MISRI LAL Vs. NARPAT SINGH
HIGH COURT OF RAJASTHAN
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(1.) THE circumstances under which this second appeal against the order of the Revenue Appellate Authority dated 13. 10. 1965 has been filed are as follows. Narpat Singh, plaintiff respondent brought a suit for declaration and possession against the appellant defendant. THE averment in the plaint was that during his minority his mother entrusted the management of the land in dispute to the appellant who took undue advantage of the situation and got himself entered as khatedar tenant in the settlement record. THE suit was resisted by the appellant on the ground that he had acquired khatedari rights. THE trial court framed four issues and decreed the suit on 28. 2. 1961. An appeal was filed before the Revenue Appellate Authority, as a result of which, the case was remanded on the 16th March, 1962, after setting aside the decree with the direction that a new issue be framed, whether the plaintiff was entitled to be declared khatedar of the portion of the well and the land in dispute, both the parties be asked to adduce fresh evidence on the same and fresh orders passed in accordance with the law. THE trial court after framing the fresh issue and taking fresh evidence of as many as five additional witnesses, again decreed the suit. An appeal before the Revenue Appellate Authority met with on success, and hence this second appeal before us.
(2.) WE have heard the counsel for the parties and also gone through the record. The learned counsel for the appellant has attacked the judgment of the trial court as well as the appellate court on the ground that both were not judgments in law. The procedure adopted by the trial court was absolutely unwarranted and could not stand scrutiny. WE have carefully gone through the judgment of the trial court. The learned trial court did not discuss the evidence either already on record or produced after the remand with regard to issues No. 2 and 3. which had already been framed and which had been disposed of in his previous judgment. He only stated that he is in agreement with the decision given with regard to issues Nos. 1. 2 and 3, and proceeded thereafter to discuss the additional issue No. 4 in detail. WE have no hesitation in agreeing with the learned counsel for the appellant that the learned trial court committed a material irregularity in not discussing the issues Nos. 1, 2 and 3. When the previous judgment was set aside by the appellate court, that became a nullity in law, and the learned trial court was obliged to apply his mind afresh on the determination of issues No. 1, 2 and 3. It cannot be said that the additional evidence produced had no bearing on these three issues. The learned trial court has not even stated this. As laid down in O. 20, Rule 4 a judgment must contain (a) a concise statement of the case, (b) the points for determination, (c) the decision thereon, and (d) the reasons for such decision It is not enough to say that a court passing a judgment agreed with the previous finding by his predecessor. A judgment should demonstrably indicate that the court passing a judgment has applied his mind. As has often been repeated, justice should not only be done but should appear to have been done. Where a judgment does not on the face of it indicate that the trial court had independently applied his mind to the points at issue, it is not a proper judgment. This type of judicial pronouncements do not inspire confidence.
The learned appellate court also seems to have fallen into the same error. He conceded the evidence on each issue and gave its finding, although the finding on each issue would have been the same as was previously given, but he held that this was an irregularity not vitiating the trial of the case. We are not inclined to accept this view as a judgment which is not in accordance with the law and which does not on the face of it indicate that the court writing the same has applied its mind is no judgment at all. It is not a mere irregularity. It affects the very fundamentals of justice. The learned appellate court also does not seem to have followed the provisions of Order 41 Rule 31. It was his duty as laid down in the said Order to state (i) points for determination, (ii) the decision thereon and (iii) the reasons for the decision. The learned appellate court has only stated that from the evidence produced on behalf of the parties it has been clearly proved that the plaintiff was minor and during his minority his mother entrusted the management of the land in dispute to the defendant, who was her Kamdar. The learned appellate court seems to have shirked his duty to discuss the evidence how he came to this conclusion. The learned counsel for the respondent referred us to Diety Pattabhiramaswamy vs. S. Hanymayya (A. I. R. 1959 Supreme Court 57) to show that it was not necessary for the appellate court to go into the evidence. We have carefully gone through that authority and fail to find any support to the proposition urged before us that it is not necessary for the first appellate court to appraise the evidence on record. The rule laid down in that case is that "there is no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact, however gross the error may seem to be. Nor does the fact that the finding of the first appellate court is based on some documentary evidence make it any the less a finding of fact. A Judge of the High Court, has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. " In this case as we have stated above, the first appellate court did not attempt to appreciate the evidence at all.
On the other hand, the duty of the first appellate court to carefully analyse and appraise its judgment is brought out in the observations made in Dhanraj versus Hirachand (R. L. W. 1963 page 316) by his Lordship Modi J. of the Rajasthan High Court as below : "as a Court of first appeal, the findings of fact whereof are binding on this court it is the duty of that court to come to grips with the evidence led at the trial by the parties with the requisite care and attention and to analyse the evidence and then weigh it so that this court may stand assured that the finding of fact has been arrived at in a proper and judicial manner. A vague reference to the evidence produced by the parties that it is worthy of credence or otherwise renders no assistance whatsoever to this Court sitting in second appeal. . . . . . of course it is not necessary to reproduce the evidence of each of the witnesses in the judgment. But what is necessary is that the evidence must be carefully analysed with reference to the salient points arising in the case and then weighed in an intelligent and intelligible manner; and the fact that the entire material evidence has been so grasped and weighed must appear from the judgment itself. It may be considered that a judgment of affirmance may not give the reasons with that elaborate detail which a judgment of reversal may, generally speaking, require. But the judgment should be self-contained, and, substantially complied with the requirement of Order 41, Rule 31 C. P. C".
For the reasons given above, we are of the opinion, that the judgment of both the courts below cannot be said to be judgments in accordance with law. We therefore, accept this appeal, set aside the orders of the courts below, and remand the case to the trial court for rewriting a fresh judgment in accordance with the law after applying its mind to all the issues. .;
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