in terms of Order XLI Rule 31 CPC, the High Court has neither framed the points for determination nor discussed the evidence adduced by the defendants.; Having impleaded the appellants as parties in the first appeal, in terms of Order XLI Rule 27, the High Court ought to have afforded an opportunity to the appellants to adduce oral and documentary evidence and make their submissions.= First Appeal No. 230 of 2007 dated 30.07.2007 is set aside and the matter is remitted back to the High Court for consideration of the matter afresh. First respondent-Plaintiff, being the appellant before the High Court, is directed to take steps for impleading the legal representatives of the deceased second respondent-Defendant. The High Court shall afford sufficient opportunity to both the parties to adduce additional evidence, both oral and documentary and further afford sufficient opportunity of hearing to both the parties. Since the suit is of the year 1994, we request the High Court to dispose the appeal expeditiously in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4426 OF 2011

LALITESHWAR PRASAD SINGH & ORS. APPELLANTS

Versus

S.P. SRIVASTAVA (D) THR. LRS. RESPONDENT

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment of High Court of Patna in First
Appeal No. 230 of 2007 dated 30.07.2007 reversing the judgment of the trial
court and thereby decreeing first respondent-Plaintiff’s suit for
declaration of title.

2. Genealogy of the first respondent-Plaintiff and Tarawati Devi are as
under:-

Mahabir Prasad

Tej Pratap Narayan
Jagadambi Prasad
Rudra Mahendra Kanta Kanji
Girish
Chandra Prasad (1960)
Narayan Prasad Prasad Prasad
Tarawati Devi (died in 1985)
died issueless died issueless

Shailendra Prasad
Suresh Chandra Prasad (1942)
Plaintiff

Deoki Devi Sita Devi
Umashanker Prasad (1970)
Died died issueless
(died
unmarried)

The genealogy of parental side of Tarawati Devi is as under:-

Dhanukdhari Sahay

Tarawati Devi Laxmi Devi Raxn Devi
Baidya Nath (Defendant)

3. The first respondent-Plaintiff Shailendra Prasad Srivastava filed a suit
praying for declaration of his title with respect to suit property in
Khasra No. 123, 124, 269, 274, 997 and 959 of Khata No. 31 of village
Bairiya and village Koloha Pagambarpur Schedule I and Schedule II
properties respectively against the second respondent-Defendant Baidya Nath
Prasad Verma alleging that the suit property detailed in Schedule I and II
belonged to Girish Chandra Prasad. Case of the plaintiff is that in the
Revisional Survey of Records, Tarawati Devi, the widow of Girish Chandra
Prasad got the property recorded in the name of her grandson Umashanker
Prasad. The said Umashanker Prasad died during the lifetime of Tarawati
Devi in the year 1965. The first respondent-Plaintiff further alleged that
he, being the only male member of the family, used to stay with Tarawati
Devi and did all the ceremonies after her death. Further case of the first
respondent-Plaintiff is that when he was working at Bhillai, he learnt that
the second respondent-Defendant is trying to obtain revenue receipt in
collusion with Anchal Karmachari. The first respondent-Plaintiff went to
the office of the Circle Office Kanti and got cancellation of revenue
receipt in the name of defendant. The second respondent-Defendant Baidya
Nath Prasad filed mutation appeal. When the first respondent-Plaintiff came
to know that the second respondent-Defendant is trying to claim title over
the suit property through Tarawati Devi alleging that the suit property
belonged to Tarawati Devi, the first respondent-Plaintiff being the agnate
of Tarawati Devi filed a suit for declaration of his title.

