Ms C L Sarawgi And Sons And Ors. Vs Anand Prasad And Ors.

--For the Appellants : Mr. S.K. Sharma, Advocate : Mr. Anshuman Mishra, Advocate For the Respondents : Mr. P.C. Roy, Advocate : Mr. Manoj Kumar Bhagat, Advocate : Mr. Shiv Shankar Jee, Advocate ---

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29 /21.01.2025 Heard the learned counsel for the appellants and learned counsel appearing on behalf of the respondents.

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2. This appeal has been filed by the plaintiffs against the Judgment dated 27.02.2017 (Decree signed on 18.03.2017) passed by learned District & Additional Sessions Judge-V, Giridih in Title Appeal No. 50 of 1989 whereby the appeal has been allowed and the judgment dated 27.01.1989 (Decree signed on 07.02.1989) passed by learned Additional Munsiff-II, Giridih in Title Suit No. 152 of 1980/94 of 1985 has been reversed.

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3. The title suit was filed seeking declaration of title over the schedule B property and recovery of possession from the defendants through the process of the court. A prayer was also made for decree on account of mesne profit. The Trial Court decreed the suit and directed the defendants to hand over vacant possession of schedule B property to the plaintiffs. The Appellate Court reversed the judgement and decree.

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4. This appeal has been admitted on 15.03.2024 on the following substantial questions of law: -

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“(a) Whether the learned appellate court while reversing the judgment passed by the learned trial court was justified in not considering and meeting the reasons given by the learned trial court to decree the suit?

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b) Whether the learned appellate court was justified in not considering any oral evidence adduced by the parties? ”

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Arguments of the appellants.

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5. The learned counsel for the appellants has submitted that it was the specific case of the plaintiffs that M/s. Bihar Mines Ltd. had acquired the land and structure mentioned in Schedule-A by the Registered sale deed dated 18.10.1954 and by virtue of registered sale deed dated 04.11.1968 the plaintiffs had purchased 77 decimal of land together with structure thereon being portion of plot no. 669 (Khata No. 29) of village Isri, P.S. Dumri, besides other lands in other plots from M/s. Bihar Mines Ltd. The land and structure purchased by the plaintiffs within plot no. 669 was specified in schedule-A of the plaint.

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6. It was their further case that a strip of land measuring 14 ft. 6” x 24 ft. described in schedule-B was part and parcel of aforesaid 77 decimal of land purchased by the plaintiffs from M/s. Bihar Mines Ltd. under aforesaid registered sale deed dated 04.11.1968. The said land was adjacent to south of G.T. Road and in front of the iron gate fixed in the northern wall compound of the plaintiffs. The learned counsel for the appellants has submitted that as per the plaint schedule-B property was part of Schedule-A property.

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7. The learned counsel for the appellants has submitted that written statement was filed claiming adverse possession and also title on the basis of registered sale deed with respect to portion of plot no. 669.

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8. The learned counsel submits that at the stage of trial, the parties contested the suit and two pleader commissioners report were placed on record. One pleader commissioner was appointed by the order of the Court and other was the report which was privately obtained by the plaintiffs. He has submitted that the learned Trial Court rejected both the pleader commissioner’s report by citing reasons and relied upon oral evidences as well as documents on record to decree the suit. 9. The learned counsel submits the Appellate Court has erroneously recorded that the Trial Court had rejected the pleaders commissioners report appointed by the Court and has relied upon the commissioner’s report which was privately procured by the plaintiffs. He has submitted that the Appellate Court has not at all discussed the oral evidences placed on the record to come to findings and reverse the judgment and decree of the Trial Court.

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10. The learned counsel submits that the Trial Court having recorded findings taking into consideration both the oral and documentary evidences placed on record, the Appellate Court could not have completely ignored the oral evidences placed on the record and was also not justified in committing error of record while recording findings after observing that the Trial Court has relied upon the report of the pleader commissioner which was produced by the plaintiffs. The learned counsel has submitted that while doing so and while reversing the judgement and decree, the Appellate Court has not met with the reasons given by the learned Trial Court to give its finding.

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11. The learned counsel has relied upon a judgment passed by this court in S.A. No. 28 of 2017 decided on 02.01.2025 and has submitted that this court has considered the various provisions of law as well as the judgments as to how the matter is to be considered particularly in

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the circumstances when the judgment of the Trial Court is to be reversed by the Appellate Court. It is submitted that the requirements to meet with the reasons of the Trial Court while reversing its judgement and decree by the first appellate court read with the provisions of order 41 Rule 31 of the CPC have been duly considered. 12. He submits that in the present case the Appellate Court has reversed the judgment without meeting the reasons of the learned Trial Court and completely ignoring the oral evidences. He submits that under such circumstances the matter be remanded to the learned Appellate Court for fresh consideration.

