Satkari Bibi and Others vs S.K. Anwar Hossain and Another

Amal Kanti Bhattacharji, J.—These three appeals are against a judgment and decree passed by the Addl. District Judge, 5th Court, Alipore, conforming a judgment and decree passed by the 1st Court of Munsiff to the same station. The learned Munsiff in his judgment disposed of three different suits by an analogous trial of the same and the learned Addl. District Judge also disposed of three analogous appeals arising out of the aforesaid suits by delivering a common judgment. The facts out of which the relevant suits and appeals arose need be described at the outset.

The disputed property is 33 decimals of land of out of 37 decimals in plot No. 129 of Khatian No, 943 of Mouja Kasba which has since been recorded as holding No. 108A. Dr. Girindra Sekhar Bose Road, within the Corporation of Calcutta. This property originally belonged to two brothers-Banar Ali Mistri ane Ujor Ali Mistri. They sold this property by a registered salts deed dated 27.2.48 to Sk. Anwar Hossain, one of the Respondents before his Court and the plff. in T.S. 67 of 1971. This sale deed was, however challenged subsequently by Ujar Ali and the son and daughter of Bahar Ali (who had died in the meantime) in T.S. No. 95 of 1959 of the 1st Court of Munsiff, Alipore (Subsequently re-numbered as T.S. No. 143 of 1961 of the 6th Court of Munsiff, Alipore). In the said suits Ujar Ali and the heirs of Bahar Ali alleged that the relevant sale deed was obtained by Anwar Hossain fraudulently by misrepresenting to the vendors that it was actually a power of attorney. They accordingly prayed for a declaration that the said deed was a sham and fraudulent document and also for a permanent injunction against Anwar restarining him from re-alising rents from the tenants, collecting fruits from the trees etc., That suit was dismissed on contest. An appeal was filed against the judgment of the Munsiff, but the same was also dismissed. A second appeal was then filed before the High Court, but the same was summarily dismissed. In T.S. No. 67 of 1971 Anwar asserted his possession in the suit property in Khas and through tenants and sought a decree of permanent injunction against the defdts. The principal defdts. of this suit are plffs. in the other two suits namely, T.S. 1,89 of 1971 and T.S. 421 of 1979 and Anwar Hossain is the principal defdt. therein. As all the three suits involved common questions of facts and law, the learned Munsiff heard them analogously and delivered a common judgment in T.S. No. 67 of 1971 governing all the suits. He decreed T.S. No. 67 of 1971 in Anwar''s favour and dismissed the other two suits.

Three appeals were filed against the common judgment and the learned Addl. District Judge by another common judgment dismissed all the three appeals and confirmed the judgment of the learned Munsiff. The present appeal is against this appellate judgment.

On behalf of the Appellant Mr. Sailendra Nath Baksi attacks the judgment on several grounds. His first ground of attack is that although three suits were heard together three separate sets of issues were not framed and as such there was failure of justice. His next ground of attack is that no specific issue on the Defendants acquiring of title by adverse possession was framed and as such that question could not be decided. His third ground of appeal is that the learned Additional judge only dittoed the finding of the learned Munsiff without considering the evidence himself and that as such his judgment is not a proper judgment and his finding is also not binding. On behalf of the Respondent Mr. Mukti Prasanna Mukherjee submits that the judgments of both the courts below were sound ones based on proper reasoning and that the question of fact concluded by a concurrent finding of the said courts cannot be reopened in a second appeal u/s 100 of Code of Civil Procedure.

As regards the first point that issues were not framed separately in all the three suits I find that there was a real defect in not framing the issues of rather in not setting those issues in the judgment. This defect has also attracted the notice of the 1st appellate court. It has, however, considered the implication of this defect and gave his own reasoning for not remanding the suit in the following words.

At the very outset I cannot but say that the learned Trial Court was not at all justified in not framing issues in the two other suits-, namely, Title suit No. 189 of 1971 and Title Suit No. 421 of 1970. Inspite of this inherent defect 1 do not think it necessary to send the cases back on remand for two reasons. Firstly it was not urged before me by the learned lawyer for the Appellants that there was miscarriage of justice as because no separate issues were framed and considered by the learned Trial Court although there were two other separate suits which were heard analogously with Title Suit No. 67 of 1971. Secondly I find that the learned trial court was quite conscious about the stands taken by the plff. of those suits and the findings of the learned trial court, which based on evidence on record, were quite sufficient to dispose of all the three suits.

