# Shyampati v. Ram Karan Pandey & Ors

- **Citation:** (2024) 8 ILRA 690
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-29
- **Case number:** Second Appeal No. 392 of 2013
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyampati-v-ram-karan-pandey-ors-52430
- **Pages:** 15

## Headnote

A. Civil Law - Civil Procedure Code -
Sections 96 & 107 - O. XLI - R. 31 - Non
formulation of points of determination -
Appellate
court
observed
about
the
agreement
between
parties
for
not
framing the new issues - Effect - Held,
first appellate court proceeded to decide
the issues framed by the trial court one by
one and recorded its findings on all the
aforesaid five issues, therefore it cannot
be said that there is any violation of Order
41 Rule 31 CPC. (Para 20 and 21)

B. Civil Law - Civil Procedure Code,1908 -
Section 100 - Substantial question of law
- UP Z.A.&L.R. Act, 1950 - Ss. 7(aa) and 9
- Perverse finding based on conjectures
and surmises - Scope of interference -
Non consideration of evidence of plaintiff
and defendants by the first appellate court
- First appellate court failed to consider
that all the buildings situated within the
limits of a St. belonging to any person
shall also continue to belong to that
person and any land appurtenant thereto
shall be deemed to be settled with him
and a person of the categories mentioned
in Section 7(aa) of the Act would continue
with the similar right as was enjoying on
the date immediately preceding the date
of vesting and defendants-respondents
are also claiming the said structure their
on the ground that it settled with them
u/s 9 - Permissibility - Held, though the
First Appellate Court has considered all
the issues framed by the trial court and no
new issue was raised to be considered but
recorded perverse findings on the basis of
conjectures and surmises. Hence the same
are not tenable in the eyes of law and
liable to be set aside. (Para 23, 27, 28 and
35)

Appeal partly allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,785 of 49,906. This is a partial read: ask again with offset=39785 for what follows._

690 INDIAN LAW REPORTS ALLAHABAD SERIES
Court
has
rightly
set-aside
the
judgment/order dated 08.07.2005.

(41) The First Appeal is hereby
dismissed. No order as to costs.

(42) Registry shall transmit the
trial Court's record to the Court concerned
forthwith.
----------
(2024) 8 ILRA 690
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 392 of 2013

Shyampati ...Appellant
Versus
Ram Karan Pandey & Ors. ...Respondents

Counsel for the Appellant:
V.P. Nagaur

Counsel for the Respondents:
Ram Raj Ojha, Durga Prasad

A. Civil Law - Civil Procedure Code -
Sections 96 & 107 - O. XLI - R. 31 - Non
formulation of points of determination -
Appellate
court
observed
about
the
agreement
between
parties
for
not
framing the new issues - Effect - Held,
first appellate court proceeded to decide
the issues framed by the trial court one by
one and recorded its findings on all the
aforesaid five issues, therefore it cannot
be said that there is any violation of Order
41 Rule 31 CPC. (Para 20 and 21)

B. Civil Law - Civil Procedure Code,1908 -
Section 100 - Substantial question of law
- UP Z.A.&L.R. Act, 1950 - Ss. 7(aa) and 9
- Perverse finding based on conjectures
and surmises - Scope of interference -
Non consideration of evidence of plaintiff
and defendants by the first appellate court
- First appellate court failed to consider
that all the buildings situated within the
limits of a St. belonging to any person
shall also continue to belong to that
person and any land appurtenant thereto
shall be deemed to be settled with him
and a person of the categories mentioned
in Section 7(aa) of the Act would continue
with the similar right as was enjoying on
the date immediately preceding the date
of vesting and defendants-respondents
are also claiming the said structure their
on the ground that it settled with them
u/s 9 - Permissibility - Held, though the
First Appellate Court has considered all
the issues framed by the trial court and no
new issue was raised to be considered but
recorded perverse findings on the basis of
conjectures and surmises. Hence the same
are not tenable in the eyes of law and
liable to be set aside. (Para 23, 27, 28 and
35)

Appeal partly allowed. (E-1)

List of Cases cited:

1. Maharaj Singh Vs St. of U.P. & ors.; (1976) 1
SCC 155

2. Second Appeal No. 232 of 1990; Jhoori & ors.
Vs
Shambhoo
Nath
&
ors.
decided
on
27.03.2019

3. Bala Devi (Smt.) Vs Mukhtyar Singh; 2017 (2)
ARC 363

4. Bhudan Singh & anr. Vs Nabi Bux & anr.;
(1969) 2 SCC 481

5. Second Appeal No. 251 of 2019; Chandrajit
Vs Baliram (dead) & ors. decided on 22.11.2019

6.
Smriti
Debbarma
Vs
Prabha
Ranjan
Debbarma; AIR 2023 SC (Civil) 472

7. Baij Nath Ram (Dead) & ors. Vs Smt. Sonmati
& ors.; 2008 (4) ADJ 708(DB)

8. B.V.Nagesh & anr. Vs H.V.Sreenivasa
Murthy;(2010) 13 SCC 530
8 All. Shyampati Vs. Ram Karan Pandey & Ors.
691
9. Habibullah & ors. Vs Mohd.Yasin & anr.; 1995
(13) LCD 1073

