SA/47/2002 of GURNAM SINGH and ANR. Vs RAM SINGH and ORS.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 47 of 2002

urnam Singh and another ...…………. Appellants

versus

Ram Singh and others ...…………. Respondents

Mr. Lok Pal Singh, Advocate with Mr. Tapan Singh, Mr. Vinay Prakash Srivastava and Mr. Nikhil Singhal, Advocates for the appellants. Mr. Arvind Kumar Sharma, Advocate for the respondents.

With

Second Appeal No. 53 of 2002

Ram Singh and others

...…………. Appellants

versus

Gurnam Singh and others

...…………. Respondents

Mr. Arvind Kumar Sharma, Advocate for the appellants. Mr. Lok Pal Singh, Advocate with Mr. Tapan Singh, Mr. Vinay Prakash Srivastava and Mr. Nikhil Singhal, Advocates for the respondents.

Hon’ble U.C. Dhyani, J.

Both these appeals, preferred under Section 100 of the Code of Civil Procedure, 1908, are directed against the judgment and decree dated 11.03.2002, passed by Civil Judge (Senior Division), Roorkee in Civil Appeal No. 05 of 2000 and Civil Appeal No. 07 of 2000 respectively, whereby learned lower appellate court dismissed both the appeals and upheld the

judgment and decree dated 15.02.2000, passed by the trial court [Civil Judge (Junior Division), Roorkee].

2) Original suit no. 280 of 1990 was filed on behalf of Ram Singh, Charanjeet Singh and Ajit Singh (plaintiffs) against the defendant Bishan Singh and another. Original suit no. 197 of 1994 was filed on behalf of the same plaintiffs namely, Ram Singh, Charanjeet Singh and Ajit Singh against the legal heirs of Bishan Singh namely, Gurnam Singh, Smt. Amar Kaur alias Amro and Km. Harvinder Kaur alias Raj Rani (original defendant in original suit no. 280 of 1990) in relation to the property in question, detailed and specified at the foot of the plaint. The plaintiff has sought relief against the defendants for directing the defendants to deliver possession over the property in question, for realization of arrears, damages, pendentilite and future.

3) Whereas the relief has been sought with respect to property ‘A’ and ‘B’, as shown in Schedule in original suit no. 280 of 1992, the relief has been sought with respect to property ‘C’, as shown in Schedule in original suit no. 197 of 1994.

4) The case of the plaintiffs was that Chaudhary Maktool Singh and Chaudhary Kundan Singh along with others were owners in possession of land bearing Khasra No. 1184. They sold the land to Puran Singh,

Sona Singh and Bishan Singh, all sons of Paras Ram and Santa Singh s/o Kapoor Singh on 9[th] February 1945. part of the eastern portion of said land was transferred to one Moti Ram Jain by all the four purchasers. Since Bishan Singh did not take interest in construction over the land in question therefore, the father of plaintiffs raised construction over the same. Thereafter, oral partition took place between the purchasers whereby, the property situated on the western side was given to Bishan Singh and the remaining portion was left to other purchasers. Sona Singh raised the construction in the year 1954 over the portion which was given to him. Some portion of the same was let out by him. Bishan Singh surrendered his share to his real brother Pooran Singh. Some 20-22 years ago, defendant Bishan Singh left Punjab and settled in Roorkee along with his family. Since he had no accommodation to live therefore, he made request to his real elder brother Sona Singh. Sona Singh let out the property shown in Schedule ‘B’ of the plaint to Bishan Singh, who agreed to pay rent of Rs. 30/- per mensem to Sona Singh. Since Sona Singh was in need of money therefore, he entered into an agreement with Smt. Rajee Bai r/o Sukhdev Nagar, Roorkee whereby, he agreed to sell the property shown in Schedule ‘A’ of the plaint to Rajee Bai. Sona Singh did not execute the sale deed and therefore, Smt. Rajee Bai instituted civil suit no. 47 of 1969, titled as Smt. Rajee Bai vs. Sona Singh in the Court of Civil Judge, Roorkee. The saidsuit was decreed on 22.12.1970, whereby it was directed that Sona Singh shall execute sale deed in favour of Rajee Bai as regards property shown in Schedule ‘A’ of the plaint. sale deed was accordingly executed in favour of Smt. Rajee Bai on 05.08.1974 in execution of decree and was registered on 13.09.1974 before Sub Registrar, Roorkee. In execution proceedings Bishan Singh, real brother of Sona Singh, filed objections, which were rejected by learned Civil Judge, Roorkee and the possession of the property in question was delivered to Smt. Rajee Bai.