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Arguments of the respondents.

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13. The learned counsel appearing on behalf of the respondents on the other hand has not been able to point out any discussion of oral evidences by the Appellate Court. He has also submitted that the Appellate Court has recorded a finding that schedule-B property was not a part of schedule-A property. The learned counsel has further submitted that no issue with that effect was framed by the Trial Court itself, although the materials were placed on record for consideration. The learned counsel has submitted that in case this court is inclined to remit the matter to the learned Appellate Court for fresh consideration it may be observed that the parties may point out the issues to be formulated as point for determination before the learned Appellate Court afresh so that the additional / modified points for determination be also considered on the basis of materials already placed on record.

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Findings of this court.

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14. The Case of the plaintiffs is that 77 decimals of land was purchased from M/S Bihar Mines Limited through registered sale deed dated 04.11.1968 which in turn was purchased land of M/S Bihar Mines limited from Hirjee Premjee Parmar by virtue of registered sale deed dated 18.10.1954 and the plaintiffs came in possession of suit land which was surrounded by boundary wall with factory inside boundary wall. The case is that a strip of land measuring 14 feet 6” x 24 feet described in schedule-B of the plaint, is part and parcel of .77

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decimals of land purchased by plaintiffs which is being used for passage by the plaintiff and also for stocking coal and other material. 15. Further case of the plaintiffs is that defendant’s ancestors acquired 98 decimals of land of plot No. 669 from Hirjee Premji Parmar by registered sale deed dated 24.01.1940 which is adjacent to the suit land and in said sale deed the western boundary is mentioned as “Jamin Ghoran, Chhahadewari, Mokir”. Further case is that the defendants had illegally taken possession of suit land on 12.06.1975 without any right and as such possession over the suit land by defendants was purely as trespassers and the plaintiffs were in possession over the suit land till before 12.06.1975.

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16. The defendants denied the allegation of plaintiffs and claimed that they had purchased 0.98 decimals of land from Hirjee Premjee Parmar by registered sale deed dated on 24.01.1940. The suit is barred by law of limitation and adverse possession. Defendants denied that schedule B land is part and parcel of schedule A land rather the suit land is part and parcel of 0.98 decimals of land of plot No. 669 purchased vide Ext-C and C/1 upon which defendants have built small room long before 12.06.1975 to the knowledge of plaintiffs. The defendants claimed that the defendants are not the trespassers rather they are title holders on the basis of Ext-C and C/1. Further case is that they are in continuous long possession since the year 1940 to the knowledge of plaintiffs and their vendors. Plaintiffs have no right title possession over the suit land.

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17. Altogether eight issues were framed by the learned trial court as

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under:-

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“1. Have the plaintiffs got any valid cause of action for the suit?

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2. Is the suit as framed maintainable?

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3. Is the suit time barred?

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4. Have the plaintiffs got right, title and interest over the suit land described in Schedule A of the plaint?

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5. Is the story of dispossession from the suit land as alleged by the plaintiffs correct and whether he is entitled for recovery of possession?

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6. Have the defendants perfected their title by virtue of adverse possession on the suit land?

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7. Are the plaintiffs entitled to a decree as claimed for?

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8. To what other relief or reliefs if any the plaintiffs are entitled to get?”

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18. Both the parties adduced evidences, both oral and documentary. 19. The learned trial court considered the issue no. 4,5 and 6 together. The operative portion of the issue No. 4, 5 and 6 are quoted as under:-

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“7……..

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8……..

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9. Having considered the documents of the parties, I feel inclined to accept the case of the plaintiffs that they have subsisting title to the suit land and I hold that it is part of the land purchased by the plaintiffs in 1968 from M/S Bihar Mines Ltd.

