First Appeal dismissed. Appellate court quashes lower appellate decree decreeing suit for declaration and possession held wrongly maintainable and evidence insufficiently appreciated. Appeal restored trial court judgment setting aside suit.
Judgment and decree of First Appellate Court set aside; judgment and decree of Trial Court restored.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 4 of 2006 Reserved on: 28.08.2023 Date of Decision: 27.09.2023
Naresh Kumar ...Appellant. Versus Amra Devi and others ...Respondents.
Coram
Hon’ble Mr. Justice Rakesh Kainthla , Judge.
Whether approved for reporting?1 Yes
| For the Appellant | : | Ms Devyani with Mr. Advocate. |
Sharma Basant |
, Sr. Pal |
Advocate Thakur, |
|---|---|---|---|---|---|
| For the Respondents | : | Mr. Suneet Respondents |
Goel, No.1 an |
Advo d 2. |
cate for |
| Respondent | No.3 sta | nds d | eleted. |
Rakesh Kainthla, Judge
The present appeal is directed against the judgment & decree dated 24.10.2005, passed by the learned Additional District Judge (Presiding Officer, Fast Track Court), Solan, District Solan, H.P., vide which the appeal filed by the present respondents (plaintiffs before the learned Trial Court) was
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
allowed and the judgment and decree dated 25.4.2005, passed by learned Civil Judge (Junior Division), Arki, District Solan, H.P. was set-aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
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born to the parties. The marriage was solemnized by Padam Dev, Vaid, a resident of Kalyanpur. The people of Village Basantpur participated in the marriage and took food in the house of Narotam, the father of Paragu. Amra Devi was married 10 years before the filing of the suit and she was residing in her matrimonial home. Balak Ram died on 26.12.1996 while discharging his duties at Gumma. No intimation was given to the plaintiff no.2 because plaintiff no.1 is residing at Village Kuhawi and plaintiff no.2 is residing at Shimla. The relationship between the plaintiffs and Balak Ram was strained. The defendant propounded an unregistered Will stated to have been executed by Balak Ram in his favour; however, it is a result of fraud and misrepresentation. Balak Ram was working in the Electricity Department near Rampur and he was on duty on 14.8.1995. It was highly improbable that he would have visited the village to execute a Will on 15.8.1995 and joined his duties on 16.8.1995. The defendant got mutation no. 1036 attested in his favour on 5.2.1997. Learned AC-2nd Grade, Arki did not carry out the proper inquiry before attesting the mutation. The plaintiffs are entitled to inherit the estate of Balak Ram; hence suit was filed to seek the reliefs mentioned above.
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cause of action and maintainability, the plaintiffs being out of possession, the suit being bad for want of material and necessary particulars, improper valuation of the suit and the plaintiffs being estopped from filing the present suit by their act and conduct. The contents of the plaint were denied on merits. It was specifically denied that plaintiff no.1 is the daughter of the deceased and plaintiff no. 2 is the widow of the deceased. It was asserted that there is no customary law applicable to the Arki area. The marriages are solemnized according to the Hindu religion. The suit has been filed in collusion with Padam Dev Vaid, Mansa Ram and Nek Ram. Pragu never lived as the wife of the deceased Balak Ram and plaintiff no. 1 is not the daughter of the deceased. The defendants did not know about the marriage of Amra Devi (plaintiff no. 1). There was no relationship between the plaintiff and the deceased Balak Ram. The plaintiffs have fabricated a false story. Kuwahi is located at a distance of 30-40 kilometres from Koiru Shehrol. The defendant is the brother’s son of the deceased. The deceased also treated defendant no. 1 as his son because he had no issue at the time of his death nor had
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he any wife. The defendant and his father served the deceased and performed his last rites. The suit for declaration without seeking possession is not maintainable. The deceased executed the Will in favour of the defendant after being satisfied with the services rendered by the defendant. Hence, it was prayed that the suit be dismissed.
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birth certificate (Ex.PW-1/A) was produced but Balak Ram mentioned in the certificate cannot be connected to Balak Ram (deceased). Plaintiff No. 1 did not step into the witness box and adverse inference has to be drawn against her. Learned Trial Court answered issues no. 1 to 3 and 7 in negative, issues No. 4 and 5 in affirmative, Issue No. 6 as not pressed and dismissed the suit.