10. G. Amalorpavam & ors. Vs R.C. Diocese of
Madurai & ors.; (2006) 3 SCC 224

11. Mrugendra Indravadan Mehta & ors. Vs
Ahmadabad Municipal Corporation; Live Law
(SC) 369

12. U. Manjunath Rao Vs U.Chandrashekar &
anr.; (2017) 15 SCC 309

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri V.P.Nagaur, learned
counsel for the appellant and Shri Ram Raj
Ojha, learned counsel for the respondent
No.1. The respondent no.2 has died and no
other legal heir has been substituted and
respondent no.3 is the court concerned.

2. Learned counsel for the
plaintiff-appellant submitted that the First
Appellate court has decided the appeal
without following the provisions of Order
XLI Rule 31 CPC as it has been decided
without
formulating
the
points
of
determination,
which
arises
for
adjudication and recording reasons for its
decision on the said point. He further
submitted that merely because the plaintiffappellant, who is an illiterate lady could not
give correct description of the things, it
cannot be said that she failed to prove her
case. He further submitted that the space
between the house of the plaintiff-appellant
and the land in dispute is part of her
property and left for rain water and on
account of same it cannot be said that the
land in dispute is not appurtenant to the
house of the plaintiff-appellant. He further
submitted that merely because the Husk is
existing on the land in dispute, it cannot be
said that it is not Sahan of the plaintiffappellant because in view of the provisions
made in the United Provinces Village Abadi
Act, 1948 the house owner is entitled to
make construction in the Sahan Darwaja or
land appurtenant to the house as may be
necessary for agricultural and domestic
purposes. He also submitted that a person
ordinarily residing in an area of the Gram
Sabha is entitled to be registered in the
village Register as per U.P.Panchayat Raj
(Maintenance of Village Register) Rules
1970 and since the name of the plaintiffappellant is recorded in the Family
Register, her rights on the land in dispute
cannot be disputed. He also submitted that
all efforts have been made by the
defendants-respondents
for
forceful
possession on the land in dispute and
making
construction.
The
plaintiffappellant tried to get it settled before filing
the suit but merely on this ground it cannot
be said that the land in dispute is not of the
plaintiff-appellant. Thus since the plaintiffappellant is in possession of the land in
dispute
since
prior
to
abolition
of
Zamindari and her house is existing
adjacent to the land in dispute and the land
in dispute is being used for various
agricultural and house hold purposes since
the time of ancestors of her husband, it is
settled with them under Section 7 (aa) and
9 of the U.P.Z.A.&L.R.Act. He also
submitted that if there was any dispute in
regard to settlement of land in dispute with
the parties under Section 9 of the
U.P.Z.A.&L.R.Act the issue should have
been framed and decided after affording
opportunity of evidence to the parties.

3. On the basis of above, learned
counsel for the plaintiff-appellant submitted
that the findings recorded by the first
appellante court are perverse, illegal and
based
on
conjectures
and
surmises,
therefore the same are not sustainable in the
eyes of law and are liable to be set aside by
this court and the appeal is liable to be
692 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed. He relied on Maharaj Singh
Versus State of U.P. and others; (1976) 1
SCC 155, judgment and order dated
27.03.2019 passed in Second Appeal
No.232 of 1990; Jhoori and others Vesus
Shambhoo Nath and others.

