2013(4) ALL MR 283
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
A.P. LAVANDE, J.
Kishori Sharad Gaitonde & Anr. Vs. Shri Laxman Ganesh Gaonkar (D) Through Lrs. & Ors.
Second Appeal No.40 of 2002
5th April, 2013
Petitioner Counsel: Mr. P. Rao
Respondent Counsel: Mr. R.G. Ramani
Civil P.C. (1908), O.41 R.31 - Appeal - Point for determination - Procedure.
While framing the point for determination, the lower appellate Court ought to advert to the pleadings, issues between the parties, the submissions made by Counsel for the parties in appeal and the relief sought by the plaintiffs and thereafter give finding thereon with reasons. This exercise has admittedly not been done by the lower appellate Court. Therefore, on this short ground alone, the High Court set aside the impugned judgment and decree and remanded the matter to the lower appellate Court to decide the appeal afresh. [Para 11]
Cases Cited:
Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 [Para 7,11]
JUDGMENT
JUDGMENT :- Heard Advocate Mr. Rao for the appellants and Advocate Mr. Ramani for respondents no.2 to 4. None appears for the other respondents.
2. By this Second Appeal, the appellants/ original plaintiffs take exception to the judgment and decree dated 17/11/2001 passed by Additional District Judge, Mapusa in Regular Civil Appeal No.63/1994 by which the appeal preferred by the respondents against the judgment and decree dated 25/04/1991 passed by Civil Judge, Senior Division, Bicholim, has been allowed.
3. Briefly, the facts relevant for disposal of the present appeal are as follows :
The plaintiffs filed the above suit against the respondents/ defendants simpliciter for injunction, claiming that they were the owners in possession of the suit property. The suit was contested by the defendants. The trial Court framed the following issues :
"1. Whether the plaintiff is the owner and possessor of the suit property ? O.P.P.
2. Whether the defendants have interfered into plaintiff's possession of the suit properties? O.P.P.
3. Whether the defendants are owners and possessors of the suit properties? O.P.D.
4. Whether the suit suffers from non-joinder of proper parties ? O.P.D.
5. Whether the suit is under valued ?
6. What relief ? What order ?"
4. The trial Court dismissed the suit by judgment and order dated 25/04/1991.
5. The lower appellate Court allowed the appeal filed by the defendants primarily on the ground that the plaintiff was admitting the tenancy right of the defendants to distinct portions of the suit property and it was incumbent upon the plaintiffs to identify which distinct patches of the different properties were in the possession of the defendants and which were not and in respect of which the interference was alleged and relief of injunction was sought.
6. Second Appeal was admitted on the following substantial questions of law :
"(A) Whether, in the absence of any dispute between the parties as regards to identification of the properties, the Lower Appellate Court could have held that the appellants failed to identify the suit properties?
(C) Whether, in view of Order 18, Rule 2, which provides that evidence should be adduced in support of the issues framed, the Lower Appellate Court could have held that the suit properties have not been identified in the absence of any issue framed in that regard ? "
(D) Whether, the Lower Appellate Court has exercised the jurisdiction perversely by reversing the Judgment and Decree of the trial Court after holding that the Appellants have been able to prove the title to the suit properties?
(F) Whether, the Lower Appellate Court's finding that Appellants have not identified part of the suit properties which is admittedly in possession of the respondents as tenants and as such, the Decree could not be executed are perverse, in as much as the said part of the suit properties have been clearly mentioned, described and identified in Paras 13, 14, 15 and 17 of the Plaint ?
7. Mr. Rao, learned Counsel for the appellants at the outset submitted that the lower appellate Court did not exercise the jurisdiction in terms of settled law laid down by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari; 2001(3) SCC 179. Learned Counsel further submitted that the lower appellate Court could not have non-suited the appellants on the question of identification of the properties in respect of which the relief was sought, without framing point for determination as provided under Order XLI, Rule 31 of C.P.C. in that respect. Learned Counsel further submitted that there was no dispute regarding identification of the property in respect of which the relief was sought and as such, the lower appellate Court erred in allowing the appeal preferred by the defendants. Learned Counsel further submitted that no issue was framed by the trial Court regarding the identification of the suit property in respect of which injunction was sought.
8. Per contra, Mr. Ramani, learned Counsel for respondents no.2 to 4 submitted that the lower appellate Court was perfectly justified in reversing the decree passed by the trial Court since the plaintiffs had not established which were the particular portions of the suit property the plaintiffs were in possession, more particularly having regard to the fact that the plaintiffs claim to be in possession of the portions of the properties mentioned in the plaint. Learned Counsel further submitted that the lower appellate Court has formulated point for determination and as such, it cannot be said that the provisions of Order XLI, Rule 31 of C.P.C., have not been complied with and, therefore, no interference is warranted with the findings recorded by the lower appellate Court which are borne out from the evidence on record.
9. I have considered the rival submissions, perused the record and the judgment relied upon by Advocate Mr. Rao for the appellants.
10. The lower appellate Court in the appeal preferred by the respondents framed the following point for determination :
"Whether the trial Court fell in error in appreciating the material on record in its totality and ultimately in dismissing the suit?"
11. At the outset, it is pertinent to note that the trial Court had decreed the suit. The impugned judgment discloses total non-application of mind on the part of the lower appellate Court while framing the point for determination in as much as the trial Court had actually decreed the suit. Moreover, in my considered opinion, the way in which the lower appellate Court framed the point for determination is not right manner to frame the point for determination in the appeal arising from the decree and the point for determination could not have been framed in the manner in which the lower appellate Court chose to frame. While framing the point for determination, the lower appellate Court ought to advert to the pleadings, issues between the parties, the submissions made by learned Counsel for the parties in appeal and the relief sought by the plaintiffs and thereafter give finding thereon with reasons. This exercise has admittedly not been done by the lower appellate Court. Therefore, on this short ground alone, I am inclined to set aside the impugned judgment and decree and remand the matter to the lower appellate Court to decide the appeal afresh in the light of the observations made above and in the light of the law laid down by the Apex Court in the case of "Santosh Hazari" (supra). The lower appellate Court is expected to frame the appropriate points for determination in terms of Order XLI, Rule 31 of C.P.C. while disposing of the First Appeal which is the last Court of question of fact, as has been held by the Apex Court in a catena of judgments.
12. In view of the above, the impugned judgment and decree is set aside and the matter remanded to the lower appellate Court for fresh decision on merits in accordance with law.
13. It is made clear that I have not expressed any opinion on the merits of the rival contentions and all the contentions of the parties are kept open.
14. Parties either personally or through their Advocates to appear before the lower appellate Court on 06/05/2013 at 10.00 a.m. Considering that the suit is of the year 1975, the lower appellate Court is expected to dispose of the appeal expeditiously.