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Judgment
The instant second appeal is preferred by the defendant being aggrieved by the judgment and decree of possession dated 25.09.2025 passed rd by 33 District Judge, Indore (M.P.) in First Appeal RCA no. 22/2025, th wherein the judgment and decree dated 22.10.2024 passed by the 4 Civil Judge, Senior Division, Indore (M.P.) in RCSA No. 489/2020 were reversed.
The short facts of the case are that Shikshak Kalyan Samiti allotted the subject plot No.1005, Sector-A, Sudama Nagar, Indore admeasuring 2800 sq.ft. to the father of Madhubala Kothari, who executed a power of attorney in favour of one Satish Chandra Gupta and Mr. Gupta executed an agreement to sale in favour of the appellant Snehlata / defendant on behalf of Madhubala Kothari on 21.06.1995 and in the municipal records, the name of appellant Snehlata was recorded. Thereafter, Madhubala Kothari through power of attorney and Sheela Gupta filed the suit for declaration and possession against the appellant Snehlata on the ground that the property is owned by Madhubala Kothari and the appellant Snehlata has not paid the full sale consideration as per the agreement, which was terminated by the seller on 25.04.2000 and the plot has been transferred through an agreement by Madhubala Kothari in favour of Sheela Gupta treating the possession of the appellant Snehlata as encroacher. During the pendency of the suit, a sale deed was executed in favour of Sheela Gupta by Shikshak Kalyan Samiti and the same was brought on record. The power of attorney holder Satish Chandra Gupta died during the pendency of the suit.
Madhubala Kothari filed the Writ Petition No. 10904/2010, which was disposed of by order dated 08.08.2011 permitting her to continue the suit, however she failed to appear in the Court and the Trial Court dismissed the suit on 07.09.2012. A review petition was filed by Sheela Gupta, which was also dismissed on 05.04.2013. Civil Revision No. 88/2013 was preferred by Sheela Gupta, however later on withdrew by order dated 13.10.2020. During the pendency of the civil revision, Snehlata Gupta executed a sale deed in favour of respondent / plaintiff Vishal Jaiswal, who filed the suit for possession, means profit and injunction against the present appellant on 04.09.2020. The learned Trial Court dismissed the suit by judgment and decree dated 22.10.2024 and counter claim of the appellant was also dismissed at the same time. The respondent preferred First Appeal No.RCSA rd No.22/2025 before the 33 District Judge, Indore, which was allowed by the impugned judgment and decree dated 25.09.2025 and decree of possession has been passed in favour of the respondent. The appellant has preferred the present appeal assailing the judgment and decree passed by the First Appellate Court, whereby the judgment of the Trial Court has been reversed.
This appeal is admitted for final hearing on the following substantial question of law:
"A. Whether the first Appellate Court was justified in reversing the finding and judgment-decree of the Trial Court without considering the grounds for non-suiting the plaintiff by the Trial Court in its judgment ?"
Heard the parties for the purpose of final disposal of the appeal.
Shri V.K. Jain, learned Senior Advocate appearing on behalf of the appellant submits that the Trial Court non-suited the respondent / plaintiff on four grounds including non-maintainability of the suit on the ground of non-joinder of the parties, bar of res judicata, bar under Order XXIII Rule 4(b) of CPC and bar under Order IX Rule 9 of CPC as well as on the ground that the suit was filed for possession without seeking the relief of declaration. He further submits that although the suit was dismissed considering the above objections, but the First Appellate Court without considering all the grounds of dismissal of suit examined only one ground of res judicata and allowed the appeal by holding that as the earlier suit was not decided on merits, the doctrine of res judicata is not applicable and the Trial Court has committed an error in dismissing the suit.
Mr. Jain further submits that as the suit was dismissed on the ground of bar under the provisions of Order IX Rule 9 of CPC, bar under the provisions of Order XXIII Rule 4(b) of CPC, on account of non-seeking the decree of declaration and non-joinder of the parties, the Appellate Court had committed error in allowing the appeal without giving any finding on all these issues. He has pointed out from the judgment delivered by the Appellate Court that except the issue of res judicata, no other ground of dismissal of suit was examined by the First Appellate Court and the First Appellate Court without reversing the findings recorded by the learned Trial Court on these legal grounds of dismissal of suit straightway decreed the suit, which was not permissible in law.
Learned Senior Advocate relied on the judgment of Supreme Court delivered in the matter of Madhukar and others V/s Sangram and others, 2001 (4) SCC 756, wherein the Supreme Court has held that at the time of deciding the first appeal, the First Appellate Court is under obligation to deal with all the issues and the evidence laid by the parties and only thereafter the appellate court can record its findings and if the First Appellate Court fails to discharge the obligation placed on the First Appellate Court, the judgment delivered by the First Appellate Court is not sustainable and is liable to be set aside. He further relied on the celebrated judgment of the Supreme Court in the matter of Santosh Hazari V/s Purushottam Tiwari (Deceased) By Lrs., (2001) 3 SCC 179, wherein the Supreme Court has held that at the time of reversing the findings recorded by the trial Court, the First Appellate Court is under an obligation to consider the case in detail and only thereafter the Appellate Court has jurisdiction to reverse or affirm the findings of the Trial Court. The first appeal has valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing for both on question of law and the facts. The judgment of the First Appellate Court must reflect its conscious application of mind and record findings supported by reasons on all the issues arising alongwith the contentions put-forth.