4. Learned counsel for the
defendants-respondents submitted that the
defendants-respondents are in possession
and owner of the land in dispute as it is a
part of their Sahan land and being used by
them for various agricultural and house
hold purposes since prior to abolition of
Zamindari, therefore it is settled with them
under Section 9 of the U.P.Z.A.&L.R.Act.
The plaintiff-appellant or her husband or
his ancestors were never in possession of
the land in dispute because the possession
was taken by her forcefully through police
force after the judgment and decree dated
12.01.2010 passed by the trial court, which
is apparent from the information given
under Right to Information on 13.04.2010
by the concerned Police Station and filed as
Paper No.24-Ga/1 before the first appellate
court. He further submitted that it is not in
dispute that the fire had broken in the
village on 02.04.2005, in which some
portion of the house of the defendantsrespondents was also burnt. He further
submitted that the plaintiff-appellant has
not produced any witness of the village, in
which the land in dispute is situated. The
plaintiff-appellant had appeared herself as
P.W.1, who could not tell the correct things
and P.W.2 was the interested witness as he
was brother-in-law of Chandra Pal, the
husband of the plaintiff-appellant, who
lives in another village. He further
submitted that the defendant-respondent
No.1 had appeared as D.W.1 and deposed
that his thatch was burnt in the fire in 2005,
for which government aid was given to him
and houses of nine others were also burnt,
therefore it cannot be said that the land in
dispute is not appurtenant land of the
defendants-respondents.
The
plaintiffappellant had admitted in her evidence that
his Pakka house was constructed 30-40
years back and since then she is making
Kanda-Uppala on its roof, therefore the
contention of the plaintiff-appellant that she
is using the land in dispute for the said
purposes
is
misconceived
and
not
tenable,but the trial court recorded the
contrary findings on presumption that since
there is dispute between the parties in
regard to the land in dispute, therefore if
the plaintiff-appellant is making KandaUppala on her roof to avoid quarrel and
beating, it cannot be said that she is not in
possession of the land in dispute. He
further submitted that in the commission
report, the door of the land in dispute is in
front of the house of the defendantsrespondents and the land in dispute is not
connected with the house of the plaintiffappellant in any manner, which was
admitted by the plaintiff-appellant also. He
also submitted that plaintiff-appellant has
to prove her case and she can not get any
benefit of weakness of the defendantsrespondents but she has failed to prove her
case.

5. On the basis of above, learned
counsel for the defendants-respondents
submitted that the trial court has passed the
judgment and decree without considering
the whole evidence and recording contrary
and perverse findings, therefore it has
rightly and in accordance with law been set
aside by the first appellate court after
considering the whole pleadings, evidence
and recording the findings on the basis
thereof on all issues framed by the trial
court as no new issue was raised, therefore
there is no violation of Order 41 Rule 31
CPC also. This Second Appeal has been
8 All. Shyampati Vs. Ram Karan Pandey & Ors.
693
filed
on
misconceived
and
baseless
grounds, which is liable to be dismissed.
He relied on Bala Devi (Smt.) Versus
Mukhtyar Singh; 2017 (2) ARC 363,
Bhudan Singh and another Versus Nabi
Bux and another; (1969) 2 SCC 481,
judgment and order dated 22.11.2019
passed in Second Appeal No.251 of 2019;
Chandrajit Versus Baliram (dead) and 6
others, Smriti Debbarma (dead) through
Legal Representative Versus Prabha
Ranjan Debbarma; AIR 2023 SC (Civil)
472, Baij Nath Ram (Dead) and others
Versus Smt. Sonmati and others; 2008
(4) ADJ
708(DB),
B.V.Nagesh
and
another
Versus
H.V.Sreenivasa
Murthy;(2010)
13
SCC
530
and
Habibullah
and
others
versus
Mohd.Yasin and another; 1995 (13) LCD
1073.

6.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

7. The appellant-plaintiff filed a
suit for permanent injunction for restraining
the defendants-respondents for ever not to
disturb the peaceful possession of the land
in dispute marked with read in the map of
the plaint and do not forcefully dispossess
and make no new construction and
demolish the wall of the husk structure
(Thatch) thereon. The suit was filed
alleging therein that House No.1149 of the
plaintiff-appellant was got constructed by
her husband and situated since prior to
abolition of Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950
(here-in-after
referred
to
as
U.P.Z.A.&L.R.Act). It has further been
alleged that since the time of construction
of her house Sahan, Baithaka, Bhusaila
(husk), etc. is situated on the western side.
The land in dispute is part of Sahan of
plaintiff-appellant, in which there is a
Bhusaila (Husk). It has also been alleged
that the plaintiff-appellant used to tie her
animals, make Kanda-Uppala and all other
agricultural and homely works and keeps
Bhusa, Puwal, Lakdi, Kanda etc. in the
Husk. All these works are being done since
the time of her husband like his ancestors
and after his death the plaintiff-appellant is
doing all such works. Thus the plaintiffappellant is in possession and the same is
settled with the husband of the plaintiffappellant under Section 9 and Section 7
(aa) of the U.P.Z.A.& L.R.Act and after his
death the plaintiff-appellant is owner and in
possession of the land in dispute. It has
further been alleged that all the four walls
of Husk are five fit high on which there is a
thatch. It has further been alleged that the
defendants-respondents have neither any
concern with the land in dispute nor they
are in possession of the same. The house of
the defendants-respondents is on the
northern side of the land in dispute after the
path, the Sahan Darwaja of which is on the
eastern side. The defendants-respondents
on the basis of their muscle power use to
harass the plaintiff-appellant. The fire had
broken on 02.04.2005 in the village, in
which the thatch kept on the husk had
fallen and taking the benefit of the same the
defendants-respondents
tried
to
make
possession on the land in dispute and on
being objected they threatened the plaintiffappellant and the defendants-respondents
were not ready to settle the dispute (make
tafsiya) in any manner, therefore the
plaintiff-appellant approached the trial
court with the aforesaid prayer.

