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TMI Blog2021 (8) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... sons are clearly spelt out as the term 'adjudicate' is not an abstract term and while deciding the issues arising for determination, the judgment must reflect the mind of the Court and the factors that weighed as well as the law applied, in order to come to a conclusion that it does. Without any discussion or reasons in the Appellate order, the Appellant would never know why the Court disagreed with his contentions and concurred with the judgment impugned. The Supreme Court in the landmark decision of SANTOSH HAZARI VERSUS PUROSHOTTAM TIWARI [ 2001 (2) TMI 131 - SUPREME COURT] held that the judgment of an Appellate Court must reflect its conscious application of mind and record the findings supported by the reasons on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. In the present case, there can be no two opinions that the First Appellate Court has dismissed the first appeal and concurred with the judgment of the Trial Court, both on facts and law. However, going by the dictum of the Supreme Court, the First Appellate Court was required to give its own reasoning on the questions of law raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and order dated 23.01.2021 passed by the First Appellate Court in RCA No. 133/2019 whereby the Appeal of the Appellant herein has been dismissed and the judgment and decree dated 01.10.2019 passed by the learned Trial Court in Civil Suit No. 50607/2016 has been upheld and affirmed. Appellant herein was Defendant No. 1 in the Suit and Respondent No. 1 herein was the Plaintiff. Respondents No. 2 to 5 herein were Defendants No. 2 to 5 before the Trial Court. The parties are being referred to by their litigating status before this Court, hereinafter, for the sake of convenience. 2. Respondent No. 1/ Shri Ashok Kumar Mazumdar, being the legal heir of the alleged landlord, Late Shri Rohini Kumar Mazumdar, filed a Suit against the Appellant, alleged tenant and Respondents No. 2 to 5, other legal heirs of the alleged landlord, seeking three reliefs viz: (a) decree of possession of the tenanted premises bearing No. A-80, Chitranjan Park, New Delhi (hereinafter referred to as 'premises'); (b) recovery of arrears of rent amounting to Rs. 36,000/- along with interest @ 18% per annum and (c) recovery of mesne profits/damages @ Rs. 25,000/- per month w.e.f. 01.02.2015 along with in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts set out in the written statement was that the Appellant was the owner of first floor of House No. A-79, Chitranjan Park, New Delhi, adjoining the premises. Late Shri Mazumdar had approached the husband of the Appellant with an offer to sell the roof rights of the premises. The offer appealed to the Appellant's husband but he did not readily have the funds to purchase the roof rights. It was agreed that the funds shall be arranged by the Appellant and her husband by selling their first floor and in the meantime Appellant and her family shall move to the ground floor of the premises and pay monthly rent. The ground floor was not in a habitable condition and thus, it was further agreed that the husband of the Appellant would carry out the repairs and the expenditure incurred would be deducted from the sale price of the roof rights of the premises. Shri B.K. Mitra, husband of the Appellant spent Rs. 1,90,000/- on the said repairs and the family shifted to the ground floor. 6. It was averred that thereafter Late Shri Mazumdar offered to sell the entire house to the Appellant and her son for a sum of Rs. 9 Lakhs, after adjusting Rs. 1,90,000/- spent on repairs of the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to cost of suit as prayed for? OPP 9. During the trial, Respondent No. 1 examined three witnesses while the Appellant examined two witnesses. On the basis of the pleadings and evidence led by the parties as well as the arguments canvassed by the respective counsels, Trial Court decided all the aforementioned Issues in favour of Respondent No. 1 and decreed the Suit. 10. With respect to the first Issue, Trial Court observed that the Appellant had raised the defence of her entitlement to the benefit of protection under Section 53A of the Transfer of Property Act, 1882 (hereinafter referred to as 'TPA'), for the first time only during the final arguments on 16.09.2019 and 21.09.2019. Appellant had nowhere pleaded in the Written Statement that she was entitled to the benefit of the said provision, as she had upon execution of the Agreement to Sell, taken possession of the premises, in part performance of the Agreement and consequently even evidence was not led to that effect. Instead, Appellant had pleaded that upon execution of the Agreement to Sell and GPA, both dated 22.11.1994, her son and the Appellant had become owners of the premises. Trial Court relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Agreement to Sell and GPA, her son and the Appellant had become owners of the premises, was legally untenable on account of the law laid down by this Court in Saroj Aggarwal vs. Mehar Singh and Jiwan Dass Rawal vs. Narain Dass Ors., AIR 1981 Del 291. In Saroj Aggarwal (supra), this Court did not accept the contention of the Appellant/Plaintiff therein that the judgment of the Supreme Court in Suraj Lamp Industries Private Limited vs. State of Haryana Anr., (2012) 1 SCC 656 has a prospective effect. In Jiwan Dass Rawal (supra), this Court held that an Agreement of Sale does not create an equitable estate in the purchaser in view of Section 54 of TPA and that such a document only creates a right to obtain another document in the form of Sale Deed. Trial Court, therefore, held that there cannot be a transfer of title/ownership through Agreement to Sell, Power of Attorney etc. And that the said documents do not confer any right, title or interest upon the agreement purchaser, except the