- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1655/2005 1. Abdul Hamid s/o Abdul Aziz, age 68 yrs., occu.mechanic, r/o Hattikhana, Beed. Tq. & Dist.Beed. 2. Mohammad Hayatulla s/o Mohd.Hasirullah, age 70 yrs., occu. And r/o as above. ...Appellants.. (Org.deft.nos.1 & 2. Versus 1. Smt.Ashalatabai w/o Suresh Chandraji Ladda, age 42 yrs., occu.Insurance Agent, r/o Kareempura, Beed. Tq. & Dist.Beed. 2. Ramandas s/o Gangadas Tekwani (died L.Rs.) 2/a] Bhimandas s/o Ramandas Tekwani, age 50 yrs., occu.business, r/o Kareempura, Beed. Tq. & Dist.Beed. 2/b] Prakash s/o Ramandas Tekwani, age 45 yrs., occu.Medical Practitioner, r/o as above. 2/c] Parmanand s/o Ramandas Tekwani, age 40 yrs., occu.service r/o as above. 2/d] Dr.Vishnu s/o Ramandas Tekwani, age 39 yrs.,occu.Medial Practitioner, r/o as above. 2/e] Kishor s/o Ramandas Tekwani, age 36 yrs., occu.Legal Practitioner, r/o as above. 2/f] Harish Ramandas Tekwani, age 30 yrs.,occu.business r/o as above. ...Respondents.. (No.1 org.plaintiff No.2 – L.Rs. Of org.deft.no.3) - 2 - ..... Shri S.M. Godsay, Advocate for appellants. Shri G.K. Naik - Thigale, Advocate for respondent no.1. At the request of learned counsel for appellants, name of respondent no.2 is deleted. ..... CORAM: R.M. BORDE, J. DATE: 15.09.2009 ORAL JUDGMENT: 1] This is appeal by original defendant nos.1 & 2 raising exception to the concurrent judgments recorded by the Courts below. After presentation of the appeal by the appellants, notice was directed to be served on respondents. Shri G.K. Naik – Thigale, learned counsel has caused appearance on behalf of respondent no.1 – original plaintiff. The legal heirs of deceased respondent no.2 are served, none appears for them. At the request of learned counsel for the appellants, the name of respondent no.2 is deleted. With the consent of contesting parties, the appeal is taken up for final disposal at the stage of admission. 2] The substantial question of law that arises for consideration of the appeal is as to whether the judgment of the appellate Court can be considered to be a proper judgment as fulfilling the requirements of Order XLI Rule 31 of the Code of Civil Procedure and whether the same satisfies the test laid down in the judgment of the Apex Court in Santosh Hazari V/s Purushottam [ (2001) 3 SCC, 179 ]. 3] The respondent no.1 – original plaintiff instituted Regular Civil Suit No.462/1989 claiming a decree of perpetual injunction restraining the - 3 - defendants from interfering in peaceful possession over the suit plot admeasuring 40 ft. x 50 ft. out of Survey No.75 situated at Taraf Giram, Beed. According to plaintiff, she has entered into an agreement with defendant no.3 in respect of sale of the suit plot on 10.4.1981. Agreed amount of consideration was Rs.55,000/- and she had paid an amount of Rs.1,000/- towards earnest money. The registered saledeed was got executed after tendering balance of consideration amount to the defendant no.3 by the plaintiff on 7.9.1989. After purchase of the suit plot, the plaintiff tendered an application to the Municipal Council for recording her name in the Municipal record. The Municipal Council thereafter issued a proclamation on 27.9.1989 calling objections in respect of the application tendered by the plaintiff. The defendants thereupon raised objection by presenting a petition on 29.9.1989. The Chief Officer of the Municipal Council appears to have advised the parties to approach the Civil Court for resolving their dispute. According to the plaintiff, the defendant nos.1 & 2 have no entitlement in respect of the property purchased by her, however, they are causing interference in her possession. It is her contention that the suit plot is situated at a distance of 80 ft. from the centre of Beed-Barshi road on eastern side and there is open space of 40 ft. lying between the west border of the said road and east border of the suit plot. The defendant nos.1 & 2 appear to have entered into an agreement for purchase of plot admeasuring 40 ft. x 40 ft. situated in between the western border of Beed – Barshi road and eastern border of the plot purchased by the plaintiff. According to her, the defendant nos.1 & 2 have no entitlement in respect of the suit plot. The defendant nos.1 & 2 illegally removed the poles erected by her around the suit plot in the night between 13th and 14th October, 1989 and as such she was required to lodge the complaint with the Police authorities in that behalf. The plaintiff further contends that she had received a notice from the defendant nos.1 & 2, which was also transmitted to the defendant no.3 asking them to specifically perform the agreement dated 1.1.1979. The defendants have alleged that they have agreed to purchase the plot admeasuring 40 ft. x - 4 - 40 ft. out of Survey No.75 from the defendant no.3 on 1.1.1979. The defendant nos.1 & 2 claim that the property purchased by them is covered by the saledeed