P.K. Sivasubramannian v. Mohammed and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933** ## **RSA.No. 914 of 2005 ( )** **----------------------AS.14/1987 OF SUB COURT, MANJERI OS.176/1975 OF MUNSIFF COURT, MANJERI** **............** ## **APPELLANT (PLAINTIFF-APPELLANT):** **-------------------------------------------------------** **P.K.SIVASUBRAMANNIAN, S/O.PARAKKATTU KOZHISSERI MEENAKSHI AMMA, 'KONDATH HOUSE', P.O.VALLUVANGAD, VIA. PANDIKKAD, MALAPPURAM DISTRICT.** **BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE. ADVS. SMT.PREETHY KARUNAKARAN, SRI.R.RAJESH KORMATH,** ## **RESPONDENTS (DEFENDANTS-RESPONDENTS):** **----------------------------------------------------------------------** **1. MOHAMMED, VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD, ERNAD TALUK, MALAPPURAM DISTRICT.** **2. CHERIYON ALIAS MOIDEEN, VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD, ERNAD TALUK, MALAPPURAM DISTRICT.** **3. ATHAN, VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD, ERNAD TALUK, MALAPPURAM DISTRICT.** **4. MANJERIKADAN PATHUMMA, VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD, ERNAD TALUK, MALAPPURAM DISTRICT.** **5. MARIYUMMA, VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD, ERNAD TALUK, MALAPPURAM DISTRICT.** **6. AYICHA, VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD, ERNAD TALUK MALAPPURAM DISTRICT.** **R1 TO R6 BY ADVS. SRI.A.P.CHANDRASEKHARAN, SMT.PRABHA R.MENON, SRI.M.KRISHNAKUMAR.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.914 of 2005 -------------------------------------Dated this the 15[th] day of March, 2012.** ## **JUDGMENT** V.R.Krishna Iyer, J. pointed out in **P.T.Ramanujan and others v. Bhaskaran (1971 KLT 624)** “A short cut may often prove to be a wrong cut.............” That appears to be the situation in my view, in this case having heard learned Senior Advocate for appellants and learned counsel for respondents and going through the judgment of the first appellate court. 2. Obviously on the strength of possession, appellant prayed for a decree for prohibitory injunction in O.S.No.176 of 1975 of the court of learned Munsiff, Manjeri against respondents trespassing into the suit property. He contended that he had taken the suit property on oral lease from Maranattu Mana in the year, 1142 (corresponding to 1966). 3. Respondents contended that they are in possession of the suit property, they had obtained a lease of the adjoining property from the said Mana in the year, 1910 (evidenced by Ext.X1) and that on the belief that the said lease covered the suit property also, they are in possession and enjoyment of the suit property. RSA No.914/2005 2 4. In the light of that contention raised by the respondents, appellant did not want to run the risk and amended the plaint to incorporate an alternative prayer for recovery of possession in case respondents are found in possession of the suit property. Certainly that was on the strength of possessory title appellants claimed as even as per averments in the plaint, alleged oral lease in their favour was in the year, 1966 and hit by Sec.74 of the Kerala Land Reforms Act (for short, “the Act”). 5. Trial court initially dismissed the suit by judgment dated 22.12.1979 which was challenged before the first appellate court in A.S.No.7 of 1980. First appellate court allowed the appeal by judgment dated 28.02.1981. Next was the turn of respondents. They challenged judgment and decree of first appellate court in this Court in S.A.No.363 of 1981. This Court, on hearing learned counsel on both sides found apparent contradiction in the findings entered by the first appellate court since at one stage, first appellate court took the view that appellant is in possession of the property, while at another stage, it took the view that appellant is entitled to get mesne profit (as if respondents are in unlawful possession of the property). This Court set aside the judgment and decree of both the courts and remitted the case to the trial court for fresh decision. After remand, trial court concluded that respondents are in possession of the property RSA No.914/2005 3 even before 1966 and dismissed the suit. Appellant challenged that judgment and decree before learned Sub Judge, Manjeri in A.S.No.14 of 1987. That appeal was dismissed against which this Second Appeal is filed. 6. Following substantial question of law is framed for a decision: “Is not the judgment of lower court vitiated since the mandatory requirements of Rule 31 of Order XLI of the Code of Civil Procedure (for short, “the Code”) are not complied with?” 7. Learned Senior Advocate for appellant contends that judgment of the first appellate court does not conform to the requirements of Rule 31 of Order XLI of the Code. It is stated that first appellate court has not framed points for determination, not to say that it has not referred to the evidence and the contentions raised in the Memorandum of Appeal. On the otherhand, without referring to the relevant documents and the contentions raised, first appellate court by a sweeping observation that on going through the records, it is satisfied that there is no illegality in the finding of trial court chose to dismiss the appeal which is illegal. Reliance is placed on the decisions in **United India Insurance Co. Ltd. v. Kanwal Nain Sachdeva and others ((1999) 9 SCC 193), Madhukar and others v. Sangram and others ((2001) 4 SCC 756)** and **Siddiqui v. Ramalingam (2011 (1) KLT SN.107 (Case No.151))** . It is RSA No.914/2005 4 contended that in the circumstances, the matter has to go back to the first appellate court for compliance with provisions under Rule 31 of Order XLI of the Code. 8. Learned counsel for respondents pointed out that there is absolutely no material produced by the appellant to show that he got possession of the property and at any rate, in the year, 1966. On the other hand, trial court on evidence found that even prior to 1966 respondents got possession of the property in which case on the strength of alleged possessory title, appellant is not entitled to get a decree for recovery of possession, not to say about a decree for prohibitory injunction. According to the learned counsel, it will be hard to remand the case again, parties having been litigating from the year, 1975 onwards. It is argued that this Court can look into the matter and see whether any material is produced by the appellant, to remand the case for fresh decision. 