From the cases cited by Mr. Deshmukh, it
would be clear that substantial compliance of Order
XLI Rule 31 is sufficient if justice has not suffered
by nonframing the proper issues for determination.
Failure to frame points for determination was held to
be not resulting into vitiating the judgment if the
appellate Court has considered the entire evidence on
record and properly appraised the evidence. It was
further cautioned that the power to remand should not
be ordinarily exercised merely because certain
technical lacuna remains there.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 631 OF 2012
WITH
CIVIL APPLICATION NO.10748 OF 2012
Motiram Lobhaji Pawar
VERSUS
Pandurang Chudaman Kalam
CORAM : M.T. JOSHI, J.
DATE OF PRONOUNCING : 01ST JULY, 2013
1. Heard Mr. S.S. Bora and Mr. A.S. Deshmukh on
the question of admission of the present Second
Appeal.
2. The present appellants who are the original
defendants no.2 and 3 suffered a decree of
declaration of ownership and permanent injunction in
respect of two suit lands at the hands of the trial
Court as well as the first appellate Court i.e.
Additional District Judge at Gangakhed.
3. Present respondent no.1 Pandurang filed a
suit claiming the above reliefs. His case was that
the suit lands bearing survey no. 104/3 and 15/2 of
village Shaikh Rajur, Tq. Palam, Dist. Parbhani are
his selfacquired properties. He has purchased the
same for a valuable consideration vide sale deed
dated 16.4.1971 and 24.6.1977. The mutation entries
were also effected in his favour. The father of the
respondentplaintiff Chudaman died in the year
19511952. Sofar as the ancestral properties are
concerned, he and his brothers inherited the same.
Eldest brother was Bhimrao who was karta of the
family. At the time of filing of the suit in the
year 2000, the said Karta had also died. The
respondentplaintiff was living separately from his
family and from his own source of income he has
purchased suit lands and was and is in possession
since the year 1971 and 1977 respectively. His
another brother Shankar Chudaman (Defendant
no.1/respondent no.2), however, in collusion with the
revenue authorities got certain entries made in the
revenue record and the present appellants started
claiming to be the purchaser of the said land from
defendant no.1. In the circumstances, the suit came
to be filed.
4. The case of the original defendant
no.1/respondent no.2Shankar was that the suit
properties were purchased in the name of respondent
no.1plaintiff from the joint family fund. As such,
he has half share in the suit property and
accordingly mutation entries no.1303 and 1941
respectively were taken in his favour by the revenue
authorities. The present appellant submitted that
they had purchased the suit properties from the
defendant no.1 upon verifying the fact that his name
is entered in the revenue record. They are the
bonafide purchasers for value without notice of the
claim of the respondent no.1plaintiff and therefore
they sought dismissal of the suit.
5. The learned Judge of the trial Court framed
as many as eight issues. Oral as well as documentary
evidence was produced by the sides i.e. the original
sale deeds, old revenue entries, 7/12 extracts were
pressed into service by respondent no.1plaintiff.
On the contrary, defendant no.1 i.e. the present
respondent no.2 Shankar has examined eight witnesses
besides himself and present appellant no.2.
6. Subsequent revenue entries were also placed
on record. Defendant no.2 i.e. present appellant no.
2 was examined on behalf of the defendant no.1 i.e.
respondent no.1Shankar and as such a common evidence
close pursis at Exhibit 125 was filed. The
documentary evidence was same.
7. The learned Judge of the trial Court came to
the conclusion that the respondent no.1plaintiff
proved his title and his possession over the suit
land. The case of the present appellant and
respondent no.2 that the suit lands were the
ancestral properties of the joint family was
negativated. It was found that the present
appellants are not the bonafide purchasers for value
without notice of the claim of the plaintiffrespondent
no.1 and as such the suit came to be
decreed.
8. The present appellants took the matter to
the District Court vide Regular Civil Appeal no. 12
of 2009. The learned Additional District Judge,
Gangakhed framed a single point for determination
i.e. "whether the appellants prove that impugned
judgment and order passed in Regular Civil Suit no.
