed under S.100 of Code of Civil Procedure, 1908 (for short, the Code), arises from a Judgment and decree passed by the District Court, Bangalore Rural District, Bangalore, whereby, the learned Prl. District Judge, allowed the appeal filed by the 1st respondent herein, under S.96 of the Code and set aside the Judgment and Decree passed by the Court of Civil Judge (Sr. Dn.), Anekal and decreed the suit for partition and separate possession. Basic facts of the case are, Sri Syed Wazeed, the 1st respondent in this appeal, filed O.S. No. 340/1999, renumbered as 257/2006, in the Court of Civil Judge (Sr. Dn.) at Anekal, to pass a judgment and decree of partition and separate possession, inter alia contending that the two items of plaint schedule properties belonged to his great grandmother Smt. Khateejabi, after whose demise, the estate was inherited by her only daughter Smt. Aseema Khathum and that she was in possession and enjoyment of the said properties. Amongst the three sons of Aseema Khathum, second son, Syed Abeed, passed away and his estate was succeeded by Syed Fazal, defendant No. 3, and that the only daughter of Aseema Khathum i.e., Smt. Habibunnisa, passed away and defendant No. 1, is the only son. That, Aseema Khathum having died, plaintiff and defendants are in possession and enjoyment of the suit properties as tenants in common and as such, the properties are liable to be divided into four equal shares i.e., amongst the plaintiff and the defendants. It was alleged that, 1st defendant entered into an agreement of sale with one Mr. Mohammed Shafiulla and upon coming to know of the said fact, suit was instituted to pass a judgment and decree of partition and separate possession.

2. Defendants 2 and 3 having remained absent, were placed exparte by the Trial Court. Defendant No. 1 filed written statement and admitted that the suit schedule properties belonged to Khateejabi and that she had only one daughter by name Aseema Khathum. Other averments made in the plaint were denied. It was stated that, Khateejabi, executed a registered Will, bequeathing both items of suit properties in his favour and that she died on 15.07.1986, whereafter, the katha was registered in his name and that he has been paying the tax and holding and enjoying the suit schedule properties as the absolute owner. Plaintiff''s claim for a share and separate possession was opposed.

3. On the pleadings of the parties, the Trial Court framed the following issues:

1. Whether the plaintiff proves the genealogy given in the plaint as correct?

2. Whether the plaintiff further proves that himself and defendants No. 1 to 3 are the tenants in common of the schedule properties and they are in joint possession of the properties as alleged?

3. Whether the first defendant proves that the suit schedule properties were the absolute and self acquired properties of his maternal grandmother Khateejabi wife of Rahim Khan and she has bequeathed the properties under a registered WILL dated 13-3-1978 in his favour and after the death of the executor Khateejabi he became the absolute owner and in possession of the schedule properties as alleged in para 7 of the written statement?

4. Whether the plaintiff is entitled for partition and separate possession of his half share in the schedule properties as prayed?

5. To what relief if any the parties are entitled?

4. On recording of the evidence and thereafter hearing the learned advocates appearing for the parties, Trial Court decided issue No. 1 in the affirmative, issue Nos. 2 and 3 partly in the affirmative, and issue No. 4 in the negative. As a result, suit was dismissed.

5. Aggrieved, the plaintiff challenged the said Judgment and Decree, in R.A. No. 155/2006. The learned District Judge, on hearing the parties, raised the following points for consideration:

1. Whether the plaintiff proves that Katheejabi wife of Rehaman Khan cannot convey the entire right, title and interest in respect of the plaint schedule properties under Will dated 1.13.1978?

2. Whether the suit of the plaintiff is bad for non-joinder of parties?

3. What order?

6. With regard to the first point, by making a reference to the decision in the case of NARUNNISA Vs. SHEK ABDUL HAMID - AIR 1987 KAR 222, learned District Judge, taking note of a sentence in the evidence of DW-2, ''that he has not seen execution of the will in favour of the 1st defendant'', negatived the claim made to the suit properties, by defendant No. 1, on the basis of the Will dated 13.03.1978 and as a consequence, the claim of the plaintiff that he was entitled for a share and separate possession was accepted.

7. With regard to the second point, without any discussion or meaningful reasoning, it was held that, even without impleading other heirs, the suit for partition is maintainable. As a result, appeal was allowed and by setting aside the impugned Judgment and Decree, the suit was decreed, entitling the plaintiff to 2/7th share and for separate possession in the suit schedule properties.