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rejecting the birth certificate on the ground that it could not be connected to Balak Ram (deceased) because there was no evidence that any other Balak Ram resided in Village Kuwru Shehrol. There was no dispute between the parties regarding the ceremonies performed at the time of the marriage, therefore, the testimony regarding the form of marriage was not material. Copy of the petition filed by the plaintiff under Section 10 of the Hindu Marriage Act also corroborated her version that she was the wife of Balak Ram. The plaintiffs were out of possession and they had not sought the relief of possession; however, they had sought the relief of injunction and the Court had the power to modify the relief. Hence, the learned First Appellate Court set aside the judgment and decree passed by the learned Trial Court and decreed the suit for declaration and possession.
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defendants had examined four witnesses. Many documents were produced. However, these were not appreciated by the learned First Appellate Court. The defendants had specifically pleaded that the deceased was not married and he had no child. Learned First Appellate Court erred in holding that the denial was confined to the time of the death. The name of the mother and child were not mentioned in the birth certificate and there was no evidence to connect the birth certificate to the plaintiffs. No prayer was made for delivery of possession and the learned First Appellate Court erred in granting the relief of possession. A suit for declaration without seeking the possession was not maintainable; hence, it was prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set aside.
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respondents-plaintiffs for non-appearance of respondent No.1 by not considering the provisions of Section 114(g) of the Indian Evidence Act?
documentary evidence as required of it in view of the judgment of Hon’ble Apex Court reported in 2000 (5) SCC 652?
Counsel, assisted by Mr. Basant Pal Thakur, Advocate, for the appellants-defendants and Mr. Suneet Goel, learned Counsel for the respondents-plaintiffs no. 1 and 2.
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approach of the learned First Appellate Court was vitiated by stressing the words, “at the time of the death”. There was no evidence to corroborate the version of Paragu. No document was produced to show that the plaintiffs were ever treated to be wife and daughter by Balak Ram. Balak Ram was admittedly serving in the Electricity Department and the record could have been produced to show that Balak Ram had declared the plaintiffs to be his wife or daughter. Even the admission register of plaintiff no. 1 was not brought on record to show that she was mentioned as the daughter of Balak Ram in the school record. No witness from the locality was examined to establish this fact. The burden of proof was upon the plaintiffs and they failed to discharge the same. A civil suit for declaration and consequential relief of permanent prohibitory injunction could not have been decreed when the plaintiffs were found out of possession. Such a suit was not maintainable and was liable to be dismissed. Therefore, she prayed that the present suit be allowed and judgment and decree passed by the learned First Appellate Court be set aside.
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submitted that there was no infirmity in the same. Learned Trial Court had rejected the case of the plaintiffs on irrelevant consideration, which error was rectified by the learned First Appellate Court. The statements of the plaintiff and her witnesses were satisfactory and there was no occasion for drawing an adverse inference against Amara Devi. Hence, he prayed that the present appeal be dismissed.
Substantial Questions of Law No. 1 and 5:
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they are not related to deceased Balak Ram. Plaintiffs Amara Devi and Paragu are not the daughter and widow of the deceased respectively. It was stated in para-4 of the preliminary objections that the entire estate of deceased Balak Ram is in possession of the defendant who is the brother’s son of the deceased. Balak Ram had also treated defendant no. 1 as his son because the deceased had no issue at the time of his death nor had he any wife. It was stated in para-7 of the preliminary objections that plaintiffs never asserted themselves to be the widow or daughter of the deceased. Plaintiff No. 1 never came to the house of the deceased during his lifetime nor was she ever seen living with the deceased as his daughter. Similarly, plaintiff no.2 was not seen living with the deceased at any time, hence plaintiff no.1 and 2 are bound to prove their relationship with the deceased Balak Ram. In para-1 of the reply on merits, it was vehemently denied that plaintiff no.1 was the daughter of the deceased and plaintiff no. 2 was the widow of the deceased. Paragu never lived as the wife of the deceased Balak Ram and the plaintiff No.1 is not the daughter of the deceased. In para-2 of the reply on merits, it was vehemently denied that Balak Ram was the husband of plaintiff no. 2. The Plaintiff No.2 was
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required to prove the fact that she was the wife of the deceased at the time of the death and similarly plaintiff no.1 is also required to prove her relationship with the deceased. It was asserted in para-3 of the reply on merits that there was no relationship between the plaintiffs and the deceased Balak Ram. The suit is bound to fail. The plaintiffs have fabricated a false story. It was stated in para-4 of the reply on merits that the deceased had no wife at the time of his death, who died issueless. The plaintiffs have to prove that plaintiff no. 1 is the daughter and plaintiff no. 2 is the widow of the deceased. None of the plaintiffs are related to the deceased to enable them to succeed to the estate of the deceased. It was stated in para-5 of the reply on merits that plaintiffs have no relations with the deceased nor they were seen living in the company of the deceased. The deceased lived with the father of defendant no. 1 and treated the defendant like his son. It was not understood how the plaintiffs were styling themselves as the widow and daughter of the deceased who are not related as such. The plaintiffs are trying to get the property of the deceased. It is for the plaintiffs to prove that they are entitled to succeed being his widow and daughter. It was stated in para-6 of the reply on
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merits that plaintiffs are not legal heirs of the deceased and no question of calling them as such arose. It was stated in para-7 that the plaintiffs have no right to succeed the estate of the deceased as neither of them is recorded as widow and daughter of the deceased because the deceased had no wife at the time of his death nor did he have the daughter named plaintiff no. 1. Deceased died issueless. plaintiff no. 1 is a stranger who seems to be the daughter of plaintiff no.2 from somebody else because Plaintiff No. 2 was not the wife of the deceased at the time of his death.