15 of 2008 dated 30.3.2009 is wrong, erroneous and
needs to be quashed". The finding was recorded in
the negative and the Appeal came to be dismissed.
Hence, the present Second Appeal.
9. Mr. S.S. Bora, learned counsel for the
appellants submits that a substantial question of law
in the instant case is as to whether the lower
appellate Court being a final fact finding Court has
framed proper points for determination and if this
Court come to the conclusion that the proper points
were not framed then whether the matter requires to
be remanded back to the lower appellate Court for
afresh hearing.
10. Besides this, in the Appeal memo vide ground
no. 5, it was submitted that the substantial question
of law in the instant Appeal is whether the Courts
below appreciated the evidence on record in respect
of the claim of the appellants that they are the
bonafide purchasers without notice and for valuable
consideration of the suit lands.
11. Mr. Bora vehemently submitted that the
learned appellate Judge did not at all formulate any
points for determination which is requirement of
Order XLI Rule 31 of the Code of Civil Procedure,
1908. He further submits that not only the points
for determination are required to be formulated but
with reference to such points, material on record is
required to be analyzed and thereupon the Court is
required to arrive at a conclusion to be delivered as
its decision. In the circumstances, relying on the
ratio of (i) Khatunbi Mohammad Sayeed and ors. Vs.
Aminabai Mohammad Sabir and ors. 2007 (2) Bom.C.R.
900, (ii) H. Siddiqui (dead) by LRs. Vs. A.
Ramalingam 2011 LawSuit (SC) 180 and (iii) unreported
Judgment in Abdul Kadar S/o Mohammad Ibrahim Vs.
Ammenabi w/o Sk. Mohiuddin and ors. in Second Appeal
no. 68 of 1991 decided by this Court on 14.10.2008,
he submitted that the substantial question of law as
detailed supra be framed.
12. On the other hand, Mr. A.S. Deshmukh learned
counsel for respondent no.1 i.e. the original
plaintiff submits that reading of the entire judgment
of the first appellate Court would reveal that the
learned Judge was alive of the issues those have
arisen between the parties. The learned Judge has
put on record the rival arguments of both the sides,
appreciated the documentary as well as oral evidence
on record as regards each of the points those were
framed by the learned trial Judge and ultimately
concurred with the findings of fact independently.
He submitted that when the first appellate Court
concurs with the findings of the trial Court, no
elaborate reasoning is required. In the
circumstances, merely because, technically each and
every issue was not converted to the points for
determination by the learned Judge of the first
appellate Court, it would not mean that any
substantial question of law has arisen mandating the
remand of the matter to him/her.
13. Mr. Deshmukh relies on the ratio of the
following authorities:
(i) G. Amalorpavam and ors. V. R.C. Diocese
of Madurai and ors. 2006(2) ALL MR 136
(S.C.)
(ii) M/s. Nopany Investments (P) Ltd. Vs.
Santokh Singh (HUF) 2008(1) SRJ 417
(iii) Ashwinkumar K. Patel Vs. Upendra J.
Patel and ors. AIR 1999 SC 1125
(iv) P. Purushottam Reddy and anr. Vs. M/s.
Pratap Steels Ltd. AIR 2002 SC 771
(v) Sayed Akbar S/o Sayed Noor Vs. Dhondiba
S/o Namdeo Bhosale and anr. 2011(1) ALL
MR 791
(vi) Beniram Shriram Wani and anr. Vs.
Ramchandra Nathalal Gujarathi 2011(2)
ALL MR 667
(vii) Maya Devi (dead) through LRs. vs. Raj
Kumari Batra (dead) through LRs. and
ors. 2011(1) Mh.L.J. 683.
14. Reading of the judgment of the first
appellate Court would show that the learned Judge has
placed on record all the material pleadings of both
the sides. Thereafter, the documents from both the
sides were also placed on record. Thereafter, the
oral as well as documentary evidence is adverted to.