5) It was also averred in the plaint that Smt. Rajee Bai died. Thereafter, her legal heir Dayal Das Matta executed the sale deed in favour of the present plaintiffs on 12.05.1983 in relation to the property shown in Schedule ‘A’ of the plaint. Defendant Bishan Singh was paying rent of the property shown in Schedule ‘B’ at the rate of Rs. 30/- per mensem to Sona Singh. He became the tenant of Smt. Rajee Bai, thereafter her legal heir Dayal Das Matta and, finally the plaintiffs. Since defendant was the real uncle of the plaintiffs, they were in very good relations and therefore, nothing was reduced to writing so far as the tenancy was concerned. So far as Rajee Bai and Dayal Das are concerned, no document was reduced to writing because there has been litigation between them. Defendant continued to pay the rent upto November 1991. Plaintiffs served the defendant with demand

notice dated 25.08.1992 through his counsel by registered post, which was received by the defendant on 26.08.1992. The defendant did not pay the rent even after receipt of such notice. He also denied the title of the plaintiffs with respect to property shown in Schedule ‘B’. Since the defendant has denied the title of the plaintiffs therefore, the suit was filed on the original side instead of filing the same before Judge, Small Causes court.

6) Defendant contested the suit by filing written statement. Defendant admitted that Chaudhary Maktool Singh and Chaudhary Kundan Singh were the owners of the plot bearing khasra no. 1184. They also admitted that the property was jointly purchased by Pooran Singh, Sona Singh, Bishan Singh and Santa Singh. They also admitted the fact that eastern portion of the property was sold by all the four persons to one Moti Ram Jain. Rest of the averments of the plaint were denied by the defendant. It was specifically denied that Sona Singh became the absolute owner of property as shown in Schedule ‘A’ of the plaint. The fact of giving the property as shown in Schedule ‘B’ to Bishan Singh was also specifically denied. The defendant also pleaded that he is residing himself on the ground floor and on the first floor, his tenant is in possession. On the northern side of Schedule ‘B’ of the plaint, the tenants of defendant are in possession and pleaded that the entire property Schedule ‘A’ and ‘B’ is

in ownership and possession of the defendant. Thereafter, original suit no. 197 of 1994 was instituted by the plaintiffs against the defendants. Lastly it was pleaded that the suit was liable to be dismissed.

7) On the basis of the pleadings of the parties, the trial court framed 11 issues in original suit no. 280 of 1992. The same are as follows:-

On the basis of the pleadings of the parties,

1. Whether the plaintiffs are owners of property shown in Schedule ‘A’ of the plaint? shown in Schedule ‘A’ of the plaint?

Whether the defendant is tenant at the rate of Rs. 30/- per mensem, of property shown in Schedule ‘B’ on behalf of Sona Singh?

Whether rent is due with regard to property shown in Schedule ‘B’ since December 1991 and, if so, has the defendant committed default in payment of the rent?

Whether the defendant is liable to be evicted from the property Schedule ‘B’ for having denied ownership of plaintiff?

Whether the suit is under valued and court fee paid is insufficient?

Whether the suit is barred by Section 15 and 16 of Provincial Small Cause Court Act?

Whether the defendant is the sole owner in possession of properties shown in Schedule ‘A’ and ‘B’?

What will be the effect of judgment and order passed in Misc. Case No. 113 of 1987, passed by Civil Judge, Roorkee?

