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Pheroo and ors. Vs. Umrao and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 218 of 1980
Judge
Reported inAIR1981All27
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100-101 - Order 41, Rule 31
AppellantPheroo and ors.
RespondentUmrao and anr.
Advocates:R.N. Pandey, Adv.
Excerpt:
.....court of appeal below while reversing a finding of fact and coming to a contrary conclusion must consider all the material reasons and circumstances which had weighed with that court in coming to a particular finding,'have to be read in the context of what preceded those observations wherein the learned judge had noticed that the lower appellate court, in a very brief discussion and without referring to any of the circumstances or material on which it could ba held that the document in question was a fraudulent one, purported to take a view different from that taken by the trial court......have to be read in the context of the facts of that case for it is apparent, from what the learned judges observed a little later in his judgment, that 'the learned district judge............had totally failed to keep in mind that in such cases, it is of great significance for the court to consider and apply its mind to the quality and the quantity of the evidence in particular.' in laxmi v. krishna bhatta (air 1968 mys 288) it was observed by somnath iyer, j. that 'it is astonishing that there was such grave mis-application of the appellate power which vested in the subordinate judge and which made it his imperative duty to discuss as final fact finding authority every relevant piece of evidence so that he may make his own estimate of the income from the properties by the application of.....
Judgment:

V.K. Mehrotra, J.

1. This is a defendants second appeal.

2. The plaintiff-respondents filed a suit for an injunction restraining the defendants from interfering with their possession over the land in question, along with trees and bamboo clumps standing thereon, and for recovery of a sum of Rs. 150 as damages. The defendants took the stand that the plaintiffs were neither the owners nor in possession of the disputed property. The trial court, after a consideration of the evidence on record, concluded that the plaintiffs had succeeded in establishing their ownership and possession over part of the disputed property but failed to do so in respect of the rest. It, consequently, decreed the suit in part and dismissed the plaintiff's claim in respect of the remaining part.

3. The plaintiff went up in appeal against that part of the decree of the trial court by which it had rejected their claim in part. The defendants filed a cross objection in that appeal in which they assailed the finding of the trial court in regard to that part of its decree which had granted relief to the plaintiff.

4. The lower appellate court formulated as many as six questions which arose for consideration in the appeal and which covered all the aspects of the controversy between the parties. It went into the evidence on record afresh and came to the conclusion that the plaintiffs had established that the land in suit belonged to them and further that the defendants were never in possession thereof nor were they owners of the trees and the bamboo clumps. It, consequently, decreed the suit in its entirety. The defendants have now come up to this court in the present second appeal.

5. After hearing Sri R. N. Pandey, learned counsel for the defendant-appellants, I am not satisfied that the decree of the lower appellate court suffers from any such infirmity which can fall within the four corners of Section 100 C. P. C,

6. The first submission of Sri R. N. Pandey is that the cross-obiection filed by his clients has not been specifically referred to or considered by the court below nor a decision recorded thereon by it. In view of the fact that the entire controversy has been gone into by the lower appellate court and it has recorded its findings, after considering the entire material on record, also on the questions sought to be raised in the cross-objection, it cannot be said that the decree of the lower appellate court stands vitiated on the ground of non-mention specifically of the cross-obi ection in the judgment under appeal.

7. The second submission of Sri Pandey is that the trial court had decided in favour of the defendants in respect of certain portion of the property by giving specific reasons which have not been adverted to or met by the lower appellate court in the judgment under appeal. As such, according to the submission, the decree of the lower appellate court needs interference. Sri Pandey has invited my attention to a number of decisions during the course of his submission.