Thereafter, a single point for determination came to
be formulated and the necessary finding was arrived.
Thereafter, the reasons for coming to the said
conclusion are given by adverting attention to each
and every issue that has arisen in the present
proceeding. The ratio of the authorities cited by
both the sides was also taken into consideration.
The salient feature that the respondent no.1
plaintiff resided away from the ancestral place and
sale deeds were executed in his favour thirty years
back were also taken into consideration. On the
other hand, the fact that the present appellants
failed to file even the sale deed alleged to have
been executed by the respondent no.2 i.e. original
defendant no.1 in their favour was also noted and
ultimately, by concurring with the findings of the
learned trial Court, the Appeal was dismissed with
costs. Thus, though not each and every issue is
converted into the points for determination,
ultimately, the whole of the evidence was analyzed by
the learned Judge of the first appellate Court.
15. In the cases relied on by Mr. S.S. Bora,
detailed supra, besides nonframing of the points for
determination as is the direction contained in Order
XLI Rule 31 of the C.P.C., the judgment therein
delivered by the first appellate Court revealed that
there was no appreciation of evidence led by the
parties. In the case of Khatunbi (cited supra) the
ratio of earlier decision in the case of Vishwas Balu
v. Ghasiram Ramratan Jajum A.I.R. 1975 Bom. 278 was
adverted to. It was ruled in that case that the
compliance of Order XLI Rule 31 of the C.P.C. is
mandatory.
16. In the case of H. Siddiqui (cited supra) the
Supreme Court was considering the case where the High
Court in First Appeal without dealing with the
relevant issue of alleged power of attorney, jumped
for considering other points for determination. In
that circumstances, it was observed that the
provision of Order XLI Rule 31 of the C.P.C. provides
for guidelines for the first appellate Court as to
how the Court has to proceed and decide the case.
However, in that case in paragraph no.18 it was
observed that if the appellate Court's judgment is
based on independent assessment of the relevant
evidence on all aspects of the matter, there would be
substantial compliance of the said provision. In the
case of Abdul Kadar (cited supra) (unreported
Judgment in S.A. 68 of 1991) the similar issue was
there which has been answered on the similar lines.
17. From the cases cited by Mr. Deshmukh, it
would be clear that substantial compliance of Order
XLI Rule 31 is sufficient if justice has not suffered
by nonframing the proper issues for determination.
Failure to frame points for determination was held to
be not resulting into vitiating the judgment if the
appellate Court has considered the entire evidence on
record and properly appraised the evidence. It was
further cautioned that the power to remand should not
be ordinarily exercised merely because certain
technical lacuna remains there.
18. In the present case, we have also noticed
that though the Judge of the first appellate Court
was wrong in not framing proper points for
determination, the reading of the entire judgment
would show that paragraphwise appreciation of the
pleadings, oral as well as documentary evidence,
arguments and caselaw minutely is made by the
learned Judge. Thereafter, the findings are
recorded. In the case of M/s. Nopany (cited supra)
relied in by Mr. Deshmukh, it is held by the Supreme
Court that the well settled principle is that in case
the first appellate Court decides to reverse the
findings of the trial Court then it is required to
give reasons for reversing the same whereas in case
of confirming the judgment, the first appellate Court
can merely accept the reasons and findings of the
trial Court.
19. In this view of the matter, in my view, no
substantial question of law is involved in this
Appeal, as has been argued by Mr. Bora.
20. Besides this, though in the Appeal memo, it
is stated that both the Courts below have not
properly appreciated the documentary as well as oral
evidence regarding the claim of the present
appellant, that they are bonafide purchaser without
notice of the claim of the respondent no.1, both the
Courts below have held that even they failed to file
the sale deed, alleged to have been executed by
respondent no.1 i.e. defendant no.1 much less the
proof of the same. In that view of the matter, the
Appeal is rejected without any order as to costs.
Consequently, Civil Application no. 10748 of 2012
seeking stay to the execution of the decree also
stands disposed of.