got executed by the plaintiff from the defendant no.3. According to the plaintiff, the defendant nos.1 & 2 are trying to enforce their possession over the suit plot, as such she was required to approach the Civil Court seeking restraint order against them. 4] The defendant nos.1 & 2 appeared and resisted the suit by filing written statement. According to them, they have agreed to purchase plot admeasuring 40 ft. x 40 ft. from the defendant no.3 for consideration of Rs.8,000/- by entering into an agreement on 1.1.1979. The defendants contend that they have paid a sum of Rs.5,000/- to the defendant no.3 as part of agreed consideration amount. The defendant no.3 has executed an agreement of sale and put the defendant nos.1 & 2 in possession of the plot. The defendant nos.1 & 2 contend that they are ready and willing to perform their part of the agreement, however, the defendant no.3 under some pretext or the other has refused to perform his part. The defendant nos.1 & 2 came to know about the transaction entered into by the defendant no.3 with the plaintiff after publication of notice by the Municipal Council for the purpose of mutating the name of the plaintiff in the Municipal record. The defendant nos.1 & 2 thereafter issued legal notice to the defendant no.3 as well as to the plaintiff calling upon them to accept the balance of consideration amount and execute the saledeed in respect of the plot. The defendants contend that they are in fact in possession of the suit plot on the strength of agreement to sell got executed by them, which is prior in time and as such pray for dismissal of the suit. The defendant nos.1 & 2 have also presented a counter claim and prayed for specific performance of agreement. The plaintiff, by filing a written statement to the counter claim raised by the defendant nos.1 & 2, opposed the contentions and prayed for dismissal of the counter claim. 5] The trial Court, on the basis of pleadings raised by the parties, framed - 5 - issues and after recording evidence, was pleased to grant decree in favour of the plaintiff partially. The defendants were restrained by an order of injunction from causing interference in the possession of the plaintiff over the suit plot. The relief claimed by the plaintiff in respect of mandatory injunction for removal of tin shed alleged to have been constructed by the defendant nos.1 & 2, came to be rejected by the trial Court. The counter claim raised by the defendant nos.1 & 2 also came to be rejected. The Trial Court, on appreciation of evidence tendered by the parties, recorded a finding that the plaintiff has proved her title as well as possession over the suit property. The trial Court has recorded a specific finding that the suit property is different than the property alleged to have been purchased by the defendant nos.1 & 2 from the defendant no.3 in view of agreement to sell executed in 1979. Although the trial Court has held that the agreement to sell executed by the defendant no.3 is proved by the defendant nos.1 & 2, however, the trial Court has dismissed the counter claim. It has been held by the trial Court that the counter claim raised by the defendant nos.1 & 2 is not within limitation and also not maintainable. 6] The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appeal No.54/1994 presented by the defendants. The first appellate Court, after considering the arguments of rival parties while dealing with the appeal, has framed eight points for consideration of the appeal. However, in the body of the judgment, I do not find that all the points framed by the first appellate Court appear to have been answered. However, while recording the judgment, the first appellate Court has not dealt with the points framed independently. There are no reasons set out while answering the points formulated by the first appellate Court. On perusal of the judgment, I also find that there is absolutely no application of mind to the evidence placed on record by the parties. The first appellate Court has not at all discussed the evidence laid by the parties nor has analysed the same or recorded the reasons for the agreement of the appellate Court with the - 6 - findings recorded by the trial Court. It is in fact the responsibility of the first appellate Court to apply mind to the evidence laid by the parties and by process of analysis, reach to the conclusion either by concurring with the reasons for findings recorded by the trial Court or of disagreeing with the findings or conclusions reached by the trial Court. It must be reflected from the judgment that there is application of mind to the record of the case. On going through the judgment of the first appellate Court, I have to record that the first appellate Court has not at all applied its mind to the evidence and record of the case. The first appellate Court has not set out the reasons for its agreement with the findings reached by the