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REPORTABLE          IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4426 OF 2011

LALITESHWAR PRASAD SINGH & ORS. APPELLANTS

Versus S.P. SRIVASTAVA (D) THR. LRS. RESPONDENT

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment of High Court of Patna in First Appeal

No. 230 of 2007 dated 30.07.2007 reversing the judgment of the trial court

and thereby decreeing first respondent-Plaintiff’s suit for declaration of title.

2. Genealogy of the first respondent-Plaintiff and Tarawati Devi are as under:-

Mahabir Prasad

  Tej Pratap Narayan                 Jagadambi Prasad

                                                                                                    Rudra      Mahendra   Kanta                 Kanji           Girish Chandra Prasad (1960)  Narayan     Prasad      Prasad               Prasad                                                                  Tarawati Devi (died in 1985)                                  died issueless    died issueless  

           Shailendra Prasad            Suresh Chandra Prasad (1942)                   Plaintiff

Deoki Devi                         Sita Devi                                                                                   Umashanker Prasad (1970) Died                                 died issueless                                                                                     (died unmarried)

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The genealogy of parental side of Tarawati Devi is as under:-

Dhanukdhari Sahay

Tarawati Devi Laxmi Devi Raxn Devi

     Baidya Nath (Defendant)

3.  The  first  respondent-Plaintiff  Shailendra  Prasad  Srivastava  filed  a  suit

praying for declaration of his title with respect to suit property in Khasra No.

123, 124, 269, 274, 997 and 959 of Khata No. 31 of village Bairiya and village

Koloha  Pagambarpur  Schedule  I  and  Schedule  II  properties  respectively

against the second respondent-Defendant Baidya Nath Prasad Verma alleging

that the suit property detailed in Schedule I and II belonged to Girish Chandra

Prasad.  Case  of  the  plaintiff  is  that  in  the  Revisional  Survey  of  Records,

Tarawati Devi, the widow of Girish Chandra Prasad got the property recorded

in  the  name of  her  grandson  Umashanker  Prasad.  The  said  Umashanker

Prasad died during the lifetime of Tarawati Devi in the year 1965. The first

respondent-Plaintiff further alleged that he, being the only male member of the

family, used to stay with Tarawati Devi and did all the ceremonies after her

death.  Further  case  of  the  first  respondent-Plaintiff  is  that  when  he  was

working at Bhillai, he learnt that the second respondent-Defendant is trying to

obtain  revenue  receipt  in  collusion  with  Anchal  Karmachari.  The  first

respondent-Plaintiff  went  to  the  office  of  the  Circle  Office  Kanti  and  got

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cancellation  of  revenue  receipt  in  the  name  of  defendant.  The  second

respondent-Defendant Baidya Nath Prasad filed mutation appeal. When the

first respondent-Plaintiff came to know that the second respondent-Defendant

is trying to claim title over the suit property through Tarawati Devi alleging that

the suit property belonged to Tarawati Devi, the first respondent-Plaintiff being

the agnate of Tarawati Devi filed a suit for declaration of his title.

4. Resisting the suit, second respondent-Defendant filed a written statement

refuting  all  claims  of  the  first  respondent-Plaintiff  and  contending  that  the

disputed  property  belonged  to  one  Mr.  Dhanukdhari  Sahay.  The  said

Dhanukdhari Sahay had one son named Mr. Vasudev Prasad, who further had

a son and three daughters, namely, Ms. Tarawati Devi, Ms. Lakshmi Devi and

Ms.  Ranjan  Devi.  Ms.  Ranjan  Devi  died  during  the  lifetime  of  her  father.

Second respondent-Defendant further pleaded that the suit property has been

sold to various parties and the suit filed by the first respondent-Plaintiff against

the second respondent-Defendant is liable to be dismissed. After the death of

son Vasudev Prasad and others, the disputed property came to be vested in

Ms. Tarawati Devi’s name. The second respondent-Defendant was the closest

legal heir of Dhanukdhari Sahay and after the death of Ms. Tarawati Devi in

1985, as per Section 15(2) of the Hindu Succession Act, the property devolved

upon second respondent-Defendant by succession and mutation was effected

in his name and he started paying revenue in respect of  the suit  property

which was mutated in his name.

