Sudhir Agarwal, J@mdashThis is defendant''s appeal under Section 100 of Code of Civil Procedure arising from judgment and decree dated 4.7.1979 passed by Sri Suresh Chandra Srivastava, Vth Additional District Judge, Deoria in Civil Appeal No. 75 of 1975, who has allowed the said appeal, reversed judgment and decree dated 16.5.1975 passed by Munsif Deoria in Original Suit No. 539 of 1969 and decreed the suit. Substantial question of law which have arisen in this appeal and need be adjudicated by this Court, are as under:
(i) Whether the Suit of the plaintiff could be decreed by the lower appellate Court without reversing the finding of the trial Court that Nanai and Sheo Nath were not Zamindars, from whom the plaintiff claimed the property having acquired, merely on the ground that it was so mentioned in the amended plaint?
(ii) Whether the Judgments, Exts. A-2 and Q A3 were not given due weight, though they were admissible in evidence.
2. Plaintiffs Dev Nandan and Ram Bilash instituted suit No. 539 of 1969 in the Court of Munsif, Deoria, seeking a permanent injunction against defendants in respect of land, marked by letters ABCD, at the bottom of the plaint.
3. Plaint case set up was that the plaintiffs had their house No. 281 over shikmi plots No. 83, 85 and 89 with its Sahan (open land in front of the house) in plot No. 84 and 88 and backyard in shikmi plot No. 90. Defendants had no concern therewith and therefore should be restrained by issuing permanent injunction from interfering in the peaceful possession of plaintiffs.
4. Family pedigree of plaintiffs and defendants shown in the plaint is as under:
5. Defendants contested the suit giving their own family tree combined of plaintiffs and defendants as under:
6. It is further alleged by the defendants that house over plots No. 83, 85 and 89, and Sahan on plots No. 84, 88 and 90 is not the sole property of plaintiffs. It was an ancestral property in which plaintiffs and defendants had equal shares. Disputed land marked ''ABCD'' was the sole property of defendants and plaintiffs had no concern therewith. Disputed land is partly in plot No. 87 and partly in plot No. 88 on which a house was constructed by defendants and they are using the same for placing Gobar, Goitha, Ghoora etc. (cow-dung, cow dung cake and heap of cow dung etc.). They also pleaded that the plaintiffs are not in possession of the disputed property for the last 12 years and suit is barred by time.
7. The Trial Court formulated four issues as under:
"1. Whether the plaintiffs are the owners in possession of the land in question?
2. Whether the suit is barred by time?
3. Whether the suit is barred by estoppel?
4. To what relief, if any, is the plaintiffs entitled?"
8. Issues No. 2 and 3 were taken together which were not pressed by defendants, hence answered in favour of plaintiffs. While considering issue No. 1, Trial Court held that plaintiffs failed to prove their ownership and possession over disputed property, hence the issue was answered against them. Consequently, suit was dismissed vide judgment and decree dated 16.5.1975.
9. Since in the meantime, plaintiff No. 1 Dev Nandan had died, his legal heirs were substituted. The plaintiffs including the legal heirs of plaintiff No. 1 Dev Nandan went in Civil Appeal No. 75 of 1975. The Lower Appellate Court (hereinafter referred to as the "LAC") reversed the judgment and decree of Trial Court and allowed appeal as a consequence whereof the suit was decreed.
10. Referring to map, paper No. 40-C, the LAC observed that some part of disputed land falls in plot No. 87 and rest in plot No. 88. The house of Dev Nandan on the eastern side situate partly on plot No. 85 and rest on plot No. 88. The house is on western side of plot No. 89. Ram Bilas was examined as PW 1 and his testimony was relied by LAC to the extent that Dev Nandan constructed a house thirty years back which has a door on the eastern side besides a Sahan on that side. There is a Bangla (outer room(s) of house used as drawing room and also meant for stay of guests) in Sahan. In the Sahan on the eastern side of Bangla, there was a Palani (thatched house) and trees etc. In cross-examination PW 1 said that there existed houses over plots No. 83, 84, 95 and 90 from the time of their ancestors. When those houses started falling, they were reconstructed and therein defendants had no share. PW 2 Jagannath corroborating the statement of PW 1 deposed that the land was given to Shiv Nath and Nanahi by Zamindar about 30-40 years back and thereon Ram Kishan, father of plaintiff No. 2, got a house constructed. Judgments in O.S. No. 5266 of 1955 (Badri Kohar v. Ram Lagan), passed by Munsif, Deoria; and dated 22.11.1958 passed in Civil Appeal No. 546 of 1956 arising from the aforesaid Original Suit No. 5266 of 1955 were relied on by defendants but they were ignored on the ground that neither it appeared that the plaintiffs or their ancestors were parties therein nor it was clear whether the disputed property was same or different.
