# Ram Karan & Anr v. Uma Shanker & Anr

- **Citation:** (2022) 11 ILRA 645
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-04
- **Case number:** Second Appeal No. 955 of 1996
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-karan-anr-v-uma-shanker-anr-47913
- **Pages:** 16

## Headnote

A. Civil Law - Code Of Civil Procedure,
1908 - Section 96 - Order 41 Rule 31 -
First Appeal - It is a settled position of law
646 INDIAN LAW REPORTS ALLAHABAD SERIES
that an appeal is a continuation of the
proceedings
of
the
original
court
-
Ordinarily,
the
appellate
jurisdiction
involves a rehearing on law as well as on
fact and is invoked by an aggrieved person
-The appellate court has jurisdiction to
reverse or affirm the findings of the trial
court
-
findings
of
fact
based
on
conflicting evidence arrived at by the trial
court must weigh with the appellate court,
more so when the findings are based on
oral evidence recorded by the same
Presiding
Judge
who
authors
the
judgment - This does not mean that when
an appeal lies on facts, the appellate court
is not competent to reverse a finding of
fact arrived at by the trial Judge - As a
matter of law if the appraisal of the
evidence by the trial Court suffers from a
material
irregularity or
is
based
on
inadmissible evidence or on conjectures
and surmises, the appellate court is
entitled to interfere with the finding of
fact (Para 23, 24)

B. Civil Law - Evidence Act,1872 - Identity
of property - Sale deed between third
parties - Relevance - boundaries of
properties in a sale deed between third
parties is relevant evidence to show that a
person is the owner of the property
indicated in the boundaries - recitals in a
sale-deed though between third parties
were evidence of the fact that a person
was the owner of the property indicated
as boundary (Para 38)

C. Civil Law - Code Of Civil Procedure,
1908 - Suit - Court's finding - Third case
- Trial court must base its findings on
the evidence produced before it by the
parties - The enquiry by the court is
restricted to the evidence on record and
the case pleaded by the parties - Court is
not allowed to conjecture a third case
for
parties,
and
if
it
does,
its
determination would be illegal - without
pleadings and issues, evidence cannot
be considered to make out a new case
which is
not
pleaded
-
court can
consider such a case not specifically
pleaded, only when one of the parties
raises
the
same
at
the
stage
of
arguments
by
contending
that
the
pleadings and issues are sufficient to
make out a particular case and that the
parties proceeded on that basis and had
led evidence on that case - Where
neither
party
puts
forth
such
a
contention, the court cannot make out
such a case not pleaded, suo motu as the
court is not permitted to conjecture and
surmise - A case is a statement of facts
by a party, backed by evidence, entitling
it to a right that can be established
before a Court of law and the remedy
secured - however, mere process of
reasoning or appreciation of evidence
cannot be dubbed as a third case (Para
32, 33, 35)

The Trial Court considered the evidence of
witnesses,
carefully
analyzed
the
boundaries shown in the two sale deeds,
together with circumstances on record and
the geographical location, to reach a
plausible conclusion that the suit property
was, the plaintiffs' courtyard - both those
documents were not at all considered by
the Lower Appellate Court - Lower Appellate
Court, by failing to consider and refer to the
documentary evidence that the Trial Court
did, failed to reverse categorical findings
recorded by the Trial Court about the
location and identity of the suit property -
Appellate Court was not right, in the
absence
of
a
manifest
illegality
demonstrable in the Trial Court's view in
interfering with the Trial Court's opinion -
the Lower Appellate Court's judgment set
aside and that of the Trial Court restored
(Para 44)

Allowed. (E-5)

List of Cases cited:

## Text

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11 All. Ram Karan & Anr. Vs. Uma Shanker & Anr.
645
on an application under Section 24 CPC is
challenged
through
appropriate
proceedings, the party aggrieved by the
District Judge's order cannot further invoke
the jurisdiction of this Court under Section
24 CPC to undo the District Judge's order.
Since the order of the District Judge under
Section 24 CPC has been found to be
revisable by us, there is no reason why a
person aggrieved by the District Judge's
order under Section 24 CPC would have his
remedy
under
Article
227
of
the
Constitution, though that remedy cannot be
held
barred
as
it
embodies
the
constitutional powers of this Court to
superintend
Courts
and
Tribunals
subordinate. Nevertheless, in the face of
availability of a statutory remedy under
Section 115 CPC, the usual principle
eschewing
the
invocation
of
a
constitutional remedy would apply.

43. In view of what we have held
above, our answers to the questions
referred are these:

(i) The question is answered in
the affirmative and it is held that an order
passed by the District Judge under Section
24 CPC is revisable under Section 115 CPC
as applicable in the State of U.P.

