Rattan Dev Vs. Pasam Devi - Court Judgment

Excerpt:
civil - second appeal - adverse inference - suit for permanent preventive injunction decreed by the trial court - first appellate court dismissed the suit solely on the ground of non-examination of the plaintiff drawing an adverse inference against him though his special power of attorney and other witnesses were examined - high court in second appeal held that the finding of first appellate authority were purely finding of fact and no substantial question of law within the meaning of section 100 of c.p.c. arose for consideration - first appellate court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the trial court - non-application of mind by the appellate court to other material, though available and consequent failure of the appellate court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties and therefore, second appeal deserved to be heard on merits - however, instead of remanding the matter to high court, first appeal itself is directed to be heard afresh - section 100 of c.p.c. - adverse possession: [dalveer bhandari & mukundakam sharma, jj] co-heir - plaintiff 's' and defendant were brothers - land was jointly cultivated and the house was jointly occupied by both the brothers - 's' went to his maternal uncle's house to look after his property - on return, 's' demanded the possession of the property of his share and also demanded the income derived from the said property - defendant pleaded adverse possession in the suit - trial court decreed the suit in favour of plaintiff - appellate court upheld the findings - high court reversed the findings - plaintiff had always remained a co-owner of the property in question held, while leaving the village he asked his brother to look after the property in his absence. from that it can never be construed that the plaintiff at any point of time did not remain co-owner of the property or surrendered his interest in the property. impugned judgment of the high court is wholly unsustainable, illegal, perverse and against the norms of any civilized society. the judgment of the high court has demolished the entire fiber of joint family system of our country and has put premium on the dishonesty of the defendant and the same deserves to be set aside. adverse possession: [dalveer bhandari & mukundakam sharma, jj] claim of co-heir - in order to establish adverse possession of one co-heir as against another it is not enough to show that one of them is in sole possession or enjoyment of the profits of the properties. ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. the possession of one co-heir is considered, in law, as possession of all the co-heirs. the co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. adverse possession: [dalveer bhandari & mukundakam sharma, jj] co-heir - plaintiff 's' and defendant were brothers - land was jointly cultivated and the house was jointly occupied by both the brothers - 's' went to his maternal uncle's house to look after his property - on return, 's' demanded the possession of the property of his share and also demanded the income derived from the said property - defendant pleaded adverse possession in the suit - trial court decreed the suit in favour of plaintiff - appellate court upheld the findings - high court reversed the findings - plaintiff had always remained a co-owner of the property in question held, while leaving the village he asked his brother to look after the property in his absence. from that it can never be construed that the plaintiff at any point of time did not remain co-owner of the property or surrendered his interest in the property. impugned judgment of the high court is wholly unsustainable, illegal, perverse and against the norms of any civilized society. the judgment of the high court has demolished the entire fiber of joint family system of our country and has put premium on the dishonesty of the defendant and the same deserves to be set aside. adverse possession: [dalveer bhandari & mukundakam sharma, jj] claim of co-heir-in order to establish adverse possession of one co-heir as against another it is not enough to show that one of them is in sole possession or enjoyment of the profits of the properties. ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. the possession of one co-heir is considered, in law, as possession of all the co-heirs. the co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. - non-application of mind by the appellate court to other material, though available, and consequent failure of the appellate court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits. as we are satisfied of the failure on the part of the first appellate court in discharging its obligation -statutory and judicial, more so when it is a judgment of reversal, it would meet the ends of justice if the first appeal itself is directed to be heard afresh.order1. leave granted.2. a suit for issuance of permanent preventive injunction filed by the appellant herein was decreed by the trial court. the defendant preferred an appeal. the first appellate court reversed the decree of the trial court and directed the suit to be dismissed. the plaintiff preferred a second appeal which has been dismissed in limine by the high court forming an opinion that the findings arrived at by the first appellate court were purely findings of fact and no substantial question of law within the meaning of section 100 cpc arose for consideration.3. a perusal of the judgment of the first appellate court shows that the plaintiff-appellant did not appear in the witness box although his special power of attorney and other witnesses were examined by the plaintiff. the first appellant court influenced by the non-examination of the plaintiff drew an adverse inference against him and directed the suit to be dismissed solely on the ground of non-examination of the plaintiff. the judgment of the first appellate court shows that other evidence, though available on record, did not receive the attention of the first appellate court at all.4. in our opinion, the first appellate court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the trial court. while doing so, the first appellate court could have taken the factum of the non-examination of the plaintiff also into consideration. the manner in which the appeal has been disposed of by the first appellate court cannot be said to be satisfactory. non-application of mind by the appellate court to other material, though available, and consequent failure of the appellate court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits.5. learned counsel for the respondent has placed reliance on ishwar bhai c. patel alias bachu bhai patel v. harihar behera and anr. : [1999]1scr1097 wherein this court has emphasised that withholding of the plaintiff himself from the witness box and thereby denying the defendant an opportunity for cross-examination of himself results into an adverse inference being drawn against the plaintiff. that proposition of law is undoubtable. however, as we have already said, that is a fact to be kept in view and taken into consideration by the appellate court while appreciating other oral and documentary evidence available on record. may be that from other evidence - oral and documentary - produced by plaintiff, or otherwise brought on record, the plaintiff has been able to discharge the onus which lay on him, and, subject to the court forming that opinion, a mere abstention of plaintiff himself from the witness box may pale into insignificance.6. in the facts and circumstances of this case, remanding the matter to high court for re-hearing would only prolong the life of litigation. as we are satisfied of the failure on the part of the first appellate court in discharging its obligation - statutory and judicial, more so when it is a judgment of reversal, it would meet the ends of justice if the first appeal itself is directed to be heard afresh.7. the appeal is allowed. the order of the high court dismissing the appeal in limine as also the judgment and decree of the first appellate court are set aside. the appeal shall stand restored on the file of the first appellate court which shall be heard and decided afresh, consistently with the observations made hereinabove and in accordance with law.8. no order as to the costs.

