1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.542 OF 2001 Babu s/o Nimba @ Babu Limba, age: 64 years, Occ: Agri., R/o Village Varda-Tembhe, Tq.Shahada, District Nandurbar. Appellant Versus Rajesingh s/o Malesingh Girase, age: 71 years, Occ: Agri., R/o Village Varda-Tembhe, Tq.Shahada, District Nandurbar. Respondent Mr.C.R.Deshpande, advocate for appellant. Mr.P.B.Patil, advocate for the Respondent. CORAM: R.M.BORDE, J. DATE : 12 th March, 2010. JUDGMENT: 1 This is an appeal by original plaintiff raising exception to the judgment and decree dated 12.07.2001, passed by Additional District Judge, Shahada in Regular Civil Appeal No.58/1998 ( Old No.11 of 1992). 2 The first appellate Court, while allowing appeal, has reversed the judgment and decree passed by trial Court dated 30 th January, 1992. The trial Court, while allowing suit presented by plaintiff – appellant herein, directed defendant to hand over vacant possession of house no.15/2 situate at village Varda-Tembhe within stipulated period. 3 Plaintiff claims that house bearing no.15/2 is owned by him and 2 same was let out to defendant since 11.03.1975 on monthly rent of Rs.12/-. A rent note was executed by defendant in favour of plaintiff. Defendant, however, did not pay rent for the period between 11.01.1983 to 10.06,1985, as such, plaintiff, by issuing notice on 21.06.1985, terminated tenancy of defendant and asked him to deliver vacant possession of premises and also called upon defendant to pay arrears of rent. However, in spite of service of notice, defendant did not vacate suit premises, as such, plaintiff was constrained to file suit. 4 Defendant appeared and denied contentions raised in the plaint by filing written statement at Exhibit-13. Defendant denied title of plaintiff in respect of suit property. He also denied relationship of landlord and tenant between them. Defendant has flatly denied execution of rent note as alleged by plaintiff. He contends that his aunt Dhawalbai w/o Vagarsing was a child widow and was residing with him. Plaintiff induced Dhawalbai and got sale deed of house no.14 executed in his favour. It is contended that at the request of Dhawalbai, he signed some stamp paper on 11.06.1975 and further contends that plaintiff has fabricated the document taking disadvantage of faith reposed by defendant on his aunt Dhawalbai, in signing stamp paper. It is contended that plaintiff, in conspiracy with Gram Sevak and other officials of Village Panchayat, got his name mutated as regards the property and taking disadvantage of wrong mutation entry, plaintiff is asserting his entitlement in respect of the property. Defendant, as such, prayed for dismissal of suit. 5 The trial Court, after recording evidence led by parties, while rendering decision, recorded a finding that plaintiff has established that he is owner of the property in dispute and has further held that plaintiff has also proved relationship of landlord and tenant between him and defendant. After holding plaintiff entitled to receive possession of the property, trial Court directed defendant to hand over vacant possession of property and also to pay arrears of 3 rent. 6 The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appeal No.58/1998 at the instance of defendant, which came to be heard and disposed of by Additional District Judge, Shahada, who was pleased to allow same and set aside judgment and decree passed by the trial Court by his judgment and decree dated 12.07.2001. Instant appeal is presented raising exception to the judgment and decree passed by first appellate Court. 7 The matter was taken up for arguments on 24.06.2008 and 25.06.2008 and after hearing arguments advanced by learned Counsel for respective parties, this Court expressed opinion that the appeal is not decided by the first appellate Court in conformity with the parameters laid down by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari, reported in 2001 (2) MhLJ 786 and as such, same needs to be remitted back to the first appellate Court. However, reasons, in support of final order, could not be recorded for considerably long duration of time. As such, matter was again listed for hearing learned Counsel for respective parties on 12.03.2010 and after hearing arguments once again, reasons are now being recorded. 