1981 Supreme(MP) 590

H. G. Mishra, J.
Ramsingh v. Hiralal.
S. A. No. 79 of 1970 (I); Decided on 19-10-1981.

Headnote:Civil P. C., 1908 -- S. 96 -- first appeal -- duty of the Court -- merely mentioning the names of witnesses and casually referring their statement -- not sufficient -- judgment of reversal -- it is obligatory to evaluate entire evidence on record.

        This is a plaintiffs appeal against the judgment and decree dated 25-11-1969, whereby the appellate Court has reversed the judgment and decree passed by the trial Court on 12-1-1968, whereby the suit was decreed in respect of acquisition of title by adverse possession and issuance of a permanent injunction.

        Held: While allowing the appeal the learned Additional District Judge has in para 7 of his impugned judgment merely catalogued the names of the witnesses examined by the plaintiff and casually referred to the statement of Mangilal (PW 5) Ex. D-3 certified copies of Khasras from 1945 to 1962 and observed that the Khasras mention the possession of the plaintiff against the disputed Khasra numbers and bas further observed that the basis of the plaintiffs possession is said to be sale. Thereafter the learned Additional District Judge proceeds to hold that agreement for sale has not been proved by the plaintiff. Thereafter in para 8 the learned Additional District Judge referred to the receipt Ex. P-1 and held that it does not pertain to the suit land. In para 9 it has been further observed that Khasra Exs. P-6. P-1, P-2, P-3 and P·8 mention that possession of the disputed land was transferred to the plaintiff by the defendant by mutual sale. There is no document regarding sale:. Further as per the Indian Tenancy Act permission of the Collector was required for sale. No such permission has been alleged to have been taken. As such it is not proved that Pannalal had sold the disputed land to the plaintiff Consequently, it is not proved that the plaintiffs possession over the disputed land was on the basis of sale. In para 10 the learned Additional District Judge proceeds to observe that presuming for a while that plaintiff is in possession of the disputed land from 20 to 22 years, that alone in not sufficient to hold that the possession or the plaintiff was adverse. Moreover, in para 11 he refers to the application (Ex. D-1) submitted by the plaintiff under S. 190 in Tahsil for conferal of Bhumiswami rights and on basis of which it is held that the plaintiffs possession was permissive in character. Thus, it is clear that the learned Additional District Judge has not considered the entire evidence led by the parties. It Paragraphs 7 to 11 a resumprion of which has been given above and in the paragraphs following them, namely, paras 12, 13 and 14 there is neither any reference nor evaluation of the evidence led by the parties. In this respect Shri Sanghi placed reliance on the following ratio decidendi in Mahadeo v. Baleshwar Prasad (AIR 19 9 All. 626).

        "it is the duty of the Court to consider the evidence in a case as a whole and its findings should depend upon the cumulative effect of .the entire evidence. Where the Court after considering the evidence produced by one party records a definite finding before considering the evidence relied on by the other party, his treatment of the evidence is objectionable."

        The view taken by the Allahabad High Court in the aforesaid case on the point is in line with the view taken by this Court in Mathuraprasad v. Anantram (1959 JLJ 627).

        A bare perusal of the judgment rendered by the impugned judgment shows that the learned Additional District Judge has not discharged the duty cast by law on the first appellate Court in the matter. It was obligatory on the learned Additional District Judge to have evaluated the entire documentary and oral evidence on record led by both the parties more so when his judgment is not of affirmance but of reversal. 1959 JLJ 627 relied on. Appeal allowed. Case remanded.