right to seek specific performance of the Agreement to Sell. 13. Learned Trial Court also held that the undisputed position that emerged was that denial of second Tenancy Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt's judgment are not even taken note of and thus there is no discussion on them. Likewise the judgments cited and relied upon by the Appellant are not even mentioned in the impugned judgment, though the Appellant had sent the copies of the judgments by e-mail on 06.11.2020 and hard copies were duly handed over in Court on 07.11.2020. Copy of the said e-mail and the index of the judgments have been filed before this Court to substantiate the stand of the Appellant. Trial Court has selectively and strangely only referred to the judgments cited and relied upon by the Respondents. It was further argued that the judgment of the First Appellate Court contains only a restatement of the factual narration taken from the order of the Trial Court and the extracts of the reasoning by the Trial Court. It is totally devoid of independent discussion on the contentions put forth, the evidence led and/or with respect to the questions of law raised before it. The First Appellate Court has passed a cryptic and non-reasoned judgment and on a general agreement concluded that the judgment rendered by the Trial Court requires no interference. 18. In a nut-shell, the contention of the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umdar. Parties went to trial knowing each other's stands and evidence was led accordingly. Appellant was not required to state in the pleadings that she was ready and willing to perform her part of the contract or point out the law as she was only defending her possession and not seeking specific performance and secondly, transaction of sale qua Late Shri Mazumdar stood concluded upon execution of both the documents, including passing of the rights to the Appellant to perfect her title and further create third party rights. In order to perfect her title, all that the Appellant was required to do was to pay the balance installments to DDA to clear the loan liability and take steps to get the Conveyance Deed executed in her name. In any case, it was the duty of the Court to see the letter and spirit of the pleadings and not to throw out a genuine claim on mere technicalities. 22. Learned counsel placed reliance on the judgment of this Court in Hardip Kaur vs. Kailash Anr. to argue that the Appellant may not be a classical owner of the property but has a 'better right' of possession and is protected under Section 53A of TPA. It was also argued that as per Sections 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. P.C. Sharma, learned counsel contended that the First Appellate Court has concurred with all the findings of fact and law recorded by the Trial Court and thus, there was no necessity of giving detailed reasons. The expression of general agreement with the reasons recorded by the Trial Court was sufficient and it cannot be urged by the Appellant that the judgment is cryptic or unreasoned. The First Appellate Court has rightly appreciated all the grounds raised by the Appellant in letter and spirit and has given its findings relying on the judgments cited by the parties and the arguments canvassed before the Court. The First Appellate Court has considered and tested the reasons given by the Trial Court and found no reason or ground to reverse its findings. 25. It was further argued that the findings of the Trial Court are based on the evidence on record, both oral and documentary and settled legal position, with which the First Appellate Court concurred and no case for remand is made out by the Appellant. It was further contended that the Appellant has failed to raise any substantial question of law as required under Section 100 CPC and in the absence of the same the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant. It was also contended that even otherwise, the premises was under legal encumbrance because of the restriction to sell the same under Clause (xi) of the Lease Deed/Agreement (Exh. PW-3/A), under which the land was leased to the father of Respondent No. 1 by the Ministry of Labour, Employment and Rehabilitation. The father being a Lessee was not legally authorised to sell the property, by whatever mode. 28. Learned counsel for Respondent No. 1 had also urged that while the GPA and other documents relied upon by the Appellant do not confer Title and transfer the property, in any event the documents are forged and fabricated and in any event no Sale Deed was ever executed in favour of the Appellant. It was submitted that Section 17 of the Registration Act, 1908 was amended and sub-Section (1A) was inserted by Amendment Act 48 of 2001 effective from 24.09.2001. After the Amendment, the documents containing contracts to transfer for consideration, any immoveable property, for the purpose of Section 53A of TPA, shall be registered, if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) it could be alleged that by virtue of these documents, the Appellant has become the owner i.e. right based on ownership, and (c) it could be alleged that Appellant, though not a classical owner, has acquired some rights in the property so as to resist eviction i.e. residual rights argument. In the present case, Appellant has only pleaded ownership as is evident from the written statement filed before the Trial Court and cannot at this stage go beyond the pleadings and set up a plea of part performance under Section 53A of TPA. This is clearly held by the Supreme Court in Bachhaj Nahar vs. Nilima Mandal Anr., (2008) 17 SCC 491. In order to set up the plea of part performance, Appellant ought to have pleaded that she had taken some steps in furtherance of the Agreement and is in possession of the premises. She also ought to have pleaded that she was ready and willing to perform her part of the Agreement in accordance with the provisions Section 53A of the TPA, which are clear and require no interpretation. Part performance argument cannot simply flow out of an ownership argument, as in the former, one concedes that he has only an Agreement to Sell in his favour and protection f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law raised before the First Appellate Court. However, in view of the substantial question of law raised by the Appellant seeking a remand of the matter on the ground that the First Appellate Court has passed a mechanical judgment which is unreasoned and cryptic and does not deal with the issues and contentions raised, it becomes necessary to first consider the law on the said question. 