4. Resisting the suit, second respondent-Defendant filed a written
statement refuting all claims of the first respondent-Plaintiff and
contending that the disputed property belonged to one Mr. Dhanukdhari
Sahay. The said Dhanukdhari Sahay had one son named Mr. Vasudev Prasad, who
further had a son and three daughters, namely, Ms. Tarawati Devi, Ms.
Lakshmi Devi and Ms. Ranjan Devi. Ms. Ranjan Devi died during the lifetime
of her father. Second respondent-Defendant further pleaded that the suit
property has been sold to various parties and the suit filed by the first
respondent-Plaintiff against the second respondent-Defendant is liable to
be dismissed. After the death of son Vasudev Prasad and others, the
disputed property came to be vested in Ms. Tarawati Devi’s name. The second
respondent-Defendant was the closest legal heir of Dhanukdhari Sahay and
after the death of Ms. Tarawati Devi in 1985, as per Section 15(2) of the
Hindu Succession Act, the property devolved upon second respondent-
Defendant by succession and mutation was effected in his name and he
started paying revenue in respect of the suit property which was mutated in
his name.

5. On the above pleadings, nine issues were framed in the trial court.
Number of witnesses were examined on the side of the first respondent-
Plaintiff as well as second respondent-Defendant. Upon consideration of
oral and documentary evidence, the trial court held that the first
respondent-Plaintiff has not produced any documents to show that the
property belonged to the family of Tej Pratap Narayan. The trial court held
that after the death of her father Dhanukdhari Sahay, Tarawati Devi became
the sole legal heir of the disputed property and as per Section 15(1)(b) of
Hindu Succession Act, if the deceased woman has acquired the property from
her parents, it will be inherited by the successors of the parents of the
deceased. It was further held that there is no record to show that Tarawati
Devi got the disputed property from her husband or father-in-law. The trial
court dismissed the suit holding that the first respondent-Plaintiff has
not produced the necessary documents to prove his title to the suit
property.

6. On appeal, the High Court reversed the findings of the trial court and
held that as per the Revisional Survey Record of Right, property was
recorded in the name of Umashanker Prasad, grandson of Girish Chandra
Prasad and on the death of Girish Chandra Prasad, his widow Tarawati Devi
became the absolute owner of the property and on her death in 1985, the
property devolved on her agnate-the first respondent-Plaintiff. After
referring to oral evidence and also the rent receipts produced by the first
respondent-Plaintiff in his name and in the name of Girish Chandra Prasad
(Ex.1-1/J and Ex. 1/K-1/M), it was held that the first respondent-
Plaintiff’s case about his agnate relationship with Girish Chandra Prasad
stood proved and thus the Plaintiff proved his title to the suit property.
On those reasonings, the High Court reversed the findings of the trial
court and allowed the first appeal and decreed the Plaintiff’s suit.

7. Learned counsel for the appellants submitted that though the suit filed
by the first respondent-Plaintiff was for declaration of title, no
documents of title pertaining to the suit property had been produced before
the court and the documents produced were merely rent receipts and mutation
record and on these documents, there could be no presumption of title and
while so, the High Court was not right by treating those documents as if
they were documents of title and reversing the judgment of the trial court.
It was submitted that in his cross-examination, first respondent-Plaintiff
(PW-3) admitted that Tarawati Devi had purchased the suit property two
acres and fifteen decimals of land and this admission made by the first
respondent-Plaintiff was not properly appreciated by the High Court.
Further contention of the appellants is that the High Court failed to
appreciate that in view of proviso to Section 34 of the Specific Relief
Act, the suit for declaration of title without any consequential relief of
possession was not maintainable. Main contention of the appellants is that
while the High Court impleaded the appellants as parties in the first
appeal, the High Court being the first appellate court, ought to have
afforded an opportunity to the appellants to file their documents and
submissions and the judgment of the High Court is in violation of
principles of natural justice in not giving opportunity to the appellants
who are bona fide purchasers for consideration.

