Friday 3 June 2016

Basic principle for exercise of power of remand of case to lower court

 From   the   cases   cited   by   Mr.   Deshmukh,   it
would   be   clear   that   substantial   compliance   of   Order
XLI Rule 31 is sufficient if justice has not suffered
by   non­framing   the   proper   issues   for   determination.
Failure to frame points for determination was held to
be not resulting into vitiating the judgment if the
appellate Court has considered the entire evidence on
record and properly appraised the evidence.   It was
further cautioned that the power to remand should not
be   ordinarily   exercised   merely   because   certain
technical lacuna remains there.                 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 631 OF 2012
WITH
CIVIL APPLICATION NO.10748 OF 2012
 Motiram Lobhaji Pawar
   
        VERSUS
 Pandurang Chudaman Kalam

CORAM    : M.T. JOSHI, J.

 DATE OF PRONOUNCING : 01ST JULY, 2013



1. Heard Mr. S.S. Bora and Mr. A.S. Deshmukh on
the   question   of   admission   of   the   present   Second
Appeal.                                                                      
2. The present appellants who are the original
defendants   no.2   and   3   suffered   a   decree   of
declaration of ownership and permanent injunction in
respect of two suit lands at the hands of the trial
Court   as   well   as   the   first   appellate   Court   i.e.
Additional District Judge at Gangakhed.  
3. Present   respondent   no.1   Pandurang   filed   a
suit claiming the above reliefs.   His case was that
the suit lands bearing survey no. 104/3 and 15/2 of
village   Shaikh   Rajur,   Tq.   Palam,   Dist.   Parbhani   are
his   self­acquired   properties.   He   has   purchased   the
same   for   a   valuable   consideration   vide   sale   deed
dated 16.4.1971 and 24.6.1977.   The mutation entries
were also effected in his favour.  The father of the
respondent­plaintiff   Chudaman   died   in   the   year
1951­1952.     Sofar   as   the   ancestral   properties   are
concerned,   he   and   his   brothers   inherited   the   same.
Eldest   brother   was   Bhimrao   who   was   karta   of   the
family.     At   the   time   of   filing   of   the   suit   in   the
year   2000,   the   said   Karta   had   also   died.   The
respondent­plaintiff   was   living   separately   from   his
family   and   from   his   own   source   of   income   he   has                                                                    
purchased   suit   lands   and   was   and   is   in   possession
since   the   year   1971   and   1977   respectively.   His
another   brother   Shankar   Chudaman   (Defendant
no.1/respondent no.2), however, in collusion with the
revenue   authorities   got   certain   entries   made   in   the
revenue   record   and   the   present   appellants   started
claiming   to   be   the   purchaser   of   the   said   land   from
defendant no.1.   In the circumstances, the suit came
to be filed. 
4. The   case   of   the   original   defendant
no.1/respondent   no.2­Shankar   was   that   the   suit
properties   were   purchased   in   the   name   of   respondent
no.1­plaintiff from the joint family fund.   As such,
he   has   half   share   in   the   suit   property   and
accordingly   mutation   entries   no.1303   and   1941
respectively were taken in his favour by the revenue
authorities.     The   present   appellant   submitted   that
they   had   purchased   the   suit   properties   from   the
defendant no.1 upon verifying the fact that his name
is   entered   in   the   revenue   record.   They   are   the
bonafide   purchasers   for   value   without   notice   of   the
claim of the respondent no.1­plaintiff and therefore
they sought dismissal of the suit.                                                               
5. The learned Judge of the trial Court framed
as many as eight issues.  Oral as well as documentary
evidence was produced by the sides i.e. the original
sale   deeds,   old   revenue   entries,   7/12   extracts   were
pressed   into   service   by   respondent   no.1­plaintiff.
On   the   contrary,   defendant   no.1   i.e.   the   present
respondent no.2 Shankar has examined eight witnesses
besides himself and present appellant no.2. 
6. Subsequent revenue entries were also placed
on record.  Defendant no.2 i.e. present appellant no.
2 was examined on behalf of the defendant no.1 i.e.
respondent no.1­Shankar and as such a common evidence
close   pursis   at   Exhibit   125   was   filed.     The
documentary evidence was same.  
7. The learned Judge of the trial Court came to
the   conclusion   that   the   respondent   no.1­plaintiff
proved   his   title   and   his   possession   over   the   suit
land.   The   case   of   the   present   appellant   and
respondent   no.2   that   the   suit   lands   were   the
ancestral   properties   of   the   joint   family   was
negativated.     It   was   found   that   the   present
appellants are not the bonafide purchasers for value                                                                  
without   notice   of   the   claim   of   the   plaintiffrespondent
  no.1   and   as   such   the   suit   came   to   be
decreed. 
8. The   present   appellants   took   the   matter   to
the District Court vide Regular Civil Appeal no. 12
