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High Court of Judicature at Bombay
R.M. SAVANT, J.
Laxman Ramchandra Shelke & Others
Versus
Sou. Akkubai Tukaram Dambarke
Second Appeal No. 520 of 2011 With Civil Application No.1257 of 2011
Decided on: 02-07-2013
Failure of lower appellate Court to adhere to mandate of Order XLI, Rule 31 of Code, renders its judgment and order, unsustainable. - The lower appellate Court, as can be seen, has framed three issues which have been adverted to herein above. After framing the said three issues, the lower appellate Court has, in a cryptic manner, answered the same. No doubt, the Lower appellate Court has expressed an agreement with the finding and conclusion recorded by the trial Court, however, considering the mandate of Order XLI, Rule 31 of the Code of Civil Procedure, which has been expounded by the Apex Court in the judgments also the judgment of a Division Bench of the Court in Khantunbi ’s case, 2006 (6) All MR 310, cited on behalf of the appellants, the lower appellate Court could not have disposed of the appeal in the manner in which it has been done. The relevant extract from Paragraph 17 of the judgment in H. Siddiqui (dead) by Lrs ’ case, 2011 (2) All MR 938 (SC) can be gainfully reproduced herein under :
"It is mandatory for appellate Court to independently assess evidence of parties and consider relevant points which arise for adjudication and bearing of evidence on those points. Being the final Court of fact, the 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. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the Court must proceed in adherence to the requirements of the said statutory provisions."
The Division Bench of the Court in Khatunbi ’s case, 2006 (6) All MR 310 has also held that compliance of Rule 31 of Order XLI of the Code of Civil Procedure is mandatory and that failure to comply with the said provision of law would not be a mere irregularity
As can be seen, the impugned judgment and order is bereft of any reasons as to why the evidence which has been adduced by the plaintiff deserves acceptance as also the reasons why the findings of the trial Court are acceptable to the lower appellate Court. The lower appellate Court as can be seen in an abrupt manner concluded that both the findings and conclusion reached by the trial Court cannot be said to be wrong findings or inclusion. The lower appellate Court therefore has not discharged the duty cast upon its as an appellate Court.
1. Admit, with the consent of the learned counsel for the parties heard forthwith.
2. The Appellants herein i.e. the Defendant Nos.1 to 7 are in Appeal against the Judgment and Order dated 29/4/2011 passed by the learned District Judge1, Karad. By the said Judgment and Order, the decree passed by the Trial Court for partition and separate possession has been confirmed.
3. The principal contention urged on behalf of the Appellants herein is the manner in which the Lower Appellate Court has disposed of the said Appeal.
4. The substantial question of law therefore which arises for consideration is,
“Whether the Lower Appellate Court has followed the mandate of Order XLI Rule 31 of the Code of Civil Procedure in disposing of the Appeal?”
5. The suit in question has been filed by the Respondent i.e. the original Plaintiff for partition, separate possession and for permanent injunction against the Defendants in respect of the suit properties which are described in Paragraph Nos.1, 1A and 1B of the plaint. The Plaintiff claims share in the suit properties on the ground that she is a daughter of Chandru Naru Shelke and that at present there is no other legal heir to her father Chandru who died in the year 1942. It is her case that in the suit properties her father had 1/4th share and after his death, her mother Anubai had got legal right and interest in the said 1/4th share as per the provisions of Hindu Women's right to Property Act, 1937, and after coming to operation of Hindu Succession Act she had became absolute owner of the said 1/4th share, and after her death, the Plaintiff being her daughter is entitled to the said 1/4th share.
6. The Defendants i.e. the Appellants herein denied the contentions of the Plaintiff. They denied that the Plaintiff is the daughter of the said Chandru and that she was given in marriage to one Tukaram Dambarke. It is their case that the Plaintiff has no concern with the Defendants or Anubai Shelke and that she was never in possession of the suit properties and has no share in the suit properties, and therefore, she is not entitled to the relief of partition and separate possession.
7. The Trial Court on the basis of the pleadings framed the issues as to whether the Plaintiff was the daughter of Chandru Shelke; whether the Plaintiff proves that she has a share in the suit properties, and whether the Plaintiff is entitled to partition. The parties have led evidence in respect of the said issues. The Plaintiff had examined as many as five witnesses whereas the Defendant No.1 adduced evidence on behalf of the Defendants. It is on the basis of the oral and documentary evidence on record that the Trial Court decreed the suit and issued a declaration that the Plaintiff is the daughter of the said Chandru Shelke and she is entitled to 1/4th share which was belonging to the said Chandru Shelke and consequently she is entitled for partition and separate possession of the said share. The decree of the Trial Court is dated 19/10/2004.
8. The Defendants carried the matter in Appeal which Appeal came to be numbered as Regular Civil Appeal No.1 of 2005. In the context of the issues that were framed and answered by the Trial Court, the Lower Appellate Court framed the following 4 issues:-
1. Whether the appellant proves that the Ld. Lower Court has drawn wrong conclusion regarding relationship of plaintiff with deceased Chandru?
2. Whether appellant proves that the Ld. Lower Court has wrongly held that plaintiff have 1/4th share in the suit property?
3. Whether appellant proves that the Ld. Lower Court has drawn wrong conclusion?
4. What order?
The Lower Appellate Court has thereafter in one paragraph concluded the Appeal. The Lower Appellate Court, as can be seen from the impugned Judgment and Order, has recorded that the Trial Court seems to have drawn a conclusion on the basis of the evidence led before it, and it seems that there is proper reasoning to the said conclusions drawn by the Lower Court and th
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