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5. On the above pleadings, nine issues were framed in the trial court. Number

of witnesses were examined on the side of the first respondent-Plaintiff as well

as  second  respondent-Defendant.  Upon  consideration  of  oral  and

documentary evidence, the trial  court  held that  the first  respondent-Plaintiff

has not produced any documents to show that the property belonged to the

family of Tej Pratap Narayan. The trial court held that after the death of her

father Dhanukdhari Sahay, Tarawati  Devi became the sole legal heir of the

disputed property and as per Section 15(1)(b) of Hindu Succession Act, if the

deceased  woman  has  acquired  the  property  from  her  parents,  it  will  be

inherited by the successors of the parents of the deceased. It was further held

that there is no record to show that Tarawati Devi got the disputed property

from her husband or father-in-law. The trial court dismissed the suit holding

that the first respondent-Plaintiff has not produced the necessary documents

to prove his title to the suit property.

6. On appeal, the High Court reversed the findings of the trial court and held

that as per the Revisional Survey Record of Right, property was recorded in

the name of Umashanker Prasad, grandson of Girish Chandra Prasad and on

the death of  Girish Chandra Prasad, his  widow Tarawati  Devi  became the

absolute  owner  of  the  property  and  on  her  death  in  1985,  the  property

devolved on  her  agnate-the  first  respondent-Plaintiff.  After  referring to  oral

evidence and also the rent receipts produced by the first respondent-Plaintiff

in his name and in the name of  Girish Chandra Prasad (Ex.1-1/J and Ex.

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1/K-1/M), it was held that the first respondent-Plaintiff’s case about his agnate

relationship with Girish Chandra Prasad stood proved and thus the Plaintiff

proved  his  title  to  the  suit  property. On  those  reasonings,  the  High  Court

reversed  the  findings  of  the  trial  court  and  allowed  the  first  appeal  and

decreed the Plaintiff’s suit.

7. Learned counsel for the appellants submitted that though the suit filed by

the first respondent-Plaintiff was for declaration of title, no documents of title

pertaining to the suit property had been produced before the court and the

documents produced were merely rent receipts and mutation record and on

these documents,  there could be no presumption of title and while so,  the

High  Court  was  not  right  by  treating  those  documents  as  if  they  were

documents  of  title  and  reversing  the  judgment  of  the  trial  court.  It  was

submitted  that  in  his  cross-examination,  first  respondent-Plaintiff  (PW-3)

admitted that Tarawati Devi had purchased the suit property two acres and

fifteen  decimals  of  land  and  this  admission  made  by  the  first

respondent-Plaintiff was not properly appreciated by the High Court. Further

contention of the appellants is that the High Court failed to appreciate that in

view of proviso to Section 34 of the Specific Relief Act, the suit for declaration

of title without any consequential relief of possession was not maintainable.

Main contention of the appellants is that while the High Court impleaded the

appellants as parties in the first appeal, the High Court being the first appellate

court,  ought  to  have afforded an  opportunity  to  the appellants  to  file  their

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documents and submissions and the judgment of the High Court is in violation

of principles of natural justice in not giving opportunity to the appellants who

are bona fide purchasers for consideration.

8.  Per  contra,  learned  senior  counsel  for  the  first  respondent-Plaintiff

submitted  that  the  record  of  rights  (Ex.  13  series)  stood  in  the  name  of

Umashanker Prasad, the grandson of Girish Chandra Prasad and this record

of right was corroborated by the rent receipts which were in the name of Girish

Chandra Prasad as well as the first respondent-Plaintiff himself. It was further

submitted that  apart  from the documentary  evidence,  the oral  evidence of

PW-3, PW-4, PW-10, PW-13 and PW-14 established that  the suit  property

belonged to Girish Chandra Prasad. It  was contended that  Girish Chandra

Prasad was the owner of the property and as per Section 15 of the Hindu

Succession Act, first respondent-Plaintiff, being the agnate of Tarawati Devi,

inherited the suit  property  and upon appreciation of  oral  and documentary

evidence,  High Court  rightly  declared the first  respondent-Plaintiff’s  title  by

reversing the judgment of trial court. It was further contended that in spite of

opportunities afforded, the second respondent-Defendant did not produce the

sale deeds executed by him in favour of the appellants which clearly shows

that the appellants are not bona fide purchasers for value and the High Court

rightly  held  that  the  appellants  cannot  have  a  better  title  than  that  of  the

second respondent-Defendant.