trial Court. The first appellate Court is the last fact finding Court and is entrusted with the responsibility to re-appreciate the evidence and record independent findings based on such appreciation. Merely because the first appellate Court concurs with the findings recorded by the trial Court, shall not in itself be an excuse for failure to apply mind to the record of the case. It must also appear on perusal of the judgment that there is application of mind by the first appellate Court to the record of the case. In the instant matter, it has to be recorded that the judgment of the first appellate Court is not in conformity with the provisions of Order XLI Rule 31 of the Code of Civil Procedure. In this context, it would be appropriate to refer to the judgment of the Supreme Court in the case of Santosh Hazari V/s Purushottam [ (2001) 3 Supreme Court Cases, 179 ]. The Apex Court has, in para 15 of the judgment, recorded thus: “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 - 7 - 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. In this respect, a reference to another judgment of this Court may usefully be made in the case of Shri Bernard B. Gomes V/s Smt.Prescilla Lopes [ (1999) Vol.101(1) Bom.L.R., 378 ], in which the relevant observations are as under: “ On a plain reading of the Rule 31 of Order XLI of the Code of Civil Procedure, it is clear that the judgment of the lower Appellate Court should necessarily disclose the points for determination and the decision on such points as well as the reasons for such decision. In other words, before arriving at a decision in an appeal, the Appellate Court has to find out what are the points for determination involved in the matter and thereupon proceed to decide the same and substantiate the same by giving reasons for the same. On plain reading of the entire judgment, it nowhere discloses that the lower Appellate Court had taken pains to apply its mind as regards the points to be determined in the matter before delivering the judgment dismissing the said appeal. In this view of the matter, therefore, there is a clear violation of the mandate of Rule 31 Order XLI of the Civil Procedure Code and, therefore, the impugned judgment is liable to be quashed and set aside.” - 8 - 7] The learned counsel appearing for the appellant has contended that although the trial Court has recorded finding that the agreement to sell executed in favour of the defendant nos.1 & 2 is proved by the concerned defendant and a finding to that effect has been recorded by the trial Court, still the first appellate Court has refused to grant a decree of specific performance. It is also canvassed by the appellant that the findings recorded by the trial Court in respect of readiness and willingness of the defendant nos.1 & 2 to perform their part of contract or on the issue of limitation and maintainability of the counter claim are erroneous. The appellate Court ought to have taken into account the arguments advanced by the defendants controverting the findings raised by the trial Court in that regard. However, on perusal of the judgment, it does not transpire that the first appellate Court has applied its mind to the record of the case and considered the arguments raised by the defendants in that behalf. The original defendants also questioned the findings recorded by the trial Court whereby it is held that the suit property is different from the property in respect of which there is an agreement to sell between the defendant no.3 and the defendant nos.1 & 2. The appellant canvasses that taking stock of the evidence placed on record, conclusion is irresistible that part of the property purchased by the defendant nos.1 & 2 is acquired by the plaintiff. In these circumstances, according to the appellant, the first appellate Court ought to have applied its mind to the evidence and ought to have given independent findings on the issues raised before the first appellate Court. 8] Considering all these aspects and considering that the judgment of the first appellate Court does not satisfy the requirements of Order XLI Rule 31 of the Code of Civil Procedure, I am of the opinion that the appeal needs to be allowed and the matter needs to be remitted back to the first appellate Court for decision afresh in accordance with law. The judgment and order passed by Ad Hoc Additional District Judge, Beed, on 1.8.2005 in Regular Civil Appeal No.54/1994 is quashed and set aside and the matter is remitted back to - 9 - the First Appellate Court for fresh decision in accordance with provisions of law. Considering the fact that the litigation between the parties is pending since many years, the first appellate Court shall make endeavour to dispose of the appeal as expeditiously as possible and within a period of six months from today. In the facts and circumstances of the case, there shall be no order as to costs. (R.M. Borde, J.) ndk/c159092