To what relief, if any, are the plaintiffs entitled? entitled?

Whether the defendants have perfected the

title over the property in possession on the basis of adverse possession?

Whether the written statement is barred by principal of res judicata as stated in para 2 of the replica 76-A?

8) court:-court:-

In original suit no. 197 of 1994 the

following issues were framed by the learned trial

Whether the plaintiffs are the owners of the property shown in Schedule ‘A’ at the foot of the plaint?

Whether the defendant was tenant in property Schedule ‘B’ on behalf of Sona Singh at the rate of Rs. 30/- per mensem?

Whether the defendants have been in unauthorized possession of property shown in Schedule ‘C’ of the plaint?

Whether the predecessor of defendant Sardar

Bishan Singh was the owner in possession of

the property shown in Schedule ‘A’ in dispute

and after his death, the defendants have become the owners and have acquired possession?

Whether the judgment passed by Civil Judge, Roorkee in Misc. Case No. 113 of 1987 and Civil Appeals No. 242 of 1978 and 327 of

1978 passed by District Judge, Saharanpur have any effect of res judicata over the suit? Whether the suit is undervalued and the court fee paid is insufficient?

Whether Bishan Singh was in possession over property shown in Schedule ‘C’ for more than 12 years and has thereafter perfected the title by adverse possession? If so, its effect?

Whether the suit is barred by provisions of Order II Rule 2 of the Civil Procedure Code? Whether Saran Singh was tenant on behalf of plaintiffs and after vacating the property shown in Schedule ‘C’, Saran Singh handed over the possession to the plaintiff?

Whether the plaintiffs are entitled to get any relief?

9) Learned trial court consolidated both the suits for the sake of convenience but framed separate issues, as have been indicated above. Whereas original suit no. 280 of 1992 was described as suit ‘A’, original suit no. 197 of 1994 was described as suit ‘B’.

10) After recording the evidence and after hearing the parties, learned trial court dismissed the original suit no. 280 of 1992 (suit ‘A’) and decreed the original suit no. 197 of 194 (suit ‘B’) whereby the defendants were directed to handover the possession of the property shown in Schedule ‘C’ to the plaintiffs within 45 days from the date of decree. The parties

were directed to bear their own costs in original suit no. 280 of 1992 as well as in original suit no. 197 of 1994.

11) Aggrieved against the judgment and order dated 15.02.2000, two appeals were preferred before the learned District Judge, which were transferred to the Civil Judge (Senior Division) Roorkee, for disposal according to law. Civil Appeal No. 07 of 2000, arising out of original suit no. 280 of 1992 was filed by Ram Singh and another against Gurnam Singh and another. Civil Appeal No. 05 of 2000, arising out of judgment and order passed in original suit no. 197 of 1994, Gurnam Singh and others vs. Ram Singh and others was filed. Learned lower appellate court dismissed both the appeals vide judgment and order dated 11[th] March 2002.

12) Feeling aggrieved against the judgment of the lower appellate court dated 11[th] March 2002, Second Appeal No. 47 of 2002 was preferred by the defendants namely, Gurnam Singh and others, while another Second Appeal No. 53 of 2002 was preferred by the plaintiffs namely, Ram Singh and others. While admitting the second appeal no. 47 of 2002, the following substantial questions of law were framed:-

1.Whether the court below erred in law in not appreciating that the findings recorded in Misc. Case No. 113 / 87 did not have the effect to res judicata in the property which was subject matter of Suit No. 197 / 94?

Whether in view of findings recorded by the court below on issue no. 5 relating to res judicata, the suit in question is barred by Provisions of Order II Rule II of C.P.C? Whether the court below has committed manifest error of law in accepting the documents (sale deed) Paper No. 32-C, as having been proved in view of Section 90 of Evidence Act, although the execution of the document, as also its contents were disputed?

Whether the court below failed in appreciating that there is no presumption in law as regards the documents execution whereof is denied?