[M. T. JOSHI, J.]
Print Page
would be clear that substantial compliance of Order
XLI Rule 31 is sufficient if justice has not suffered
by nonframing the proper issues for determination.
Failure to frame points for determination was held to
be not resulting into vitiating the judgment if the
appellate Court has considered the entire evidence on
record and properly appraised the evidence. It was
further cautioned that the power to remand should not
be ordinarily exercised merely because certain
technical lacuna remains there.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 631 OF 2012
WITH
CIVIL APPLICATION NO.10748 OF 2012
Motiram Lobhaji Pawar
VERSUS
Pandurang Chudaman Kalam
CORAM : M.T. JOSHI, J.
DATE OF PRONOUNCING : 01ST JULY, 2013
1. Heard Mr. S.S. Bora and Mr. A.S. Deshmukh on
the question of admission of the present Second
Appeal.
2. The present appellants who are the original
defendants no.2 and 3 suffered a decree of
declaration of ownership and permanent injunction in
respect of two suit lands at the hands of the trial
Court as well as the first appellate Court i.e.
Additional District Judge at Gangakhed.
3. Present respondent no.1 Pandurang filed a
suit claiming the above reliefs. His case was that
the suit lands bearing survey no. 104/3 and 15/2 of
village Shaikh Rajur, Tq. Palam, Dist. Parbhani are
his selfacquired properties. He has purchased the
same for a valuable consideration vide sale deed
dated 16.4.1971 and 24.6.1977. The mutation entries
were also effected in his favour. The father of the
respondentplaintiff Chudaman died in the year
19511952. Sofar as the ancestral properties are
concerned, he and his brothers inherited the same.
Eldest brother was Bhimrao who was karta of the
family. At the time of filing of the suit in the
year 2000, the said Karta had also died. The
respondentplaintiff was living separately from his
family and from his own source of income he has
purchased suit lands and was and is in possession
since the year 1971 and 1977 respectively. His
another brother Shankar Chudaman (Defendant
no.1/respondent no.2), however, in collusion with the
revenue authorities got certain entries made in the
revenue record and the present appellants started
claiming to be the purchaser of the said land from
defendant no.1. In the circumstances, the suit came
to be filed.
4. The case of the original defendant
no.1/respondent no.2Shankar was that the suit
properties were purchased in the name of respondent
no.1plaintiff from the joint family fund. As such,
he has half share in the suit property and
accordingly mutation entries no.1303 and 1941
respectively were taken in his favour by the revenue
authorities. The present appellant submitted that
they had purchased the suit properties from the
defendant no.1 upon verifying the fact that his name
is entered in the revenue record. They are the
bonafide purchasers for value without notice of the
claim of the respondent no.1plaintiff and therefore
they sought dismissal of the suit.
5. The learned Judge of the trial Court framed
as many as eight issues. Oral as well as documentary
evidence was produced by the sides i.e. the original
sale deeds, old revenue entries, 7/12 extracts were
pressed into service by respondent no.1plaintiff.
On the contrary, defendant no.1 i.e. the present
respondent no.2 Shankar has examined eight witnesses
besides himself and present appellant no.2.
6. Subsequent revenue entries were also placed
on record. Defendant no.2 i.e. present appellant no.
2 was examined on behalf of the defendant no.1 i.e.
respondent no.1Shankar and as such a common evidence
close pursis at Exhibit 125 was filed. The
documentary evidence was same.
7. The learned Judge of the trial Court came to
the conclusion that the respondent no.1plaintiff
proved his title and his possession over the suit
land. The case of the present appellant and
respondent no.2 that the suit lands were the
ancestral properties of the joint family was
negativated. It was found that the present
appellants are not the bonafide purchasers for value
without notice of the claim of the plaintiffrespondent
no.1 and as such the suit came to be
decreed.
8. The present appellants took the matter to
the District Court vide Regular Civil Appeal no. 12
of 2009. The learned Additional District Judge,
Gangakhed framed a single point for determination
i.e. "whether the appellants prove that impugned
judgment and order passed in Regular Civil Suit no.