8. Per contra, learned senior counsel for the first respondent-Plaintiff
submitted that the record of rights (Ex. 13 series) stood in the name of
Umashanker Prasad, the grandson of Girish Chandra Prasad and this record of
right was corroborated by the rent receipts which were in the name of
Girish Chandra Prasad as well as the first respondent-Plaintiff himself. It
was further submitted that apart from the documentary evidence, the oral
evidence of PW-3, PW-4, PW-10, PW-13 and PW-14 established that the suit
property belonged to Girish Chandra Prasad. It was contended that Girish
Chandra Prasad was the owner of the property and as per Section 15 of the
Hindu Succession Act, first respondent-Plaintiff, being the agnate of
Tarawati Devi, inherited the suit property and upon appreciation of oral
and documentary evidence, High Court rightly declared the first respondent-
Plaintiff’s title by reversing the judgment of trial court. It was further
contended that in spite of opportunities afforded, the second respondent-
Defendant did not produce the sale deeds executed by him in favour of the
appellants which clearly shows that the appellants are not bona fide
purchasers for value and the High Court rightly held that the appellants
cannot have a better title than that of the second respondent-Defendant.

9. The question falling for consideration is whether the property belonged
to Girish Chandra Prasad and after his death, his wife-Tarawati Devi
succeeded to the property of her husband and after her death devolves upon
her agnate first respondent-Plaintiff; or whether it belonged to
Dhanukdhari Sahay, father of Tarawati Devi from whom Tarawati Devi
inherited and as per Section 15(2) of the Hindu Succession Act whether the
second respondent-Defendant is entitled to succeed to the same.

10. The High Court has specifically dealt with two core issues:- one
relating to the genuineness of the genealogical table contained in the
plaint and the other relates to ascertainment of title of the first
respondent-Plaintiff over the suit scheduled property by the documents-
record of rights and rent receipts filed by the first respondent-Plaintiff.
Contention of the appellants is that the High Court, while arriving at the
conclusion, did not properly analyse the materials on record, in
particular, the evidence adduced by the second respondent-Defendant.
Further contention of the appellants is that the High Court being the first
appellate court, being the final court of facts, was bound to analyse the
evidence and record its reasonings, especially while it reversed the
findings of the trial court.

11. As per Order XLI Rule 31 CPC, the judgment of the first appellate court
must explicitly set out the points for determination, record its reasons
thereon and to give its reasonings based on evidence. Order XLI Rule 31 CPC
reads as under:

“Order XLI Rule 31: Contents, date and signature of judgment. – The
judgment of the Appellate Court shall be in writing and shall state –

the points for determination;

the decision thereon;

the reasons for the decision; and

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 propounded be signed and dated by the
Judge or by the Judges concurring therein.”

It is well settled that the first appellate court shall state the points
for determination, the decision thereon and the reasons for decision.
However, it is equally well settled that mere omission to frame
point/points for determination does not vitiate the judgment of the first
appellate court provided that the first appellate court records its reasons
based on evidence adduced by both the parties.

12. An appellate court is the final court of facts. The judgment of the
appellate court must therefore reflect court’s application of mind and
record its findings supported by reasons. The law relating to powers and
duties of the first appellate court is well fortified by the legal
provisions and judicial pronouncements. Considering the nature and scope of
duty of first appellate court, in Vinod Kumar v. Gangadhar (2015) 1 SCC
391, it was held as under:-

“12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court
held as under: (SCC pp. 188-89, para 15)

“15. … 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 along with the
contentions put forth, and pressed by the parties for decision of the
appellate court. … 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.”

The above view has been followed by a three-Judge Bench decision of this
Court in Madhukar v. Sangram (2001) 4 SCC 756, wherein it was reiterated
that sitting as a court of first appeal, it is the duty of the High Court
to deal with all the issues and the evidence led by the parties before
recording its findings.

13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court stated
as under: (SCC p. 244, para 3)

“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. Unfortunately, the
High Court, in the present case has not recorded any finding either on
facts or on law. Sitting as the first appellate court it was the duty of
the High Court to deal with all the issues and the evidence led by the
parties before recording the finding regarding title.”

14. Again in Jagannath v. Arulappa (2005) 12 SCC 303, while considering the
scope of Section 96 of the Code of Civil Procedure, 1908, this Court
observed as follows: (SCC p. 303, para 2)

15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530, this
Court taking note of all the earlier judgments of this Court reiterated the
aforementioned principle with these words: (SCC pp. 530-31, paras 3-5)

“3. How the regular first appeal is to be disposed of by the appellate
court/High Court has been considered by this Court in various decisions.
Order 41 CPC deals with appeals from original decrees. Among the various
rules, Rule 31 mandates that the judgment of the appellate court 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.