36. Before proceeding to deal with the said substantial question of law, two provisions of the Code of Civil Procedure, 1908, need a reference and are as follows: 96. Appeal from original decree.--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine Ker paras 1-3) 1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. An Appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the Appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an Appellate court. 3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation. (emphasis supplied) 14. This Court also in various cases reiterated the aforesaid principle and laid down the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy [B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530: (2010) 4 SCC (Civ) 808], this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) 3. How the regular first appeal is to be disposed of by the Appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the Appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The Appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39. I may, at this stage, usefully allude to two passages from the judgment of the Bombay High Court in Union of India vs. Kanwar Vilas Nath Ors., wherein the High Court has formulated three-fold objects behind the repeated affirmation that reasons must be given by the Appellate Court while testing a judgment before it and these are as follows: 41. The object of mandating the giving of reasons in the Judgment is three fold. Firstly, reading of the reasons given in the Judgment enables both the parties to know why the decision has gone against them or in favour of them. It thus satisfies the test of justice, not only being done but also appears to have been done. It helps to remove any lurking feeling of injustice in the mind of the party, who has lost its case, as he knows that he has lost it for the reasons stated in the Judgment. Secondly, giving of reasons in the Judgment avoids the arbitrary exercise of the powers by the Appellate Court. It helps to remove even the impression that the decision was given in arbitrary manner. It guarantee transparency. Thirdly and equally importantly, the Appellate Court, before which the Judgment is impugned, can also get the opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t forth, and pressed by the parties for decision of the Appellate court. The task of an Appellate court affirming the findings of the trial court is an easier one. The Appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124]). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the Appellate court for shirking the duty cast on it. While writing a judgment of reversal the Appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the Appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the Appellate court is not compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Appeal, it is the duty of the First Appellate Court to deal with all the issues and the evidence led by the parties, before recording its findings. 42. At this stage, it is also crucial and relevant to note that the scope of a Second Appeal is extremely limited and narrow and the Court cannot enter into disputes of facts or even questions of law, unless they are 'substantial' questions of law. The Supreme Court in the judgment of Santosh Hazari (supra) has delineated what a 'substantial question of law' is and this need not therefore detain this Court. Suffice would it be to refer to paragraphs 12 and 14 of the said judgment as under:- 12. The phrase substantial question of law , as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law , means -- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with -- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples or that the plea raised is palpably absurd the question would not be a substantial question of law. xxx 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons given by the Trial Court and/or record its separate findings or reasons. In order to deal with this contention, it would be useful to allude to the observation of the Supreme Court in the case of Santosh Hazari (supra), which is as under:- The First Appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for re-hearing both on questions of fact and law. 45. No doubt, that the Supreme Court also observed that the task of an Appellate Court affirming the findings of the Trial Court is an easier one and expression of general agreement with reasons given by the Trial Court would ordinarily suffice, but one cannot overlook the 'note of caution' annotated by the Supreme Court in the following words:- We would, however, like to sound a note of caution that the expression of general agreement with the findings recorded in the Judgment under Appeal should not be a device or camouflage adopted by the Appellate Court for shirking the duty cast on it. 46. There is no gainsaying that the dictum of law that the First Appellate Courts must record reasons in the judgments is applicable not only when the First Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant had not pleaded in her defence that she was entitled to the benefit of the provisions of Section 53A of the TPA, as she had taken possession of the premises in part performance of the Agreement to Sell and instead