Whether, notwithstanding, it being proved through cogent of evidence that the father of the defendant / appellants had raised the construction in dispute and that the defendant / appellants were in its continuous possession and in any case they had matured their title by adverse possession, the court below has acted illegally in recording perverse findings against the weight of evidence available on record?

13) Thereafter following substantial questions of law were added by way of amendment in the memo of appeal vide order dated 11.08.2008. The same are reproduced herein below:-

Whether the first appellate court erred in law in dismissing the appeal without deciding any of the issue nor without framing any point of law, which substantially affects the rights of the appellant?

Whether the first appellate court erred in law in non-recording the finding of facts and non-consideration of relevant evidence. The judgment and decree of the first appellate court is sustainable?

Whether non-recording the findings by the first appellate court vitiate the judgment and order passed by the learned first appellate court? first appellate court vitiate the judgment and order passed by the learned first appellate court?

14) While admitting the second appeal no. 53 of 2002, the following substantial questions of law were framed:-

Whether the learned first appellate court committed manifest error of law in deciding the appeal by non speaking mechanical order without applying the judicial mind?

Whether the defence taken by the respondents / defendants in the present suit is barred by res judicata by the judgment passed by District Judge, Saharanpur in Civil Appeal No. 327 / 78?

Whether the ingredients of the plea of adverse possession taken by the defendants /

respondents are present on the face of the record and the same has been appreciated properly by the learned trial court?

Whether the principle of estoppel is applicable under the facts and circumstances of the case?

15) Although eight substantial questions of law were framed in Second Appeal No. 47 of 2002 Gurnam Singh and another vs. Ram Singh and others, but during the course of hearing before this court, learned counsel for the appellants did not press substantial questions of law no. 1 to 6 at this stage. Learned counsel pressed only substantial question nos. 7 and 8. Likewise, in Second Appeal No. 53 of 2002 Ram Singh and others vs. Gurnam Singh and others, learned counsel for the appellants pressed only the first substantial question of law at thisstage, and did not press other questions. Therefore, this court proceeds to decide the Second Appeal only on the basis of substantial question of law framed at serial nos. 7 and 8 in Second Appeal No. 47 of 2002 and substantial question of law framed as serial no. 1 in Second Appeal No. 53 of 2002.

16) The questions before this court is whether the first appellate court erred in law in non-recording the findings of fact and non-consideration of relevant evidence? Whether the judgment and decree of the first appellate court is sustainable in view of the same? Whether non-recording of findings by the first appellate

court vitiates the judgment and order passed by learned first appellate court? Whether the learned first appellate court committed manifest error of law in deciding the appeal by non-speaking mechanical order without application of judicial mind? These substantial questions of law are interwoven with each other. One cannot postulate the existence of one without the existence of other and therefore, these substantial questions of law are.being decided together for the sake of convenience

17) Learned trial court was elaborate in deciding the issues framed by it. It has given cogent reasons in arriving at the findings recorded in the judgment. Cogent reasons were given by such court in deciding the issues settled by it. While trial court dismissed O.S. No. 280 of 1992, O.S. No. 197 of 1994 was decreed with the directions to the defendants to handover the possession of the property shown in Schedule ‘C’ of the plaint to the plaintiffs within 45 days of the order. The parties were directed to bear their own costs. The judgment was delivered on 15[th] February 2000.

18) Learned lower appellate court i.e. Civil Judge (Senior Division), Roorkee proceeded to write the judgment by stating the facts in brief. Learned first appellate court gave description of the pleadings of the parties, mentioned the issues framed by learned trial court, referred to the rulings placed before it and concluded that learned trial court has rightly delivered the judgment on the basis of legal pronouncements.