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defendant. When the defendant was consistently denying the relationship between the plaintiffs and the deceased, the words “at the time of death” should not have been highlighted to hold that there was a denial of the relationship only at the time of the death. It was laid down by the Hon’ble Supreme Court in Des Raj v. Bhagat Ram, (2007) 9 SCC 641: 2007 SCC OnLine SC 221 that the pleadings in the Mufassil have to be construed liberally as a whole. It was observed at page 647: -
17. It may be true that in his plaint, the plaintiff did not specifically plead ouster but muffosil pleadings, as is well known, must be construed liberally. Pleadings must be construed as a whole.
18. In Devasahayam v. P. Savithramma [(2005) 7 SCC 653] this Court opined: (SCC p. 661, para 20)
“ 20 . The pleadings as are well known must be construed reasonably. The contention of the parties in their pleadings must be culled out from reading the same as a whole. Different considerations on the construction of pleadings may arise between pleadings in the mofussil court and pleadings in the original side of the High Court.”
19. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of the statute are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 1963 vis-à-vis Articles 142 and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore not in dispute
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that the possession of a co-sharer is presumed to be the possession of the other co-sharers unless the contrary is proved.
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contents of the birth certificate (Ext.PW-4/A) because it does not mention the name of Amra Devi and even the date of birth is five years after the marriage.
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the Court. It is not even signed by the counsel or the petitioner Paragu Devi. Learned Trial Court had rightly pointed out that this document mentions that Paragu Devi had given birth to one daughter Nirmala who was alive and one son who died when he was 27 days old. The plaint does not mention the birth of any son. Even Mansa Ram (PW-3), brother of Paragu Devi stated in his examination-in-chief that one daughter was born to Paragu who is married. He has not stated anything about the birth of the son. Thus, the learned Trial Court had rightly declined to place reliance upon this document and the Learned First Appellate Court erred in holding this document corroborated the version of the plaintiff.
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Trial Court had rightly declined to place reliance on his testimony.
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marriage and if there was a discrepancy regarding the marriage, the whole marriage would become doubtful.
“43. In Rajbir Kaur v. S. Chokesiri and Co. [(1989) 1 SCC 19: AIR 1988 SC 1845] this Court held that the trial court is the best judge of evidence. Furthermore, in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714: AIR 1951 SC 120] , this Court held, that when there is a conflict of oral evidence of the parties on any matter in
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issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice, or where there is a sufficient balance of improbability to displace his opinion as to where credibility lies, the appellate court must ( sic not) interfere with the finding of the trial Judge on a question of fact.
44. In Jagdish Singh v. Madhuri Devi [(2008) 10 SCC 497: AIR 2008 SC 2296] this Court held : (SCC pp. 507-08, paras 35 & 37)
37. … When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law.”
[See also Dharamvir v. Amar Singh [(1996) 3 SCC 158: AIR 1996 SC 2314] (SCC p. 170, para 12), Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179: AIR 2001 SC 965] and G. Amalorpavam v. R.C. Diocese of Madurai[(2006) 3 SCC 224] .]
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45. Similarly, in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179: AIR 2001 SC 965] this Court observed : (SCC p. 188, 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. … While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law, if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or conjectures and surmises, the appellate court is entitled to interfere with the finding of fact.”
[See also Union of India v. Ranchod [(2007) 14 SCC 326: AIR 2008 SC 938 ] (SCC pp. 330-31, para 11).]