11. Sri Arun Kumar learned counsel for the appellants drew my attention to copies of judgments dated 23.8.1956 and 22.11.1958 which have been placed on record alongwith supplementary-affidavit. A perusal thereof shows that there were two plaintiffs Badri Kohar and another, who instituted the aforesaid suit No. 5266 of 1955 against Ram Lagan and others wherein dispute related to Shikmi Plots No. 59 and 87. Therefore, neither the parties in the present suit were parties therein nor the subject-matter of dispute was same. Therefore, reliance on the aforesaid judgments for the purpose of deciding issues in the present case would not be helpful.
12. It is not disputed that by making amendment in the plaint, the plaintiff inserted a paragraph stating that Shikmi Plot No. 88 was obtained by plaintiffs'' ancestors from Shiv Nath and Nanhai who were Zamindars. On this aspect, the Trial Court had clearly held that plaintiffs could not place any evidence to show that Nanhai and Sheo Nath were Zaimidars. The LAC has not referred to any material or evidence on record to reverse the aforesaid finding of Trial Court. PW 2 also gave the statement, as noticed by LAC, which was not consistent with oral testimony of PW 1, but on this aspect also, the LAC has not discussed the matter at all and despite contradictory oral testimony given by two witnesses produced by plaintiff, still thought expedient to rely on PW 1 without giving any sustainable reason therefor. The findings recorded by LAC apparently based on mere surmises and conjectures than evidence on record. The Trial Court had recorded a finding that plaintiff did not disclose any source of acquiring property in dispute and in respect of particular plot, source disclosed by them was found unsubstantiated due to lack of evidence. Before reversing the judgment of Trial Court it was incumbent upon LAC to point out patent fallacy or error in the findings recorded by Trial Court warranting judgment of reversal. On its own, the LAC without finding any flaw with the findings recorded by learned Trial Court ought not ought have passed the judgment of reversal.
13. On behalf of defendants-respondents none has appeared though more than half a dozen names of counsels are shown in the cause list appearing for respondents. However, this Court has perused the record to find out the possible defence and there I find that best way would be to test the findings of reversal recorded by LAC and to find out whether the same are based on any evidence or are simply conjectural or otherwise unsubstantiated.
14. From the family tree, as recorded above, it cannot be doubted that plaintiffs and defendants both come from the common ancestors though subsequently they belong to two branches of their common ancestors. The great-grandfather and grandfather of defendants, i.e., Thakur was brother of Pheku, grandfather and great-grandfather of plaintiffs; while according to the defendants Pheku is the brother of Thakur''s father, Dukhee but the fact remains that at one point of time both parties have common ancestors. Plaintiffs, however, claimed their sole ownership over disputed property having no concern with defendants while defendants claimed that house over Plots No. 83, 85 and 89 and Sahan of Plots No. 84, 88 and 90 is not the sole property of plaintiffs but ancestral property in which both parties have equal shares. With respect to disputed land marked as ''ABCD'', at the bottom of plaint, the case set up by defendants is that it is the sole property of defendants and plaintiffs have no concern therewith. Since the suit for injunction was instituted by plaintiffs the burden lie upon them to prove their case that plaintiffs were owner in possession over disputed property, else the suit had to fail.
15. The Trial Court, therefore, formulated issue No. 1, which in my view, was substantial for deciding the dispute in suit. In order to show as to how disputed property belong to plaintiffs, in the oral deposition they take up a case that land was given to the father of plaintiff No. 2, i.e., Ram Kishan by Sri Shiv Nath and Sri Nanhai, who were Zamindars. It is further stated that disputed property was given to Ram Kishan, father of plaintiff No. 2, about 30-40 years back over which Ram Kishan constructed a house. However, in the plaint no such case was set up by plaintiffs at all.
16. In para 3 of the plaint, the plaintiffs said that about 50 years back, father of plaintiff No. 1 and grandfather of plaintiff No. 2 got a house constructed according to map and they were using the land ''ABCD'' as Sahan of the said house. The names of alleged Zamindars and the factum that it was taken from them was not at all a part of pleading in the plaint. This story that the land was given by two Zamindars, namely, Sri Shiv Nath and Sri Nanhai, was set up in the oral deposition of PW-2, Jagannath. There was no evidence to corroborate this oral deposition of PW-2, particularly when this was a fact outside the pleading of plaintiffs. It is in these circumstances, the Trial Court rightly held that firstly, it was necessary to show that Shiv Nath and Nanhai were Zamindars of the said property and then it was necessary to show that the land came to the ancestors of plaintiffs from the two alleged Zamindars.
17. No evidence whatsoever was brought on record by plaintiffs, therefore, origin of disputed property as sought to be proved by plaintiffs by oral deposition was not found creditworthy and negatived by the Trial Court. The LAC has simply relied on the aforesaid statement ignoring that this is a fact which is beyond the pleading and secondly there was no evidence to corroborate or prove it.
18. Moreover, before passing a judgment of reversal it was incumbent upon LAC to meet the reasoning of Trial Court and show error therein. Unless the view taken by Trial Court is found to be erroneous, it was not appropriate on the part of LAC to pass a judgment of reversal and that too in respect of a fact which was beyond the pleading and there was no evidence except of a bare oral deposition by one witness appeared on behalf of plaintiffs.