19) The relevant paragraph which finds place in page no. 7 of the judgment rendered by lower appellate court is being reproduced here-in-below, for facility:

“Learned counsel for the appellant in civil appeal no. 05 of 2000 Gurnam Singh vs. Ram Singh and civil appeal no. 07 of 2000 Ram Singh vs. Gurnam Singh submitted that the decree which was passed in O.S. No. 197 of 1994 by learned trial court was challenged in civil appeal no. 05 of 2000 Gurnam Singh vs. Ram Singh. Civil Appeal No. 07 of 2000 was preferred against judgment passed in O.S. No. 280 of 1992. Trial court pronounced its judgment on 15.02.2000 in both the matters. It was stated (argued) in both the appeals that the trial court has given the judgment without considering the evidence on record. No such fact was brought to my notice whereby it could be said that trial court has erred in law and fact while rendering judgment dated 15.02.2000. The parties did not bring any fact to my notice to show that such and such facts were placed before the trial court and the findings were not given on the same as per law. (The parties were unable to show either the factual or the legal error committed by trial court.)”

“Contrary to the same, perusal of the judgment rendered by trial court on 15.02.2000 reveals that the learned trial court has dealt with the facts placed before it as per law and there appears to be

no necessity to repeat the facts and evidence thus discussed before trial court……….”

“…………On the basis of above discussion, there appears to be no legal or factual error committed by trial court and the judgment rendered on 15.02.2000 deserves to be affirmed. Both the appeals are liable to be dismissed.”…...

[The above is not the exact transliteration of the portion of the judgment rendered by learned Civil Judge (Sr. Division) Roorkee. The same only conveys the meaning].

20) bare perusal of the judgment thus rendered by the learned lower appellate court would reveal that it is bald and cryptic judgment. No reasons are assigned by learned lower appellate court while agreeing to the findings of learned trial court. It is non-speaking order. Learned lower appellate court only agreed with the findings arrived at by the learned trial court. It was not enough for learned Civil Judge (Sr. Division), Roorkee to have said that he is agreeable to the inference drawn by learned Civil Judge (Jr. Division), Roorkee. It was not enough for him to say that no illegality was shown by learned counsel for the parties in the judgment rendered by learned Civil Judge (Jr. Division). He should have gone into the details of the facts, applied the law to the same and should have applied his mind for agreeing to the conclusions arrived at by learned trial court. Such non-speaking order is no order in the eyes of law and cannot sustain in view of the rulings submitted by learned

counsel for both the sides, reference of which is being given in the following paragraphs.

21) Learned counsel for Gurnam Singh drew the attention of this court towards the proposition of law as rendered by Hon’ble Supreme Apex Court in State of Uttaranchal and another vs. Sunil Kumar Vaish and others, reported in (2011) 8 SCC 670. Learned Apex Court was pleased to observe in paragraphs no. 18, 19 and 20 of the judgment as under:

“18. Judicial determination has to be seen as an

outcome of reasoned process of adjudication initiated and documented by party based mainly on events which happened in the past. Court’s clear reasoning and analysis are basic requirements in ajudicial determination when parties demand it so thatthey can administer justice justly and correctly, inrelation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.”

“19. Judicial decisions must in principle bereasoned and the quality of judicial decision .depends principally on the quality of its reasoningProper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement

of reasons not only makes the decision easier for the

parties to understand and many times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties’ submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.”

“20. We are sorry to say that the judgment in

question does not satisfy the above standards set for.proper determination of disputes Needless to say these types of orders weaken our judicial system. Serious attention is called for to enhance the quality of adjudication of our courts. Public trust and confidence in courts stem, quite often, from the direct experience of citizens from the judicial adjudication of their disputes.”

If the above law is applied to the judgment of

learned lower appellate court, it only underlines the fact that reasons have not been assigned in coming to the conclusion, what to talk of analyzing the facts which brought the parties to loggerheads.

The observations made by the Hon’ble

Supreme Court in Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota vs. Shukla and Brothers (2010) 4 SCC

785 are all the more important, wherein the highest Court of the land was pleased to observe as under:

“24. Reason is the very life of law. When the

reason of law once ceases, the law itself generally ceases (Wharton’s Law Lexicon). Such is the significanceof reasoning in any rule of law. Giving reasons furthersthe cause of justice as well as avoids uncertainty. As matter of fact it helps in the observance of law of precedent. Absence of reasons on the contrary essentially introduces an element of uncertainty, dissatisfaction andgive entirely different dimensions to the questions of lawraised before the higher / appellate courts. In our view, the court should provide its own grounds and reasons for rejecting claim / prayer of party whether at the very threshold i.e. at admission stage or after regular hearing, howsoever concise they may be.”

