# Prahlad & Ors v. Smt. Hameedan & Anr

- **Citation:** (2021) 8 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-22
- **Case number:** Second Appeal No. 211 of 2021
- **Bench:** Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prahlad-ors-v-smt-hameedan-anr-47155
- **Pages:** 5

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Section 100 - Order XLI R. 31 -
Second Appeal - Substantial question of
law - Point of Determination - Failure of
first appellate court to frame it - Effect -
Held, first appellate court being final court
of fact 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 -
Entire evidence must be considered and
discussed in total. Such exercise should be
done after formulating the points for
determination in terms of the provisions
contained under Order 41 Rule 31 C.P.C.
and the Court must proceed in adherence
to the requirements of the statutory
provisions
-
High
Court
found
the
substantial question of law involved in the
appeal - Matter remitted to the First
Appellate Court for fresh consideration.
(Para 11, 16 and 17)
Appeal allowed. (E-1)
Cases relied on :-

## Text

8 All. Prahlad & Ors. Vs. Smt. Hameedan & Anr.
11
quashed. The Original Suit No. 623 of 2017
(Liaqat Hussain Vs. Smt. Jainab Parveen)
is decreed.
----------
(2021)08ILR A11
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2021

BEFORE

THE HON'BLE VIVEK VARMA, J.

Second Appeal No. 211 of 2021

Prahlad & Ors. ...Appellants
Versus
Smt. Hameedan & Anr. ...Respondents

Counsel for the Appellants:
Sri Kshitij Shailendra

Counsel for the Respondents:
Sri Anay Kumar Srivastava

A. Civil Law - Code of Civil Procedure,
1908 - Section 100 - Order XLI R. 31 -
Second Appeal - Substantial question of
law - Point of Determination - Failure of
first appellate court to frame it - Effect -
Held, first appellate court being final court
of fact 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 -
Entire evidence must be considered and
discussed in total. Such exercise should be
done after formulating the points for
determination in terms of the provisions
contained under Order 41 Rule 31 C.P.C.
and the Court must proceed in adherence
to the requirements of the statutory
provisions
-
High
Court
found
the
substantial question of law involved in the
appeal - Matter remitted to the First
Appellate Court for fresh consideration.
(Para 11, 16 and 17)
Appeal allowed. (E-1)
Cases relied on :-
1. Laliteshwar Prasad Singh & ors. Vs S.P.
Srivastava (Dead) through L.Rs., (2017) 2 SCC
415
(Delivered by Hon'ble Vivek Varma, J.)

1. Heard Sri Kshitij Shailendra,
learned counsel for the appellants, and Sri
Anay Kumar Srivastava, learned counsel
for the caveator- respondent. With the
consent of learned counsel appearing for
the parties, the present appeal is being
decided at this stage itself in terms of the
Rules of the Court.

2. The present second appeal has been
filed challenging the judgment, order and
decree dated 21.11.2020 passed by the
Additional District & Sessions Judge/
Special Judge (SC/ST Act), Baghpat in
Civil Appeal No. 6 of 2019 (Prahlad and
others v. Smt. Hameedan and others), and
the judgment, order and decree dated
03.12.2018 passed by the Civil Judge,
Junior Division-Ist, Baghpat in Original
Suit No. 143 of 2005 (Smt. Hameedan and
another v. Prahlad and others).

3. The plaintiff-respondent no. 1
instituted a civil suit for permanent
prohibitory
injunction
against
the
defendants-appellants. The case of the
plaintiff-respondent was that the land in
dispute had been allotted to her by Gaon
Sabha on 12.06.1969, over which she had
constructed a Gher and that, the defendants,
having no concern with the property, were
causing interference in her possession.

4. The trial Court vide judgment and
order dated 03.12.2018 decreed the suit
against which the defendants filed a civil
appeal, being Civil Appeal No. 6 of 2019,
which was dismissed by the lower appellate
12 INDIAN LAW REPORTS ALLAHABAD SERIES
Court vide judgment and order dated
01.01.2020.

5. The record reflects that the
appellants filed a second appeal, being
Second Appeal No. 248 of 2020 (Prahlad
and others v. Smt. Hameedan and
another), which has been allowed by this
Court vide order dated 06.07.2020 and
the judgment and order dated 01.01.2020
passed by the lower appellate Court was
set aside and the matter was remanded
back to pass a fresh judgment as there
was non-compliance of the provisions of
Order 41 Rule 31 C.P.C.

6. Pursuant to the said order of this
Court, the lower appellate Court has
passed the impugned judgment and order
dated 21.11.2020.

7. Sri Kshitij Shailendra, learned
counsel for the appellants, submits that
on the matter being remanded back, the
lower appellate Court has again decided
the appeal without framing points of
determination and thus, there is non-
compliance of the provisions of Order 41
Rule 31 C.P.C.

8. With the consent of learned
counsel for the parties, the following
substantial question of law is being
framed for determination:

"Whether the judgment of the
first appellate Court was consistent with
the provisions of Order 41 Rule 31
C.P.C., and if not, the consequences
thereof?"