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10. Ext. 5 is the report of the commissioner appointed by the plaintiffs whereas Ext. D is the report of the commissioner appointed by the court. According to the report of commissioner appointed by the plaintiffs the suit land is the part of the purchased land of the plaintiffs whereas the report D says that it is not the part of the land of the plaintiffs. Let us see what is the law on the point whether the court is bound to accept the commissioner report as a gospel truth brushing aside the other reliable evidence on record. Order 26 rule 9 and 10 C.P.C. provides for commissioner to make local investigation and the provisions for commissioner is provided under order 26 rule 10 C.P.C. but these provisions do not say that the report of the commissioner is binding upon the court rather the report of the commissioner is to assist the court. I had confirmed the report of the commissioner appointed by the court with this observations that the report (Ext.D) is subject to scrutinizing at the time held along with other evidences to be adduced by the parties. The learned counsel for the plaintiffs has submitted that from the report of the first commissioner appointed by the court one thing is clear that the gate of the plaintiffs is in existence on the south of the suit land and the same belongs to the plaintiffs and this fact though denied by the defendants is proved by the report Ext.D. The learned counsel has also invited the attention to both reports and submitted that both the commissioner have committed mistake by not measuring the plot No. 669 as a whole in order to find out whether the suit land is part of the land of the plaintiffs or of defendants. He frankly submitted that both reports are fit to be rejected on the point whether the suit land is the purchased land of the plaintiffs or of defendants. In support of

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his contention he has placed reliance on a decision reported in AIR 1970 Mysore page 314 where it has been held the local investigation made by the commissioner under order 26 Rule 9 C.P.C. is merely to assist the court by placing a report of such investigation before the court. Such report is not in any way binding upon the court whose power to arrive at its own conclusion even at with such report is no say impeded by such report. The learned counsel for the plaintiffs has also submitted that this suit cannot be decided solely on the report of the commissioner rather his report is subject to objection and the outcome from its own opinion in the light of other evidence. In support of his contention he has placed his reliance on a decision report in A.I.R. 1953 Pat at page 133 where it has been held at para 5 that an order rejecting of the objections or confusing the report of commissioner, does not mean that the court has abdicated its functions and has decided a fact in issue solely on the report of the commissioner and in advance of or in respective of the any other relevant evidence bearing on the question. In my opinion there appears to be some substance in his submission and is fit to be relied upon. I have perused both the report in minute details and both has committed vital mistake in not measuring the whole plot No. 669 and however of all the defendants and the other purchaser in plot No. 669 hence the evidence adduced on the suit as to show that the suit land is the part of the land purchased by the plaintiffs and they were in possession prior to the alleged dispossession.

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12. In my opinion it is not proved by the oral evidence that the suit land belongs to the defendants. D.W. 6 has not said a word about his adverse possession on the suit land. Though he has pleaded adverse possession but he has not uttered a word about it in his oral evidence.

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20. The learned Trial Court considered the issue no. 4,5 and 6 together and after considering the oral and documentary evidences held that the plaintiffs were the purchasers of the property and they have title over the suit land and were illegally dispossessed from the suit property in the year 1975 and the issues were decided against the defendants and in favour of the plaintiffs. While deciding the aforesaid issues the learned Trial Court rejected both the commissioners report, that is, the Court appointed pleader commissioner and private commissioner of the plaintiffs by citing reasons primarily on the ground that plot no. 669 was not measured on which both the parties

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were claiming their property. Other issues were also decided in favour of the plaintiffs and the suit was decreed and the defendants were directed to give vacant possession of the suit property to the plaintiffs. Other issues were decided as under:

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21. The learned Appellate Court reversed the judgement and decree of the learned Trial Court. The findings of the learned Appellate Court is recorded in paragraph 11 and 12 of its judgment which are quoted as under: -

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“ 11. Considering submission of the parties, going through the judgment and decree passed by the learned court below as well as perusal of material available on the case record, it is admitted case of the parties that adjacent went to .38 decimals of land defendants ancestors purchased .98 decimals of land through registered sale deed dated 24/1/40 and 27/11/68 marked as ExtC, C/1 and the remaining .77 decimal of land was purchased by the plaintiff which is adjacent west to defendants .98 decimals of land. Total area of plot no-669 is 2.13 acres out of which ancestors of Maheslal Prasad and Jamuna Prasad purchased total .38 decimals of extreme eastern portion of plot no-669 by two different sale deed dated 24/1/40. So accordingly total 2.13 decimal of land was sold by Hirjee Premjee Parmar to the defendants and plaintiffs. It is admitted by the plaintiff that Hirjee Premjee Parmar constructed building and factory over plot no-669 with compound wall and it is also admitted that in said sale deed western is mentioned as “Jamin Ghoran Chhahadewari Mokir”. So, from above fact is apparent that the land of plaintiff with compound wall adjacent to west to .98 decimal of land of defendants and burden was upon the plaintiff/respondent to prove that there exists strip of land (Schedule B land) between land of plaintiff and defendants, but plaintiff failed to prove this fact by oral and documentary evidence. So, considering above fact, I find that pleading of plaintiff has not been established by cogent and convincing evidence which creates doubt over the claim made by the