Judgment:
ORDER

1. Leave granted.

2. A suit for issuance of permanent preventive injunction filed by the appellant herein was decreed by the Trial Court. The defendant preferred an appeal. The First Appellate Court reversed the decree of the Trial Court and directed the suit to be dismissed. The plaintiff preferred a second appeal which has been dismissed in limine by the High Court forming an opinion that the findings arrived at by the First Appellate Court were purely findings of fact and no substantial question of law within the meaning of Section 100 CPC arose for consideration.

3. A perusal of the judgment of the First Appellate Court shows that the plaintiff-appellant did not appear in the witness box although his special power of attorney and other witnesses were examined by the plaintiff. The First Appellant Court influenced by the non-examination of the plaintiff drew an adverse inference against him and directed the suit to be dismissed solely on the ground of non-examination of the plaintiff. The judgment of the First Appellate Court shows that other evidence, though available on record, did not receive the attention of the First Appellate Court at all.

4. In our opinion, the First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the Trial Court. While doing so, the First Appellate Court could have taken the factum of the non-examination of the plaintiff also into consideration. The manner in which the appeal has been disposed of by the First Appellate Court cannot be said to be satisfactory. Non-application of mind by the Appellate Court to other material, though available, and consequent failure of the Appellate Court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits.

5. Learned counsel for the respondent has placed reliance on Ishwar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Anr. : [1999]1SCR1097 wherein this Court has emphasised that withholding of the plaintiff himself from the witness box and thereby denying the defendant an opportunity for cross-examination of himself results into an adverse inference being drawn against the plaintiff. That proposition of law is undoubtable. However, as we have already said, that is a fact to be kept in view and taken into consideration by the Appellate Court while appreciating other oral and documentary evidence available on record. May be that from other evidence - oral and documentary - produced by plaintiff, or otherwise brought on record, the plaintiff has been able to discharge the onus which lay on him, and, subject to the court forming that opinion, a mere abstention of plaintiff himself from the witness box may pale into insignificance.

6. In the facts and circumstances of this case, remanding the matter to High Court for re-hearing would only prolong the life of litigation. As we are satisfied of the failure on the part of the First Appellate Court in discharging its obligation - statutory and judicial, more so when it is a judgment of reversal, it would meet the ends of justice if the first appeal itself is directed to be heard afresh.

7. The appeal is allowed. The order of the High Court dismissing the appeal in limine as also the judgment and decree of the First Appellate Court are set aside. The appeal shall stand restored on the file of the First Appellate court which shall be heard and decided afresh, consistently with the observations made hereinabove and in accordance with law.

8. No order as to the costs.