8. The suit was contested by the
defendants-respondents
by
filing
two
separate
written
statements;
one
by
defendants no.1 and 2 and the other by the
defendant no.3, who was wife of the
694 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant-respondent no.2 denying the
pleadings of the plaint of the suit and
admitting that the house No.1149 of the
plaintiff-appellant is recorded in the Parivar
Register. It has also been admitted that the
wall of the land in dispute is five fit high.
The defendants-respondents alleged that
the plaintiff-appellant has no concern with
the land in dispute and she was never in
possession of the same. It has further been
alleged that the defendants-respondents are
the permanent residents of the village in
question and their house is situated at its
place since the time of their ancestors, the
Sahan of which is on the eastern side till
date and it is wrong to say that there is a
path in between the house of the
defendants-respondents and the land in
dispute. It has further been allged that the
construction in the land in dispute was got
made by the ancestors of the defendantsrespondents for their sitting, which is called
'Chaupal' also. The defendants-respondents
also claimed that on a part of the land in
dispute they are tying their animals, making
Uppla Kanda and doing other works
relating to agriculture and house hold since
prior to abolition of Zamindari and after
abolition of Zamindari the same is settled
with
them
under
Section
9
of
U.P.Z.A.&L.R.Act. It has further been
alleged that after death of the husband of the
plaintiff-appellant, she filed the suit with
malafide intention. During pendency of the
suit an application for amendment was
moved on 23.05.2006 and the amendment
was made in paragraph 14 of the additional
pleas changing their stand to the effect that
some portion of the land in dispute was given
to the plaintiff-appellant as demanded by her
for making her new house.

9. On the basis of pleadings of the
parties the following five issues were
famed:-
(I) Whether the plaintiff is
owner and in possession of the land
in question?
(ii) Whether suit is under
valued and court fee paid thereon is
insufficient?
(iii) Whether the suit is
barred by section 34/41 of Specific
Relief Act?
(iv) Whether the suit is
barred by Limitation Act?
(v) The plaintiff is entitled
to get which relief?

10. The plaintiff-appellant, in
support of her claim got examined herself
as P.W.1 (Shyampati) and Shree Nath as
P.W.2 and filed documentary evidence. She
filed Paper No.8-Ga-1 (Certified copy of
Pariwar Register), Paper No.8-Ga 1⁄2 and
14-Ga-1 (Certified copy of order of the
High Court), Paper No.15-Ga 1⁄2 and 62 Ga1 to 63-Ga-3 (Original Mukhtarnama
Khaas). The defendants-respondents got
examined Ram Karan as D.W.1, Rajendra
Prasad as D.W.2 and Ram Kripal as D.W.3.
In documentary evidence, they filed Paper
No.32-Ga-1 (Copy of commissioner report
with map of original suit no.471/96), Paper
No. 33-Ga-1/2 and Paper No.53-Ga-1/4 and
Paper No.54-Ga-1 (Photographs). The
commission was also got conducted during
pendency of the suit and the report
submitted by the Commissioner is on
record as Paper No.50-Ga-2, which was
confirmed by the trial court subject to
evidence by the parties to the suit.

11.

The
trial
court,
after
considering the pleadings of the parties,
evidence and the material on record
decreed the suit in favour of the plaintiffappellant
restraining
the
defendantsrespondents
from
making
forceful
possession on the land in dispute and any
8 All. Shyampati Vs. Ram Karan Pandey & Ors.
695
new construction on the land in dispute and
not to demolish the walls of Husk by means
of
the
judgment
and
decree
dated
12.01.2010 passed in Regular Suit No.162
of 2005; Shyampati Versus Ram Karan
Pandey and others by Civil Judge (Sr.Div.),
Court No.15, District-Sultanpur.

12. Being aggrieved by the
judgment and decree passed by the Trial
Court,
the
defendants-respondents
preferred Civil Appeal No.4 of 2010; Ram
Karan Pandey and others Versus Shyam
Pati, which has been allowed by means of
the judgment and decree dated 21.11.2013
by the Additional District Judge, Court
No.4, Sultanpur and the judgment and
decree dated 12.01.2010 has been set aside
and the Regular Suit filed by the plaintiffappellant has been dismissed with costs.
Hence this Second Appeal has been filed.