He further relied on judgement delivered by Supreme Court in H.K.N. Swami V/s Irshad Basith (Dead) By Lrs., (2005) 10 SCC 243 , in Shrimant Shamrao Suryavanshi and another V/s Pralhad Bhairoba Suryavanshi (Dead) By Lrs. and others, (2002) 3 SCC 676 and in Vinod Kumar V/s Gnagadhar, (2015) 1 SCC 391, wherein the Supreme Court had reiterated the law laid down by the Supreme Court in the matter of Santosh Hazari (supra).
Mr. Jain submits that the learned First Appellate Court has committed error in not considering all the grounds on which the plaintiff / respondent was non-suited by the trial Court and only by discussing one issue of res judicata reversed the judgment and decree passed by the Trial Court, which is not in consonance with the provisions of Order XLI Rule 31 of CPC and the First Appellate Court has wide scope of power to decide the appeal on facts and law both. He prays for setting aside the judgment delivered by the First Appellate Court.
Mr. Arpit Kumar Oswal, learned counsel appearing on behalf of the respondent / plaintiff submits that the First Appellate Court has not committed any error in deciding the appeal preferred by the original plaintiff. The findings of the Trial Court were perverse and liable to be set aside and the First Appellate Court was having competence to examine the findings recorded by the Trial Court and reverse the same. The respondent / plaintiff is a registered owner of the suit property and having a title, whereas the appellant / defendant is claiming the rights under an agreement, which was already cancelled by the executant. No valid defence was available to the appellant against the registered owner and, therefore, flimsy legal objections were raised by the appellant. Trial Court erroneously considered those objections and recorded the findings, those are perverse and not based on established legal principles and the Trial Court had wrongly dismissed the suit filed by the respondent. He further submits that the judgment and decree passed by the Trial Court were contrary to the law and facts, therefore, the First Appellate Court has not committed any error in allowing the appeal and decreeing the suit preferred by the respondent. He prays for dismissal of the appeal on the ground that all the issues considered by the Trial Court were duly answered by the First Appellate Court and no error committed by the First Appellate Court.
After considering the arguments advanced by the counsel for the parties and after perusal of the judgment delivered by the Trial Court, it appears that Trial Court framed the issue No. 4 in respect of the objection raised by the defendant regarding pendency of the earlier suit. Issue No. 8 was also framed on the same ground and at the time of deciding these two issues, the learned Trial Court held that the suit is barred under Section 11 of the CPC. Issue No. 9 was framed by the Trial Court that whether the suit suffers from the non-joinder of necessary parties and the said issue was also answered by the trial Court in affirmative and the plaintiff was non-suited on that ground also. In addition to the above two legal objections in respect of which issues were framed by the Trial Court, the Trial Court considered the provisions of Order 9 Rule 9 of CPC, Order 23 Rule 4 (b) of CPC and held that suit is not maintainable.
From perusal of the judgment delivered by the First Appellate Court, it appears that the First Appellate Court failed to record its finding in respect of non-joinder of necessary parties, provisions of Order 9 Rule 9 of CPC and Order 23 Rule 4(b) of CPC and mainly examined the issue of res judicata and reversed the judgment and decree passed by the Trial Court.
The Supreme Court in the matter of Santosh Hajari (supra) has observed as under:
"15.A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. 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. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate 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 (See Girijanandini Devi v. Bijendra Narain Choudharys). We wold, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. 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. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai 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 lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh10) Secondly, 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. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."
The Supreme Court has expected from the First Appellate Court to consider all the issues and thereafter reverse the judgment and finding of the Trial Court. In the case in hand, the First Appellate Court omitted to consider some of the grounds accepted by the trial Court for non-suiting the plaintiff and no finding recorded on these issues.
The Supreme Court in the matter of H.K.N. Swami (supra) has observed as under:
"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. The order of the High Court is cryptic and the same is without assigning any reason."
Though the First Appellate Court had jurisdiction to reverse or affirm the findings of the trial Court, the First Appellate Court was under duty to record its finding on all the issues, which may reflect its conscious application of mind and the findings should be supported by reasons. Sitting as a Court of first appeal, it is the duty of the First Appellate Court to deal with all the issues and the evidence laid by the parties, before recording its findings and if the Appellate Court has failed to record its finding supported by reasons on all the issues, the judgment and decree passed by the First Appellate Court is not sustainable as the Court has failed to discharge its obligation placed on it as First Appellate Court.
In view of the above discussion and the settled position of law, the substantial question of law framed by this Court is answered accordingly and it is held that First Appellate Court was not justified in reversing the finding and judgment-decree of the Trial Court without considering all the grounds on which the Trial Court non-suited the plaintiff in its judgment. In view of this Court, the First Appellate Court has committed an error and the judgment delivered by the First Appellate Court cannot be given a seal of approval.
Consequently, the appeal succeeds and is accordingly partly allowed. The impugned judgment and decree of the First Appellate Court rd dated 25.09.2025 passed by 33 District Judge, Indore in First Appeal RCA no. 22/2025 are hereby set aside. The case is remanded back to the First Appellate Court for deciding the first appeal afresh, keeping in view the principle of law laid down by the Supreme Court and referred by this Court hereinabove.
It is made clear that this Court has not applied its mind to the merits of the issues involved in the case and the First Appellate Court would decide the appeal strictly in accordance with the law on merits uninfluenced by any of the observation made by this Court hereinabove. The First Appellate Court will decide the appeal afresh after affording opportunity of hearing to both the parties. The parties will appear before the First Appellate Court on 15.07.2026.
Decree be drawn accordingly. No order as to costs. Record of the Trial Court as well as First Appellate Court be sent back forthwith with the copy of this judgment.