(ii) The question stands answered
in the negative and it is held that another
application under Section 24 CPC by the
same applicant based on the same cause of
action would not be maintainable before
this Court without challenging the order
passed by the District Judge, on the
application disposed of by the District
Judge under Section 24 CPC through a
revision under Section 115 CPC. Normally,
the order of the District Judge passed on an
application under Section 24 CPC being
revisable, the constitutional remedy under
Article 227, though not barred, may not be
invoked on the sound principle of the
availability of an equally efficacious
statutory alternative remedy under Section
115 CPC.

(iii) The question is answered by
holding that the law laid down by this
Court in Sunita Devi's case (supra) and
Indian Oil Corporation's case (supra) lay
down the law correctly on the subject
matter in issue and the decision in Jagdish
Kumar's case (supra) and Amit Kumar
Pachauri's case (supra) do not lay down
the correct law.

44. The reference is answered,
accordingly.

45. Let the papers be placed before the
appropriate Bench according to the Roster.
----------
(2022) 11 ILRA 645
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2022

BEFORE

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

Second Appeal No. 955 of 1996

Ram Karan & Anr. ...Appellants
Versus
Uma Shanker & Anr. ...Respondents

Counsel for the Appellants:
Sri N. Lal, Sri Anirudh Kumar Upadhyay, Sri
C.P. Dwivedi, Sri S.P. Srivastava

Counsel for the Respondents:
Sri Ramakant Tiwari, Sri Dinesh Kumar
Pandey, Sri H.S.N. Tripathi, Sri P.S.
Tripathi, Sri Ramakant Tiwari, Sri Umesh
Chandra Tiwari

A. Civil Law - Code Of Civil Procedure,
1908 - Section 96 - Order 41 Rule 31 -
First Appeal - It is a settled position of law
646 INDIAN LAW REPORTS ALLAHABAD SERIES
that an appeal is a continuation of the
proceedings
of
the
original
court
-
Ordinarily,
the
appellate
jurisdiction
involves a rehearing on law as well as on
fact and is invoked by an aggrieved person
-The appellate court has jurisdiction to
reverse or affirm the findings of the trial
court
-
findings
of
fact
based
on
conflicting evidence arrived at by the trial
court must weigh with the appellate court,
more so when the findings are based on
oral evidence recorded by the same
Presiding
Judge
who
authors
the
judgment - This does not mean that when
an appeal lies on facts, the appellate court
is not competent to reverse a finding of
fact arrived at by the trial Judge - As a
matter of law if the appraisal of the
evidence by the trial Court suffers from a
material
irregularity or
is
based
on
inadmissible evidence or on conjectures
and surmises, the appellate court is
entitled to interfere with the finding of
fact (Para 23, 24)

B. Civil Law - Evidence Act,1872 - Identity
of property - Sale deed between third
parties - Relevance - boundaries of
properties in a sale deed between third
parties is relevant evidence to show that a
person is the owner of the property
indicated in the boundaries - recitals in a
sale-deed though between third parties
were evidence of the fact that a person
was the owner of the property indicated
as boundary (Para 38)

C. Civil Law - Code Of Civil Procedure,
1908 - Suit - Court's finding - Third case
- Trial court must base its findings on
the evidence produced before it by the
parties - The enquiry by the court is
restricted to the evidence on record and
the case pleaded by the parties - Court is
not allowed to conjecture a third case
for
parties,
and
if
it
does,
its
determination would be illegal - without
pleadings and issues, evidence cannot
be considered to make out a new case
which is
not
pleaded
-
court can
consider such a case not specifically
pleaded, only when one of the parties
raises
the
same
at
the
stage
of
arguments
by
contending
that
the
pleadings and issues are sufficient to
make out a particular case and that the
parties proceeded on that basis and had
led evidence on that case - Where
neither
party
puts
forth
such
a
contention, the court cannot make out
such a case not pleaded, suo motu as the
court is not permitted to conjecture and
surmise - A case is a statement of facts
by a party, backed by evidence, entitling
it to a right that can be established
before a Court of law and the remedy
secured - however, mere process of
reasoning or appreciation of evidence
cannot be dubbed as a third case (Para
32, 33, 35)

The Trial Court considered the evidence of
witnesses,
carefully
analyzed
the
boundaries shown in the two sale deeds,
together with circumstances on record and
the geographical location, to reach a
plausible conclusion that the suit property
was, the plaintiffs' courtyard - both those
documents were not at all considered by
the Lower Appellate Court - Lower Appellate
Court, by failing to consider and refer to the
documentary evidence that the Trial Court
did, failed to reverse categorical findings
recorded by the Trial Court about the
location and identity of the suit property -
Appellate Court was not right, in the
absence
of
a
manifest
illegality
demonstrable in the Trial Court's view in
interfering with the Trial Court's opinion -
the Lower Appellate Court's judgment set
aside and that of the Trial Court restored
(Para 44)

Allowed. (E-5)

List of Cases cited:

1. Malluru Mallappa (Dead) through Legal
Representatives Vs Kuruvathappa & ors., (2020)
4 SCC 313

2. Santosh Hazari Vs Purushottam Tiwari
(Deceased) by LRs, (2001) 3 SCC 179

3. Madhusudan Das Vs Narayanibai (Deceased)
by LRs & ors., (1983) 1 SCC 35
11 All. Ram Karan & Anr. Vs. Uma Shanker & Anr.
647
4. Valarshak Seth Apcar Vs Standard Coal Co.,
Ltd. & ors., AIR 1943 PC 159

5. Deb Narayan Halder Vs Anushree Halder
(smt), (2003) 11 SCC 303

6. Bachhaj Nahar Vs Nilima Mandal & anr.,
(2008) 17 SCC 491

7. Hari Lal Vs Amrik Singh & anr., AIR 1978 All
292

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a plaintiffs' appeal, who
had a vacillating fortune before the Courts
below in a suit instituted for the relief of
permanent prohibitory injunction.

2. Original Suit No. 455 of 1984
was instituted by Ram Karan son of Ishwar
Dutt Tripathi and Dadhich Chand son of
Ram Karan against Uma Shanker and Paras
Nath on 08.08.1984, claiming a permanent
prohibitory injunction to the effect that the
defendants be restrained from interfering
with the plaintiffs' possession in part of
their abadi and Sahan (Courtyard), denoted
by letters C D E M in the plaint map or
disturbing the Neem tree standing there.

3. The two plaintiffs were the
original appellants here. Of them, Ram
Karan
died
pending
appeal
and
is
represented on record by his heirs and LRs,
who are appellant nos. 1/1, 1/2, 1/3, 1/4,
1/5, 1/6 and 1/7. Appellant no. 1/3 is on
record as appellant no.2. All the appellants
shall hereinafter be collectively referred to
as ''the plaintiffs'. However, in case of
individual reference, the concerned plaintiff
shall be referred to by his name. The two
defendants to the suit, Uma Shanker and
Paras Nath were in the same order arrayed
as respondent nos. 1 and 2 to this appeal.
Both the defendant-respondents have died
pending appeal and are represented on
record by their heirs and LRs, as entered in
the cause title of the appeal. Any reference
hereinafter
to
the
two
defendantrespondents collectively shall be as ''the
defendants', but in case of individual
reference, Uma Shanker, defendant no. 1,
now represented by his LRs, shall be
referred to as ''Uma Shanker'. Likewise,
Paras
Nath,
defendant
no.
2,
now
represented by his LRs, in case of
individual reference, shall be referred to by
his name.

4. The plaintiffs' case is that their
ancestral house, the present house that they
live in, stands over the site it has been and
also over the site to its north, where the
house of Shri Narain stood and that their
door has always been oriented both to the
west and the north. Also, their Sahan
(Courtyard) has existed both to the north
and the west of their house. To the southwest
stands
Uma
Shanker's
abadi.
Westward of Uma Shanker's abadi, the
plaintiffs' Sahan extends up to the houses
of Jamuna, Udairaj and Khaderan. It is the
plaintiffs' case that the entirety of their
property, which they have referred to as
abadi, is denoted in the plaint map by
letters A B C D E F A.

5. It is also the plaintiffs' case that
Krishnadev, a collateral, sold his share in
their favour, whereas another collateral
Shri Narain entered into a compromise with
them. In consequence, the property shown
by letters A B C D E F A came to the
plaintiffs'
exclusive
ownership
and
possession. The plaintiffs have been using
the aforementioned property for their
residence and the household establishment
over time. The aforesaid property includes
the plaintiffs' house, Dalan (verandah), and
Neem trees. It is said that the various
activities of living, associated with the rural
648 INDIAN LAW REPORTS ALLAHABAD SERIES
way of life went about for the plaintiffs in
this property. It is particularly said that for
the past 2-3 years, the cattle, that were
tethered over a part of the said property,
have been moved to another place by the
plaintiffs, but they have complete dominion
and use of the suit property, denoted by
letters C D E M. A Neem tree stands over
the said land. The part of the property
denoted by letters C D E M shall
hereinafter be referred to as ''the suit
property'.

6. It is also the plaintiffs' case that
Uma Shanker's property is located to the
east of the line ED and which has a higher
elevation compared to the suit property.
The defendants' house was earlier a
kachcha construction, which in course of
time, they have demolished and replaced by
a pucca house, comprising just two rooms,
secured by an enclosure (Hata). To the
south of a part of the suit property is
located one Shiv Murat Tiwari's abadi, in
the southern part whereof, Shiv Murat has
his house. Shiv Murat Tiwari has sold off
his house and abadi to Manikraj, and
Manikraj, in turn, has sold it to Paras Nath,
defendant no. 2.