4. 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 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.
Sitting as a court of first 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.
(Vide Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, SCC p. 188,
para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758, para 5.)

5. In view of the above salutary principles, on going through the impugned
judgment, we feel that the High Court has failed to discharge the
obligation placed on it as a first appellate court. In our view, the
judgment under appeal is cryptic and none of the relevant aspects have even
been noticed. The appeal has been decided in an unsatisfactory manner. Our
careful perusal of the judgment in the regular first appeal shows that it
falls short of considerations which are expected from the court of first
appeal. Accordingly, without going into the merits of the claim of both
parties, we set aside the impugned judgment and decree of the High Court
and remand the regular first appeal to the High Court for its fresh
disposal in accordance with law.”

13. The points which arise for determination by a court of first appeal
must cover all important questions involved in the case and they should not
be general and vague. Even though the appellate court would be justified in
taking a different view on question of fact that should be done after
adverting to the reasons given by the trial judge in arriving at the
finding in question. When appellate court agrees with the views of the
trial court on evidence, it need not restate effect of evidence or
reiterate reasons given by trial court; expression of general agreement
with reasons given by trial court would ordinarily suffice. However, when
the first appellate court reverses the findings of the trial court, it must
record the findings in clear terms explaining how the reasonings of the
trial court is erroneous.

14. In the light of the above, when we consider the present case, we find
that in terms of Order XLI Rule 31 CPC, the High Court has neither framed
the points for determination nor discussed the evidence adduced by the
defendants. The High Court seemed to have only considered two aspects:- (i)
genealogical table produced by the first respondent-Plaintiff; (ii)
documentary evidence adduced by the first respondent-Plaintiff that is
Exhibit 13 series-entry in Survey Record of Rights and Rent receipts (Ex.
1/J and Ex. 1/K to 1/M) filed by the first respondent-Plaintiff. The
documentary evidence adduced by the first respondent-Plaintiff has been
refuted by the second respondent-Defendant. To support his defence plea,
second respondent-Defendant has adduced oral evidence by examining number
of witnesses. That apart, second respondent-Defendant mainly relied upon
the following evidence of first respondent-Plaintiff (PW-3):-

“Tarawati Devi had purchased total two acres and fifteen decimals of land.
I cannot tell the number of sale deeds. I don’t have the knowledge about
the resignation of her name on the said land. Till the time of her death,
the land purchased by her remained with Tarawati Devi. The land in dispute
in two acre and fifteen decimals in area. The land in dispute in the
present suit is the land purchased by Tarawati Devi.”

The High Court does not seem to have examined the above admission of the
first respondent-Plaintiff nor considered the oral evidence adduced by the
second respondent-Defendant. Being the first appellate court, the final
court on facts, the High Court should have considered the evidence adduced
by the first respondent-Plaintiff as well as the evidence adduced by the
second respondent-Defendant. But the High Court seems to have considered
only the evidence adduced by the first respondent-Plaintiff and not the
evidence adduced by the second respondent-Defendant and the alleged
inherent contradictions in the statement of first respondent-Plaintiff.

15. Learned counsel for the appellants has submitted that yet another issue
that arose for consideration was the maintainability of the suit in view of
the proviso to Section 34 of the Specific Relief Act, 1963. Learned counsel
for the appellants submitted that the suit had been filed by the first
respondent-Plaintiff for declaration of title to the suit properties which
belonged to Tarawati Devi without any further consequential relief for
possession or injunction and the suit was barred in view of the proviso to
Section 34 of the Specific Relief Act, 1963. Proviso to Section 34 of the
Specific Relief Act, 1963 is as under:-

“Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of
title, omits to do so.”

