Gopal Prasad, J.
1. This Letters Patent Appeal has been preferred against the Judgment and Order dated 19.05.1994 passed in First Appeal No. 166 of 1979 by which the appeal has been dismissed confirming the judgment and decree dated 07.12.1978 passed by Sri Mundrika Prasad, VIth Additional Sub-Judge, Siwan in Title Suit No. 129 of 1965 / 25 of 1977.
2. Appellant is the defendant in the suit. Original Plaintiff Amar Rai filed a suit for declaration that the deed of gift dated 07.02.1964 executed by him in favour of defendant Sita Ram Singh with respect to the property in suit is illegal, inoperative and void with further prayer for recovery of possession of suit property and mense profit.
3. The original plaintiff Amar Rai died during pendency of suit, his wife & daughter were substituted in his place as plaintiff No. 1 and 2 respectively.
4. The case of the plaintiff in the plaint is that the said original plaintiff Amar Rai had got his first marriage at village Pachphor, the first wife (Dhanrajo Devi) died issueless. After the death of the first wife the Amar Rai got second marriage with Kishori Devi plaintiff No. 1 and from the second wife the original plaintiff Amar Rai blessed with a daughter who is Draupadi plaintiff No. 2 and was about 10 years old at the time of the institution of the suit. The further case is that the Amar Rai had got some near Gotia alive. The further case the mother of defendant Sita Ram and first wife of original plaintiff Amar Rai had their Naihar at village Pachphor & so there was a relationship of sister between them by virtue of being of same village, so defendant Sitaram used to call the original plaintiff Amar Rai as Mausa. The further case is that the plaintiff got mentally and physically weak due to old age as he was 70 years old and in ill health and hence, the defendant used to visit the house of the plaintiff and manage his agricultural pursuits and got the confidence and trust of original plaintiff and even dominating the will of the original plaintiff Amar Rai. The further case is that the defendant impressed the original plaintiff to execute an Intjamnama for managing the agriculture of original plaintiff. On 07.02.1964, the defendant Sitaram came and took the original plaintiff Amar Rai to Siwan Sub-Registry Office and got a deed executed and took the signature or thumb impression on several papers but it was neither read over nor explained and on the next day the defendant along with other brought the original plaintiff to Registry Office and got the deed registered.
5. The further case of the plaintiff is that after one months the plaintiff learnt as he heard Hulla in the village that instead of getting a deed of Intjamnama the defendant has fraudulently got a deed of gift having been executed and registered and then the plaintiff contacted his Pattidar Ram Jatan Rai and got a certified copy and then he learnt that the defendant has committed fraud and instead of Intjamnama has got a deed of gift executed with respect to entire property. Then the plaintiff filed a criminal case under Section 420 of the Indian Penal Code against defendant Sitaram. However, the defendant got acquitted in the said criminal case and started threatening to dispossess and even tried to get mutation. Hence, the suit was filed for setting aside the deed of gift on the ground of its execution by fraud, undue influence and misappropriation.
6. The defendant appeared in the case and filed the written statement. The case of the defendant is that the plaintiff No. 1 Kishori Devi is not a legally wedded wife of original plaintiff Amar Rai nor the plaintiff No. 2 is the legitimate child of the original plaintiff Amar Rai and so has got no title in the disputed land. The further case is that the original plaintiff Amar Rai had brought plaintiff No. 1 after purchase and had kept her as concubine and Amar Rai out of fear of his prestige admitted defendant No. 1 as his wife and further original plaintiff Amar Rai was neither 70 years old nor was ill since last five years nor was physically or mentally weak and asserted that the age of Amar Rai at the time of the institution of the suit was only 60 to 65 years old and was not mentally or physically weak and stated that the defendant is the son of the full sister of the first wife of Amar Rai and hence original plaintiff was own Mausa of the defendant Sitaram. The further case of defendant is that the Amar Rai kept the defendant as his son and the defendant always used to serve and the defendant even used to help Amar Rai by money and the residential house of original plaintiff which has been subject of gift was also constructed from the money of the defendant and after the execution of the deed of gift the defendant Sita Ram Singh came in possession of the suit property. On the pleading of the parties. Issues were framed by the trial court.