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witness of the village who had treated them as husband and wife. She has not even examined any witnesses from her paternal home who had treated her and Balak Ram as husband and wife. The best evidence would have been the evidence of the villagers who had seen the plaintiff Paragu and Balak Ram residing together as husband and wife and professing to the world that they were husband and wife. No document was produced to show that Balak Ram ever acknowledged Paragu Devi as his wife or Amra Devi as his daughter. It is an admitted version that Balak Ram was a public servant. He could have declared the relationship in medical reimbursement, GPF nomination, or the service record; however, no such record was produced to corroborate the version of the plaintiff Paragu Devi. Thus, in these circumstances, her version could not have been relied upon, merely because the defendant had stated in some parts of the written statement that Balak Ram had no wife or daughter living at the time of his death.
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their own legs and could not take advantage of the weakness of the case of the defendants. A stray suggestion on behalf of the defendants that she had not served the deceased Balak Ram cannot lead to any interference that the marriage was admitted in the absence of any other corroborating evidence.
Substantial Question of Law No.2:
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“ 9. The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit schedule property was described as no. 44/6. The respondents in their written statement claimed ownership and possession of property no. 42, acknowledging that other properties lay in between. A feeble vague objection was raised, but not pursued, questioning the title of the appellants. The respondents raised no genuine objection to the validity or genuineness of the government documents and the registered sale deeds produced by the appellants in support of their lawful possession of the suit property. The original defendant no. 1 did not appear in person to depose and be cross-examined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother. No explanation was furnished as to why the original defendant did not appear in person to depose. We find no reason not to draw an adverse inference against defendant no. 1 in the circumstances.
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"17.....Having not entered into the witness box and having not presented himself for crossexamination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872."
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Substantial Question of Law No.3:
(2015) 11 SCC 269: 2015 SCC OnLine SC 26 at page 273, as under:-
“10. The powers of the first appellate court, while deciding the first appeal under Section 96 read with Order 41 Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
“1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
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and I have no doubt that in the present case, the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court.
“ 32.1. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] (relevant portion of para 15) is reproduced below : (SCC pp. 188-89)
“ 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 if 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 the 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
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satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.”
32.2. In H.K.N. Swami v.Irshad Basith,(2005) 10 SCC 243] , this Court again reiterated the same principle in para 3 of the judgment: (SCC p. 244)
“ 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.”
32.3. In 2015, this Court again in Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder : (SCC p. 396)
“ 18 . In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial court can be sustained or not and if so, how, and if not, why.
19 . Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31CPC mentioned above. It was unfortunately not done, thereby,
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resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, that we were unable to uphold the impugned judgment [ Vinod Kumar v. Gangadhar First Appeal No. 173 of 1999, order dated 213-2013 (MP) ] of the High Court.”
32.4. Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjula v. Shyamsundar, (2022) 3 SCC 90 : (2022) 2 SCC (Civ) 33 ] , reiterated the same view in para 8 thereof, which is reproduced hereunder : (SCC p. 96)
“ 8 . Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state:
( a ) 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.
Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect a conscious application of mind and must record the court's findings, supported by reasons for its decision
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in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31CPC and nonobservance of these requirements lead to infirmity in the judgment.”
33. From the above settled legal principles on the duty, scope and powers of the first appellate court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular, which had been relied upon by the trial court. The impugned judgment [ K.P. Basavaraj v. Somakka, 2006 SCC OnLine Kar 992 ] of the High Court is thus unsustainable in law and liable to be set aside.”
Greater Noida Industrial Development Authority, 2023 SCC OnLine
SC 768 , wherein, it was observed:
“19. In the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs. (2001) 2 SC 407 , this Court held that the court of appeal has a duty to apply its mind to all issues raised before it and to discharge such duty, it must also record its findings against all such issues raised. For the sake of convenience, the relevant paragraph of the said judgment is being extracted herein:
"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
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along with the contentions put forth, and pressed by the parties for the 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."
v. Roop Singh 2019 SCC OnLine HP 550 wherein it was held:
“3. It is a settled principle of law that the right to file the first appeal against the decree under Section 96 of the Code of Civil Procedure is a valuable legal right of the litigant. The jurisdiction of the First Appellate Court while hearing the First appeal is very wide like that of the learned trial Court and it is open to the appellant to attack
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all findings of fact or/and of law in the first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a different conclusion from that of the trial Court. While doing so, the judgment of the Appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all 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.
"11. Having heard learned counsel for the parties and on perusal of the record of the case and examining the issue arising in this appeal, we find force in the submissions of the learned counsel for the appellants.