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9. The question falling for consideration is whether the property belonged to

Girish Chandra Prasad and after his death, his wife-Tarawati Devi succeeded

to the property of her husband and after her death devolves upon her agnate

first respondent-Plaintiff; or whether it belonged to Dhanukdhari Sahay, father

of Tarawati Devi from whom Tarawati Devi inherited and as per Section 15(2)

of  the Hindu Succession Act  whether  the second respondent-Defendant  is

entitled to succeed to the same.

10. The High Court has specifically dealt with two core issues:- one relating to

the genuineness of the genealogical table contained in the plaint and the other

relates to ascertainment of title of the first respondent-Plaintiff over the suit

scheduled property by the documents-record of rights and rent receipts filed

by the first respondent-Plaintiff. Contention of the appellants is that the High

Court, while arriving at the conclusion, did not properly analyse the materials

on  record,  in  particular,  the  evidence  adduced  by  the  second

respondent-Defendant. Further contention of the appellants is that the High

Court being the first appellate court, being the final court of facts, was bound

to analyse the evidence and record its reasonings, especially while it reversed

the findings of the trial court.

11. As per Order XLI Rule 31 CPC, the judgment of the first appellate court

must explicitly set out the points for determination, record its reasons thereon

and to give its reasonings based on evidence. Order XLI Rule 31 CPC reads

as under:

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“Order XLI Rule 31: Contents, date and signature of judgment. – The judgment of the Appellate Court shall be in writing and shall state –  

a. the points for determination; b. the decision thereon; c. the reasons for the decision; and d. where  the  decree  appealed  from  is  reversed  or  varied,  the  relief  to  which  the

appellant is entitled; and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein.”

It  is  well  settled  that  the  first  appellate  court  shall  state  the  points  for

determination, the decision thereon and the reasons for decision. However, it

is  equally  well  settled  that  mere  omission  to  frame  point/points  for

determination  does  not  vitiate  the  judgment  of  the  first  appellate  court

provided that the first appellate court records its reasons based on evidence

adduced by both the parties.  

12. An appellate court is the final court of facts. The judgment of the appellate

court must therefore reflect court’s application of mind and record its findings

supported  by  reasons.  The  law  relating  to  powers  and  duties  of  the  first

appellate  court  is  well  fortified  by  the  legal  provisions  and  judicial

pronouncements.  Considering the nature and scope of duty of first appellate

court,  in  Vinod Kumar v. Gangadhar (2015)  1  SCC 391,  it  was held  as

under:-

“12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15)

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“15. … The appellate court has jurisdiction to reverse or affirm the findings of the  trial  court.  First  appeal  is  a  valuable  right  of  the  parties  and  unless restricted  by  law,  the  whole  case  is  therein  open  for  rehearing  both  on questions  of  fact  and  law.  The  judgment  of  the  appellate  court  must, therefore,  reflect  its  conscious  application  of  mind  and  record  findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.” The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) “3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide  the  case  by  giving  reasons.  Unfortunately, the  High  Court,  in  the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues  and  the  evidence  led  by  the  parties  before  recording  the  finding regarding title.” 14. Again in Jagannath v. Arulappa (2005) 12 SCC 303, while considering the scope  of  Section  96  of  the  Code  of  Civil  Procedure,  1908,  this  Court observed as follows: (SCC p. 303, para 2) 15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530, this Court  taking  note  of  all  the  earlier  judgments  of  this  Court  reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) “3.  How  the  regular  first  appeal  is  to  be  disposed  of  by  the  appellate court/High  Court  has been considered by  this  Court  in  various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

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4. The appellate court has jurisdiction to reverse or affirm the findings of the trial  court.  The  first  appeal  is  a  valuable  right  of  the  parties  and  unless restricted  by  law,  the  whole  case  is  therein  open  for  rehearing  both  on questions  of  fact  and  law.  The  judgment  of  the  appellate  court  must, therefore,  reflect  its  conscious  application  of  mind  and  record  findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of  law and on facts  and the  judgment  in  the  first  appeal  must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is  cryptic and none of the relevant  aspects have even been noticed.  The appeal has been decided in an unsatisfactory manner. Our careful perusal of the  judgment  in  the  regular  first  appeal  shows  that  it  falls  short  of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.”

