B. Venkataswami, J.
1. This is a defendant's appeal directed against judgment and decree made by the Addl. Civil Judge, Bangalore which reversed the Judgment and decree made by the Additional Second Munsiff, Bangalore.
2. The suit is one for a decree for specific performance of an agreement to sell several items of immoveable properties alleged to have been entered into by the appellant-first defendant with the first respondent-plaintiff, on 24-4-1957. The consideration stipulated is stated to be Rs. 8.000/- out of which a sum of Rs. 6,000/- is alleged to have been paid on the date of agreement of sale, the balance of Rs. 2,000/-having been agreed to be paid at the time of registration of the deed. It would appear that at or about the time this agreement was entered into there was a litigation going on between the appellant herein and one Channappa and her father-in-law. The suit In question was in respect of the title and possession of the present suit schedule properties and it was O, S. No. 156 of 1957 on the file of the Second Munsiff. Bangalore, It is also the case of the first respondent that he took possession of the properties from Channappa, the judgment-debtor in that suit, directly by way of part-performance of the suit agreement to sell.
3. The defence of the appellant, Inter alia, is one of denial of execution of the agreement in question. The trial Court after an exhaustive consideration of the evidence on record came to the conclusion that this defence was true and dismissed the suit. In appeal, the learned Civil Judge, reversed the said judgment and decree, and decreed the suit for specific performance. Hence this appeal by the first defendant.
4. On behalf of the appellant, the principal contention urged is that the judgment in appeal has been clearly vitiated in that there has been no judicial approach to the evidence in the case and the judgment of the trial Court. It is urged that the evidence has been rather mechanically dealt with without reference to the material points and discrepancies in the evidence of the witnesses for the plaintiff. Further, the reasoning of the trial Court has been almost totally ignored and this clearly is an erroneous approach to the case in appeal. Counsel invited attention to certain portion of the judgment in appeal and also of the trial Court as typical of the mechanical and rather unjudicial approach to the evidence.
5. It seems to me that the learned Civil Judge has not found fault with the reasoning of the trial Court in regard to the findings on various issues in the case. It is also seen from the judgment of the trial Court, the learned Munsiff has adverted to the demeanour of the witnesses. As for example in regard to P. W. 2. the scribe of the agreement, this is what he says:--
'......... This would go to show that P. W. 2 is a person who is prepared to swear to anything to prove his case. From the beginning I am not at all satisfied the way he deposed in this suit At one stage he wants to remember the contents of Ex. P-l from his memory and depose; at another stage he looked into the Ex. P-l and deposed contrary to what he had already deposed,
6. These observations of the trial Judge do not appear to have been noticed at all in the first appeal. When one remembers that P. W. 2 is one of the important witnesses in the case. It gems to me. It was the duty of the appellate Judge to have dealt with it, accepting or rejecting it, as a first appellate Court ought to do in the circumstances.
7. My attention has also been invited to portions of passages in the judgment as typical of the erroneous approach to the case. They are to be found in paras. 8 to 12 of the judgment. It seems to me that the discussion therein is clearly open to the criticism levelled against it by the learned Counsel for the appellant. But it is however, unnecessary to dwell on this matter further as in my opinion the appeal has to succeed on the other ground relative to the non-consideration by the appellate Court of the elaborate reasons given by a trial Court. That this would be so, is seen by the observations of the Supreme Court in T. D. Gopalan v. The Commissioner of Hindu Religious and Charitable Endowments Madras, : 1SCR584 . The observations occur at para. 9 of the said judgment are as follows:--
'The uniform practice in the matter of appreciation of evidence has been that if the trial Court has given cogent and detailed reasons for not accepting the testimony, of a witness, the appellate Court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion.....'
8. The above enunciation would be clearly attracted to the facts of the case on hand. The trial Court had dismissed the suit after giving elaborate reasons in support of its findings on issues. It has also had the advantage of seeing the witnesses and noting or remembering their demeanour in the witness box. In the judgment in appeal, there is no reference to the reasoning of the trial Court on any of the issues. Indeed, in my judgment, the learned Civil Judge has merely arrived at his own conclusions of facts on the evidence on record, mostly keeping in mind the arguments, as it seemed to him, of the learned counsel. It is not as though, in the view of the learned Civil Judge, the judgment of the trial Court was either perfunctory or suffered from a non-consideration of the material evidence on record. In this state of affairs it is reasonable to conclude that the judgment in appeal suffered from want of a judicial approach, amounting to an error of procedure. I am, therefore, of the view-that it cannot be sustained.
9. In this context, I consider it relevant to refer to certain observations of the Supreme Court in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, : 1SCR781 . The Court in what it has referred to as a 'rule of practice' in regard to appreciation of evidence by an appellate Court, has observed thus:
'Where the Question for consideration for the appellate Court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court, 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.
The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.
The appellate Court is wrong in thinking that it would detract from the value to be attached to a trial Judge's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court outweighs such findings.'
10. In the result, this appeal succeeds and is allowed. The matter will now stand remitted to the lower appellant Court for a fresh disposal of R. A. No. 58 of 1966 in accordance with law.