7. The plaintiffs assert that their
property denoted by letters A B C D E F A
is in their complete title, dominion and
possession, including the constructions
standing thereon and the Neem trees as
well. The defendants have neither been in
possession of the suit property nor have
their ancestors ever been in its occupation.
According to the plaintiffs, the defendants
have conspired and filed a collusive suit,
where Uma Shanker, defendant no.1, sued
Paras Nath, defendant no.2 vide O.S. No.
61 of 1982, claiming right over a part of the
property that is the plaintiffs', including the
suit property (Sahan). The plaintiffs made
an application for impleadment in the said
suit, but it was rejected by the Court by an
order dated 27.07.1984. It is the plaintiffs'
case that after rejection of the impleadment
application,
the
defendants
conspiring
amongst themselves are attempting to
encroach upon a part of the plaintiffs'
Sahan, that is to say, the suit property and
further trying to usurp the Neem trees
standing there. It is on the said cause of
action that the suit for permanent injunction
giving rise to this appeal was instituted.

8.

The
defendants
entered
appearance and put in separate written
statements. So far as Paras Nath (defendant
no.2) is concerned, his stand and defence
loose
all
significance,
because
a
compromise and adjustment of the suit was
entered into between parties in terms of the
memorandum
of
compromise
dated
04.02.1986. The said compromise was
verified by the Trial Judge, after due
identification of parties, on 24.05.1986.
The suit between the plaintiffs and Paras
Nath, therefore, stood disposed of in terms
of the compromise dated 04.02.1986. The
suit has, thus, proceeded between the
plaintiffs and Uma Shanker (defendant
no.1) alone.

9. Uma Shanker filed his written
statement dated 30.10.1985 on 08.11.1985.
Uma Shanker contested the plaintiffs' claim
and in the additional pleas asserted that no
cause of action arose to the plaintiffs to
institute the present suit. It was pleaded that
the plaintiffs' verandah (Dalan) is oriented
lengthwise, north to east and to its south all
abadi that is located, is neither the
plaintiffs' nor in their possession. It has
never been so. The plaint map was denied.
It was also pleaded that the plaintiffs,
Krishnadev and Shri Narain belong to the
same bloodline and their ancestral house at
11 All. Ram Karan & Anr. Vs. Uma Shanker & Anr.
649
present is located to the north of Uma
Shanker's house. It faces the west and is so
since the time of the parties' ancestors. It is
also asserted that in the house standing over
the suit property, Shri Narain lived in the
northern portion and in the southern the
plaintiffs and Ram Krishna lived. However,
after the plaintiffs bought Ram Krishna's
share, he has a two-third share in that house
in its southern portion. The northern onethird of the plaintiffs' house is Shri
Narain's. It was also denied that there is a
verandah or a door to the south of the
plaintiffs' house. To the contrary, at the
time
the
plaintiffs'
verandah
was
constructed, there were two doors located
on its northern face. The plaintiffs'
household is located elsewhere for a long
period of time and their courtyard is located
to the north of the verandah, and to the
west of the plaintiffs' house. The rest of the
land shown by letters C D E M belongs to
Uma Shanker since the time of his
ancestors.

10. It is also Uma Shanker's case
that to the west of the line MC, as shown in
the plaint map, Uma Shanker's house and
Sahan has always been in existence. Uma
Shanker's house aforesaid is ancestral and
faces the west. Its courtyard (Sahan),
extends to the houses of Udairaj and
Khaderan in the east and Uma Shanker has
been in possession of the said property
since the time of his ancestors. He is still in
possession. Two Neem trees stand in Uma
Shanker's property aforesaid. It is also Uma
Shanker's case that his ancestral house,
which was dilapidated in course of time,
collapsed, and, therefore, he constructed a
house in its place, moving a little towards
the west and south, facing the west. Most
of this house has been constructed, where
telltale remains of the old house are still in
existence. It is also Uma Shanker's case
that to the south of the suit property lies
Uma Shanker's land, where he has his
living. It is asserted by Uma Shanker that
the plaintiffs and Paras Nath, defendant
no.2, are in collusion and the two
threatened Uma Shanker, though not said
about what specifically the threat was. It
led Uma Shanker to institute Suit No. 61 of
1982, which by the time the written
statement was filed, was pending trial. The
suit was asserted to be undervalued and the
court-fee paid insufficient. The suit was
also asserted to be barred by Sections 38
and 41 of the Specific Relief Act, 1963,
besides the principle of estoppel. The suit
was said to be barred by limitation and not
maintainable.

11. On the pleadings of parties, the
Trial Court framed the following issues
(translated into English from Hindi):

(1) Whether the plaintiffs are the
owners in possession of the property in
dispute?
(2) Whether the suit is undervalued
and the court-fee paid insufficient?
(3) Whether the suit is barred by
Sections 38/41 of the Specific Relief Act?
(4) Whether the suit is barred by
Section 115 of the Evidence Act?
(5) Whether the suit is barred by
time?
(6) To what relief is the plaintiffs
entitled?

12. The plaintiffs filed for their
documentary evidence, a copy of the sale
deed, marked as Ex. 1, whereas Uma
Shanker filed a copy of the decree, marked
as Ex. Ka-1, besides the sale deed marked
as Ex. Ka-2 on behalf of the defendants.