13. The points which arise for determination by a court of first appeal must

cover all  important  questions involved in the case and they should not  be

general  and  vague.  Even though the  appellate  court  would  be  justified  in

taking a different view on question of fact that should be done after adverting

to the reasons given by the trial judge in arriving at the finding in question.

When appellate court agrees with the views of the trial court on evidence, it

need not restate effect of evidence or reiterate reasons given by trial court;

expression  of  general  agreement  with  reasons  given  by  trial  court  would

ordinarily suffice. However, when the first appellate court reverses the findings

of the trial court, it must record the findings in clear terms explaining how the

reasonings of the trial court is erroneous.

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14. In the light of the above, when we consider the present case, we find that

in terms of Order XLI Rule 31 CPC, the High Court has neither framed the

points  for  determination  nor  discussed  the  evidence  adduced  by  the

defendants. The High Court seemed to have only considered two aspects:- (i)

genealogical table produced by the first respondent-Plaintiff; (ii) documentary

evidence  adduced  by  the  first  respondent-Plaintiff  that  is  Exhibit  13

series-entry in Survey Record of Rights and Rent receipts (Ex. 1/J and Ex. 1/K

to  1/M)  filed  by  the  first  respondent-Plaintiff.  The  documentary  evidence

adduced  by  the  first  respondent-Plaintiff  has  been  refuted  by  the  second

respondent-Defendant.  To  support  his  defence  plea,  second

respondent-Defendant has adduced oral  evidence by examining number of

witnesses. That apart, second respondent-Defendant mainly relied upon the

following evidence of first respondent-Plaintiff (PW-3):-

“Tarawati Devi had purchased total two acres and fifteen decimals of land. I cannot tell the number of sale deeds. I don’t have the knowledge about the resignation of her name on the said land. Till the time of her death, the land purchased by her remained with Tarawati Devi. The land in dispute in two acre and fifteen decimals in area. The land in dispute in the present suit is the land purchased by Tarawati Devi.”  

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The High Court does not seem to have examined the above admission of the

first  respondent-Plaintiff  nor  considered  the  oral  evidence  adduced  by  the

second respondent-Defendant. Being the first appellate court, the final court

on facts, the High Court should have considered the evidence adduced by the

first  respondent-Plaintiff  as  well  as  the  evidence  adduced  by  the  second

respondent-Defendant. But the High Court seems to have considered only the

evidence  adduced  by  the  first  respondent-Plaintiff  and  not  the  evidence

adduced  by  the  second  respondent-Defendant  and  the  alleged  inherent

contradictions in the statement of first respondent-Plaintiff.

15. Learned counsel for the appellants has submitted that yet another issue

that arose for consideration was the maintainability of the suit in view of the

proviso to Section 34 of the Specific Relief Act, 1963. Learned counsel for the

appellants  submitted  that  the  suit  had  been  filed  by  the  first

respondent-Plaintiff for declaration of title to the suit properties which belonged

to Tarawati  Devi  without  any further  consequential  relief  for  possession or

injunction and the suit was barred in view of the proviso to Section 34 of the

Specific Relief Act, 1963. Proviso to Section 34 of the Specific Relief Act, 1963

is as under:-

“Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”  

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Drawing our attention to the above proviso to Section 34 of the Specific Relief

Act, 1963, the learned counsel for the appellants submitted that on this plea,

issue No. 6 was specifically framed by the trial court and even though the trial

court decided the issue in favour of the first respondent-Plaintiff and the same

being  raised  in  the  first  appellate  court,  the  High  Court  should  have

considered the arguments advanced by the appellants on the maintainability

of the suit.

