APPEAL FROM APPELLATE DECREE NO. 24 of 2001 ----------- From a judgment and decree dated 16.09.2000 passed in Title Appeal No. 22 of 197 by Sri Shatrughan Singh “Rampuri”, 7th Additional District Judge, Bhagalpur affirming the judgment and decree dated 08.04.1987, passed by Sri Shambhu Prasad Sah, Munsif-II, Bhagalpur in Title Suit No. 90 of 1979. ----------- 1. Mostt. Kanti Devi wife of late Chandrika Singh 2. Rajendra Singh alias Rajendra Kumar Singh 3. Surendra Singh alias Surendra Kumar 4. Arun Kumar Singh 5. Deepak Prasad Singh All sons of late Chandrika Singh, all are resident of Jai Ram Das Marwari Lane, P.O. Khalif Kotwali, District Bhagalpur. ….Defendants-Appellants-Appellants versus 1 Narain Khawas 2. Gopi Krishna Neyogi, son of Badri Prasad Khabas, Both of resident at Jai Ram Das Harwari Lane, P.O. Khalifabag, P.S. Kotwali, District Bhagalpur. …Plaintiffs-Respondents-Respondents ------- For the appellants : M/s S.S. Dwivedi, Sr. Advocate, Sanjay Kumar `Ghosarvey’ and R.K. Pandit, Advocates. For the respondents: Mr. Bimlendu Mishra, Advocate. -------- P R E S E N T THE HON'BLE MR. JUSTICE S.N. HUSSAIN ---------- S.N. Hussain, J. Heard learned counsel for the appellants and learned counsel for the respondents. 2. This second appeal was admitted on 31.03.2009 on the basis of four substantial questions of law formulated and mentioned in the said order. Considering the expediency of the matter, this second appeal, which had arisen out of an eviction suit, was listed for final hearing within top five cases on 04.05.2009, whereafter it was heard on 11.01.2010. 3. At the time of arguments, learned counsel for the 2 appellants raised the first substantial question of law framed by this Court on 31.03.2009 as his preliminary issue for deciding the second appeal. The said substantial question of law framed was as follows ;- “Whether the judgment and decree of the learned court of appeal below is vitiated due to complete non-application of mind and is mere reproduction of the judgment of the trial court ?” 4. Learned counsel for the appellants submitted that Title Suit No. 90 of 1979 was filed by the plaintiffs-respondents for eviction of the defendants-appellants from the suit room situated in Jairampur Marwari Lane, Bhagalpur on the ground of default and for arrears of rent. The said claim of the plaintiffs was challenged by the defendants, who claimed that the plaintiffs had no right, title and interest in the suit property and the defendants were in occupation thereof on their own right and there was no relationship of landlord and tenant between the parties, hence the suit was, in fact, a suit for declaration of title in the garb of an eviction suit without payment of proper court fee. 5. It is also claimed that the learned trial court did not frame any issue with respect to relationship of landlord and tenant between the parties or with respect to any ground of eviction as prescribed under section 11 of the Bihar Buildings ( Lease, Rent & Eviction ) Control Act, 1982 (hereinafter referred to as `the Act’ for the sake of brevity ), rather the main issues framed by the trial court, were as to whether the suit was hit by section 34 of the Specific Relief Act and whether Dhanna Lal Sharma had title over the suit land which he transferred to the plaintiffs and the suit was decreed on the said issues by the learned Munsif-II, Bhagalpur 3 vide his judgment and decree dated 08.04.1987. 6. Learned counsel for the appellants further stated that against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No. 22 of 1987, which was dismissed by the learned Additional District Judge-VII, Bhagalpur vide his judgment and decree dated 16.09.2000 without framing any issue or point for determination in the appeal and without even deciding the issues framed by the trial court, which is in complete violation of the specific provision of Order XLI Rule 31 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code’ for the sake of brevity ). 7. Learned counsel for the appellants also averred that the main portion of the judgment of lower appellate court is a complete replica of the main portion of the judgment of the trial court, which clearly shows that there was no application of mind by the learned court of appeal below although the law is well-settled that the application of mind was necessarily required even while affirming the judgment and decree of the trial court. In this regard he referred to various decisions of the Hon’ble Apex Court, by which the law has been settled and claimed that on these preliminary issues, the impugned judgment and decree of the learned court of appeal below is fit to be set aside. 8. On the other hand learned counsel for the respondents vehemently opposed the contentions of learned counsel for the appellants and submitted that the findings of the learned courts below are concurrent findings of facts, which cannot be legally interfered by this Court in second appeal under the provision of section 100 of the Code. He further submitted 4 that repetition in the lower appellate court judgment is only with respect to some findings of facts in the trial court in paragraph 6 of its judgment, whereas, in other paragraphs there is no repetition. He further submitted that a considerable portion of paragraph 6 of trial court judgment was not replicated in the lower appellate court judgment, whereas, paragraph no.9 of lower appellate court judgment is completely different. Hence he averred that there is no procedural defect or any legal defect in the judgment of the learned court of appeal below, which could make the second appeal maintainable, specially when the learned court of appeal below has affirmed the judgment and decree of the trial court. 