I would like accept the reasoning of the learned Addl. District Judge. Non-mentioned the issues in the judgment is certainly a technical flaw. But any infirmity in this regard should be considered along with the question if such an omission resulted in the parties cases being not understood properly. So far, as these suits are concerned, the main issues have been set out in one of the suits and there is no doubt that these issues are the deciding issues in the other two suits. If, however, the first suit was dismissed, positive orders on the basis of the evidences adduced would have been necessary and the absence of other issues in the remaining two suits would have been fatal. I, therefore, feel that no remand order is necessary in this case on this score.

The next point raised by Mr. S.N. Baksi is the absence of a specific issues on adverse possession, Mr. Baksi has been very forceful in presenting this point. We have already traced the history of the previous litigations. Ujir Ali and Bahar Ali were the original owners of the disputed property and they sold the same to Anwar Hcssam. The vendors tried to avoid this sale by attributing fraud and mis representation and had a tough fight over this issue. They, however, lost their battle upto the High Court. Mr. Baksi argues that in the aforesaid battle the question of possession was actually not considered. The sale took place in 1948 and the suit challenging the deed was filed in the 1959. It is submitted that on the expiry of 12 years from the date of sale Ujir Ali and Bahar Ali and his heirs acquired title by adverse possession. So the plff''s allegation in T.S. 67 of 1971 that the defds. of the said suit were threatening to disturb their possession since 14-2-1971 did not frustrate their claim of title. It is fervently argued that if a specific issue on adverse possession was framed, the same would have been discussed in all its aspects and that the judgment is defective in the absence of such an issue. The argument though attractive is, however, without any force. There was a specific issue (No. 4)-"Has the plalf. any right, title and interest in the suit property?

The title of the plff. cannot be established if it is proved that the defdts had already acquired title by prescription. In fact the defds, utilised this issue to prove their title by adverse possession with all their right. The learned Munsiff discussed at length the claims possession of both parties and found that Anwar Hossain mutated his name in the Corporation''s register, had a separate holding number allotted for his purchased portion of the land, made constructions there on (a fact confessed by Ujir Ali himself), realised rents from tenants and evicted some of them to the knowledge of the Defendants. He sifted, and weighed the evidence in the face of the Defendants'' claim of adverse possession And came to a rational finding that the defdts evidence of possession could not overweigh that of the plff. He discussed each exhibit filed in the suit and assessed its intrinsic value. Even if a separate issue was framed, it would have been bracketed with issue No. 4. Whatever the issues were, the party brought their whole evidence in support of their cases and there was hardly any scope of adducing better evidence on the issue of title had a separate issue in this regard been framed. It is an elementary legal principle that when a claim of title is raised by any plff. an issue is to be framed on this claim and any counter claim of any other party over this issue, Would be covered by it. After all a plff. can succeed on the proof of his claim of title and the defds� claim, if any, in this regard is to be considered in relation to it. Evidence show that both parties understood their cases well and there was no miscarriage of justice over the non-framing of any issue. So Mr. Baksi''s argument on this point can be accepted.

The last contention of Mr. Baksi is that the appellate court did not consider the evidence of possession independently and that it only endorsed the views of the trial court. He quotes the following observations from the appellate court''s judgment to substantiate his allegation.

The learned trial court has discussed the evidence in details to negative the claim of adverse possession of the Appellants. In the circumstances I do not like to repeat it.

It is argued that it is a patent specimen of non-application of mind by the appellate court which is the final court of facts. Mr. Baksi cites two decisions in support of his argument. One is Suharulla Mondal v. Bangoo Mondal and Ors. 13 CWN 143. It was a case under the old CPC 1882. It was suit on a mortgage bond which came before the District Judge on appeal. The learned District Judge gave a cryptic description of facts stating that the Appellant has sued the Respondents on a mortgage bond, that the appearing defdt. No. 3 contended that the bond was executed by collusion between the plff. and the defdts. Nos. 1 and 2 who did not appear and that no consideration passed. He recited that the lower court found that the plff. was entitled to no relief and then concluded. "The point in dispute is a question of fact and I see no reason to differ from the finding of the lower court. The appeal is dismissed." It was held by the High Court that the judgment was not a proper one. The High Court observed as follows:

The question is whether this is a sufficient judgment u/s 574 Code of Civil Procedure. It may be contended that the points for determination are set out, although there are done in the most meagre possible way, and the decisions thereon, but we cannot find any ground for saying that the reasons for the decision are stated. On the face of it, therefore, the judgment violates the provisions of Section 574....