13. The plaintiffs examined Ram
Chandra as PW-1 and Dadhich as PW-2,
650 INDIAN LAW REPORTS ALLAHABAD SERIES
whereas the defendant examined Munshi as
DW-1 and Uma Shanker (defendant no.1)
as DW-2.

14. It must be remarked here that
for reasons to be found in the Trial Court's
judgment, the Trial Court has considered
some documentary evidence, but opined
that it is not binding on parties. That
evidence has, therefore, been regarded as
circumstantial by the Trial Court. All other
evidence that has been considered is parole
evidence of witnesses produced by parties.
The Trial Judge, on an evaluation of the
oral evidence led by both sides, as well as
some documents which have been regarded
as circumstantial in nature, has found for
the
plaintiffs
on
preponderance
of
probability. The Trial Judge inferred in
favour of the plaintiffs primarily because of
the existence of the door opening into the
suit property form the plaintiffs' verandah
facing the south. There is much quarrel
between parties that this door was opened
pending
suit. The Trial
Judge
also
depended for his finding on the boundaries
of a contiguous property mentioned in the
sale deed, executed between third parties in
the year 1959, Ex. Ka-2. He also looked
into another sale deed of the same property,
Ex. 1.

15. The Lower Appellate Court,
on an evaluation of the evidence of
witnesses, reached a contrary conclusion,
reversed the Trial Court and dismissed the
suit. However, the Lower Appellate Court
has not considered in the least documents
that the Trial thought were circumstances
to be taken into account to find on the
matter in issue.

16. Aggrieved, the plaintiffs have
instituted this appeal from the appellate
decree. It was admitted to hearing vide
order dated 07.11.1996 by this Court, but
without
formulating
the
substantial
question/ questions of law involved. This is
not to say that the memorandum of appeal
did not carry the proposed questions.
Accordingly, this Court vide order dated
27.04.2022 proceeded to formulate the
following substantial questions of law:

(i) Whether the Lower Appellate
Court can set aside findings of fact
recorded by the Trial Court, where the
findings are based on appreciation of oral
evidence alone?

(ii) Whether the Lower Appellate
Court has committed a manifest illegality
in considering a third case not pleaded by
the parties to the effect that there was no
way for the appellants to access the land in
dispute - a courtyard (sahan) and on that
basis, setting aside the findings recorded by
the Trial Court?

(iii) Whether the Lower Appellate
Court pronounced upon the character and
ownership of land in dispute as the
appellants'
courtyard
(sahan)
without
taking into consideration the two sale
deeds
which
the
Trial
Court
had
considered to reach a different conclusion?

17. This appeal has, accordingly,
been heard on the aforesaid substantial
questions.

18. Heard Mr. Anirudh Kumar
Upadhyay,
learned
Counsel
for
the
plaintiffs and Mr. Ramakant Tiwari,
Advocate appearing on behalf of the
defendants.

19. In order to put the record
straight, it is clarified that out of the three
heirs and LRs of Uma Shanker, defendant
no.1, the defendants' interest has been
represented by his sons Jai Prakash and Om
11 All. Ram Karan & Anr. Vs. Uma Shanker & Anr.
651
Prakash, for whom Mr. Ramakant Tiwari
has appeared and defended this appeal.
Like the Courts below, there has been no
contest on behalf of Paras Nath and his
heirs and LRs in tune with the compromise
before the Trial Court.

20. So far as the first substantial
question of law is concerned, it is
submitted by the learned Counsel for the
plaintiffs that the evidence of PW-1, who is
the plaintiff's son and that of Ram Chandra,
the then Pradhan of the Village, has been
misconstrued by the Lower Appellate
Court, to hold that the suit property is part
of the defendants' courtyard and not the
plaintiffs. Likewise, the evidence of the
two witnesses for the defendants, DW-1
and
DW-2 Uma Shanker
has
been
misconstrued. The evidence of these
witnesses was considered by the Trial
Court to reach a reasonable conclusion
based on preponderance of probability. The
suit property was, in fact, the plaintiffs'
courtyard. The Trial Court had considered
the evidence of witnesses, together with
circumstances
on
record
and
the
geographical location, to reach a plausible
conclusion. This conclusion, amongst other
matters, was based on the fact that the
plaintiffs' door opening out from their
verandah, faces the suit property, which
showed it to be a part of the plaintiffs'
courtyard (Sahan). It has been noticed by
the Trial Court that the aforesaid door in
the verandah is affixed facing the south,
where it opens into the suit property. The
Trial Court has noticed the statement of
DW-2, where he has accepted the fact that
to the north of the suit property is the
plaintiffs' verandah (Dalan), and further
that a door opening to the south in that
verandah exists. The Trial Court has also
noticed that in the testimony of Uma
Shanker, DW-2, it has been acknowledged
that the suit property lies to the west of the
defendants'
abadi.
From
this
acknowledgment, amongst others, it has
been concluded that Uma Shanker's abadi
lies to the east of the suit property. The
further conclusion drawn from the said fact,
in togetherness with others, is that the suit
property belongs to the plaintiffs and a part
of his courtyard (Sahan). It is not part of
Uma Shanker's courtyard.