19. In
"There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, (1906) 10 Cal WN 630, wherein, while regarding the appellate judgment of the High Court of judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge."
20. Following the above decision Hon''ble B.L. Yadav, J. in
21. The above view has also been followed recently in
"The law is well-settled in this regard that where the judgment of the lower appellate Court is a judgment of reversal it is primary duly of the appellate Court to consider the reasons given by the trial Court and those reasons must also be reversed."
22. This Court has also followed the same view in
23. The LAC has also completely failed to comply with the requirement of Order 41 Rule 31 C.P.C. and from the LAC''s judgment it does not appear that it framed any point for determination to decide appeal. In a general way the entire things have been discussed, which is not the requirement of law and in particular Order 41 Rule 31 C.P.C.
24. Framing of point of determination as required under Order 41 Rule 31 C.P.C. is necessary. In
"The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate Court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate Court having considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate Court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate Court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and, if so considered appropriate and so advised, to avail the remedy of second appeal conferred by Section 100 CPC."
(emphasis added)
25. In
"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 alongwith 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 Girja Nandim Devi v. Bijendra Narain Choudhury). 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."
26. In
"10. There being total non-compliance of the mandatory provisions of Order XLI Rule 31 CPC we have no option but to set aside the judgment of the High Court and remand the matter to the High Court for fresh consideration of the appeals."
27. In
"4.....Rule 31 mandates that the judgment of the appellate Court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) reasons for the decision; and-
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
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 alongwith 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.
28. In
"18. 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."
29. This has been followed subsequently also in
30. So far as the two judgments which have been sought to be relied by LAC, I have no hesitation in observing that aforesaid judgments were not binding upon the parties in suit and neither the said judgments constitute res judicata nor otherwise constitute an evidence in the suit in question. The parties in the earlier suit were different. The property in dispute, whether it was same or different is not clear, therefore, the said judgments could not have been relied on.
31. Even otherwise a judgment of Court does not constitute an evidence in respect of findings recorded therein but its evidentiary value is very limited, i.e., to show that a dispute was raised and decided in a particular manner. The evidentiary value of a judgment is only to the extent it is provided under Sections 41 to 43 of Evidence Act, 1872 (hereinafter referred to as the "Act, 1872"). If the dispute is between the same parties and issues have been raised, then, to the extent the principle of res judicata is applicable, for that purpose alone judgment would be relevant and admissible in evidence. However, if an admission made by a party in a previous civil proceeding, such admission in subsequent suit would be admissible but where the parties are different the said principle has no application. The question of evidentiary value of a judgment has been considered by a Special Bench of this Court in Sunni Central Board of Waqfs v. Sri Gopal Singh Visharad and others, 2010 ADJ 1 (SFB)(LB) and in the majority judgment of myself while discussing this question, the Court observed:
"3038. Moreover, a judgment by itself is not a piece of evidence except to the extent it is provided under Section 41 to 43 of the Evidence Act.
3039. In the context of Section 43 of Evidence Act, it is no doubt true that a judgment is admissible provided it is a relevant fact in issue as held in Seth Ramdayal Jat v. Laxmi Prasad (Supra). In a civil case, the judgment of a Criminal Court may be relevant where the fact in issue is about the existence of such a judgment or not, but not more than that. The evidence discussed in the judgment of a Criminal Court or the fact that a person has confessed his guilt in his statement is not admissible in evidence in a civil suit. This is what was held in
"27. In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment."
3040. The Court further held that the Civil Court must decide a suit on its own keeping in view the evidence which have been brought on record before it and not in the light of the evidence brought on record in the criminal proceedings. The Court also observed that an earlier decision in
3041. Then it considered the question of admissibility of an admission made by a party in a previous civil proceeding. It was held that admission in the civil suit is admissible. With respect to an admission made in a pleading, the Court relied on Gautam Sarup v. Leela Jetly (supra) where it was held that an admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore. The same thing was reiterated in
32. In the present case the two judgments relied, as discussed above, were in respect of different parties and in absence of anything to show that subject-matter of dispute etc. was also same, the said judgments did not satisfy even requirement of Sections 41 to 43 of Act, 1872 so as to be admissible in evidence for any purpose, except to the extent that a particular dispute was raised which was decided in that judgments in a particular way. These judgments, therefore, have rightly been excluded by Trial Court as not to help the plaintiffs in any manner and the LAC without reversing said findings and reasons given by Trial Court, has clearly erred in law. The question No. 1, therefore, is answered in favour of appellants and question No. 2 is returned against them.
33. In view of the fact that question No. 1 has been answered in favour of defendants-appellants and against plaintiffs-respondents, the judgement of LAC cannot be sustained. The appeal, therefore, is allowed. Impugned judgment dated 4.7.1979 passed by Vth Additional District Judge, Deoria in Civil Appeal No. 75 of 1975, is hereby set aside and the judgment of Trial Court dated 16.5.1975 is hereby restored and confirmed. The appellants shall be entitled to costs throughout.