9. In this connection, learned counsel for the respondents relied upon the decisions of the Privy Council, the Apex Court and High Courts, namely, in case of Ramji Patel vs. Rao Kishore Singh, reported in AIR1929 Privy Council 190; in case of V. Ramchandra Ayyar and another vs. Ramalingam Chettiar and another, reported in AIR 1963 Supreme Court 302; in case of Afsar Sheikh and another vs. Soleman Bibi and others, reported in (1976) 2 SCC 142; in case of Hazi Khosal Biswas vs. Ram Sundar Bhagat & Ors., reported in AIR 1969 Patna 128; and in case of Ram Dhar vs. Shrimati Pushpa Devi, reported in AIR 1974 Jammu and Kashmir 66. 10. After hearing the parties and considering the materials on record including the impugned judgments of both the learned courts below, it is quite apparent that the main issues in the title suit were issues no. (iv), (v) & (vii), namely, is the suit hit by section 34 of the Specific Relief Act; are the plaintiffs entitled for a decree as prayed for; and 5 whether Dhanna Lal Sharma had any title and did the plaintiffs acquire any title from Dhanna Lal Sharma. The said three main issues were decided jointly by the trial court in only one paragraph of the judgment, namely, paragraph no.6. 11. The said issues decided by the trial court were considered by the learned court of appeal below in paragraph nos. 7 and 8 of its judgment. It is interesting to note that entire paragraph no.7 of the lower appellate court judgment is a replica of the main portion of paragraph no.6 of the trial court judgment starting from the third line of page no. 10 till the fifth line of page no.13 of trial court judgment. Furthermore, paragraph no.8 of lower appellate court judgment is also replica of another portion of paragraph no.6 of trial court judgment starting from the 9th line of page no. 14 till the 6th line from the bottom of that page of the trial court judgment. The remaining portion of paragraph no.6 of the trial court judgment is mere enumeration of the evidence of the parties. 12. It is also apparent that paragraph nos.1 to 4 of the trial court judgment were with regard to the respective case of the parties and in paragraph no.5 issues were enumerated, whereas, in paragraph no.7 onwards of the judgment of the trial court, other trivial issues were considered. Similarly in paragraphs no. 1 to 4 of the lower appellate court judgment, respective claims of the parties were described and in paragraph no. 5 thereof issues framed by the trial court were enumerated, whereas, in its paragraph no. 6 merely the numbers of all the witnesses and exhibits of both the parties were mentioned and the last two paragraphs, namely, paragraph nos.9 and 10 of the lower appellate court judgment were mere 6 conclusions. 13. In the said circumstances, it is quite apparent that the relevant issues no. (iv), (v) and (vii) were decided by the trial court in those very portions of paragraph no.6 of its judgment, which were fully repeated word by word with change of a word or two here and there in paragraphs no.7 and 8 of the judgment of the learned court of appeal below, in which the said main matter was decided. 14. So far the decisions cited by learned counsel for the respondents is concerned, the Privy Council in case of Ramji Patel (supra) had merely held that a second appeal cannot be maintained on the ground of an erroneous finding of fact, whereas, the Hon’ble Apex Court in case of V. Ramchandra Ayyar (supra) and in case of Afsar Sheikh (supra) had held that the High Court is not entitled to interfere merely because judgment of the lower appellate court was not as elaborate as that of the trial court or that some of the reasons given by the trial court were not expressly reversed as the effect of sections 100 and 101 read together was that a second appeal was competent only on the ground of an error of law or procedure and not merely on the ground of an error on a question of fact. Furthermore, this Court in case of Hazi Khosal Biswas (supra) and the Jammu and Kashmir High Court in case of Ram Dhar (supra) had also followed the view of the Hon’ble Apex Court in case Ramchandra Ayyar (supra). 15. It is thus quite apparent that the aforesaid case laws relied upon by learned counsel for the respondents are not at all applicable to the facts and circumstances of this case as in those decisions the Hon’ble 7 Courts had merely held that a second appeal under section 100 of the Code would not lie against a finding of fact of the learned court of appeal below, whereas in the instant case no question of fact is in issue, rather a pure and simple but substantial question of law and procedure has been raised by the appellants in this second appeal. 16. In this regard the law has been well settled by the Hon’ble Apex Court as far back as in the year 1984 in case of M/s Variety Emporium vs. V.R.M. Mohd. Ibrahim Naina, reported in AIR 1985 S.C. 207 holding that even in the case of an eviction suit concurrent findings of the learned courts having been shown to be manifestly unjust, it has to be set aside for remedying injustice. The Hon’ble Apex Court in case of Madhukar & ors. vrs. Sangram & Ors., reported in 2001(3) PLJR (SC) 192 had also held that sitting as a court of first appeal it is the duty of the court to deal with all the issues, as the first appeal is a valuable right in which both the questions of law and facts are to be considered and the judgment in the first appeal has to address itself to all the issues of law and facts and decide it by giving independent reasonings. 17. The law is also well settled that an appeal under section 96 of the Code is a substantive right conferred by the statute and it is continuation of the proceedings, which comes entirely upon the first appellate court, carrying with it a right of rehearing on law and facts as well as reviewing the pleadings and evidences independently. Thus a duty is cast upon the lower appellate court to examine the pleadings and evidence on record and then determine the relevant issues independently. Reference in this regard may be made to two decisions of the Hon’ble Apex Court in 8 case of Devram Bilve vs. Indumati, reported in (2000) 10 SCC 540 and in case of Shiv Shati Coop. Housing Society, Nagpur vs. Swaraj Developers and others, reported in (2003) 6 SCC 659. 