13.
The
following
substantial
questions of law have been formulated in
this second appeal:-

"(1) Whether the lower
appellate court has
committed
manifest illegality in not complying
with the provision of Order XLI
Rule 31 CPC and thereby not
formulating
the
points
of
determination?
(2)
Whether
the
non
compliance of provision of Order
XLI Rule 31 CPC would make the
impugned judgment and order
unsustainable in the eyes of law?
(3) Whether the findings
recorded by the lower appellate
court are totally perverse and based
on conjecture and surmises?"

14. The appeal filed under Section
96 is a valuable right of the appellant.
Section 107 of the Code of Civil Procedure,
1908 (here-in-after referred as C.P.C.)
provides the powers of appellate court,
which is extracted here-in-below:-

"107. Powers of Appellate
Court.-(1)
Subject
to
such
conditions and limitations as may
be prescribed, an Appellate Court
shall have power-
(a) to determine a case
finally;
(b) to remand a case;
(c) to frame issues and refer
them for trial;
(d) to take additional evidence
or to require such evidence to be taken.
(2) Subject as aforesaid, the
Appellate Court shall have the same
powers and shall perform as nearly as
may be the same duties as are
conferred and imposed by this Code on
Courts of original jurisdiction in
respect of suits instituted therein."

15. According to the aforesaid SubSection 2 of Section 107 subject to the provision
made in sub-section(1), the appellate court shall
have the same powers and duties as are conferred
and imposed on the courts of original jurisdiction
of suits instituted therein. Thus, the first appellate
court has all the powers of the trial court while
deciding the appeal, therefore the appellate court is
required to consider all the pleadings of the parties,
evidence and material available on records while
deciding the appeal. The appellate court is
required to pass judgment in appeal in accordance
with the provisions of Order 41 Rule 31 CPC,
which is extracted here-in-below:-

"31. Contents, date and
signature
of
judgment.-The
judgment of the Appellate Court
shall be in writing and shall state-
696 INDIAN LAW REPORTS ALLAHABAD SERIES
(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.
Allahabad._ At the end of
the rule, substitute a semi-colon for
the full stop and add the following:
"Provided that where that
presiding Judge pronounces his
judgment
by
dictation
to
a
shorthand-writer in open court, the
transcript of the judgment so
pronounced
shall,
after
such
revision
as
may
be
deemed
necessary, be signed by the Judge
and shall bear the date of its
pronouncement."

16. In view of above, the appellate
court is required to state the points for
determination and record its reasons for the
decision thereon and it can reverse or vary
the decree against which the appeal has
been preferred and in such case the relief to
which the appellant is entitled, therefore the
appellate court can not only reverse the
findings of the trial court but also take a
different view and it can be done after
considering the pleadings, evidence and
material on record as a trial court and also
considering the findings recorded by the
trial court and as to whether the same have
rightly and in accordance with law been
recorded or not after evaluating the
pleadings, evidence and material on record
as a trial court. It is for the reason that if
any plea or evidence has been left to be
considered by the trial court, it can
appropriately be considered by the first
appellate court to avoid injustice to either
of the parties. Thus the first appeal is in
continuation of trial and if all the issues
framed by the trial court are considered by
the first appellate court in accordance with
law
after
considering
the
pleadings,
evidence and material on record and
dealing them appropriately and no new
issue is raised at the appellate stage, this
court is of the view that the judgment
passed by the first appellate court may not
be said to be vitiated and liable to be set
aside only on this ground as there would be
substantial compliance of Order 41 Rule 31
CPC.

17. The Hon'ble Supreme Court,
in the case of G. Amalorpavam and
others Versus R.C. Diocese of Madurai
and others; (2006) 3 SCC 224, has held
that it is no doubt desirable that the
appellate court should comply with all the
requirements of Order 41 Rule 31 CPC.
But if it is possible to make out from the
judgment
that
there
is
substantial
compliance with the said requirements and
that justice has not thereby suffered, that
would be sufficient and where the appellate
court has considered the entire evidence on
record and discussed the same in detail,
come to any conclusion and its findings are
supported by reasons even though the point
has not been framed by the appellate court
there is substantial compliance with the
provisions of Order 41 Rule 31 CPC and
the judgment is not in any manner vitiated
by the absence of a point for determination.