15 of 2008 dated 30.3.2009 is wrong, erroneous and
needs to be quashed". The finding was recorded in
the negative and the Appeal came to be dismissed.
Hence, the present Second Appeal.
9. Mr. S.S. Bora, learned counsel for the
appellants submits that a substantial question of law
in the instant case is as to whether the lower
appellate Court being a final fact finding Court has
framed proper points for determination and if this
Court come to the conclusion that the proper points
were not framed then whether the matter requires to
be remanded back to the lower appellate Court for
afresh hearing.
10. Besides this, in the Appeal memo vide ground
no. 5, it was submitted that the substantial question
of law in the instant Appeal is whether the Courts
below appreciated the evidence on record in respect
of the claim of the appellants that they are the
bonafide purchasers without notice and for valuable
consideration of the suit lands.
11. Mr. Bora vehemently submitted that the
learned appellate Judge did not at all formulate any
points for determination which is requirement of
Order XLI Rule 31 of the Code of Civil Procedure,
1908. He further submits that not only the points
for determination are required to be formulated but
with reference to such points, material on record is
required to be analyzed and thereupon the Court is
required to arrive at a conclusion to be delivered as
its decision. In the circumstances, relying on the
ratio of (i) Khatunbi Mohammad Sayeed and ors. Vs.
Aminabai Mohammad Sabir and ors. 2007 (2) Bom.C.R.
900, (ii) H. Siddiqui (dead) by LRs. Vs. A.
Ramalingam 2011 LawSuit (SC) 180 and (iii) unreported
Judgment in Abdul Kadar S/o Mohammad Ibrahim Vs.
Ammenabi w/o Sk. Mohiuddin and ors. in Second Appeal
no. 68 of 1991 decided by this Court on 14.10.2008,
he submitted that the substantial question of law as
detailed supra be framed.
12. On the other hand, Mr. A.S. Deshmukh learned
counsel for respondent no.1 i.e. the original
plaintiff submits that reading of the entire judgment
of the first appellate Court would reveal that the
learned Judge was alive of the issues those have
arisen between the parties. The learned Judge has
put on record the rival arguments of both the sides,
appreciated the documentary as well as oral evidence
on record as regards each of the points those were
framed by the learned trial Judge and ultimately
concurred with the findings of fact independently.
He submitted that when the first appellate Court
concurs with the findings of the trial Court, no
elaborate reasoning is required. In the
circumstances, merely because, technically each and
every issue was not converted to the points for
determination by the learned Judge of the first
appellate Court, it would not mean that any
substantial question of law has arisen mandating the
remand of the matter to him/her.
13. Mr. Deshmukh relies on the ratio of the
following authorities:
(i) G. Amalorpavam and ors. V. R.C. Diocese
of Madurai and ors. 2006(2) ALL MR 136
(S.C.)
(ii) M/s. Nopany Investments (P) Ltd. Vs.
Santokh Singh (HUF) 2008(1) SRJ 417
(iii) Ashwinkumar K. Patel Vs. Upendra J.
Patel and ors. AIR 1999 SC 1125
(iv) P. Purushottam Reddy and anr. Vs. M/s.
Pratap Steels Ltd. AIR 2002 SC 771
(v) Sayed Akbar S/o Sayed Noor Vs. Dhondiba
S/o Namdeo Bhosale and anr. 2011(1) ALL
MR 791
(vi) Beniram Shriram Wani and anr. Vs.
Ramchandra Nathalal Gujarathi 2011(2)
ALL MR 667
(vii) Maya Devi (dead) through LRs. vs. Raj
Kumari Batra (dead) through LRs. and
ors. 2011(1) Mh.L.J. 683.
14. Reading of the judgment of the first
appellate Court would show that the learned Judge has
placed on record all the material pleadings of both
the sides. Thereafter, the documents from both the
sides were also placed on record. Thereafter, the
oral as well as documentary evidence is adverted to.