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first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under:
"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
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".........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 the 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............"
"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
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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."
"2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."
"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.
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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 at p. 188, para 15 and Madhukar v.Sangram, (2001) 4 SCC 756 at p. 758, para 5 .)
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arising in Vinod Kumar vs. Gangadhar, (2014) 12 Scale 171. "
Substantial Question of Law No.4:
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maintainable when the plaintiff is out of possession. I t was held
at page 60: -
“2. The fact-finding courts, namely the trial court as well as the appellate courts have come to the conclusion that during the lifetime of Chhabili, she was in possession of a portion of the suit properties and the other portion remained in possession of the plaintiffs. The further finding reached by those courts is that after the death of ChhabiliKuer, Ganga Devi took unlawful possession of the properties which were in possession of ChhabiliKuer. They also found that Ganga Devi was not the heir of Chhabili but on the other hand, the plaintiffs were her heirs.
46. A similar view was taken in Union of India v. Ibrahim
Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362: 2012 SCC OnLine
SC 528, wherein it was observed at page 173:-
“55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.
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Court in Akkamma v. Vemavathi, 2021 SCC OnLine SC 1146.
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“33. Section 34 of the Specific Relief Act, 1963 provides as follows:
“34. Discretion of court as to declaration of status or right. —Any person entitled to any legal character, or any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may at its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
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.”
34 [Ed.: Para 34 corrected vide Official Corrigendum No. F-3/Ed.B.J./52/2017 dated 4-9-2017.]. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context, the reference is made to the judgment of this Court in Ram Saran v. Ganga Devi [Ram Saran v. Ganga Devi, (1973) 2 SCC
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60: AIR 1972 SC 2685] , wherein in paras 1 and 4 following was stated: (SCC pp. 60-61)
“1. This is a plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with ChhabiliKuer, widow of Lalita Prasad. After the death of ChhabiliKuer on 8-2-1971, Ganga Devi, the defendant in the suit came forward as the legal representative of ChhabiliKuer and got the mutation effected in her name in the place of the deceased ChhabiliKuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession of either the entire or even any portion of the suit properties.
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without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.” (Emphasis supplied).
“16. But these statements of law would not operate in this case, as the original plaintiff in the earlier suit had admitted possession as also use of the subject-land by the first defendant. No case of granting a right of user has been made out either. Neither the plaintiff has alleged casual use of the subject-land by the first defendant. The original plaintiff's claim for possession was rejected in the 1982 suit and in the subsequent suit, which gives rise to this appeal, the plaintiff could not demonstrate repossession of land on the basis of which he could obtain injunctive relief from disturbance of possession. In both the two reported decisions in the cases of Devish (supra) and Navalram Laxmidas Devmurari (supra) referred to earlier, the first two Courts - being the Courts of fact had come to affirmative finding about the plaintiffs'
46
possession of the suit property. So far as the proceeding before us is concerned, the finding of the First Court is otherwise. The plaintiffs sought to introduce prayer for recovery of possession to cure the defect of not having made out a case on that count by way of amendment of plaint at the appellate stage. The High Court rejected this prayer. We have quoted earlier in this judgment the reason for such rejection. We are in agreement with the High Court on this point. While in a situation of this nature, an amendment of plaint could be asked for ( Vinay Krishna v. Keshav Chandra) , such a plea ought to have been made within the prescribed limitation period. This position of law has been clarified in the case of Venkataraja v. Vidyane Dourerad japerumal (Dead) Through Legal Representatives [(2014) 14 SCC 502] . In this case, it has been held:—
“24. A mere declaratory decree remains nonexecutable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide Parkash Chand Khurana v. Harnam Singh and State of M.P. v. Mangilal Sharma ).”
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declaration without any consequential relief. In the plaint of the 1987 suit, relief for injunction was asked for. Such dual relief would protect the suit from being dismissed on maintainability grounds. It is a fact that the plaintiff ought to have had asked for recovery of possession, given the factual background of this case, but the plaint as it was originally framed reflected that the original plaintiff was in possession of the suit land. Such a plea rightly failed before the Trial Court and the First Appellate Court.
“31. Even if the plaintiff comes to Court asserting that he is in possession and that if it is found after trial that he was not in possession on the date of the suit, even then, the suit for declaration and permanent injunction is liable to be dismissed as not maintainable, as no decree for permanent injunction can be granted if the plaintiff is not in possession on the date of the suit. In such circumstances, the plaintiff must amend the plaint before the judgment and seek relief of possession. Therefore, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the
48
suit, when he is able to seek further relief of recovery of possession also, omits to do so, the Court shall not make any such declaration and the suit is liable to be dismissed as not maintainable”.