7. On the issued framed both the parties in support of their pleading adduced both oral and documentary evidence in trial court.
8. After hearing both the parties and taking into consideration both oral and documentary evidence adduced by the parties the trial court decreed the suit holding that deed of gift dated 07.02.1964 executed by original plaintiff Amar Rai in favour of defendant is not genuine and valid document and the same was brought into existence by undue influence, fraud and misrepresentation. The plaintiff No. 1 is wife and plaintiff No. 2 is the daughter of original plaintiff Amar Rai and original plaintiff Amar Rai was not own Mausa of the defendant. The learned trial court further held that there was a fiduciary relation between Sita Ram and original plaintiff Amar Rai and Sita Ram was in a position to dominate the will of the plaintiff and the deed of gift executed by Amar Rai in favour of defendant on 07.02.1964 is not genuine and valid document and the same was brought into existence under undue influence, fraud and misrepresentation.
9. Being aggrieved by the judgment and decree of the learned trial court the defendant preferred an appeal before this Hon'ble Court being First Appeal No. 166 of 1993. The learned Single Judge after hearing the parties dismissed the first appeal confirming the judgment and decree of the trial court holding that Ram Kishori plaintiff No. 1 is the legally wedded wife of Amar Rai and Dropadi plaintiff No. 2 is a legitimate daughter of Amar Rai and Amar Rai was not own Mausa of defendant Sita Ram, and Sita Ram did not perform Shradh of original plaintiff Amar Rai. It further held that there was a fiduciary relationship between defendant Sita Ram and family of Amar Rai and Sita Ram was in a position to dominate the will of original plaintiff Amar Rai and further held that the deed of gift was unconscionable as donor gave entire property without keeping any property either for self or his wife or the daughter and hence onus shifted on the defendant to prove that deed was not induced by undue influence & fraud.
10. Being aggrieved by the order of this Court in first appeal, this L.P.A has been filed by the defendant-appellant. The learned Counsel for the appellant submitted that the suit has been filed by the plaintiff respondent for setting aside the deed of gift on the ground of fraud, undue influence and misrepresentation but for challenging the deed of gift on the ground of undue influence and fraud the fact constituting the undue influence and fraud must be specifically pleaded in full particular detail about the undue influence i.e. nature of manner of influence, circumstances under which original plaintiff had fiduciary relation with defendant and general allegation are not sufficient for challenging the deed on the ground of fraud and undue influence and heavy onus lies on plaintiff to plead and proof and has placed reliance upon decisions of Supreme Court reported in : AIR 1951 SC 280 (Bishundeo Narain and Anr. v. Seogeni Rai and Ors.); : AIR 1963 SC 1279 (Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd. Karnal and Ors.). It has further been contended that the first appellate court though considered the subsidiary issue but did not consider properly the main issues whether the deed of gift suffered from undue influence and fraud. It has further been contended that the appellate court i.e. the Hon'ble Court in Letters Patent Jurisdiction requires independent appraisal of all the issues considering the entire oral and documentary evidence to come to its independent conclusion and not mechanical appreciation and has relied upon decisions reported in : 2007 (6) SCC 737 para 14 (Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (Dead) and Ors.) and : 2009 (4) SCC 791 (Nicholas V. Menezes v. Joseph M. Menezes and Ors.) and further contended that since no proper pleading made so case was not decided in right perspective and at it requires interference to be remanded for fresh consideration.