18. The Hon'ble Supreme Court,
in a recent judgment and order dated 10th
May, 2024 in the case of Mrugendra
Indravadan Mehta and others Versus
Ahmadabad
Municipal
Corporation;
8 All. Shyampati Vs. Ram Karan Pandey & Ors.
697
(Civil Appeal Nos.16956-16957 of 2017)
2024 Live Law (SC) 369, considered the
aforesaid judgment and other judgments of
Hon'ble Supreme Court and held that the
High Court did set out all the issues framed
by the trial court in the body of the
judgment
and
was,
therefore,
fully
conscious of all the points that it had to
consider in the appeal and no issue was left
to be considered while adjudicating the
appeal, therefore there is no merit in the
contention that impugned judgment is
liable to be set aside on this issue. The
Relevant paragraphs 27 to 31 are extracted
here-in-below:-

"27. This being the legal
position vis-à-vis the Act of 1976,
it was contended before us by the
plaintiffs
that
the
impugned
judgment of the High Court is
liable to be set aside on the short
ground
that
no
points
for
determination were framed therein,
as required by Order 41 Rule
31 CPC.
Reliance
was
placed
on Malluru
Mallappa
(Dead)
through
Lrs. v. Kuruvathappa5,
wherein this Court observed that
the first appellate Court is required
to
set
out
the
points
for
determination, record the decision
thereon and give its own reasoning.
It was further observed that, even
when the said Court affirms the
judgment of the Trial Court, it has
to comply with the requirements of
Order 41 Rule 31 CPC as nonobservance thereof would lead to
an infirmity in its judgment.
However, it may be noted that no
absolute proposition was laid down
therein to the effect that failure to
frame points for determination, in
itself,
would
render
the
first
appellate Court's judgment invalid
on that ground.
28. Reference
was
also
made
to Santosh
Hazari v. Purushottam
Tiwari
(Deceased) by LRs6, wherein this
Court held that a first appeal is a
valuable right and unless restricted
by law, the whole case would be
open for rehearing before it, both
on questions of fact and law, and,
therefore, the judgment of the first
appellate
Court
must
reflect
conscious application of mind and
it must 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 said Court. It was
further
observed
that,
while
reversing a finding of fact, the first
appellate Court must come into
close quarters with the reasoning of
the Trial Court and then assign its
own reasons for arriving at a
different
finding.
This, per this
Court,
would
satisfy
the
requirement
of
Order 41
Rule
31 CPC.
29. However,
in Laliteshwar Prasad Singh v. S.P.
Srivastava (Dead) thru. Lrs.7, this
Court,
while
affirming
the
aforestated
principles,
observed
that it is well settled that the mere
omission to frame the points for
determination would not vitiate the
judgment of the first appellate
Court, provided that the first
appellate Court recorded its reasons
based on the evidence adduced by
both parties.
30. Thus, even if the first
appellate Court does not separately
frame the points for determination
698 INDIAN LAW REPORTS ALLAHABAD SERIES
arising in the first appeal, it would
not prove fatal as long as that Court
deals with all the issues that
actually arise for deliberation in the
said appeal. Substantial compliance
with the mandate of Order 41 Rule
31 CPC in that regard is sufficient.
In this regard, useful reference may
be
made
to G.
Amalorpavam v. R.C. Diocese of
Madurai8, wherein this Court held
as under:-
'9. The question whether in
a particular case there has been
substantial compliance with the
provisions
of
Order 41
Rule
31 CPC has to be determined on
the
nature
of
the
judgment
delivered in each case. Noncompliance with the provisions
may not vitiate the judgment and
make it wholly void, and may be
ignored
if
there
has
been
substantial compliance with it and
the second appellate court is in a
position to ascertain the findings of
the lower appellate court. It is no
doubt desirable that the appellate
court should comply with all the
requirements of Order 41 Rule
31 CPC. But if it is possible to
make out from the judgment that
there is substantial compliance with
the said requirements and that
justice has not thereby suffered,
that would be sufficient. Where the
appellate court has considered the
entire evidence on record and
discussed the same in detail, come
to any conclusion and its findings
are supported by reasons even
though the point has not been
framed by the appellate court there
is substantial compliance with the
provisions
of
Order 41
Rule
31 CPC and the judgment is not in
any manner vitiated by the absence
of a point of determination. Where
there is an honest endeavour on the
part of the lower appellate court to
consider the controversy between
the parties and there is proper
appraisement of the respective
cases and weighing and balancing
of the evidence, facts and the other
considerations appearing on both
sides is clearly manifest by the
perusal of the judgment of the
lower appellate court, it would be a
valid judgment even though it does
not
contain
the
points
for
determination. The object of the
rule in making it incumbent upon
the appellate court to frame points
for determination and to cite
reasons for the decision is to focus
attention of the court on the rival
contentions
which
arise
for
determination and also to provide
litigant
parties
opportunity
in
understanding the ground upon
which the decision is founded with
a view to enable them to know the
basis of the decision and if so
considered
appropriate
and
so
advised to avail the remedy of
second
appeal
conferred
by
Section 100 CPC.'
31. As
already
noted
hereinabove, the High Court did set
out all the issues framed by the
Trial Court in the body of the
judgment and was, therefore, fully
conscious of all the points that it
had to consider in the appeal.
Further, we do not find that any
particular issue that was considered
by the Trial Court was left out by
the High Court while adjudicating
the appeal. In effect, we do not find
8 All. Shyampati Vs. Ram Karan Pandey & Ors.
699
merit in the contention that the
impugned judgment is liable to be
set aside on this preliminary
ground, warranting reconsideration
of the first appeal by the High
Court afresh."
5. (2020) 4 SCC 313,
6. (2001) 3 SCC 179,
7. (2017) 2 SCC 415,
8. (2006) 3 SCC 224