21. The Lower Appellate Court
has taken a contrary view of the evidence
by considering the particular geographical
features of the suit property to find that in
case the suit property is regarded as the
plaintiffs' courtyard (Sahan), where he
tethers his animals etc., the only door
leading to it would be through his
verandah. This has been regarded as an
impossibility. The Lower Appellate Court
has considered the evidence of the four
witnesses to reach a diametrically opposite
conclusion, holding the suit property a part
of Uma Shanker's courtyard (Sahan); not
the plaintiffs'.

22. It is argued by the learned
Counsel for the plaintiffs that the two
Courts
below
have
opined,
without
prejudice to the plaintiffs' case, that there
was some documentary evidence also
considered by the Trial Court, considering
evidence entirely oral, comprising the
testimony of two witnesses on each side,
produced by both the parties. It is argued
by the learned Counsel that in a case that
turns entirely on oral evidence, the Trial
Court's view generally ought not to be
disturbed by the Appellate Court, because
the Trial Court had the advantage of
hearing witnesses and watching their
demeanour. It is submitted, therefore, that
the Appellate Court was not right, in the
absence
of
a
manifest
illegality
652 INDIAN LAW REPORTS ALLAHABAD SERIES
demonstrable in the Trial Court's view of
the oral evidence, in interfering with the
Trial Court's opinion, based on appreciation
of oral evidence alone.

23. The learned Counsel appearing
for Uma Shanker (defendant no.1) has
opposed the aforesaid submission and says
that the Lower Appellate Court has
thoroughly considered every part of the
oral testimony of witnesses to reach a
contrary conclusion from that of the Trial
Court, taking a better view of the evidence.
It is argued that the Lower Appellate Court,
being a Court of fact, has coextensive
jurisdiction with that of the Trial Court to
consider the entire evidence on record, both
on questions of fact and law and hold
differently. It is emphasized that a Court of
First Appeal has jurisdiction, as wide as
that of the Trial Court, to judge issues of
fact and law, which cannot be fettered by
the subtle consideration about the Lower
Appellate Court's disadvantage in not
watching the witnesses, which the Trial
Court had. Learned Counsel for Uma
Shanker in support of his contention has
placed reliance upon the law laid down by
the Supreme Court in Malluru Mallappa
(Dead) through Legal Representatives v.
Kuruvathappa and others, (2020) 4 SCC
313, where it has been held:

"12. In Shankar Ramchandra
Abhyankar v. Krishnaji Dattatreya Bapat
[Shankar
Ramchandra
Abhyankar
v.
Krishnaji Dattatreya Bapat, (1969) 2 SCC
74] it was held thus : (SCC pp. 77-78, para
5)

"5. ... In the well-known work of
Story on Constitution (of United States),
Vol. 2, Article 1761, it is stated that the
essential criterion of appellate jurisdiction
is
that
it
revises
and
corrects
the
proceedings in a cause already instituted
and does not create that cause. The
appellate jurisdiction may be exercised in a
variety of forms and, indeed, in any form in
which the legislature may choose to
prescribe. According to Article 1762, the
most usual modes of exercising appellate
jurisdiction, at least those which are most
known in the United States, are by a writ of
error, or by an appeal, or by some process
of removal of a suit from an inferior
tribunal. An appeal is a process of civil law
origin and removes a cause, entirely
subjecting the fact as well as the law, to a
review and a retrial."

13. It is a settled position of law
that an appeal is a continuation of the
proceedings
of
the
original
court.
Ordinarily,
the
appellate
jurisdiction
involves a rehearing on law as well as on
fact and is invoked by an aggrieved person.
The first appeal is a valuable right of the
appellant and therein all questions of fact
and law decided by the trial court are open
for reconsideration. Therefore, the first
appellate court is required to address itself
to all the issues and decide the case by
giving reasons. The court of first appeal
must record its findings only after dealing
with all issues of law as well as fact and
with the evidence, oral as well as
documentary, led by the parties. The
judgment of the first appellate court must
display conscious application of mind and
record findings supported by reasons on all
issues and contentions [see : Santosh
Hazariv. Purushottam Tiwari [Santosh
Hazari v. Purushottam Tiwari, (2001) 3
SCC 179] , Madhukar v. Sangram
[Madhukar v. Sangram, (2001) 4 SCC 756]
, B.M. Narayana Gowda v. Shanthamma
[B.M. Narayana Gowda v. Shanthamma,
(2011) 15 SCC 476 : (2014) 2 SCC (Civ)
619] , H.K.N. Swami v. Irshad Basith
[H.K.N. Swami v. Irshad Basith, (2005) 10
SCC 243] and Sri Raja Lakshmi Dyeing
11 All. Ram Karan & Anr. Vs. Uma Shanker & Anr.
653
Works v. Rangaswamy Chettiar [Sri Raja
Lakshmi Dyeing Works v. Rangaswamy
Chettiar, (1980) 4 SCC 259] ].