9. The judgment of the first
appellate Court dated 21.11.2020 records
the issues framed by the trial Court for
determination. Then it frames three points
for determination. However, a bare
perusal of the said points would indicate
that they do not at all fall within the valid
category for determination and they are
too vague and general in nature. The
appellate Court notices the fact that the
trial Court found Issue Nos. 2, 3, 4, 5, 6
and 7 against the appellants. Thereon,
after merely referencing the results of the
findings of the trial court on Issue Nos. 2,
3, 4, 5, 6 and 7 the appellate court records
its agreement with the judgment of the
trial Court.

10. The judgment of the first appellate
Court fails to advert to the grounds taken in
the memo of appeal. The judgment of the
appellate Court is cryptic and has not
identified the points which arise for
determination and has not returned any
independent finding on any issue.

11. It is settled law that the first
appellate court being final court of fact
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 total. Such exercise should
be done after formulating the points for
determination in terms of the provisions
contained under Order 41 Rule 31 C.P.C.
and the Court must proceed in adherence
to the requirements of the statutory
provisions.

12. The Supreme Court in the case of
Laliteshwar Prasad Singh and others v.
S.P. Srivastava (Dead) through L.Rs.,
(2017) 2 SCC 415, in paragraphs-13, 14
and 15, has held as under:
8 All. Prahlad & Ors. Vs. Smt. Hameedan & Anr.
13

"13. An appellate court is the final
court of facts. The judgment of the appellate
court
must,
therefore,
reflect
court's
application of mind and record its findings
supported by reasons. The law relating to
powers and duties of the first appellate court
is well fortified by the legal provisions and
judicial pronouncements. Considering the
nature and scope of duty of the first appellate
court, in Vinod Kumar v. Gangadhar, [(2015)
1 SCC 391 : (2015) 1 SCC (Civ) 521], it was
held as under: (SCC pp. 394-96, paras 12-15)

"12.
In
Santosh
Hazari
v.
Purushottam Tiwari, (2001) 3 SCC 179, this
Court held as under: (SCC pp. 188-89, para
15)

'15. ... The appellate court has
jurisdiction to reverse or affirm the findings
of the trial court. First appeal is a valuable
right of the parties and unless restricted by
law, the whole case is therein open for
rehearing both on questions of fact and law.
The judgment of the appellate court must,
therefore, reflect its conscious application of
mind and record findings supported by
reasons, on all the issues arising along with
the contentions put forth, and pressed by the
parties for decision of the appellate court. ...
while reversing a finding of fact the appellate
court must come into close quarters with the
reasoning assigned by the trial court and then
assign its own reasons for arriving at a
different finding. This would satisfy the court
hearing a further appeal that the first appellate
court had discharged the duty expected of it.'

The
above
view
has
been
followed by a three-Judge Bench decision
of this Court in Madhukar v. Sangram,
(2001) 4 SCC 756, wherein it was
reiterated that sitting as a court of first
appeal, it is the duty of the High Court to
deal with all the issues and the evidence led
by the parties before recording its findings.

13. In H.K.N. Swami v. Irshad
Basith, (2005) 10 SCC 243, this Court
stated as under: (SCC p. 244, para 3)

'3. The first appeal has to be
decided on facts as well as on law. In the first
appeal parties have the right to be heard both
on questions of law as also on facts and the
first appellate court is required to address
itself to all issues and decide the case by
giving reasons. Unfortunately, the High
Court, in the present case has not recorded
any finding either on facts or on law. Sitting
as the first appellate court it was the duty of
the High Court to deal with all the issues and
the evidence led by the parties before
recording the finding regarding title.'

14.
Again
in
Jagannath
v.
Arulappa, (2005) 12 SCC 303, while
considering the scope of Section 96 of the
Code of Civil Procedure, 1908, this Court
observed as follows: (SCC p. 303, para 2)

'2. A court of first appeal can
reappreciate the entire evidence and come
to a different conclusion.'

15. Again in B.V. Nagesh v. H.V.
Sreenivasa Murthy, (2010) 13 SCC 530 :
(2010) 4 SCC (Civ) 808, this Court taking
note of all the earlier judgments of this
Court
reiterated
the
aforementioned
principle with these words: (SCC pp. 53031, paras 3-5)

'3. How the regular first appeal is
to be disposed of by the appellate
court/High Court has been considered by
this Court in various decisions. Order 41
CPC deals with appeals from original
decrees. Among the various rules, Rule 31
mandates that the judgment of the appellate
court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision;
and
14 INDIAN LAW REPORTS ALLAHABAD SERIES

(d) where the decree appealed
from is reversed or varied, the relief to
which the appellant is entitled.

4.
The
appellate
court
has
jurisdiction to reverse or affirm the findings
of the trial court. The first appeal is a valuable
right of the parties and unless restricted by
law, the whole case is therein open for
rehearing both on questions of fact and law.
The judgment of the appellate court must,
therefore, reflect its conscious application of
mind and record findings supported by
reasons, on all the issues arising along with
the contentions put forth, and pressed by the
parties for decision of the appellate court.
Sitting as a court of first appeal, it was the
duty of the High Court to deal with all the
issues and the evidence led by the parties
before recording its findings. The first appeal
is a valuable right and the parties have a right
to be heard both on questions of law and on
facts and the judgment in the first appeal
must address itself to all the issues of law and
fact and decide it by giving reasons in support
of the findings. (Vide Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179, SCC
p. 188, para 15 and Madhukar v. Sangram,
(2001) 4 SCC 756, SCC p. 758, para 5.)