19. The Hon'ble Supreme Court,
in the case of U.Manjunath Rao Versus
U.Chandrashekar and another; (2017)
15 SCC 309, has held that it is well settled
in law that the reason is the life of law. It is
that filament that injects soul to the
judgment. Absence of analysis not only
evinces
non-application
of
mind
but
mummifies the core spirit of the judgment.
The Hon'ble Supreme Court with reference to
Rule 31 of Order 41 CPC has held that it is
quite clear that the judgment of the appellate
court has to state the reasons for the decision.
It has also been held that the appellant could
raise issues pertaining to facts and appreciation
of evidence and this is indicative of the fact
that the first appellate court has a defined role
and its judgment should show application of
mind and reflect the reasons on the basis of
which it agrees with the trial court. There has
to be an "expression of opinion" in the proper
sense of the said phrase. Needless to say, it is
one thing to state that the appeal is without any
substance and it is another thing to elucidate,
analyze and arrive at the conclusion that the
appeal is devoid of merit and the appellate
court has to keep in view the language
employed in Order 41 Rule 31 CPC. Similar
view has been taken by the Hon'ble Supreme
Court in the case of B.V.Nagesh and another
Versus H.V.Sreenivasa Murthy (Supra).

20. On perusal of the impugned
judgment, this court finds that the first
appellate court has though not framed the
points for determination, but on the basis of
the arguments raised before the First
Appellate court observed that nothing has
been stated on behalf of both the parties for
framing any new issue, therefore the issues
framed by the trial court would be
examined by the court. The relevant
paragraph is extracted here-in-below:-

"इस न्यायािय के समक्ष उिय पक्ष की
ओर से बकसी नवीन वाद बवन्दु के बनिाशरण के सम्िन्ि
में कोई कथन नहीं बकया गया, इसबिए अिीनस्थ
न्यायािय द्वारा बवरबचत बकये गये वाद बवन्दु की ही
समीक्षा इस बनणशय में की जायेगी।"

21. After recording the aforesaid,
the first appellate court proceeded to decide
the issues framed by the trial court one by
one and recorded its findings on all the
aforesaid five issues, therefore it cannot be
said that there is any violation of Order 41
Rule 31 CPC and impugned judgment
vitiates and liable to be set aside on this
ground alone. Thus the case of Bala Devi
(Smt.) Versus Mukhtyar Singh (Supra)
relied by learned counsel for the respondent
no.1 is not applicable on the facts and
circumstances of the present case.

22. Adverting to the facts of the
pesent case the Suit filed by the plaintiffappellant was decreed by the trial court,
which was challenged before the First
Appellate court. The First Appellate Court
recorded a finding that the trial court
though mentioned all the facts mentioned
in the plaint, but has not based his
judgment on the evaluation of the evidence
of the plaintiff-appellant and P.W.2 and
only the evidence of the defendantsrespondents have been referred and the suit
has been decreed, whereas the plaintiffappellant had to prove her case on the basis
of her evidence and the Suit could not have
700 INDIAN LAW REPORTS ALLAHABAD SERIES
been decreed on the basis of evidence of
the defendants-respondents, but failed to
disclose as to how the plaintiff-appellant
has failed to prove her case and as to why
the reference of evidence of the plaintiffappellant and P.W.2 was not sufficient for
deciding the issue no.1 in her favour.

23. The learned First Appellate
Court has recorded that the trial court has
referred
the
evidence
of
defendantsrespondents i.e. D.W.1, D.W.2 and D.W.3
in detail, which is not required to be
mentioned again in the judgment, which
clearly
shows
that
the
evidence
of
defendants-respondents have not been
considered by the First Appellate Court
merely on the ground that they have been
referred extensively by the trial court,
whereas it is settled law that once the
parties have adduced the evidence, the
burden of proof looses its efficacy, and
therefore evidence of both the parties is
required to be considered and evaluated.