of   2009.     The   learned   Additional   District   Judge,
Gangakhed   framed   a   single   point   for   determination
i.e.   "whether   the   appellants   prove   that   impugned
judgment and order passed in Regular Civil Suit no.
15   of   2008   dated   30.3.2009   is   wrong,   erroneous   and
needs   to   be   quashed".     The   finding   was   recorded   in
the   negative   and   the   Appeal   came   to   be   dismissed.
Hence, the present Second Appeal. 
9. Mr.   S.S.   Bora,   learned   counsel   for   the
appellants submits that a substantial question of law
in   the   instant   case   is   as   to   whether   the   lower
appellate Court being a final fact finding Court has
framed   proper   points   for   determination   and   if   this
Court come to the conclusion that the proper points
were not framed then whether the matter requires to
be   remanded   back   to   the   lower   appellate   Court   for
afresh hearing.                            
10. Besides this, in the Appeal memo vide ground
no. 5, it was submitted that the substantial question
of   law   in   the   instant   Appeal   is   whether   the   Courts
below   appreciated   the   evidence   on   record   in   respect
of   the   claim   of   the   appellants   that   they   are   the
bonafide   purchasers   without   notice   and   for   valuable
consideration of the suit lands. 
11. Mr.   Bora   vehemently   submitted   that   the
learned appellate Judge did not at all formulate any
points   for   determination   which   is   requirement   of
Order   XLI   Rule   31   of   the   Code   of   Civil   Procedure,
1908.     He   further   submits   that   not   only   the   points
for   determination   are   required   to   be   formulated   but
with reference to such points, material on record is
required   to   be   analyzed   and   thereupon   the   Court   is
required to arrive at a conclusion to be delivered as
its decision.   In the circumstances, relying on the
ratio   of   (i)  Khatunbi   Mohammad   Sayeed   and   ors.   Vs.
Aminabai   Mohammad   Sabir   and   ors.   2007   (2)   Bom.C.R.
900,  (ii) H.   Siddiqui   (dead)   by   LRs.   Vs.   A.
Ramalingam 2011 LawSuit (SC) 180 and (iii) unreported
Judgment   in  Abdul   Kadar   S/o   Mohammad   Ibrahim   Vs.                                                                
    Ammenabi w/o Sk. Mohiuddin and ors.  in Second Appeal
no. 68 of 1991 decided by this Court on 14.10.2008,
he submitted that the substantial question of law as
detailed supra be framed. 
12. On the other hand, Mr. A.S. Deshmukh learned
counsel   for   respondent   no.1   i.e.   the   original
plaintiff submits that reading of the entire judgment
of   the   first   appellate   Court   would   reveal   that   the
learned   Judge   was   alive   of   the   issues   those   have
arisen   between   the   parties.     The   learned   Judge   has
put on record the rival arguments of both the sides,
appreciated the documentary as well as oral evidence
on   record   as   regards   each   of   the   points   those   were
framed   by   the   learned   trial   Judge   and   ultimately
concurred   with   the   findings   of   fact   independently.
He   submitted   that   when   the   first   appellate   Court
concurs   with   the   findings   of   the   trial   Court,   no
elaborate   reasoning   is   required.     In   the
circumstances,   merely   because,   technically   each   and
every   issue   was   not   converted   to   the   points   for
determination   by   the   learned   Judge   of   the   first
appellate   Court,   it   would   not   mean   that   any                                                                    
substantial question of law has arisen mandating the
remand of the matter to him/her. 
13. Mr.   Deshmukh   relies   on   the   ratio   of   the
following authorities:
(i) G. Amalorpavam and ors. V. R.C. Diocese
of Madurai and ors. 2006(2) ALL MR 136
(S.C.)
(ii)  M/s.   Nopany   Investments   (P)   Ltd.  Vs.
Santokh Singh (HUF) 2008(1) SRJ 417
(iii)  Ashwinkumar   K.   Patel  Vs.   Upendra   J.
  Patel and ors. AIR 1999 SC 1125
(iv) P. Purushottam Reddy and anr. Vs. M/s.
Pratap Steels Ltd. AIR 2002 SC 771
(v) Sayed Akbar S/o Sayed Noor Vs. Dhondiba
S/o Namdeo Bhosale and anr. 2011(1) ALL
MR 791
(vi)  Beniram   Shriram   Wani   and   anr.   Vs.
Ramchandra   Nathalal   Gujarathi   2011(2)
ALL MR 667
(vii) Maya Devi (dead) through LRs. vs. Raj
Kumari Batra (dead) through LRs. and
ors. 2011(1) Mh.L.J. 683.
14. Reading   of   the   judgment   of   the   first
appellate Court would show that the learned Judge has
placed on record all the material pleadings of both
the sides.   Thereafter, the documents from both the
sides   were   also   placed   on   record.     Thereafter,   the                                                                
oral as well as documentary evidence is adverted to.
Thereafter, a single point for determination came to
be formulated and the necessary finding was arrived.
Thereafter,   the   reasons   for   coming   to   the   said
conclusion   are   given   by   adverting   attention   to   each
and   every   issue   that   has   arisen   in   the   present
proceeding.     The   ratio   of   the   authorities   cited   by
both   the   sides   was   also   taken   into   consideration.
