Judgment:
P.S. Narayana, J.
1. The following substantial questions of law arise for consideration in this Second Appeal:
(1) Whether the Judgment and Decree passed by the Ill-Additional District Judge is vitiated for non-compliance of mandatory provisions of Order 41 Rule 31 C.P.C. for not framing the points for consideration in the Appeal?
(2) Whether it is justified to dispose of the Appeal in A.S.No. 6/1995 without passing any orders in I.A. No. 1120/95 filed under Order 41 Rule 27 C.P.C. for receiving additional evidence?
(3) Whether it is justified to the appellate Court in not drawing the presumption of correctness of entries in Ex.A-1 and Ex.A-2 as is mandated under the provisions of Record of Rights Act and to draw the presumption under Section 114 of the Evidence Act about continuity of possession?
2. Sri Narayana Rao, the learned Counsel representing appellant had pointed out to the relevant portions of the findings which had been recorded by the appellate Court and would contend that the way in which the evidence had been dealt with by the appellate Court, the final Court of fact, is totally unsatisfactory. The learned Counsel also had specifically pointed out the non-consideration of the oral evidence available on record. The learned Counsel also further pointed out that proper points for consideration had not been framed by the appellate Court as contemplated by Order 41 Rule 31 of the Code of Civil Procedure. It is also stated by the learned Counsel representing appellant that though it was observed that I.A. No. 1120/95 filed under Order 41 Rule 27 C.P.C, for reception of additional evidence is liable to be dismissed, no separate order as such had been made.
3. Per contra, Sri Bhankatlal Mandhani with all vehemence would contend that even if these documents said to have been filed by way of additional evidence to be considered, it would not seriously alter the situation and even otherwise, since none of the conditions under Order 41 Rule 27 of the Code of Civil Procedure had been satisfied, the question of receiving these documents would not arise. The learned Counsel also in all fairness would submit that though the oral evidence had not been appreciated in detail or at length, the learned Judge had referred to the oral evidence and pointed out that the oral evidence is inconsistent and also further referred to the documents available on record and ultimately dismissed the appeal and inasmuch as concurrent findings had been recorded by both the Courts below, in a Second Appeal, this is not a fit case to be interfered with.
4. The substantial questions of law which had been argued in elaboration already had been specified above.
5. The appellant herein-the plaintiff in O.S.No. 128/89 on the file of Principal District Munsif, Karimnagar, filed the suit for permanent injunction against the respondent-defendant pleading as hereunder:
The plaintiff is the owner and possessor of the suit property covered in Sy. No. 418/A measuring Ac. 1-00 gts., situated at Maravanapur Village. The defendant is having Ac.5-11 guntas of land in the samesurvey number and there are ridges separating their properties. The plaintiff planted 40 Babul trees and 12 Tamarind trees and one Neem tree in the suit land. The defendant has no right over the suit land and trying to cut the Babul trees std in the suit land. Hence, the plaintiff filed the suit for permanent injunction restraining the defendant from cutting the Babul trees in the suit land.
6. The respondent herein, as defendant, filed written statement with the following averments:
The plaintiff was not the owner and possessor of the suit land. The Babul trees or Tamarind trees in the suit land were grown naturally and they are in existence since more than 40 years. The defendant is in possession of the suit property and he purchased the same along with other properties from one Thirumal Rao Desai about 40 years back. The defendant removed some of the Babul Trees and Tamarind trees to prepare the suit land as irrigated land. Three months prior to filing of the suit, the defendant removed the trees in the suit land with his own right and not as encroacher and hence, dismiss the suit with costs.
7. On the strength of the pleadings before the Court of first instance, the following issues were settled:
(1) Whether the plaintiff is entitled for permanent injunction against the defendant as prayed for?
(2) To what relief the plaintiff is entitled to?
8. On behalf of appellant-plaintiff P.Ws.1 to 3 were examined and Ex.A-1 and Ex.A-2 were marked. On behalf of the defendant, D.W.1 and D.W.2 were examined. The learned Judge, on appreciation of evidence, came to the conclusion that the appellant-plaintiff is not entitled to any relief and ultimately dismissed the suit. Aggrieved by the same, the unsuccessful plaintiff preferred appeal A.S.No. 6/95 on the file of the Court of the Chairman, Land Reforms Appellate Tribunal-cum-III Additional District and Sessions Judge at Karimnagar and before the appellate Court an application I.A.No. 1120/95 was filed for reception of additional evidence. It is no doubt true that the appellate Court at para 9 framed the following points for consideration:
Whether the decree and Judgment is liable to be set aside?
and had observed that I.A.No. 1120/95 is liable to be dismissed. It is brought to the notice of this Court that the appellate Court had not passed any separate Order on the said application. Not only that, the appellate Court had not framed the proper points for consideration but also the appellate Court had not appreciated the oral evidence at all, may be for the reason that the appreciation of oral evidence may not have any serious bearing while considering the respective stands taken by the parties. It is needless to say that the appellate Court is the final Court of fact and hence, the appellate Court is expected to appreciate the whole evidence available on record, both oral and documentary, and record appropriate findings. The learned Counsel representing appellant had placed reliance on the decision of this Court in Eleri Raja Reddy v. Puskur Damodar Rao : 2003(5)ALT481 wherein placing reliance on 2001 (1) CCC 162 (Madras), it was held that consideration of evidence available on record by appellate Court as a final Court of fact is essential and non-consideration of oral evidence vitiates the Decree and Judgment of the appellate Court.
9. It is unfortunate that though the matter is sufficiently an old one, the Decree and Judgment of the appellate Court are vitiated for total non-consideration of oral evidence, non-framing of proper points for consideration and also yet another vital infirmity the non-passing of any Order whatsoever on the application I.A.No. 1120/95 filed under Order 41 Rule 27 of the Code of Civil Procedure for reception of additional evidence. Hence, this Court is left with no other option except to set aside the Decree and Judgment of the appellate Court and remand the matter to the appellate Court for the purpose of disposing of the appeal in accordance with law in the light of the observations made supra.
10. The second appeal accordingly allowed to the extent indicated above. No order as to costs.