11. Learned Counsel for the respondent, however, contends that the learned trial court considered the evidence in great detail and also the pleading and proof i.e. the evidence both oral and documentary and the first appellant court also take into consideration relevant pleading and proof. The first appellate court also considered the law and fact in proper perspective and there is nothing in their judgment to disturb the finding of trial court as well as the judgment of confirmation passed by the first appellate court which has considered the relevant facts and law and has placed reliance upon decision reported in : 1970 SC page 1367 (Lakshmi Amma and Anr. v. Talengala Narayana Bhatta and Anr.) and further contended that the appellant court and this Court in its jurisdiction under the letters patent appeal not necessarily required to do reappraisal of all issues in all cases or in each and every case. If the facts and law have been well considered in the trial court and first appellate court then this Court in Letter Patent Appeal is not required to reiterate the facts and reappraisal of evidence to come to independent conclusion.
12. Hence, the question for consideration on the respective submission is whether the deed of gift was executed in circumstances which render the deed of gift invalid as suffering from undue influence, fraud and misrepresentation and the judgment and decree of learned lower court and 1st appellate court suffer from any illegality requiring interference on ground of defect in pleading or proof and require reappraisal of evidence to come to independent conclusion by this Court.
13. The suit has been filed for declaration that deed of gift dated 07.02.1964 executed by the original plaintiff Amar Rai in favour of defendant is illegal inoperative and void on the ground that the deed of gift has been brought in existence by undue influence, fraud and misrepresentation.
14. We proceed to consider that in a suit for setting aside a deed of gift on the ground of undue influence, fraud and misrepresentation, what are the essential ingredients to plead and proof and how the plaintiff who seeks such relief, has to proceed with his case and when the defendant is required to be called upon to show that the contract or gift was not inducted by undue influence.
15. Undue influence has been defined in Section 16 of the Indian Contract Act, thus:
16(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. Nothing in this Sub-section shall affect the provisions of Section 111 of the Indian Evidence Act, 1972.
16. Hence it is apparent that Section 16 of Contract Act defines undue influence its ingredient as well as its applicability i.e. condition when and where it applies and when onus shifts on defendant to show that deed of gift did not suffer from undue influence. Hence, sub-paragraph (1) of Section 16 of the Contract Act mentions the elements of undue influence i.e. for setting aside a deed on the ground of undue influence two things are required to be considered and proved.-
(1) Whether fiduciary relation exists between the donor and donee, such that the donee is in a position to dominate the will of the doner and
(2) Has the donee used that position to obtain an unfair advantage over the donee.
17. The Sub-section (2) mentions that a person is deemed to be in a position to dominate the will where he stands in a fiduciary relation to another or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress and proof being furnished either by evidence or by presumption that a person is in a position to dominate the will.
18. The third Sub-section mentions that if the transaction on its face or on evidence adduced, appears to be unconscionable, the burden of proof shall be on the person, who is in a position to dominate the will of donor, to prove that deed does not suffer from undue influence.
19. This legal position has well been established and enunciated in decision of Supreme Court reported in : AIR 1967 SC pp. 878 (Subhas Chandra Dad Murhib v. Ganga Prasad Das Murhib and Ors.) and it is relevant to quote paragraphs 4, 5, 6 and 7 which are as follows:
4. Under Section 16 (1) of the Indian Contract Act a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This shows that the court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor?
5. Sub-section (2) of the section is illustrative as to when a person is to be considered to be in a position to dominate the will of another. These are inter alia (a) where the donee holds a real or apparent authority over the doner or where he stands in a fiduciary relation to the donor or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
6. Sub-section (3) of the section throws the burden of proving that a contract was not induced by undue influence on the person benefiting by it when two factors are found against him, namely, that he is in a position to dominate the will of another and the transaction appears on the face of it or on the evidence adduced to be unconscionable.
7. The three stages for consideration of a case of undue influence were expounded in the case of Raghunath Prasad v. Sarju Prasad 51 Ind App 101 : AIR 1924 PC 60 in the following words:
In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached' namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
Error is almost sure to arise if the order of these propositions be changed. The un-conscionable ness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?
