Rajendra Prasad and Others vs Prabhagiya Vanadhikari and Others

Umesh Chandra Dhyani, J.

By means of present Second Appeal, the appellants seek to set aside the judgment and decree dated 21.02.2015 passed by Additional District Judge, Tehri Garhwal in Civil Appeal No. 5/2014, Rajendra Prasad and others v. Prabhagiya Vanadhikari and to the limited extent against the judgment and decree dated 19.06.2014 passed by the Civil Judge (Junior Division), Narendra Nagar, Tehri Garhwal in Original Suit No. 13/2011, Rajendra Prasad and others v. Prabhagiya Vanadhikari and another.

After hearing learned counsel for the parties, the following substantial question of law is framed:

"Whether the learned first appellate court has erred in law in dismissing the civil appeal No. 5/2014 on the ground that the same has rendered infructuous while remanding the connected civil appeal No. 6/2014 and by not deciding the same on its own merits?"

Since the substantial question of law involved in this matter can be decided on the basis of the documents brought on record and the lower court record is not required, therefore, the second appeal is being decided at the admission stage itself, with the consent of learned counsel for the parties.

The facts arising out of the second appeal are that on 07.07.2011, the plaintiffs (appellants herein) filed O.S. No. 13/2011 before the Civil Judge (J.D.), Narendra Nagar, Tehri Garhwal against the defendants (respondents herein) for permanent prohibitory injunction. The Civil Judge (J.D.), Narendra Nagar, Tehri Garhwal, vide judgment and decree dated 19.06.2014, decreed the suit against the respondents with a stipulation that the appellants may not be disturbed by the respondents without the order of the competent court. Feeling aggrieved against the judgment and decree, to the limited extent of stipulation imposed by the trial court, a civil appeal No. 5/2014 was filed by the plaintiff (appellants herein). Another civil appeal No. 6/2014 was filed by the respondents/defendants challenging the judgment and decree dated 19.06.2014. Vide judgment and decree dated 21.02.2015, both civil appeals No. 5/2014 and 6/2014 were decided by the first appellate court. The civil appeal No. 6 was allowed and the matter was remanded back to the trial court and the judgment and decree dated 19.06.2014 was set aside. Another Civil appeal No. 5/2014 was dismissed as infructuous.

Feeling aggrieved against the judgment and decree dated 21.02.2015, an Appeal from Order No. 221/2015 was filed by the appellants/plaintiffs, which was allowed in the light of Order 41 Rule 25 C.P.C., vide judgment and order dated 30.04.2015.

Primarily, it is the submission of learned counsel for the appellants that the impugned judgment and decree is manifestly erroneous, illegal and arbitrary and suffers from patent illegality. The first appellate court has allowed the appeal of respondents/defendants by holding that the trial court has not considered the point of possession of the disputed property. The first appellate court has given undue importance to the non-filing of Nakal Shazara of the disputed property. It was further submitted that the findings of the trial court given on the issue of possession has not been reversed by the first appellate court while passing the impugned judgment and decree and, therefore, the same is liable to be set aside. The documentary evidence regarding title and possession of the disputed property was filed by the plaintiffs before the trial court and the same was proved by oral evidence and the trial court has given a clear cut finding regarding title and possession of the plaintiffs in the disputed property, but the first appellate court has illegally remanded the suit to the trial court without reversing the findings of the trial court and illegally dismissed the civil appeal No. 5/2014 filed by the appellants merely on the ground that the same has become infructuous. Learned counsel for the appellants also contended that the order of remand should not be passed in a routine matter. This Court, vide judgment and order dated 30.04.2015 passed in A.O. No. 221/2015, has set aside the judgment and order dated 21.02.2015 passed in another connected civil appeal No. 6/2014 in view of the provision of Order 41 Rule 25 C.P.C., and thus the judgment and decree dated 21.02.2015 passed in Civil Appeal No. 5/2014 is liable to be set aside so that both the connected civil appeals be decided on their merits by the first appellate court. The first appellate court has wrongly held that the trial court has not properly dealt with the question of possession of the disputed property, which is perverse finding because the trial court while deciding issue No. 1 and 2 has categorically given the finding that the appellants are in possession of the disputed property and are Bhumidhar of the same. The first appellate court itself has held that the disputed property is situated in Khasra No. 4Ka and 4Kha and belongs to the appellants. The same was demarcated by the revenue department under proceedings in Section 41 of the U.P. Land Revenue Act, 1901 in Revenue Suit No. 8/2009 decided on 15.04.2011 and this fact has also been admitted by the witnesses produced by the respondents/defendants. The first appellate court should have decided the civil appeal No. 5/2014 on its merits and ought not to dismiss the same as infructuous. This has been agreed to by learned counsel representing respondent State.

The lower appellate court, vide judgment and decree dated 21.12.2015, has therefore wrongly held that the civil appeal No. 5/2014 has become infructuous and the same is dismissed. This Court has no other option but to set aside that part of the order. In fact, Civil Appeal No. 5 should have been decided separately and had no connection with the civil appeal No. 6/2014 especially in view of the judgment and order dated 30.04.2015 passed by the coordinate bench of this Court in A.O. No. 221/2015 (Annexure-6 to the appeal). The relevant portion of the order dated 30.04.2015 is reproduced hereinbelow:

"I do agree. Thus, the impugned judgment and order dated 21.02.2015 in Civil Appeal No. 06 of 2014 is hereby set aside and appeal stands disposed of in the above terms.

The Court of Additional District Judge, Tehri Garhwal will formulate the issue, as have been indicated above, and then, of course, may remand the matter to the Court of Civil Judge (Junior Division) to adjudicate afresh only to the extent of that issue after according opportunity to both the parties for adducing their additional evidence thereupon."

The substantial question of law framed in the present Second Appeal is, therefore, decided in the affirmative holding that the first appellate court has erred in holding that the Civil Appeal No. 5/2014 has become infructuous, whereas connected Civil Appeal No. 6/2014 was remanded back to the trial court. Present Second appeal is allowed. The matter is remanded back to the first appellate court to decide the civil appeal No. 5/2014 on merits after affording opportunity to both the parties.