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plaintiff. Further I find from material available on the case record that defendants had purchased the suit land from Hirjee Premjee Parmar in the year 1940 constructed tiled room over the same and defendants are claiming possession over the suit land for more than 20 years back and also claiming adverse possession over the same. Report of two Survey Knowing Commissioner is also on the case record who went to the P.O, inspected and submitted its report with map, field book etc. and on perusal of judgment and decree passed by the learned court below I find the report of both Survey Commissioner has not been properly appreciated. Moreover even if plaintiff's case is believed to be true that defendant's are trespassers over the suit land constructed room over the said land on 12/06/75 then what prevented the plaintiff to report the matter to Competent Authority regarding illegal trespass made by the defendants and after a long delay the instant suit has been filed in the year 1980 for which no explanation has been given for delay in lodging the instant suit in the year 1980 after a long gap of 5 years and on comparison of boundary of schedule A and B land. Further it appears that the boundary of schedule B land could not be established by the plaintiff/respondent, which creates doubt over the plaintiff's case that schedule B land is part and parcel of schedule A land. Further I find much substance in submission of appellant that learned court below has wrongly relied upon the report of survey Knowing Commissioner Nageshwar Prasad Sinha who was not appointed by the court and illegally discarded report of Survey Knowing Commissioner Narain Roy who was appointed by the court. Commissioner Nageshwar Prasad Sinha has admitted in his evidence that he has not measured whole plot of 669 and he has privately measured the land at the instance of plaintiff and none was made witness to that. So court below has wrongly relied upon biased report of commissioner Nageshwar Prasad Sinha, whereas report given by Narain Roy was not properly considered by the court below. Further I find the learned court below has also not properly

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considered order 26 Rule 10- 2 of CPC according to which report of commissioner and evidence taken by him shall be part of the record. So considering all above fact I find that the court below has wrongly decided issue no-IV, V and VI in favour of plaintiffs and came to wrong conclusion that plaintiff's had subsisting title to the suit land. On perusal of Judgment and decree I also find that evidence of witnesses examined by the defendants/appellants has not been properly considered.

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11. Considering all above fact, I find plaintiffs have failed to prove schedule B land is part and parcel of .77 decimal of land and also failed to prove that the possession of the defendants over the suit land as trespassers. Accordingly, plaintiff failed to prove their title over the suit land and illegally dispossessed by the defendants on 12/06/75 by oral and documentary evidence.

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12. Having regard to fact and circumstances of the case discussed above, I came to conclusion that Judgment and decree passed by the learned court below suffers from illegality on the point of law and facts and the same cannot sustain in law. In the result of which judgment and decree dated 27/01/89 and 07/02/89 passed by the court below is hereby set aside and accordingly the instant appeal is allowed. Let a decree be prepared accordingly. ”

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22. After hearing the learned counsel appearing on behalf of the parties and upon going through the impugned judgment passed by the Appellate Court, this court finds that the Trial Court while considering the pleader commissioners’ report in paragraph no. 10 has considered the report submitted by both the commissioners which were exhibit-5 and exhibit-D and after perusal of both the reports the learned Trial Court has recorded that both the commissioners committed vital mistake in not measuring the old plot no. 669 to show that the suit land was part and parcel of the land purchased by the plaintiffs and that they were in possession prior to the alleged dispossession. The learned Trial Court thereafter considered the oral evidences on record

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and decreed the suit on contest and directed the defendants to handover vacant possession to the plaintiff. The learned Trial Court has also held that the plaintiffs are purchasers of the property and got title over the suit land and they were illegally possessed in the year 1975.