had pleaded that upon execution of the Agreement, she and her son had become owners of the premises; (f). Trial Court erred in holding that the Appellant had not pleaded that she was ready and willing to perform her part of the Agreement to Sell in as much as the Appellant had categorically pleaded that she was in possession of the premises by virtue of the Agreement to Sell executed by the father of Respondent No. 1 in her favour; (g). reliance on the judgment of the Supreme Court in Shyam Narayan Prasad (supra) by the Trial Court was erroneous as the challenge in the said case was to an unregistered Exchange Deed which was sought to be declared invalid on the ground that the property in question was ancestral property while the defence taken was that the property was not ancestral and in this context the Court held that plea of part performance was required to be taken while in the present case, a specific plea of possession was taken and the Appellant was thus en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had passed on all his rights, titles and interest in the said property in favour of the appellant and her son. D. Because the Ld. Trial Court failed to appreciate that there was an agreement to sell between the appellant and respondent no. 1 to sell and purchase the property and it was in pursuance of this agreement that the present appellant was put in possession of the property. E. Because the finding of the Ld. Trial Court to the effect that the appellant has not pleaded in her defence that she was entitled to protection under section 53A of the Transfer of Property Act, 1882 is wholly perverse and misconceived. F. Because despite rendering a specific finding that the alleged tenancy agreement dated 31.01.1995 does not appear to have the genuine signatures of Late Sh. R.K. Mazumdar or the appellant, the Ld. Trial Court did not take notice of the fact and took no steps to direct initiation of criminal proceedings against respondent no. 1. G. Because the Ld. Trial Court while passing the impugned judgment committed an error by holding that the appellant has not pleaded in her written statement that she was ready and willing to perform her part of the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no interference. As regards Issues no. 2 and 3, the First Appellate Court has simply noted the findings of the Trial Court and the conclusions thereof and observed that the findings are well reasoned and require no interference. 50. Therefore, it is crystal clear from a mere reading of the impugned judgment that except for citing the submissions made by the parties, the findings and the conclusions of the Trial Court, the First Appellate Court has not dealt with the contentions raised by the Appellant and has not even given any 'reasons' for concurring with the findings of fact and law given by the Trial Court as also the reasons why the contentions of the Appellant challenging the judgment of the Trial Court were devoid of merit. I may refer to the relevant paras from the judgment of the First Appellate Court, which would indicate that the same is totally devoid of even any consideration/discussion on the contentions put forth by the parties and bereft of reasons to concur with the Trial Court:- 28. I have gone through the entire record of the case, arguments rendered by the parties and the judgments cited by both the parties and I am of this considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered opinion that the judgment dated 01.10.2019 passed by the Ld. ASCJ, South East, Saket Courts, New Delhi is well founded and delivered on the basis of evidence led before the court and I do not find any flaw in the judgment and the same is a reasoned one. Judgment dated 01.10.2019 is hereby upheld and consequently the appeal filed on behalf of appellant is hereby dismissed.. 51. There is also merit in the contention of the learned counsel for the Appellant that a host of judgments were cited on behalf of the Appellant but the First Appellate Court has not even mentioned the same in its judgment, while the judgments relied upon by the Respondents have been taken note of. In order to substantiate the argument, learned counsel has placed on record a copy of an email dated 06.11.2020 forwarding the judgments as also a copy of an index showing the proof of handing over hard copies of the judgments relied upon. Mr. Kalra, learned counsel had strenuously taken up this point during the arguments and there was no rebuttal on behalf of the Respondents. It is not only surprising but most unfortunate that the First Appellate Court does not even take the trouble of referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of valuable right of her case being tested by the First Appellate Court on the anvil of questions of facts and law. 54. In view of the aforesaid, once this Court finds that the judgment of the First Appellate Court is bereft of reasons and does not even deal with the contentions of the Appellant including the fact that the judgments relied upon are not even referred to, this Court has no option but to remand the matter back to the First Appellate Court for hearing and deciding afresh. 55. On perusal of the judgment of the First Appellate Court, in my view, this appeal does give rise to a substantial question of law: 'whether the appeal deserves to be remanded for fresh hearing, in view of the failure of the Appellate Court to record its independent findings supported by reasons on the issues and contentions put forth as required in terms of Section 96 read with Order XLI Rule 31 CPC? 56. On hearing the parties and for the aforesaid reasons, the substantial question of law is answered in favour of the Appellant. 57. The Appeal is accordingly allowed. The impugned judgment and decree dated 23.01.2021 passed by the First Appellate Court is set aside. The cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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