8 I have heard arguments advanced by learned Counsel for respective parties. On consideration of contentions raised by learned Counsel, in my opinion, the substantial questions of law, those arise for consideration in the appeal, are: (A) Whether the error appearing in sale deed Exhibit-58 in respect of number of suit property would divest title of plaintiff, more specifically when the property, which is subject matter of dispute, is sufficiently described in the sale deed? 4 (B) Whether defendant, who has admitted execution of sale deed, can be permitted to take benefit of the wrong committed in mentioning number of the property, when description of the property matches with the claim raised by plaintiff in the suit? (C) Whether judgment and decree passed by first appellate Court, reversing judgment and decree passed by trial Court, is sustainable in the eye of law and can be considered as a judgment of the first appellate Court in conformity with provisions of Order XLI Rule 31 of the Code of Civil Procedure, when appellate Court has failed to consider documentary evidence so also oral evidence placed on record by the parties in its proper perspective. Whether judgment of the appellate Court can be construed as legal and proper by applying the test laid down by the Apex Court in Santosh Hazari’s case. 9 It cannot be controverted that number of the property mentioned in sale deed dated 10.04.1968 executed in favour of plaintiff by defendant mentions property number as “14”. The boundaries of suit property are noted in the sale deed. Whereas, plaintiff is asking for possession of the property by mentioning number of house property as 15/2 in the plaint presented by him. The description mentioned in the plaint matches with the description mentioned in the sale deed at Exhibit-58. The trial Court, on consideration of evidence in the form of sale deed at Exhibit-58 dated 10.04.1968, sale deed executed by Dhawalbai in favour of plaintiff on 11.06.1975 placed at Exhibit-60, so also rent agreement placed on record by plaintiff at Exihibit-59 along with evidence in the form of extracts of mutation register of the suit property, has come to the conclusion that property mentioned in the plaint is essentially the same property purchased by plaintiff by securing registered sale deed at Exhibit-58 from defendant on 10.04.1968. The first appellate Court, however, has only made a reference to the sale deed in question at Exhibit-58 and considering the disparity 5 in the numbers mentioned in the sale deed, has recorded a finding that possession of the property claimed by plaintiff is not same, which he states to have purchased from defendant by virtue of sale deed Exhibit-58. On perusal of judgment of the first appellate Court, it transpires that first appellate Court has not considered any other evidence except sale deed at Exhibit-58 and has reached a conclusion that the property claimed by plaintiff does not belong to him. 10 It is the contention of plaintiff that suit premises were originally owned by Ramsing Girase and Navalsingh Girase. These two persons sold suit premises to Rajesingh Malesingh on 30.01.1959. The boundaries of suit property are mentioned in the sale deed. The house property admeasures East-West 80 feet and North-South 60 feet as described in the sale deed. One half portion of suit house has been purchased by plaintiff’s father Nimba Dajbhau on 10.04.1968 from the defendant. The property purchased by way of registered sale deed by defendant on 30.01.1959 is the property, which is house no.15. One half portion, which is sold out of the suit property in favour of plaintiff has been properly described by noting boundaries in the sale deed. However, mistake is committed while mentioning number of the property and in stead of house no.14, it is mentioned as house no.15. House no.14 was owned by Dhawalbai Wagarsingh Girase, who sold said house to plaintiff, which admeasures East-West 81 feet and North-South 13.9 feet. The said house property is purchased by plaintiff by securing registered sale deed at Exhibit-60 executed by Dhawalbai. Perusal of both sale deeds would show that boundaries mentioned in the sale deed at Exhibit-59 dated 10.04.1968 matches with boundaries mentioned in the plaint as well as sale deed got executed by defendant on 30.01.1959. The first appellate Court, however, has not considered evidence in the form of all the three sale deeds and description of the boundaries. 6 11 Another aspect of the matter is that the first appellate Court has also not considered evidence in the form of extracts of assessment register placed on record and resolution of village panchayat. Resolution No.4 recorded by Village Panchayat, which is placed on record at Exhibit-94, reveals that defendant has given consent for recording name of Nimba Dajbhau Patil in respect of House property bearing No.15. There is also evidence in the form of assessment register at Exhibit-88 for the year 1972-73, which shows that House No. 15 is recorded in the name of defendant and House No.14 is recorded in the name of Dhawalbai and adjacent house no.16 is recorded in the name of Nimba, father of plaintiff. House No.15 has been divided into 15/1 and 15/2 and 15/2 has been recorded in the name of Nimba vide Resolution No.4 dated 15.01.1973. While recording entry in the name of Nimba, defendant has given no objection with the office of Village Panchayat. These facts go to establish the contention raised by plaintiff that house property purchased by him by virtue of sale deed dated 10.04.1968 is in fact suit property. 