49
25th February 1987. These allegations can give rise to claims for declaration which obviously could not be made in the 1982 suit. The claim for declaratory decree could well be rejected on merit, but the suit in such a case could not be dismissed invoking the principles incorporated in Order II Rule 2 of the Code of 1908.”
Final order:
( Rakesh Kainthla)
Judge
27th September, 2023
( Chander )
3 issues framed by the court
Whether the First Appellate Court erred in concluding that the defendant's denial of relationship was limited to the time of death?
Whether the First Appellate Court erred in not drawing an adverse inference against the non-appearing plaintiff regarding her date of birth and parentage?
Whether the First Appellate Court erred in granting relief of possession when the suit was filed for declaration without specifically claiming possession?
Colour shows how this judgement treated each authority
Des Raj v. Bhagat RamReferred¶17
Des Raj v. Bhagat Ram, (2007) 9 SCC 641 · Who else cites this
Devasahayam v. P. SavithrammaReferred¶18
Devasahayam v. P. Savithramma [(2005) 7 SCC 653] · Who else cites this
Laxmibai v. BhagwantbuvaReferred¶29
Laxmibai v. Bhagwantbuva, (2013) 4 SCC 97 · Who else cites this
Rajbir Kaur v. S. Chokesiri and Co.Referred¶31
Rajbir Kaur v. S. Chokesiri and Co. [(1989) 1 SCC 19] · Who else cites this
Santosh Hazari v. Purushottam TiwariReferred¶31
Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714] · Who else cites this
Madhusudan Das v. NarayanibaiReferred¶31
Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] · Who else cites this
Jagdish Singh v. Madhuri DeviReferred¶31
Jagdish Singh v. Madhuri Devi [(2008) 10 SCC 497] · Who else cites this
Dharamvir v. Amar SinghReferred¶31
Dharamvir v. Amar Singh [(1996) 3 SCC 158] · Who else cites this
Iqbal Basith & others Vs. N. Subballakshmi & othersReferred¶36
Iqbal Basith & others Vs. N. Subballakshmi & others 2021 (2) SCC 715 · Who else cites this
Iswar Bhai C. Patel vs. Harihar BeheraReferred¶36
Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457 · Who else cites this
Shasidhar v. Ashwini Uma MathadReferred¶39
Shasidhar v. Ashwini Uma Mathad, (2015) 11 SCC 269 · Who else cites this
Kurian Chacko v. Varkey OusephReferred¶39
Kurian Chacko v. Varkey Ouseph [1969 SCC OnLine Ker 101] · Who else cites this
Somakka v. K.P. BasavarajReferred¶40
Somakka v. K.P. Basavaraj, (2022) 8 SCC 261 · Who else cites this
H.K.N. Swami v.Irshad BasithReferred¶40
H.K.N. Swami v.Irshad Basith,(2005) 10 SCC 243 · Who else cites this
Vinod Kumar v. GangadharReferred¶40
Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 · Who else cites this
Manjula v. ShyamsundarReferred¶40
Manjula v. Shyamsundar, (2022) 3 SCC 90 · Who else cites this
Dheeraj Singh v. Greater Noida Industrial Development AuthorityReferred¶41
Dheeraj Singh v. Greater Noida Industrial Development Authority, 2023 SCC OnLine SC 768 · Who else cites this
Ram Saran v. Ganga DeviApplied¶45
Ram Saran v. Ganga Devi, (1973) 2 SCC 60 · Who else cites this
Union of India v. Ibrahim UddinReferred¶46
Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 · Who else cites this
Vinay Krishna v. Keshav ChandraReferred¶46
Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129] · Who else cites this
Gian Kaur v. Raghubir SinghReferred¶46
Gian Kaur v. Raghubir Singh [(2011) 4 SCC 567] · Who else cites this
Akkamma v. VemavathiReferred¶48
Akkamma v. Vemavathi, 2021 SCC OnLine SC 1146 · Who else cites this
Arulmigu Chokkanatha Swamy Koil Trust v. ChandranReferred¶48
Arulmigu Chokkanatha Swamy Koil Trust v. Chandran, (2017) 3 SCC 702 · Who else cites this
Venkataraja v. Vidyane Dourerad japerumalReferred¶49
Venkataraja v. Vidyane Dourerad japerumal (2014) 14 SCC 502 · Who else cites this
Naresh Kumar
Amra Devi
Paragu Devi
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