14. A first appeal under Section
96 CPC is entirely different from a second
appeal under Section 100. Section 100
expressly bars second appeal unless a
question of law is involved in a case and
the question of law so involved is
substantial in nature.

15. Order 41 Rule 31 CPC
provides the guidelines for the appellate
court to decide the matter. For ready
reference Order 41 Rule 31 CPC is as
under:

"31.
Contents,
date
and
signature of judgment.--The judgment of
the appellate court shall be in writing and
shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision;
and

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

and shall at the time that it is
pronounced be signed and dated by the
Judge or by the Judges concurring therein."

16.
In
Vinod
Kumar
v.
Gangadhar [Vinod Kumar v. Gangadhar,
(2015) 1 SCC 391 : (2015) 1 SCC (Civ)
521] this Court has reiterated the principles
to be borne in mind while disposing of a
first appeal, as under : (SCC p. 395, para
15)

"15. Again in B.V. Nagesh v. H.V.
Sreenivasa Murthy [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 3-4)

''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

(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
[H.V. Sreenivasa Murthy v. B.V. Nagesha,
2008 SCC OnLine Kar 837] 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 [Santosh Hazariv.
Purushottam Tiwari, (2001) 3 SCC 179] ,
SCC p. 188, para 15 and Madhukar v.
Sangram [Madhukar v. Sangram, (2001) 4
SCC 756] , SCC p. 758, para 5.)'"
654 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In Shasidhar v. Ashwini Uma
Mathad
[Shasidhar
v.
Ashwini
Uma
Mathad, (2015) 11 SCC 269] , it was held
as under : (SCC p. 277, para 21)

"21. Being the first appellate
court, it was, therefore, the duty of the High
Court [Shasidhar v. Ashwini Uma Mathad,
2012 SCC OnLine Kar 8774] to decide the
first appeal keeping in view the scope and
powers conferred on it under Section 96
read with Order 41 Rule 31 of the Code
mentioned above. It was unfortunately not
done, thereby, causing prejudice to the
appellants
whose
valuable
right
to
prosecute the first appeal on facts and law
was adversely affected which, in turn,
deprived them of a hearing in the appeal in
accordance with law."

24. Upon considering the submissions
advanced by the learned Counsel for
parties, this Court finds that no doubt there
is a well acknowledged principle that the
Trial Court's opinion on issues or the suit
itself,
which
turns
entirely
on
oral
evidence, should not be lightly disturbed by
the Appellate Court, unless it be manifestly
illegal or perverse. This principle is
particularly important when the finding
turns on the credibility of a witness.
Deference to the Trial Court's opinion in a
case founded on oral evidence is based on
the consideration that the Trial Court had
the advantage of hearing and watching the
witness, which the Appellate Judge did not
have. Therefore, unless the conclusions of
the Trial Court are based on a wholesome
misreading
of
evidence,
conjecture,
surmise or the result of perverse reasoning,
the Appellate Court should not generally
interfere. This rule is, of course, confined
to those cases where the findings are based
entirely on parole evidence, without there
being any documentary evidence, bearing
on the case/ issues. The principle is well
elucidated by the following the remarks of
the Supreme Court in Santosh Hazari v.
Purushottam Tiwari (Deceased) by LRs,
(2001) 3 SCC 179:

"15. ......... Expression of general
agreement with the findings recorded in the
judgment under appeal should not be a
device or camouflage adopted by the
appellate court for shirking the duty cast on
it. While writing a judgment of reversal the
appellate court must remain conscious of
two principles. Firstly, the findings of fact
based on conflicting evidence arrived at by
the trial court must weigh with the
appellate court, more so when the findings
are based on oral evidence recorded by the
same Presiding Judge who authors the
judgment. This certainly does not mean that
when an appeal lies on facts, the appellate
court is not competent to reverse a finding
of fact arrived at by the trial Judge. As a
matter of law if the appraisal of the
evidence by the trial Court suffers from a
material irregularity or is based on
inadmissible evidence or on conjectures
and surmises, the appellate court is entitled
to interfere with the finding of fact. (See
Madhusudan Das v. Narayanibai [(1983) 1
SCC 35 : AIR 1983 SC 114] ) The rule is --
and it is nothing more than a rule of
practice -- that when there is conflict of
oral evidence of the parties on any matter
in issue and the decision hinges upon the
credibility of witnesses, then unless there is
some special feature about the evidence of
a particular witness which has escaped the
trial Judge's notice or there is a sufficient
balance of improbability to displace his
opinion as to where the credibility lie, the
appellate court should not interfere with the
finding of the trial Judge on a question of
fact. (See Sarju Pershad Ramdeo Sahu v.
Jwaleshwari Pratap Narain Singh [AIR
1951 SC 120] ) ........."
11 All. Ram Karan & Anr. Vs. Uma Shanker & Anr.
655