“25. We would reiterate the principle that when

reasons are announced and can be weighed, the publiccan have assurance that process of correction is in place .and working It is the requirement of law that correction process of judgments should not only appear to be implemented but also seem to have been properly implemented. Reasons for an order would ensure and enhance public confidence and would provide due satisfaction to the consumer of justice under our justice dispensation system. It may not be very correct in law tosay, that there is qualified duty imposed upon the courtsto record reasons.”

“26. Our procedural law and the established practice, in fact, imposes unqualified obligation upon thecourts to record reasons. There is hardly any statutoryprovision under the Income Tax Act or under theConstitution itself requiring recording of reasons in the judgments but it is no more res integra and standsunequivocally settled by different judgments of this Courtholding that the courts and tribunals are required to pass.reasoned judgments / orders In fact, Order 14 Rule 2 read with Order 20 Rule 1 of the Code of Civil Procedure requires that, the court should record findings on each issue and such findings which obviously should bereasoned would form part of the judgment, which in turn.” would be the basis for writing decree of the court

“27. By practice adopted in all courts and by virtue of judge-made law, the concept of reasonedjudgment has become an indispensable part of basic ruleof law and, in fact, is mandatory requirement of theprocedural law. Clarity of thoughts leads to clarity of vision and proper reasoning is the foundation of just and fair decision. In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120 (NIRC) there are apt observations in this regard to say “failure to give reasons amounts to denial of justice”. Reasons are the real live.links to the administration of justice With respect we will contribute to this view. There is rationale, logic andpurpose behind reasoned judgment. reasoned judgment is primarily written to clarify own thoughts;communicate the reasons for the decision to the

concerned and to provide and ensure that such reasons can be appropriately considered by the appellate / highercourt. Absence of reasons thus would lead to frustrate the very object stated hereinabove.”

“28. The order in the present case is as cryptic as it was in State of Uttaranchal vs. Sunil Kumar Singh Negi, (2008) 11 SCC 205. Being cryptic order and for the reasons recorded in that case by this Court which we also adopt, the impugned order in the present appeal should meet the same fate.”

24) Failure to give reasons would amount to denial of justice. The reasons are really the linchpin in the administration of justice. The orders passed by the courts should not be arbitrary. Arbitrariness is the anti thesis of reasonableness. litigant has legitimate expectation of knowing reasons for rejection of his prayer. Assigning the reasons also helps the appellate courts to read and understand the mind of the court whose judgment / order is under challenge before such higher court. The importance of reasoning has thus been rightly highlighted by the Hon’ble Apex Court.

25) somewhat similar situation which has arisen before this Court, came up before the Hon’ble Apex Court in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs; (2001) 3 SCC 179. In Santosh Hazari’s case also the trial court dealt with the oral and documentary evidence adduced by the parties extensively for deciding the issues, on which the parties

went to trial. In somewhat similar situation like this, the first appellate court passed an order in cryptic manner. Although the findings of learned trial court were reversed by the first appellate court in Santosh Hazari’s case, the findings of learned trial court have been affirmed by the learned lower appellate court in the instant case. What this Court desires to highlight is that, while in both the cases, the learned trial court has given elaborate findings, the learned first appellate court chose to pass cryptic orders without assigning reasons in support of their conclusions. In situation like this, the Hon’ble Supreme Court observed as under:

“First appeal is 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 vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound note of caution. Expression of general

agreement with the findings recorded in the judgment under appeal should not be device or camouflage adopted by the appellate court for shirking the duty cast on 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 final court of facts; pure findings of fact remains immune from challenge before the High Court in second appeal. Now the first appellate court is also final court of law in the sense that its decision on 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 substantial one”.