12 Another aspect of the matter is in respect of consideration of evidence in the form of rent note alleged to have been executed by defendant in favour of plaintiff. The first appellate Court has not at all discussed evidence in respect of rent note. The defence raised by defendant that he has signed some stamp paper by keeping faith in Dhawalbai and at her instance and that he does not know contents of rent note has been rightly discarded by the trial Court. Once rent note got executed by plaintiff from defendant is established, relationship of landlord and tenant cannot be controverted. The first appellate Court has not touched this aspect at all. 13 The first appellate Court is the last fact finding Court and it is responsibility of first appellate Court to take into account evidence, oral as well as documentary placed on record by the parties. In the instant matter, first 7 appellate Court has not at all considered all the evidence placed on record and has not dealt with factual aspects of the matter. In order to ascertain whether description of the property given in the sale deed at Exhibit-58 matches with description given in the plaint and in the circumstances, whether it can be inferred that house property given on rent by virtue of rent agreement dated 11.06.1975 is the same property, was required to be assessed by the first appellate Court by referring to the documentary as well as oral evidence placed on record by the parties. As stated above, first appellate Court has not at all touched the evidence in the form of resolution of village panchayat, placed on record and extracts of mutation register. In order to appreciate case put up by plaintiff, first appellate Court ought to have referred to all the evidence placed on record while reversing judgment and decree passed by the trial Court. The first appellate Court is also expected to give reasons as to why appellate Court does not agree with the reasons recorded by trial Court. However, in the instant matter, I do not find that the first appellate Court has recorded reasons for disagreement with the view taken by trial Court. The responsibility of first appellate Court in respect of assessing evidence placed on record and dealing with finding of fact has been dealt with and detailed instructions have been issued by the Apex Court while dealing with case of Santosh Hazari Vs. Purushottam Tiwari, reported in 2001 (2) MhLJ 786. Relevant observations of the Apex Court are as quoted below: “The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. 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 passed 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 8 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 & Ors vs Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, 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 weight 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 vs. Smt. Narayani Bai & Ors, AIR 1983 SC 114). 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 vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). 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 9 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.” 14 Considering the parameters laid down by the Apex Court, I am of the opinion that the judgment delivered by the first appellate Court does not conform to those parameters. The first appellate Court has not independently assessed the evidence led by parties and has not recorded findings based on such appreciation. The first appellate Court has also not recorded reasons for his disagreement with the view taken by trial Court. 15 As stated above, first appellate Court has only discussed evidence in respect of sale deed at Exhibit-58 and considering discrepancy in recording number of property, has reversed finding recorded by the trial Court. It would be responsibility of the first appellate Court to deal with other documentary evidence placed on record and also to consider oral evidence led by the parties. The case put up by plaintiff has not been considered in its proper perspective by the first appellate Court. In these circumstances, therefore, proper course to be adopted would be to remit the matter back to the first appellate Court for deciding same in the light of parameters laid down by the Apex Court in Santosh Hazari’s (supra) case. 15 Appeal is, therefore, allowed. The judgment and decree dated 12.07.2001, passed by Additional District Judge, Shahada in Regular Civil Appeal No.58 of 1998 is quashed and set aside and the matter is remitted back to the first appellate Court for disposal in accordance with law. Considering pendency of 10 the matter, first appellate Court shall decide the appeal as expeditiously as possible, preferably by the end of October 2010. In the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa54201