The other decision Santiswar Mahanta and Ors. v. Lakhikanta Mahanta 13 CWN 177. Here the lower appellate court came to a finding that a certain payment was made on account of interest. But it did not state any reasons for the finding but merely referred to the evidence of certain witness on which it relied. The High Court held that the judgment was not in accordance with law.

The decisions cited in the two cases mentioned above certainly enunciate good laws. A first appellate court is the final court of fact and as such a finding made by such court should be based on a proper examination of evidence. An endorsement of the finding simplicities without examining its correctness may certainly be assailed if it does not comply with the requirements of Order 41, Rule 31 Code of Civil Procedure, 1908. Verily a judgment would be bad if it does not consider the evidence or does not decide the point raised on such evidence.

But the moot question is has any material issue been left undecided by the trial court, or if it has been decided by the trial court, or if it has been decided by the said court, such decision being endorsed by the appellate court, has the endorsement been vitiated on the ground of non application of mind as per ratio of decision in the above cited two cases? I have already discussed that no material issue regarding the claim of title by the two contesting parties has been omitted. A clear decision has also been taken in. this regard. As per amended Section 100 of the CPC such a decision cannot be challenged if any substantial point of law is not involved in it. Under the provisions of Section 103 of the said Code, as amended by the amending Act of 1976 the High Court is empowered, if the evidence on record is sufficient, to determine any issue necessary for the disposal of the appeal

(a) which has not been determined by the lower appellate court or both by the court of the first instance and the lower appellate court, or

(b) Which has been wrongly determined by such court or courts by reasons of decision on such question of law as is referred to in Section 100.

So even a non-decided issue or a wrongly decided issue can be looked into and determined by the High Court if it is necessary for the disposal of the appeal by reason of a decision on a substantial fact of law. If no substantial point of law is involved, the High Court will not proceed to determine an undecided issue of even a wrongly decided issue. This leads us to the corollary issue have the decision on the issue of title by the trial court and its. endorsement by the 1st Appellate court given rise to a question of law of for that matter a substantial question of law?

If a finding is made on no evidence or without considering the evidence, the finding is unsustainable and it certainly involves a substantial question of law. But when the trial court comes to a finding and the same is adopted by the appellate court without giving its own reasoning or simply adopting the reasoning of the trial court, is a point of law therein involved ipso facto? The answer would depend on how the appellate court treats the matter in the context of the facts of the case. If reasons are given by the trial court and the same are accepted by the appellate court as a cogent ones, where is the flaw is accepting them? Concurring with the reasons given by the lower court is not non-consideration of evidence and if there is no failure of justice it would be hazardous to treat the judgment as bad. A bad finding may also be endorsed and it does not there by involve a substantial question of law. So concurring with the finding of the lower court without detailing the points of agreement is not by itself a ground for attacking a judgment in the High Court.

This brings us to the question how should an appellate court agree with findings of a trial court? If there any specified manner to express its agreement in this respect? This point came for decision before the supreme Court in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, of the judgment in the said case the Supreme Court observed as follows:

The trial court as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narayan from his uncle Bidyanarayan and with that view the High Court agreed. It is true that the High Court did not enter upon a re-appraisal of the evidence, but it generally approved of the reasons adduced by the trial court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as a contended before us, consider the evidence, it is not the duty of the appellate court when it agrees with the views of the trial court on the evidence either to restate the effect of the evidence or to re-iterate the reasons given by the trial court. Expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice

In the instant case it is found that the 1st appellate Court not only agreed with the reasons given by the trial court, out also added its own reasons equally weighty in nature, to support the finding. So the allegation that the appellate court did not apply its mind and consider the evidence is not at all true. For good reasons, therefore, the decisions cited by Mr. Baksi do not help him.

For all the above reasons I hold that there is no merit in this appeal. The appeal is accordingly dismissed with costs. This judgment will govern the other two appeals, namely S.A. 542-43 of 1986.