25. There is an older decision by the
Supreme Court in Madhusudan Das v.
Narayanibai (Deceased) by LRs and
others, (1983) 1 SCC 35, where the
principle under reference has been stated
thus:

"8. ...... At this stage, it would be
right to refer to the general principle that, in
an appeal against a trial court decree, when
the appellate court considers an issue
turning on oral evidence it must bear in
mind that it does not enjoy the advantage
which the trial court had in having the
witnesses before it and of observing the
manner in which they gave their testimony.
When there is a conflict of oral evidence on
any matter in issue and its resolution turns
upon the credibility of the witnesses, the
general rule is that the appellate court
should permit the findings of fact rendered
by the trial court to prevail unless it clearly
appears that some special feature about the
evidence of a particular witness has
escaped the notice of the trial court or there
is a sufficient balance of improbability to
displace its opinion as to where the
credibility lies. ....."

26. The principle under reference is
also acknowledged by the Privy Council in
Valarshak Seth Apcar v. Standard Coal
Co., Ltd. and others, AIR 1943 PC 159,
where it has been held:

"They treated the plaintiff as a
witness whose testimony should not be
believed, and accepted as accurate the
evidence of Fairhurst and Wills. In their
Lordships' opinion, the High Court on
appeal was not justified in this case in
taking a different view of the plaintiff's
credibility from that adopted by the trial
Judge. McNair J., enumerates a series of
points upon which he bases his view that
the plaintiff's evidence is such that reliance
cannot be placed upon it, but they are just
the sort of points as to which the only
person who can effectively form an opinion
and draw conclusions is the trial Judge who
has the witness before him. He alone
knows the demeanour of the witness; he
alone can appreciate the manner in which
the questions are answered, whether with
honest
candour
or
with
doubtful
plausibility, and whether after careful
thought, or with reckless glibness. He alone
could form a reliable opinion as to whether
the plaintiff had emerged with credit from a
cross-examination, lasting the greater part
of two days, which was to a great extent
repetitious, and sometimes offensive."

27. There is no doubt about the
principle that where oral testimony alone is
the basis for the findings, the Trial Judge is
entitled to respect enough that he is not
generally disturbed by the Court of Appeal
unless his reasoning be manifestly illegal,
perverse or one that misses out some
decisive part of the testimony, on which he
forms opinion. But, the aforesaid principle
is set in the context of a postulate that the
Trial Judge is one, who has heard the
witnesses and authored the judgment. If in
a case, which is quite common place these
days and was so even at the time when the
present suit was tried and decided, the
author of the judgment in the Trial Court is
different from the Judge, who heard the
witnesses, the rule under reference would
loose all significance. Therefore, in a case
where a party attempts to sustain the
judgment passed by a Trial Judge and
reversed in appeal, which turns entirely on
appreciation of oral evidence and nothing
else,
based
on
the
principle
under
reference, it has to be demonstrated for a
fact that the Trial Judge was the same
person, who heard the witnesses and wrote
656 INDIAN LAW REPORTS ALLAHABAD SERIES
the judgment. Ideally speaking, a Trial
Judge writing a judgment, who has not
heard witnesses in the case is an anathema
for the most essential character of the Trial
Judge, different from all other Judges in the
higher rungs of the judicial hierarchy, is the
fact that the Trial Judge is one who has
heard witnesses. In civil cases, the
application of this principle nowadays is
truncated to hearing the witnesses on crossexamination alone, as the examination-inchief after Amendment Act No. 22 of 2002
(w.e.f. 1-7-2002) is on affidavit. However,
the present case is one which arose much
before the Amendment Act and the entire
testimony is by witnesses, who appeared in
the dock.

28. On a perusal of the record, this
Court finds that the judgment by the Trial
Court, that is to say, the Court of the Sixth
Additional Munsif, Jaunpur was delivered
by Mr. Mukteshwar Prasad. A closer
perusal of the order-sheets show that Mr.
Mukteshwar Prasad appears to have taken
over charge of the Court of the Sixth
Additional Munsif in the month of July,
1989 and heard arguments for the first time
on 15.07.1989, after three adjournments in
July. He heard further arguments on
17.07.1989 and reserved judgment to be
delivered on 19.07.1989. Delivery of
judgment was deferred to 21.07.1989,
when it was, in fact, delivered by the Trial
Judge. A further perusal of the order-sheet
shows that testimony of the four witnesses,
that is to say, the two PWs and the two
DWs, was recorded on 02.11.1988 and
04.05.1989. It appears from a perusal of the
order-sheet that until the end of May, 1989,
the Presiding Officer, incumbent in the
Court of the Sixth Additional Munsif,
Jaunpur, was a person different from Mr.
Mukteshwar Prasad and it is he who heard
the witnesses.