Drawing our attention to the above proviso to Section 34 of the Specific
Relief Act, 1963, the learned counsel for the appellants submitted that on
this plea, issue No. 6 was specifically framed by the trial court and even
though the trial court decided the issue in favour of the first respondent-
Plaintiff and the same being raised in the first appellate court, the High
Court should have considered the arguments advanced by the appellants on
the maintainability of the suit.

16. The appellants are the purchasers of various extent of plots in the
suit property from the second respondent-Defendant under various sale deeds
dated 22.11.19958, 29.09.1995, 29.03.1996, 07.08.1995, 20.11.2008 and
03.07.2007. The appellants moved I.A. No. 5250/2010 in F.A. No. 230/2007
before the High Court for their impleadment under Order I Rule 10 of CPC
and the said application was allowed by the High Court vide order dated
02.08.2010. After the appellants were impleaded as parties in the appeal,
the appellants were not given any opportunity to adduce any evidence or
make their submission. The High Court has only referred to the evidence
adduced by the first respondent-Plaintiff and simply held that failure on
the part of second respondent-Defendant to establish his title over the
suit properties precludes the appellants from claiming any title or
interest over the suit scheduled properties, as they had derived the title
from the defendants. We are of the view that having impleaded the
appellants as parties to the first appeal, it seems inappropriate to record
such a finding without affording an opportunity to the appellants and
without examining the claim of the present appellants. After impleading
them as parties, without affording an opportunity to the appellants, the
High Court skirted the claim of the appellants by observing that the
appellants having purchased the suit property subsequent to filing of the
suit and if the second respondent-Defendant had no title then there is no
question of transferring any title or interest or possession by the second
respondent-Defendant to the transferee arises. We find substance in the
contention of the appellants that having been impleaded as parties in the
High Court, they ought to have been given an opportunity to adduce
additional evidence and make their submission to substantiate their claim
that they are bona fide purchasers for value. In our view, having impleaded
the appellants, in terms of Order XLI Rule 27 CPC, the High Court ought to
have given an opportunity to the appellants to adduce additional evidence
and make their submission.

17. Learned senior counsel for the first respondent-Plaintiff submitted
that the second respondent-Defendant has stated in paragraph (15) of the
written statement that he had sold different portions of the suit land to
different persons. It was submitted that on application filed by the first
respondent-Plaintiff, the trial court passed an order on 27.10.2005
directing the second respondent-Defendant to produce the sale deeds in
question within fifteen days or otherwise he would have no right to produce
the same. The learned Senior counsel for the plaintiffs submitted that in
spite of the said order, second respondent-Defendant did not produce any of
the sale deeds and while so, the appellants are precluded from raising the
plea of non-affording of opportunity to the appellants and the High Court
rightly held that the appellants cannot claim a better title than that of
the second respondent-Defendant. Before the trial court, only the second
respondent-Defendant was the party. Any order passed by the trial court
against the second respondent-Defendant cannot preclude the appellants from
putting forth their plea by filing additional documents.

18. As discussed earlier, the High Court has not considered the evidence
adduced by the defendants. Having impleaded the appellants as parties in
the first appeal, in terms of Order XLI Rule 27, the High Court ought to
have afforded an opportunity to the appellants to adduce oral and
documentary evidence and make their submissions.

19. In the result, the impugned judgment of the High Court in First Appeal
No. 230 of 2007 dated 30.07.2007 is set aside and the matter is remitted
back to the High Court for consideration of the matter afresh. First
respondent-Plaintiff, being the appellant before the High Court, is
directed to take steps for impleading the legal representatives of the
deceased second respondent-Defendant. The High Court shall afford
sufficient opportunity to both the parties to adduce additional evidence,
both oral and documentary and further afford sufficient opportunity of
hearing to both the parties. Since the suit is of the year 1994, we request
the High Court to dispose the appeal expeditiously in accordance with law.
We make it clear that we have not expressed any opinion on the merits of
the matter.

………………………….J.

[R.K. AGRAWAL]

.………………………..J.

[R. BANUMATHI]

New Delhi;

December 15, 2016

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