This view is also well propounded in the decision reported in : AIR 1963 SC p. 1279 (supra):
25. The doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first Sub-section of Section 16 lays down the principle in general terms. By Sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third Sub-section is that a person, who has obtained an advantage over another by dominating his will, may also remain in a position to suppress the requisite evidence in support of the plea of undue influence.
26. A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction: he has to prove that the other party to a transaction was in a position to dominate his will and that the other party had obtained as unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under Sub-section (2) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But Sub-section (3) has manifestly a limited application: the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of other and that the transaction is shown to be unconscionable. If either of these two conditions is nit fulfilled the presumption of undue influence will not arise and burden will not shift.
20. Hence from the above consideration legal position emerges that the court trying a case of undue influence must consider two things to start with,
(1) Are the relationship between donor and donee such that the donee is in a position to dominate the will of donor.
(2) Has the donee used that position to obtain an unfair delay.
And further if the transaction appears to be unconscionable then the burden of proving that the contract/deed was not induced by undue influence shifts to the donee.
21. Having established the position of law on the subject, the next point arises about the pleading in the plaint about the basic facts to cover the law and the proof thereon.
22. Order VI, Rule 4 of the Code of Civil Procedure specifically provides that the party pleading or relying on undue influence must properly plead the precise nature of the influence exercised on the donor, the manner of use or influence by the donee and the unfair advantage obtained by the donee and all necessary particulars in support of plea must be embodied in the pleading in full particulars with particular act in sufficient details. Only general allegation shall not suffice and if the particulars stated in the pleading are not sufficient and specific, the Court should before proceeding with the trial must insist upon the plaintiff to provide the particulars. This view has well been enunciated in the decision reported in : AIR 1951 SC p. 280 (Bishundeo Narain and Anr. v. Seogeni Rai and Ors.) as well as : 1963 SC p. 1279 (Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and Ors.) and in this connection, it is relevant to quote para 20 of : AIR 1963 SC pp. 1279:
20. Order 6 Rule 4 Civil P.C. provides that in all cases in which the partly pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, any by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support the their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protects the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.
23. Hence, the ingredients of the undue influence having been specified in law and the legal position established that the particulars of undue influence must be specifically pleaded in the plaint, We proceed to consider whether the plaintiff has pleaded the full particulars to make out a case for setting aside the deed of gift on the ground of undue influence, whether the learned lower court had properly and fairly gone into the issue that the said deed of gift was procured by undue influence and fraud and whether its findings are proper or not or whether they are likely to be re-opened or remanded.
24. Now reverting back to the pleadings in the plaint of the plaintiff, it is to be seen whether the plaintiff has properly pleaded the ingredients of the undue influence for setting aside the deed of gift. The case of the plaintiff in the plaint is that the defendant was son of a lady of village Pachphor i.e. the village to which the first wife of the original plaintiff Amar Rai belonged and the defendant by virtue of that relation used to call the plaintiff as Mausa and the plaintiff was 70 years old and ill and physically and mentally weak. The defendant used to visit the house of the plaintiff and used to look after the agricultural operations of the original plaintiff Amar Rai (donor) and the defendant by looking after the agriculture got the confidence and trust of the plaintiff and even dominated the will of the plaintiff. The further case is that the defendant impressed the plaintiff that for proper looking after the agriculture of the original plaintiff execution of an Intjamnama was required and on 07.02.1964 took the original plaintiff on pretext of executing an Intjamnama to the Registry Office and got him seated in a shop for his break-fast and asked the Katib (Deed-Writer) to prepare the document and thereafter a document was drafted while the original plaintiff kept engaged in break fast and thereafter the original plaintiff Amar Rai under confidence and trust signed on the deed without the contents of deed being read over and deed of gift was got signed under a trust though under pretext of signing a deed of Intjamnama which shows a fiduciary relationship and position dominating the will of the donor by the donee.