16. The appellants are the purchasers of various extent of plots in the suit

property  from the  second respondent-Defendant  under  various sale  deeds

dated  22.11.19958,  29.09.1995,  29.03.1996,  07.08.1995,  20.11.2008  and

03.07.2007. The appellants moved I.A. No. 5250/2010 in F.A. No. 230/2007

before the High Court for their impleadment under Order I Rule 10 of CPC and

the  said  application  was  allowed  by  the  High  Court  vide order  dated

02.08.2010. After the appellants were impleaded as parties in the appeal, the

appellants were not given any opportunity to adduce any evidence or make

their submission. The High Court has only referred to the evidence adduced

by the  first  respondent-Plaintiff  and simply  held  that  failure  on  the  part  of

second respondent-Defendant  to  establish  his  title  over  the suit  properties

precludes  the  appellants  from  claiming  any  title  or  interest  over  the  suit

scheduled properties, as they had derived the title from the defendants. We

are of the view that having impleaded the appellants as parties to the first

appeal, it seems inappropriate to record such a finding without affording an

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opportunity to the appellants and without examining the claim of the present

appellants. After impleading them as parties, without affording an opportunity

to  the  appellants,  the  High  Court  skirted  the  claim  of  the  appellants  by

observing that the appellants having purchased the suit property subsequent

to filing of the suit and if the second respondent-Defendant had no title then

there is no question of transferring any title or interest or possession by the

second respondent-Defendant to the transferee arises. We find substance in

the contention of the appellants that having been impleaded as parties in the

High Court, they ought to have been given an opportunity to adduce additional

evidence and make their submission to substantiate their claim that they are

bona fide purchasers for value. In our view, having impleaded the appellants,

in terms of Order XLI Rule 27 CPC, the High Court ought to have given an

opportunity to the appellants to adduce additional evidence and make their

submission.

17. Learned senior counsel for the first respondent-Plaintiff submitted that the

second  respondent-Defendant  has  stated  in  paragraph  (15)  of  the  written

statement  that  he  had  sold  different  portions  of  the  suit  land  to  different

persons.  It  was  submitted  that  on  application  filed  by  the  first

respondent-Plaintiff,  the trial court passed an order on 27.10.2005 directing

the  second  respondent-Defendant  to  produce  the  sale  deeds  in  question

within fifteen days or otherwise he would have no right to produce the same.

The learned Senior counsel for the plaintiffs submitted that in spite of the said

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order, second respondent-Defendant did not produce any of the sale deeds

and  while  so,  the  appellants  are  precluded  from  raising  the  plea  of

non-affording of opportunity to the appellants and the High Court rightly held

that  the  appellants  cannot  claim  a  better  title  than  that  of  the  second

respondent-Defendant.  Before  the  trial  court,  only  the  second

respondent-Defendant  was  the  party.  Any  order  passed  by  the  trial  court

against  the  second  respondent-Defendant  cannot  preclude  the  appellants

from putting forth their plea by filing additional documents.

18.  As discussed earlier, the High Court  has not  considered the evidence

adduced by the defendants. Having impleaded the appellants as parties in the

first  appeal,  in terms of  Order XLI Rule 27,  the High Court  ought to  have

afforded an opportunity  to  the appellants to  adduce oral  and documentary

evidence and make their submissions.

19. In the result, the impugned judgment of the High Court in First Appeal No.

230 of 2007 dated 30.07.2007 is set aside and the matter is remitted back to

the High Court for consideration of the matter afresh. First respondent-Plaintiff,

being  the  appellant  before  the  High  Court,  is  directed  to  take  steps  for

impleading  the  legal  representatives  of  the  deceased  second

respondent-Defendant.  The High Court  shall  afford sufficient  opportunity  to

both the parties to adduce additional evidence, both oral and documentary

and further afford sufficient opportunity of hearing to both the parties. Since

the suit is of the year 1994, we request the High Court to dispose the appeal

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expeditiously  in  accordance with  law. We make  it  clear  that  we have  not

expressed any opinion on the merits of the matter.

...……………………….J.      [R.K. AGRAWAL]  

.………………………..J.       [R. BANUMATHI]

New Delhi; December 15, 2016  

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