26) In the instant case the first appellate court did not discharge the duty cast on it, as court of first appeal. Thus, there is failure on the part of first appellate court to discharge the statutory obligation cast on him by virtue of Section 100 of the Code of Civil Procedure.

27) Learned counsel for Ram Singh drew attention of this court towards paragraph 17 of the ruling of Kashmir Singh vs. Harnam Singh and

another, AIR 2008 SC 1749 to show that the general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is total dearth of evidence, but also refers to any case, where the evidence, taken as whole, is not reasonably capable of supporting the finding.

28) Learned counsel for Ram Singh also placed reliance on rulings of Abdul Raheem vs. Karnataka Electricity Board and others, AIR 2008 SC 956 and H. Siddiqui (Dead) by LRs vs. Ramalingam (2011) 4 SCC 240. It will be worthwhile to reproduce paragraph 21 and 22 of the judgment rendered by Hon’ble Supreme Court in Siddiqui’s case :

“Order 41 Rule 31 CPC

21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated

the facts / evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court’s judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court toindependently assess the evidence of the parties andconsider the relevant points which arise foradjudication and the bearing of the evidence on thosepoints. Being the final court of fact, the first appellatecourt must not record mere general expression ofconcurrence with the trial court judgment rather itmust give reasons for its decision on each pointindependently to that of the trial court. Thus, theentire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to.the requirements of the said statutory provisions(Vide Sukhpal Singh v. Kalyan Singh AIR 1963 SC 146, Girijanandini Devi v. Bijendra Narain Choudhary AIR 1967 SC 1124, G. Amalorpavam v. R.C. Diocese of Madurai (2006) 3 SCC 224, Shiv Kumar Sharma v. Santosh Kumari (2007) 8 SCC 600 and Gannmani Anasuya v. Parvatini Amarendra Chowdhary (2007) 10 SCC 296.)”

“22. In B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530, while dealing with the issue, this Court held as under: (SCC P. 531, para 4)

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is 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 court of 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 valuable right and the parties have 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 vs. Purushottam Tiwari, (2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756, SCC p. 758, para 5.)”

29) The substantial questions of law thus framed by this court are answered in the manner that the first appellate court has erred in law in non-recording the findings of the fact and non-consideration of relevant

evidence. Non-recording of the reasons has thus vitiated its judgment. Learned first appellate court has committed manifest error of law in deciding the appeal by non-speaking order, without application of judicial mind.

30) On the basis of the above directions given by the Hon’ble Supreme Court and after hearing the learned counsel for the parties, this Court is of the opinion that the matter hasto go back for fresh hearing of the first appeals by the first appellate court. All the issues are left open for consideration of thefirst appellate court.

31) The appeals are therefore, allowed. The impugned judgments of learned lower appellate court are hereby set aside. The Civil Appeal No. 05 of 2000 and Civil Appeal No. 07 of 2000 are remitted back for hearing and decision afresh by the learned lower appellate court, who shall record its finding on all the questions arising for decision in such appeal. It is made clear that this Court has not expressed any opinion on any of the issues arising for decision. This Court was impressed by the need for rehearing of the appeals and decision thereon by the learned first appellate court. Needless to say, that the first appellate court shall draw the inspiration from the mandate given by the Hon’ble Apex Court from time to time, as has been discussed in the body of the judgment above, and follow the same.

32) With the observations as above, Second Appeal No. 47 of 2002 Gurnam Singh and another vs. Ram Singh and others; and Second Appeal No. 53 of 2002 Ram Singh and others vs. Gurnam Singh and others, are thus disposed of finally. The parties are directed to appear before the District Judge, Haridwar (first appellate court) on 31[st] August, 2012 to seek further directions. District Judge, Haridwar is requested to decide both the first appeals by reasoned and speaking judgment / order. Let lower court records be sent back to the Court concerned.

(U.C. Dhyani, J.)

Dt.: July 18, 2012.Negi