The   salient   feature   that   the   respondent   no.1­
plaintiff   resided   away   from   the   ancestral   place   and
sale deeds were executed in his favour thirty years
back   were   also   taken   into   consideration.     On   the
other   hand,   the   fact   that   the   present   appellants
failed   to   file   even   the   sale   deed   alleged   to   have
been   executed   by   the   respondent   no.2   i.e.   original
defendant   no.1   in   their   favour   was   also   noted   and
ultimately,   by   concurring   with   the   findings   of   the
learned   trial   Court,   the   Appeal   was   dismissed   with
costs.       Thus,   though   not   each   and   every   issue   is
converted   into   the   points   for   determination,
ultimately, the whole of the evidence was analyzed by
the learned Judge of the first appellate Court.                                                                      
15. In   the   cases   relied   on   by   Mr.   S.S.   Bora,
detailed supra, besides non­framing of the points for
determination as is the direction contained in Order
XLI   Rule   31   of   the   C.P.C.,   the   judgment   therein
delivered by the first appellate Court revealed that
there   was   no   appreciation   of   evidence   led   by   the
parties.   In the case of  Khatunbi  (cited supra) the
ratio of earlier decision in the case of Vishwas Balu
v. Ghasiram Ramratan Jajum A.I.R. 1975 Bom. 278 was
adverted   to.     It   was   ruled   in   that   case   that   the
compliance   of   Order   XLI   Rule   31   of   the   C.P.C.   is
mandatory.  
16. In the case of H. Siddiqui (cited supra) the
Supreme Court was considering the case where the High
Court   in   First   Appeal   without   dealing   with   the
relevant   issue   of   alleged   power   of   attorney,   jumped
for   considering   other   points   for   determination.     In
that   circumstances,   it   was   observed   that   the
provision of Order XLI Rule 31 of the C.P.C. provides
for   guidelines   for   the   first   appellate   Court   as   to
how   the   Court   has   to   proceed   and   decide   the   case.
However,   in   that   case   in   paragraph   no.18   it   was                                                      
observed   that   if   the   appellate   Court's   judgment   is
based   on   independent   assessment   of   the   relevant
evidence on all aspects of the matter, there would be
substantial compliance of the said provision.  In the
case   of  Abdul   Kadar  (cited   supra)   (unreported
Judgment   in   S.A.   68   of   1991)   the   similar   issue   was
there which has been answered on the similar lines. 
17. From   the   cases   cited   by   Mr.   Deshmukh,   it
would   be   clear   that   substantial   compliance   of   Order
XLI Rule 31 is sufficient if justice has not suffered
by   non­framing   the   proper   issues   for   determination.
Failure to frame points for determination was held to
be not resulting into vitiating the judgment if the
appellate Court has considered the entire evidence on
record and properly appraised the evidence.   It was
further cautioned that the power to remand should not
be   ordinarily   exercised   merely   because   certain
technical lacuna remains there. 
18. In   the   present   case,   we   have   also   noticed
that   though   the   Judge   of   the   first   appellate   Court
was   wrong   in   not   framing   proper   points   for
determination,   the   reading   of   the   entire   judgment                                                               
would   show   that   paragraph­wise   appreciation   of   the
pleadings,   oral   as   well   as   documentary   evidence,
arguments   and   case­law   minutely   is   made   by   the
learned   Judge.     Thereafter,   the   findings   are
recorded.   In the case of  M/s. Nopany  (cited supra)
relied in by Mr. Deshmukh, it is held by the Supreme
Court that the well settled principle is that in case
the   first   appellate   Court   decides   to   reverse   the
findings   of   the   trial   Court   then   it   is   required   to
give reasons for reversing the same whereas in case
of confirming the judgment, the first appellate Court
can   merely   accept   the   reasons   and   findings   of   the
trial Court.  
19. In this view of the matter, in my view, no
substantial   question   of   law   is   involved   in   this
Appeal, as has been argued by Mr. Bora. 
20. Besides this, though in the Appeal memo, it
is   stated   that   both   the   Courts   below   have   not
properly appreciated the documentary as well as oral
evidence   regarding   the   claim   of   the   present
appellant,   that   they   are   bonafide   purchaser   without
notice of the claim of the respondent no.1, both the                                                                     
Courts below have held that even they failed to file
the   sale   deed,   alleged   to   have   been   executed   by
respondent   no.1   i.e.   defendant   no.1   much   less   the
proof of the same.   In that view of the matter, the
Appeal   is   rejected   without   any   order   as   to   costs.
Consequently,   Civil   Application   no.   10748   of   2012
seeking   stay   to   the   execution   of   the   decree   also
stands disposed of.
    [M. T. JOSHI, J.]

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