Thereafter, a single point for determination came to
be formulated and the necessary finding was arrived.
Thereafter, the reasons for coming to the said
conclusion are given by adverting attention to each
and every issue that has arisen in the present
proceeding. The ratio of the authorities cited by
both the sides was also taken into consideration.
The salient feature that the respondent no.1
plaintiff resided away from the ancestral place and
sale deeds were executed in his favour thirty years
back were also taken into consideration. On the
other hand, the fact that the present appellants
failed to file even the sale deed alleged to have
been executed by the respondent no.2 i.e. original
defendant no.1 in their favour was also noted and
ultimately, by concurring with the findings of the
learned trial Court, the Appeal was dismissed with
costs. Thus, though not each and every issue is
converted into the points for determination,
ultimately, the whole of the evidence was analyzed by
the learned Judge of the first appellate Court.
15. In the cases relied on by Mr. S.S. Bora,
detailed supra, besides nonframing of the points for
determination as is the direction contained in Order
XLI Rule 31 of the C.P.C., the judgment therein
delivered by the first appellate Court revealed that
there was no appreciation of evidence led by the
parties. In the case of Khatunbi (cited supra) the
ratio of earlier decision in the case of Vishwas Balu
v. Ghasiram Ramratan Jajum A.I.R. 1975 Bom. 278 was
adverted to. It was ruled in that case that the
compliance of Order XLI Rule 31 of the C.P.C. is
mandatory.
16. In the case of H. Siddiqui (cited supra) the
Supreme Court was considering the case where the High
Court in First Appeal without dealing with the
relevant issue of alleged power of attorney, jumped
for considering other points for determination. In
that circumstances, it was observed that the
provision of Order XLI Rule 31 of the C.P.C. provides
for guidelines for the first appellate Court as to
how the Court has to proceed and decide the case.
However, in that case in paragraph no.18 it was
observed that if the appellate Court's judgment is
based on independent assessment of the relevant
evidence on all aspects of the matter, there would be
substantial compliance of the said provision. In the
case of Abdul Kadar (cited supra) (unreported
Judgment in S.A. 68 of 1991) the similar issue was
there which has been answered on the similar lines.
17. From the cases cited by Mr. Deshmukh, it
would be clear that substantial compliance of Order
XLI Rule 31 is sufficient if justice has not suffered
by nonframing the proper issues for determination.
Failure to frame points for determination was held to
be not resulting into vitiating the judgment if the
appellate Court has considered the entire evidence on
record and properly appraised the evidence. It was
further cautioned that the power to remand should not
be ordinarily exercised merely because certain
technical lacuna remains there.
18. In the present case, we have also noticed
that though the Judge of the first appellate Court
was wrong in not framing proper points for
determination, the reading of the entire judgment
would show that paragraphwise appreciation of the
pleadings, oral as well as documentary evidence,
arguments and caselaw minutely is made by the
learned Judge. Thereafter, the findings are
recorded. In the case of M/s. Nopany (cited supra)
relied in by Mr. Deshmukh, it is held by the Supreme
Court that the well settled principle is that in case
the first appellate Court decides to reverse the
findings of the trial Court then it is required to
give reasons for reversing the same whereas in case
of confirming the judgment, the first appellate Court
can merely accept the reasons and findings of the
trial Court.
19. In this view of the matter, in my view, no
substantial question of law is involved in this
Appeal, as has been argued by Mr. Bora.
20. Besides this, though in the Appeal memo, it
is stated that both the Courts below have not
properly appreciated the documentary as well as oral
evidence regarding the claim of the present
appellant, that they are bonafide purchaser without
notice of the claim of the respondent no.1, both the
Courts below have held that even they failed to file
the sale deed, alleged to have been executed by
respondent no.1 i.e. defendant no.1 much less the
proof of the same. In that view of the matter, the
Appeal is rejected without any order as to costs.
Consequently, Civil Application no. 10748 of 2012
seeking stay to the execution of the decree also
stands disposed of.
[M. T. JOSHI, J.]
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