8. The impugned Judgment being cryptic, the following substantial question of law was raised on 27.03.2012, for determination:

Whether the first Appellate Court has followed the fundamental rules governing the exercise of its jurisdiction under S.96 of the Code, while reversing the Trial Court Judgment and Decree and whether the impugned Judgment and Decree is vitiated? "

9. Sri V. Rajaiah, learned Advocate, contended on behalf of the appellant, that the lower appellate Court while reversing the judgment and decree of the Trial Court, has not addressed itself to all the issues of fact and law and its findings suffer from grave errors and hence, interference in the matter is called for.

10. Sri T.H. Narayana, learned Advocate for the respondent No. 1, on the other hand contended that, the learned appellate Judge is justified in holding that the execution of the Will is not proved, since the attestors were not examined and as a consequence, in decreeing the suit. He further submitted that, in the facts and circumstances of the case, the impugned Judgment and Decree are sustainable.

11. To answer the said question of law, it is necessary to notice the ratio of law laid down in the case Of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., . It has been held therein, as follows:

15. 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, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi vs. Bijendra Narain Choudhary - AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, . The rule is -and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh.- AIR 1951 SC 120). Secondly 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."

12. In Madhukar and Others Vs. Sangram and Others, , the Apex Court has laid down the principles and parameters, as to how a first appeal is to be decided. It has been held that, sitting as a Court of first appeal, duty is cast on the Court, to deal with all the issues and evidence led by the parties, before recording its findings. The principle which has been enunciated is that, the first appeal is a valuable right and the parties have a right to be heard, both on the questions of fact and law 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.

13. In RAMA PULP & PAPERS LTD. Vs. MARUTI N. DHOTRE - (2005) 12 SCC 186, it has been held that, in first appeal, the Court has to properly consider the evidence on record or for that matter, even the arguments and the grounds raised in support of the case.

14. In H.K.N. SWAMI Vs. IRSHAD BASITH (DEAD) BY LRs. - (2005) 10 SCC 243, it has been held as follows:

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."

15. In B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy, , as to how a regular appeal has to be decided, the Apex Court has reiterated the ratio of law laid down in the cases of SANTOSH HAZARI and MADHUKAR (supra).

16. In Parimal Vs. Veena @ Bharti, , it has been held that, O 41 R 31 of Code, provides for a procedure for deciding the appeal and that the law requires substantial compliance with the said provision and the First Appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystalised by the Trial Court''s Judgment, without opening the whole case for re-hearing, both on questions of fact and law. It has been made clear that, the appellate Court should not modify the decree of the Trial Court by a cryptic order, without taking note of all relevant aspects.

17. S. 96 of the Code provides the right of an appeal. O 41 R 31 of the Code provides guidelines for the appellate Court as to how it has to proceed and decide the appeal. The first appellate Court should independently assess the relevant evidence on all the important aspects of the case and record findings on the points raised for consideration. Being the final Court of facts, the First Appellate Court must assign reasons for its decision on the point/s which have been formulated for consideration. The first appeal being a valuable right and the parties having been conferred with right to be heard both on questions of fact and law, the judgment in the first appeal must address all the issues of law and fact and decide the appeal by giving reasons in support of the findings. Keeping in view the settled principles of law, on perusal of the impugned Judgment, it is clear that the Court below has failed to follow the fundamental rules governing the exercise of its jurisdiction under S.96 of the Code and decide the appeal as per the guidelines under O 41 R 31 of the Code. The impugned Judgment is cryptic. None of the relevant aspects of the matter has either been noticed or appreciated. The impugned Judgment, falls short of the considerations which are expected from the Court of first appeal. Thus, there is a flaw, on account of which, the impugned Judgment is vitiated and cannot be sustained.

In consequenti, the appeal is allowed and impugned Judgment and Decree is set aside. R.A.No. 155/2006, having not been decided in accordance with the settled principles of law, the appeal is restored to the file of the District Court, Bangalore Rural District, Bangalore, for rehearing and fresh decision, keeping in view the observations made supra and in accordance with law, within a period of six months from the date of first appearance of the parties.

In order to expedite the hearing of the appeal, parties are directed to appear before the Lower Appellate Court on 16.04.2012 and receive further orders.

All contentions of both parties are kept open for being agitated before the Court below.

No order as to costs.