25. It has further been pleaded in the plaint that the plaintiff has got his near Gotias. There is no enmity with them. The second wife of the plaintiff is alive. The daughter who is minor is also alive. There is no reason that the plaintiff will give his entire property to the defendant to the exclusion of the plaintiff himself in his life time when the wife and daughter are there and more particularly without making arrangement for the plaintiff himself or his wife or daughter who is 10 years old minor. The further pleading is that the deed of gift was got executed with respect to the entire property even including the residential house. Hence, pleadings are sufficient and clear that deed was unconscionable.
26. It has further been pleaded in the plaint that the plaintiff impressed the defendant to execute a deed of Intjamnama and on pretext of executing a deed of Intjamnama a deed of gift was got executed without reading over the contents or making him understand the contents of the deed and the plaintiff signed under belief and trust and under an impression that he is signing a deed of Intazamnama. Thus, there is no lack of pleadings for fraud and misrepresentation in addition to undue influence and hence, after going through the pleadings, we find sufficient pleadings in the plaint to make out a case containing the necessary ingredients of Section 16 of the Contract Act. The pleadings also make out a case of fiduciary relationship and that defendant was in a position to dominate the will of the donor as well as a case of an unconscionable deed and making out a case for shifting the onus on defendant under Section 16 (3) of the Contract Act to establish that the deed of gift was not tainted by undue influence.
27. On going through the pleadings, it is apparent that the plaintiff has well made out a case for undue influence and deed being unconscionable. Hence under the background of the pleading, going into the evidence adduced by both the parties both oral and documentary and its appreciation and finding recorded by the learned lower court and the first appellate court, we find that the learned trial court has gone into all the evidence adduced on the fact in due detail and after taking great pain in discussing the entire evidence both oral and documentary it has come to proper findings. Neither anything has been pointed out to suggest that those findings are perverse nor any illegality was shown to warrant disturbing the findings nor anything has been shown to suggest that the questions raised were not fairly tried by the learned trial court as well as the first appellate court.
28. Hence, in view of aforesaid, we find and hold that there are sufficient pleadings making out a case for challenging the deed of gift on the ground of undue influence within the four corners of the law and for setting aside on ground of undue influence and that the trial court and Ist appellate court have gone into evidence both oral and documentary, considered the evidence in proper perspective of fact and law to record the findings which need no interference.
29. However, going into the facts, it is noticed that Ex. Z-6, the deed of gift which mentions about the first wife as well as the second wife as alive but the defendant has chosen to challenge the second marriage.
30. However, that deed does not say about the daughter of the second wife but it mentions that the plaintiff is unable to look after his affairs and that the defendant is the son of the cousin sister of his first wife and hence he had executed the deed of gift with respect to entire property to the defendant (without mentioning any arrangement for himself or wife). There is obvious concealment of the fact about the minor daughter and though admitting that the defendant had second wife, this defendant has contested the case and has taken the plea in the written statement that the plaintiff No. 1 is not the legally wedded wife and the defendant No. 1 is not the legitimate child. The defendant's case is untrustworthy having regard to the fact that the deed of gift itself shows that the entire property was gifted to the defendant when the plaintiff was still alive along with the fact mentioned in the plaint that the original plaintiff filed a criminal case and his deposition in the criminal case which has been proved as Ext. 12 as well as Ext. K/1. As the original plaintiff Amar Rai died during trial so his deposition in criminal case has been proved. Taking that into consideration and further the evidence of P.W. 5, P.W. 6, P.W. 7 and P.W. 12 and evidence of D.W. 7, 26, 29 and 32 which show that there was fiduciary relation between the original plaintiff and the defendant, the deed of gift is found to be unconscionable. The learned trial court and the learned first appellate court have gone into the issue to consider the evidence in detail and come to the correct conclusion that there was fiduciary relationship between plaintiff and defendant and the defendant dominated the will of the original plaintiff. The gift deed was unconscionable and hence the onus shifted on the defendant to show that the deed did not suffer from undue influence. Nothing has been pointed out to disturb the findings of the trial court which has fairly gone into the issues and nothing perverse has been pointed out to disturb the finding recorded by the learned lower court or the first appellate court. It is not a case of non consideration of the evidence or fact nor any finding has been shown to be perverse or illegal and hence this Court is not required to go into the re-appreciation of evidence to come to its independent conclusions on different issues. However, having regard to the fact that the pleadings of the plaintiff in the plaint are sufficient to include the ingredients for setting aside a deed of gift on the ground of undue influence and they have been established by cogent evidence, hence I do not find any illegality in the judgments and orders under appeal. There is no merit in the submission that the pleadings in the plaint are not sufficient to establish the plea of undue influence.