5. In view of the above salutary
principles, on going through the impugned
judgment, we feel that the High Court has
failed to discharge the obligation placed on
it as a first appellate court. In our view, the
judgment under appeal is cryptic and none
of the relevant aspects have even been
noticed. The appeal has been decided in an
unsatisfactory manner. Our careful perusal
of the judgment in the regular first appeal
shows that it falls short of considerations
which are expected from the court of first
appeal. Accordingly, without going into the
merits of the claim of both parties, we set
aside the impugned judgment and decree of
the High Court and remand the regular first
appeal to the High Court for its fresh
disposal in accordance with law.' "

14. The points which arise for
determination by a court of first appeal
must cover all important questions involved
in the case and they should not be general
and vague. Even though the appellate court
would be justified in taking a different view
on question of fact that should be done
after adverting to the reasons given by the
trial judge in arriving at the finding in
question. When appellate court agrees with
the views of the trial court on evidence, it
need not restate effect of evidence or
reiterate reasons given by trial court;
expression of general agreement with
reasons
given by
trial
court
would
ordinarily suffice. However, when the first
appellate court reverses the findings of the
trial court, it must record the findings in
clear terms explaining how the reasonings
of the trial court are erroneous.

15. In the light of the above, when
we consider the present case, we find that in
terms of Order 41 Rule 31 CPC, the High
Court neither has framed the points for
determination nor discussed the evidence
adduced by the defendants. The High Court
seemed to have only considered two aspects:
(i) genealogical table produced by the first
respondent-plaintiff;
(ii)
documentary
evidence adduced by the first respondentplaintiff, that is, Ext 13 series-entry in survey
record of rights and rent receipts (Exts. 1/J
and 1/K to 1/M) filed by the first respondentplaintiff. The documentary evidence adduced
by the first respondent-plaintiff has been
refuted by the second respondent-defendant.
To support his defence plea, second
respondent-defendant
has
adduced
oral
evidence by examining number of witnesses.
That apart, the second respondent-defendant
mainly relied upon the following evidence of
first
respondent-plaintiff
(PW-3):
8 All. Smt. Ramlata Singh Vs. Arun Kumar Dubey & Anr.
15

"Tarawati Devi had purchased
total two acres and fifteen decimals of land.
I cannot tell the number of sale deeds. I
don't have the knowledge about the
registration of her name on the said land.
Till the time of her death, the land
purchased by her remained with Tarawati
Devi. The land in dispute is two acre and
fifteen decimals in area. The land in dispute
in the present suit is the land purchased by
Tarawati Devi."

The High Court does not seem to
have examined the above admission of the
first respondent-plaintiff nor considered the
oral evidence adduced by the second
respondent-defendant.
Being
the
first
appellate court, the final court on facts, the
High Court should have considered the
evidence adduced by the first respondentplaintiff as well as the evidence adduced by
the second respondent-defendant. But the
High Court seems to have considered only
the
evidence
adduced
by
the
first
respondent-plaintiff and not the evidence
adduced
by
the
second
respondentdefendant
and
the
alleged
inherent
contradictions in the statement of first
respondent-plaintiff."

13. Sri Anay Kumar Srivastava,
learned
counsel
for
the
caveator-
respondent, does not dispute the stand
taken by the learned counsel for the
appellants.

14. In all fairness, learned counsel for
the caveator has submitted that the matter
may be remitted to the first appellate court
for fresh consideration.

15. From an independent perusal of
the judgment of the first appellate court I
am of the considered opinion that the order
of the first appellate court dated 21.11.2020
cannot stand, being contrary to the law.

16. The answer to the substantial
question of law is as follows:

"The
judgment
of
the
first
appellate Court is not only inconsistent
with the provisions of Order 41 Rule 31
C.P.C. but has led to fatal miscarriage of
justice and is unsustainable in the law."

17.

Accordingly,
the
impugned
judgment, order and decree dated 21.11.2020
passed by the Additional District & Sessions
Judge/ Special Judge (SC/ST Act), Baghpat is
set aside. The matter is remitted to the first
appellate Court for a fresh decision in
accordance with law. The first appellate court
shall decide the appeal expeditiously, fixing
short dates, without granting unnecessary
adjournments.

18. The appeal is allowed in the above
terms.
----------
(2021)08ILR A15
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1280 of 2018

Smt. Ramlata Singh ...Appellant
Versus
Arun Kumar Dubey & Anr. ...Respondents

Counsel for the Appellant:
Sri Jitendra Kumar, Sri Ashu Verma

Counsel for the Respondents:
Sri Ashish Bajpayee, Sri Adya Prasad
Tewari, Sri Sheo Shankar Tripathi

A. Civil Law - Code of Civil Procedure,
1908
-
Section
100
-
UP
Land