9. I have gone through the judgment of the trial court and find that appellant has examined PWs 1 to 3 and marked Exts.A1 to A7. 1[st] respondent gave evidence as DW1 and proved Exts.B1 to B30. Ext.X1 is the registration copy of verumpattom chit executed in favour of respondents admittedly concerning the property adjoining the suit property. Exts.C1 to C5 are also RSA No.914/2005 5 marked in evidence. It is not as if appellant has adduced any evidence at all in the case. How far that evidence is relevant in deciding the issue is a different matter. 10. Rule 31 of Order XLI of the Code says: “The judgment of the appellate court shall be in writing and shall state- - (a) the points for determination; - (b) the decision thereon; - (c) the reasons for the decision; and - (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. .......................” 11. In **United India Insurance Co. Ltd. v. Kanwal Nain Sachdeva and others** (supra), referring to Sec.96 of the Code the Supreme Court referred to the duty of the first appellate court. The first appellate court is duty bound to RSA No.914/2005 6 discuss the merits of contentions raised by appellant. In **Madhukar and others v. Sangram and others** (supra) it is stated that while deciding the appeal by the first appellate court, that court must give reasons in support of its findings. If the court does not fulfill its obligations parties would not get the true benefit of a first appeal, which is a valuable right on the basis of which parties have a right to be heard on questions of law and fact. In **Siddiqui v. Ramalingam** (supra), referring to the requirements of Rule 31 of Order XLI of the Code it is stated that the said provision provides guidelines for the appellate court as to how the court has to proceed and decide the case. 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 of the said provisions if the appellate court's judgment is based on an independent assessment of relevant evidence on all important aspects of the matter and the findings of first appellate court are well founded and quite convincing. It is mandatory for the first appellate court to independently assess the evidence of parties and consider the relevant points which arise for adjudication and the bearing of evidence on those points. Being the final court of fact, first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. RSA No.914/2005 7 12. I shall refer to the judgment under challenge. Though the judgment contains as many as 14 paragraphs, on going through the judgment I find that upto paragraph 13, what is referred is the contentions raised by parties, finding entered by the trial court on earlier occasion and direction by this Court while remanding the appeal by its judgment in S.A.No.363 of 1981. Contribution of the first appellate court comes only in paragraph 14, which is as under: “On considering the pleadings of the parties, evidence adduced by the parties and on hearing the counsels appearing for both sides, I am of the view that the lower court appreciated evidence correctly and there is no illegality, irregularity or error in the findings of the lower court. The appellant/plaintiff could not show that the judgment and decree of the lower court is liable to be set aside. Appellant/plaintiff could not establish his case. So he is not entitled for the relief of injunction as prayed for. It can only come to the conclusion that the judgment and decree of the lower court has to be upheld” It is seen from the judgment of the first appellate court that neither has the first appellate court raised points for determination having regard to the contentions raised in the memorandum of appeal, nor has it independently assessed the evidence. I stated that it is not as if appellant has not adduced any evidence at all. First appellate court should have independently assessed evidence adduced RSA No.914/2005 8 by the parties. It is also relevant to note that first appellate court even failed to remember that the appellant had made an alternative plea for recovery of possession. It would appear from paragraph 14 of the judgment that the only relief by appellant prayed for, is for injunction. Having gone through the judgment under challenge, I am inclined to say that the judgment does not comply with the requirements of Rule 31 of Order XLI of the Code and the guidelines issued by the binding authorities referred supra. 13. In that situation, it is not for this Court while deciding the Second Appeal to decide the disputed facts as could and should be done by the first appellate court. 14. In that view of the matter, notwithstanding the length of time that has elapsed, the appeal has to go back to the first appellate court for proper decision. 15. I make it clear that I have not expressed any opinion regarding the merits of contentions parties have raised which the first appellate court has to decide after raising points for decision and assessing the evidence. Resultantly Second Appeal is allowed as under: RSA No.914/2005 9 i. Judgment and decree of the Sub Court, Manjeri in A.S.No.14 of 1987 are set aside. ii. A.S.No.14 of 1987 is remitted to the learned Sub Judge for fresh decision in the light of the observations made above, Rule 31 of Order XLI of the Code and the decisions referred above. iii. Learned Sub Judge is directed to dispose of the appeal after hearing both sides on or before 15.06.2012. iv. Parties shall appear in the first appellate court on 02.04.2012. v. Registry shall send the lower court case records to the court of learned Sub Judge, Manjeri forthwith All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks** RSA No.914/2005 10 **THOMAS P.JOSEPH, J.** **R.S.A.No.914 of 2005** ## **JUDGMENT** **15[th] March, 2012.**