31. In support of the submission that this Court in a Letters Patent Appeal ought to consider the entire evidence both oral and documentary and come to its independent conclusion, reliance has been placed on judgments reported in : 2007 (6) SCC 737 (Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (Dead) and Ors.) 1979 BBCJ 584 (Bibi Tahzibunissa v. Dr. Syed Azizur Rahman) as well as : 2009 (4) SCC 791 (Nicholas V. Menezes v. Joseph M. Menezes and Ors.)
32. Learned Counsel for the respondent, however, contended that though it is the duty of the appellate court to re-appreciate the evidence and come to its independent conclusion but it can only be resorted to if the court is of opinion that the finding is perverse or unfair or particular aspect of the matter has not been considered. Hence, reappraisal is required only if the court is of opinion that finding is perverse or particular aspect of the matter has not been considered for deciding an issue. He has placed reliance on decision reported in 1993 BBJC 373 (Saraswati Devi and Ors. v. Balram Manjhi). This judgment is relevant and fit to be followed in the facts of this case already notice earlier.
33. It has been already noticed that the findings are not perverse and there is no occasion to reappraise the evidence to come to independent conclusions on all issues.
34. The decision relied upon by learned Counsel for the appellant in : 2007 (6) SCC pp 737 was in a suit based on a bid and the property in dispute in the suit was not well identified and the title based on deed of the year 1875 and amendment was sought in the plaint at a belated stage to pin point the property in dispute but the same was rejected and even the attempt of the party to adduce secondary evidence was frustrated. In that circumstances the appellate court held that the dismissal is erroneous and the trial court ought to have permitted the amendment of the plaint and certified copy of the lease deed ought to have been accepted as secondary evidence. On a careful scrutiny it is found that the decision reported in : 2007 (6) SCC pp. 737 is not applicable to the facts and circumstances of the case.
35. Learned Counsel for the petitioner further relied upon a decision reported in 1979 BBCJ 584 (Bibi Tahzibunissa v. Dr. Syed Azizur Rahman). This was a case in which it was pointed out that the issue ought to have been decided on the topography of the land as the matter was concerned with irrigation of the land with the water in reservoir. The case required the topography to be taken into consideration to decide the point raised and that having not been done, a case for reconsideration was made out. But that decision is not applicable to facts and circumstances of this case as nothing has been pointed out that any relevant aspect of the matter was not considered by the trial court or the first appellate court.
36. The decision reported in : 2009 (4) SCC 791 (Nicholas V. Menezes v. Joseph M. Menezes and Ors.) related to a case in which the first appeal was decided without calling for the lower court records and hence interference was made. Here the facts being entirely different, that judgment is not applicable to this case.
37. In the present case both the lower court and the first appellate court have well considered the evidence in proper perspective taking into consideration the pleadings and the evidence both oral and documentary and have come to correct findings.
38. In such circumstance, this Court in Letters Patent Appeal is not required to reappraise the evidence to come to its independent conclusions. This view has been supported by the decision reported in 1993 BBCJ 373 (Saraswati Devi and Ors. v. Balram Manjhi). Hence, taking into consideration the entire facts and circumstances and the point raised by the appellant, we find no merit in this appeal and the appeal is accordingly dismissed.
Shiva Kirti Singh, J.
39. I agree.