Remanded

Upendra Acharya v. Kishore Ch.Acharya

Orissa HC21 Mar 2023RSA/278/2012

Case brief

AI extract

What is this about?

The High Court allowed the second appeal, holding that the First Appellate Court erred in arriving at conclusions without appreciating evidence and failing to frame points of determination or give reasons as per Order 41 Rule 31 CPC. The matter is remanded for fresh hearing.

What did the court decide?

Impugned judgment and decree set aside. Matter remanded to First Appellate Court for hearing afresh within four months.

Upendra Acharya Vs Kishore Ch.Acharya — Succession and Inheritance | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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RSA No. 278 of 2012

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(An Appeal under Section 100 of C.P.C. against the judgment and decree dated 30.04.2012 passed by the learned 1^st Additional District Judge, Berhampur, in R.F.A. No. 27 of 2011, reversing the judgment and decree dated 12.01.2007 passed by the learned Civil Judge, (S.D.), Berhampur in T.S. No. 159 of 2001.

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---------------

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AFR

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Upendra Acharya ...… Appellant

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-Versus-

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Kishore Chandra Acharya and others ...... Respondents

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Advocate(s) appeared in this case:-

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_______________________________________________________ For Appellant : M/s. S.Mishra & B.K.Behera-1 Advocates. For Respondents : M/s. Soumya Mishra, B.Mohanty, B.S.Panigrahi, S.K.Mohanty,S.Panda & S.K.Samantray, Advocates

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_____________________________________________ CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT 21st March, 2023

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SASHIKANTA MISHRA, J. Heard Mr. S. Mishra, learned counsel

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for the appellant and Mr. S.Mishra, learned counsel for the

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respondents

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After considering the submissions of Mr. Siddhant

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Mishra, learned counsel for the appellant and on perusal of

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Page 1 of 6

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the impugned judgments, the appeal is admitted on the following substantial question of law:

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“ Whether the lower appellate Court is correct in holding that the Will marked Ext. 16, was not duly proved without referring to the evidence of P.Ws. 3 and 4, contrary to the finding of the trial Court below, when evidence in terms of Section 63 of Evidence was there on record?

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On the consent of the parties, the second appeal is

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taken up for final hearing.

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The appellant in the present appeal questions the correctness of the judgment and decree passed by First Additional District Judge, Berhampur on 30.04.2012 and 10.05.2012 respectively in RFA No. 27 of 2011/02/2007 in reversing the judgment and decree dated 12.01.2007 and 31.01.2007 respectively passed by the Civil Judge (Senior Division), Berhampur in T.S. No. 159 of 2001.

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The appellant as the plaintiff had filed the aforementioned suit for declaration, partition and for determination of mesne profits. The plaintiff relied upon a Will, marked Ext. 16 as the basis of his claim. The defendants, on the other hand after entering appearance also relied upon a will stated to have been executed on 12.08.1986 and marked Ext. E. After appreciating the evidence on record, the trial Court decreed the suit with

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Page 2 of 6

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declaration that Ext. 16 is the last Will of Gadadhar Achraya and the same is binding on the parties and that the Will dated 12.08.1986 (Ext. E) is not the last Will of the said Gadadhar Achraya and it has been validly revoked. The trial Court further held that the schedule properties are to be partitioned amongst the plaintiff and the defendant No.1 equally.

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The defendant No.1 Kishore Chandra Acharya carried the matter in appeal to the District Court, which was disposed of by learned First Additional District Judge, Berhampur. In his judgment passed on 30.04.2012, the First Appellate Court referred to the law relating to proof of Wills in extenso and thereafter held that the finding of the trial Court that Ext.16 is the last Will of the testator and the genuine document is erroneous. The Appellate Court also held that the Will relied upon (Ext. E) is not a valid document and hence, not binding on the parties. On such findings the appeal was disposed of.

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Mr. Siddharth Mishra, learned counsel for the appellant has assailed the findings of the First Appellate Court contending that the same are not based on appreciation of evidence at all. The First Appellate Court has

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Page 3 of 6

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simply referred to the law relating to proof of Will and arrived at the abrupt conclusion that Ext.16 is not a genuine document.

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Mr. Soumya Mishra, learned counsel appearing for the defendant/respondents submits that the First Appellate Court’s judgment in so far as the Will under Ext. 16 is concerned, warrants no interference as the same did not meet the requirement of law. However, the finding that the other Will i.e. Ext. A is also not a valid or genuine document, is factually erroneous.

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A reading of the trial Court judgment shows that

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the finding of the Court was based on the evidence of the attesting witnesses, who were examined as P.Ws.2 and 3. That apart, several other circumstances were also taken into account. The allegation made by the defendants that the Will

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was surrounded by suspicious circumstances was also answered with a specific finding. The matter being carried in appeal, the First Appellate Court, for reasons thus known to him, decided to make a theoretical delineation of the law relating to proof of Wills. After enumerating as many as 15 points relating to proof of Wills, the First Appellate Court abruptly arrived at the conclusion that the said ‘provisions of

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Page 4 of 6

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law as laid in the text’ were not taken into account by the trial Court and therefore, the finding that Ext. 16 is a genuine document and is also the last Will of the testator is erroneous, which is required to be interfered with. This Court fails to understand as to how such a finding could be arrived at when the evidence basing on which the finding of the trial Court was rendered, has not been considered in the least. It goes without saying that the First Appellate Court is the last Court of facts and therefore, is required to consider the evidence adduced by the parties. Moreover, this Court finds that no points of determination were framed by the First Appellate Court.

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Order 41 Rule 31 reads as under:

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31. Contents, date and signature of judgment -The judgment of the Appellate Court shall be in writing and shall state-

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(a) the points for determination;

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(b) the decision thereon;

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(c) the reasons for the decision; and

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(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

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And shall at the time that it is pronounced be signed and dated by the Judge for by the Judges concurring therein.

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This Court therefore, has no hesitation in holding

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that the impugned judgment cannot be sustained in the eye

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of law for failing to meet the above requirement. Moreover,

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Page 5 of 6

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the basic factual controversy between the parties has not been decided appropriately. It would therefore, be proper if the appeal is heard afresh by the First Appellate Court.

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In the result, the appeal is allowed. The impugned judgment and decree are hereby set aside. The matter is remanded to the First Appellate Court for hearing afresh after granting opportunity of hearing to both parties. Since the suit is of the year 2001, the First Appellate Court shall do well to try and dispose of the appeal as early as possible, preferably

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within a period of four months.
……..…………………..
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 21 th March, 2023/ Deepak

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Page 6 of 6

Upendra Acharya v. Kishore Ch.Acharya

Case brief

What is this about?

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Upendra Acharya v. Kishore Ch.Acharya

Case brief

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