18. Unless there is an independent application of mind on the pleadings and evidence of the parties as well as on the issues involved in the suit, the lower appellate court cannot validly decide the legality or otherwise of the findings and judgment of the trial court. Requirement of section 96 of the Code is independent appraisal of evidence and pleadings on the issues involved, not merely harping upon the findings of the trial court and copying them in the judgment of the first appellate court. Mere repetition and copying of the findings of the trial court judgment in the impugned judgment of the lower appellate court clearly shows absence of any application of mind on the points involved, which clearly makes it perverse and arbitrary apart from grossly illegal. Reference in this regard may be made to two decisions of the Hon’ble Apex Court in case of Ramchandra Sakharan Mahajan vs. Damodar Trimbak Tanksale (Dead) & Ors., reported in (2007) 6 SCC 737 and in case of Haryana State Industrial Development Corporation vs. Cork Manufacturing Co., reported in (2007) 8 SCC 120. 19. Furthermore, the learned courts below without framing any issue and without giving any finding regarding relationship of landlord and tenant between the parties and regarding any ground of eviction under section 11 of the Act, decided the eviction suit on the basis of title only failing to appreciate that in such suits question of title has to be gone into only incidentally without deciding it in a full fledged manner, as the main 9 issues to be decided in such a proceeding were relationship of landlord and tenant as well as the ground of eviction. Thus, it transpires that the learned courts below were from the very beginning determined to dismiss the eviction suit on the basis of title. This is not a question of fact rather is a pure question of law to which section 100 of the Code is attracted in full, whereas, section 101 thereof cannot legally be made applicable. 20. Moreover, it was the duty of the lower appellate court under the provision of Order XLI Rules 30 and 31 of the Code to frame its own points for deciding the title appeal and if in any view of the matter the lower appellate court was of the opinion that all the issues framed by the trial court were to be re-decided by the lower appellate court, it should have considered and given its independent findings on all the said issues. From the judgment of the learned court of appeal below, it is quite apparent that none of the aforesaid two options were followed by the lower appellate court, which decided the matter vaguely and generally. This also cannot be legally said to be a question of fact rather it is squarely an error in law and procedure. 21. This court has been observing that of late the judgments of the trial courts in most of the cases are better than the judgments of the lower appellate courts. The main reason thereof is quite obvious as the trial courts always frame the issues first and thereafter decide those issues in their judgments on the basis of pleadings and evidence of the parties, whereas the lower appellate courts are developing the habit of deciding title appeals either without framing any point for determination in the appeal or by framing a general point that whether the judgment and decree of the trial 10 court is sustainable in law and is legal and proper. The former is against the specific provision of Order XLI Rule 31 of the Code, whereas the latter is still worse as such point cannot in any way be legally deemed to be a point for determination in the appeal as required under the relevant provisions of law and it reveals the ignorance and incompetence of the concerned judicial officer to frame valid and proper issues or points in accordance with law for determination in a title appeal. This trend of the lower appellate courts has to be desisted and emended by them for the ends of justice and for proper adjudication of appeals from the original decree, because such courts are final courts of facts and are supposed to be fully conversant with the relevant laws and procedures, on the basis of which the points for determination in appeals have to be formulated. 22. In the aforesaid facts and circumstances it is quite apparent that the judgment ( and decree on its basis ) of the learned court of appeal below is vitiated due to complete non-application of mind and is mere repetition and reproduction of the judgment of the trial court with respect to the main issues involved. Thus without going into the other questions raised by the parties, this second appeal is hereby allowed on the basis of the aforesaid preliminary substantial question of law raised by the appellants. The impugned judgment and decree of the learned Additional District Judge VII, Bhagalpur dated 16.09.2000 passed in Title Appeal No.22 of 1987 is hereby set aside and the matter is remanded to the said court of appeal below to frame its own points for determination in the title appeal in accordance with law keeping in mind that the main issues/points to be decided in a suit for eviction are relationship of landlord and tenant 11 between the parties as well as the ground for eviction under the Act, whereas the question of title, if raised, has to be gone into merely incidentally and thereafter to decide those issues/points afresh independently on the basis of pleadings and evidence of parties, testing the findings of the trial court in accordance with law. 23. Since, this matter arises out of a suit for eviction of the year 1979, the learned lower appellate court is directed to decide the title appeal expeditiously, preferably within a period of twelve months from the date of receipt of the records from this court. Office of this High Court is directed to send the lower court records immediately to the learned District Judge, Bhagalpur for the needful. Patna High Court, The 22nd January, 2010 A.F.R. MPS/ ( S. N. Hussain, J. )