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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4426 OF 2011
LALITESHWAR PRASAD SINGH & ORS.
V
S.P. SRIVASTAVA (D) THR. LRS.
Dated:December 15, 2016.
Citation:(2017) 2 SCC 415
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.
3Page 4
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.
4Page 5
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
5Page 6
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.
6Page 7
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:
7Page 8
“Order XLI Rule 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 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)
8Page 9
“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.
9Page 10
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
14Page 15
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
15Page 16
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
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4426 OF 2011
LALITESHWAR PRASAD SINGH & ORS.
V
S.P. SRIVASTAVA (D) THR. LRS.
Dated:December 15, 2016.
Citation:(2017) 2 SCC 415
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.
3Page 4
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.
4Page 5
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
5Page 6
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.
6Page 7
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:
7Page 8
“Order XLI Rule 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 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)
8Page 9
“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.
9Page 10
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
14Page 15
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
15Page 16
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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