8. In Smt. Damayanti Devi v. Brindaban, (1979 All WC 687): (1979 All LJ NOC 110), it has been observed by a learned single Judge of this court that where the judgment of the appellate court is of reversal, the appellate court should consider all the relevant and material evidence on record and thereafter give reasons for the said decisions. In the present case, the trial court had found in favour of the defendants in respect of a part of the property mainly relying on the testimony of Swambar (P. W. 2) who was an old man and belonged to the family of the plaintiffs as also of the defendants. A perusal of the judgment of the lower appellate court would show that the said court has dealt with the evidence of this witness in great detail. It has, undoubtedly, drawn a different conclusion from the one drawn by the trial court in respect of the testimony of this witness but that cannot lead to the conclusion that any material piece of evidence which was considered by the trial court has not been considered by the lower appellate court.

9. In C. Thevar v. T. V. Thevar, (AIR 1967 Mad 164), it was observed by a learned single Judge of that court that 'on the question of actual user, the learned District Judge has made a very short work and has neither considered nor adverted to the criticism of the learned District Munsif who saw these witnesses and observed their demeanour and who ultimately rejected their evidence as worthless. It is a very unsatisfactory way of disposal, hardly fair to the learned District Munsif or to the litigants concerned, specially when it is a reversing judgment.' The observations have to be read in the context of the facts of that case for it is apparent, from what the learned Judges observed a little later in his judgment, that 'the learned District Judge............had totally failed to keep in mind that in such cases, it is of great significance for the court to consider and apply its mind to the quality and the quantity of the evidence in particular.' In Laxmi v. Krishna Bhatta (AIR 1968 Mys 288) it was observed by Somnath Iyer, J. that 'It is astonishing that there was such grave mis-application of the appellate power which vested in the Subordinate Judge and which made it his imperative duty to discuss as final fact finding authority every relevant piece of evidence so that he may make his own estimate of the income from the properties by the application of his own mind to that question.' In the case the trial court had, after an elaborate discussion, made His estimate of the income. The lower appellate court had disposed of that question, according to the learned Judge, in one short paragraph in which he stated that 'that estimate could not be said to be excessive.' The decision is not directly in point. In F. Ali v. Supdt. of Police and Registration Officer, Goalpara (AIR 1971 Assam 165) B. N. Sharma, J. observed that the lower appellate court did not discuss the evidence of the witnesses who were examined by the plaintiff in support of his case and that 'non-consideration of the evidence of P. Ws. 3, 4 and 5 by the learned court below amounts to an illegality and it has vitiated the judgment'. In Keluni Devi v. Kanhei Sahu, (AIR 1972 Orissa 28) R. N. Misra, J. observed that 'it is incumbent upon the final court of fact, particularly in the case of a reversing decision -- this is an instance of reversal as all the material findings were being reversed -- to meet the reasonings of the trial court and indicate its own reasons for the conclusions to be reached.' In the facts of the present case, it was the duty of the appellate court. to discuss the entire evidence afresh, take notice of the features which were duly noticed by the trial court and on his own independent reasoning, the appellate court should have come to the conclusion which it ultimately reached.' The obligation upon the appellate court is, as observed by the learned Judge himself, to notice the material evidence and come to its own conclusion afresh. These observations, if they purport to lay down that each and every reason which weighed with the trial court for coming to a particular conclusion must be met by the appellate court, would seem to state the law too widely. In Sarjug Rai v. Mst. Maheshwari Devi (AIR 1975 Pat 192) the observation that 'it is well settled that the court of appeal below while reversing a finding of fact and coming to a contrary conclusion must consider all the material reasons and circumstances which had weighed with that court in coming to a particular finding,' have to be read in the context of what preceded those observations wherein the learned Judge had noticed that the lower appellate court, in a very brief discussion and without referring to any of the circumstances or material on which it could ba held that the document in question was a fraudulent one, purported to take a view different from that taken by the trial court. Indeed if the learned Judge purported to lay down that the iudgment of the lower appellate court must come, as it were, in close question with that of the trial court and should meet each and every reason advanced by the latter, he stated the law too widely.

10. The decision of the lower appellate court is based upon a considerationof the material on record. The appeal isconcluded by findings of fact. It is dismissed under Order 41, Rule 11 C. P. C.


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