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23. So far as the learned Appellate Court is concerned, the Appellate Court recorded that the learned court below has wrongly relied upon the report of the Survey knowing Commissioner Nageshwar Prasad Sinha who was not appointed by the Court and illegally discarded the report of the Survey Knowing Commissioner Narain Roy who was appointed by the Court. Apparently, the said observation made by the learned Appellate Court is not tallying with the finding recorded by the learned Trial Court. This is over and above the fact that the learned Appellate Court has not at all discussed the oral evidences which were placed on record at the stage of trial and were considered by the learned Trial Court to arrive at its conclusion although the learned Appellate Court has recorded that the plaintiffs failed to prove their title over the suit land and illegally dispossessed by the defendants on 12.06.1975 by oral and documentary evidence. This finding has been recorded without discussing the oral evidences placed on record. The appellate court ultimately reversed the decree. This court finds that the identity of property was an important issue as both the parties were claiming right over portion of plot no. 669. The Trial Court had discarded both the report of the pleader commissioners and relied on oral evidences to decree the suit and the appellate court wrongly recorded that the Trial Court had relied upon the report of the Survey knowing Commissioner Nageshwar Prasad Sinha who was not appointed by the court. This court finds that the Appellate Court has not considered the reasons assigned by the learned Trial Court for decreeing the suit and has reversed the decree without meeting the reasons assigned by the learned Trial Court and without considering the oral evidences on record.

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24. In the judgment passed by this court in S.A. No. 28 of 2017 decided on 02.01.2025 this court has referring to numerous judgments as to how the first appeal is to be decided in terms of Order 41 Rule 31 of CPC particularly when the 1^st Appellate court has to reverse a decree passed by the Trial court. In the judgment passed by Hon’ble Patna High Court reported in AIR 1985 Patna 214 (Narain Singh and others Vs. Kanta Singh and others), it has been held that in case of reversal of judgement and decree, it is all the more important for the Court of first appeal to consider the evidence and also the reasoning of the Trial Court and only thereafter to give its own reasons for not agreeing with the findings of the trial Court. Paragraph- 18 and 19 of the aforesaid judgment are quoted as under: -

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“ 18 . It is well settled that if a finding of a fact is recorded without any discussion of the evidence, it is no judgment at all. The lower appellate Court is the final Court of fact and a very important duty is cast upon it. It is for this Court to decide final questions of fact on which the disposal of the suit might depend. On a perusal of the judgment of the lower appellate Court, it must appear that it has made an honest endeavor to make a proper appraisement of the merit of the case put forward by the parties. In case of reversal, it is all the more important for the Court of appeal below to consider the evidence and also the reasonings of the trial Court and only thereafter to give its own reasons for not agreeing with the findings of the trial Court. A perusal of the judgment must show that the lower appellate Court has applied its own mind independently to the evidences on the record.

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19 . It is also well-settled that every non-consideration of the reasons given by the trial Court in a judgment of reversal is not enough for interference by the High Court sitting under S. 100 of the C.P.C. What has to be seen is whether the lower appellate Court has failed to consider the most material evidence and if it has, then in that case finding is not binding on the High Court. If the finding arrived at by the lower appellate Court is sustainable from the reasonings given by the lower appellate Court, in that case finding cannot be interfered with.”

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25. In aforesaid facts and circumstances, this court is of the view that the Appellate Court has not followed the mandate of order 41 rule 31 of CPC while reversing the decree and has also not considered the oral evidences while reversing the decree. Accordingly, both the substantial questions of law are decided in favour of the appellants and against the respondents and it is held that the learned First Appellate court while reversing the judgment passed by the learned Trial Court was not justified in not considering and meeting the reasons given by the learned Trial Court to decree the suit and the learned First Appellate Court was not justified in not considering any oral evidence adduced by the parties.

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26. Consequently, the matter is required to be remanded to the 1^st Appellate Court for fresh consideration in accordance with law.

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27. In the aforesaid facts and circumstances, the judgment and decree passed by the 1^st appellate court is set aside and the matter is remanded back to the learned 1^st appellate court for fresh decision on the basis of the materials already available on record.

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28. In view of the submissions made by the learned counsel for the respondents, it is sufficient to observe that if there is any point of determination which has to be re-casted and based on materials available on record it will be certainly be opened to the Appellate Court to do the needful with the assistance of the parties.

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29. The parties to appear before the learned 1^st Appellate Court on - 23^rd of April 2025 by filing fresh vakalatnama and the learned 1^st Appellate Court shall make all endeavor to dispose of the Title Appeal expeditiously on the basis of materials which are already available on record.

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30. Parties to co-operate.

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31. This appeal is disposed of in the aforesaid terms.

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(Anubha Rawat Choudhary, J.)

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Binit

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Ms C L Sarawgi And Sons And Ors. v. Anand Prasad And Ors.

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Ms C L Sarawgi And Sons And Ors. v. Anand Prasad And Ors.

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