24. The First Appellate Court
considering the averments of the plaintiffappellant in paragraph 6 of the plaint that
the
defendants-respondents
are
very
powerful persons and they are not ready to
settle (Tafsia) the matter observed that the
plaintiff-appellant claims herself to be the
owner and in possession of the land in
dispute then what settlement she wanted to
do and held that it indicates that the
plaintiff-appellant was not confirmed about
her ownership on the land in dispute, but
failed to consider the further averment
made in paragraph 6 of the plaint that
despite repeated requests of the plaintiffappellant, the defendants-respondents are
not ready to stop their illegal activities,
therefore the necessity of filing of suit
arose. Thus on the basis of a sentence in a
paragraph without considering the other
averments made in the plaint and further
averment in the said paragraph and the
evidence adduced before the trial court, the
presumption has been drawn by the
appellate court that the plaintiff-appellant
was not confirmed about her ownership on
land in dispute, which could not have been
done.

25. The learned First Appellate
Court, in regard to the husk on the land in
dispute, recorded a finding that if the same
would have been of the plaintiff-appellant,
the door should have been on the southern
side and without considering the plea of the
plaintiff-appellant in regard to the passage
between the house of the plaintiff-appellant
and husk recorded a finding that there is no
explanation as to why the said distance has
been left, whereas the plaintiff-appellant
has given the explanation for the same i.e.
for rain water, but it has not been
considered in the light of the pleadings and
evidence adduced. A presumption has also
been drawn without any pleadings and
evidence that if the said husk would have
been of the plaintiff-appellant, it would
have been got constructed in the northern
side of her Baithka (sitting place) because
no person would get his husk made
adjacent to his house, but failed to consider
that there is a passage between house and
husk and if a person would not construct
his husk adjacent to his house then why he
would construct adjacent to the place where
he/she may be sitting and entertaining
his/her guests. However it is also required
to be considered as to when the door of
husk is not towards the house or sahan of
the plaintiff-appellant, how she can claim it
to be her.

26. The learned First Appellate
Court recorded a finding that the plaintiffappellant is claiming in her suit that the
8 All. Shyampati Vs. Ram Karan Pandey & Ors.
701
house No.1149 is situated since prior to
Zamindari Abolition Act, whereas as per
her statement in evidence the Pakka house
was constructed 30-40 years ago. Her
statement has been recorded on 13.07.2007.
Zamindari was abolished in 1952, therefor,
certainly the said house would not have
been constructed prior to abolition of
Zamindari, even then the trial court has
recorded a finding that the house of the
plaintiff-appellant was on the land in
dispute since prior to Zamindari abolition,
but failed to consider as to whether there
was any house or not at the time of
abolition of Zamindari and even if the
Kachcha house was there, it cannot be said
that there was no house.

27. The First Appellate Court
recorded a finding that the land appurtenant
to the construction would settle with the
owner of the construction under Section 9
and Section 7(aa) of the U.P.Z.A.&L.R.Act
and the husk in the land in dispute comes
under
the
category
of
construction,
therefore the plaintiff-appellant could not
have the owner of husk, but failed to
consider that all the buildings situated
within the limits of a State belonging to any
person shall also continue to belong to that
person and any land appurtenant thereto
shall be deemed to be settled with him and
a person of the categories mentioned in
Section 7(aa) of the Act would continue
with the similar right as was enjoying on
the date immediately preceding the date of
vesting and defendants-respondents are
also claiming the said structure their on the
ground that it settled with them under
Section 9 of the Act, whereas the
defendant-respondent No.1 i.e. D.W.1 and
D.W.2 have specifically stated that they do
not know about the abolition of Zamindari
in their cross examination, which is in
contradiction to their pleadings. Even
otherwise the United Provinces Village
Abadi Act, 1948, provides under Section 3
that all houses built in a village abadi and
existing on the 15th day of August, 1947,
shall, unless the contrary is proved, be
presumed to have been built with the
consent of the landlord. Section 4(b) of the
said Act provides notwithstanding any
custom or usage to the contrary in any
agricultural village, a house-owner may
make such construction in the sahan
darwaza or land appurtenant to such house
as may be necessary for agricultural or
domestic purposes.

28. The First Appellate Court,
without considering the evidence of the
plaintiff-appellant and P.W.2, recorded a
finding that in the present matter the case
of the plaintiff-appellant is not proved by
the evidence of plaintiff-appellant and
P.W.2 and she has failed to prove that she
was in possession on the disputed husk
since prior to abolition of Zamindari on
account of which she has become the
owner,
whereas
the
plaintiff-appellant
pleaded the same in her suit as well as
deposed the same in examination-in-chief
but no cross examination was made from
her on this point in her cross-examination,
but it has not been considered and no
findingn has been recorded as to why it is
not proved.

29. The Hon'ble Supreme Court,
in the case of Maharaj Singh Versus State
of U.P. and others (Supra), has held that
the 'appurtenance' is dependence of the
building on what appertains to it for its use
as a building. The relevant paragraphs 27
and 28 are extracted here-in-below:-

27.
"Appurtenance',
in
relation to a dwelling, or to a
school, college ....