1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 169 of 2017 1. Bala @ Basudeo Prasad 2. Basant Prasad 3. Ashok Prasad All S/o Late Kauleshwar Sao, resident of Village- Mahuadanr, P.O.- and P.S.- Mahuadanr, District- Latehar … … Plaintiffs/Respondents/Appellants 4. Rajeshwari Devi, W/o Shambhu Sao and D/o Late Kauleshwar Sao, resident of Village- Mahuadanr, P.O. and P.S.- Mahuadanr, District- Latehar … … Defendant/Respondent/Appellant Versus 1. Om Prakash Prasad 2. Ram Sewak Prasad Both S/o Late Barati Sao, resident of Village- Mahuadanr, P.O. and P.S.- Mahuadanr, District- Latehar … … Defendants/Appellants/Respondents 3. Kasimul Hassan, son of Late Inayat Karim (dead, substituted vide order dated 05.01.2023) 3(a) Md. Ashraf 3(b) Kalim Mian Both sons of Kasimul Hassan, Vill.- Satbarwa, P.O.- Satbarwa, P.S.- Daltonganj, District Palamau … … Defendants/Respondents/Respondents --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Dilip Kr. Chakraverty, Advocate For the Respondents : Mr. Tirtha Nandan Jha, Advocate --- 12/22nd January 2025 1. Heard the learned counsel appearing on behalf of the parties. 2. This second appeal was admitted vide order dated 11.09.2018 on the following substantial questions of law: - "I. Whether the sale of land by Sheo Chand through unregistered sale deed is hit under Section 17 of the Registration Act, 1908, thus confer no title to his 2 transferee Ramprasad and subsequent transfer to Kasimul, when Sheo Chand Sao, not being the successor of common ancestor Khedu Sao, he had got no right, title, interest and possession by inheritance to sale the property of Khedu Sao or his successor/ plaintiff, within the meaning of Section 10 read with Section 3 of the Hindu Succession Act, 1956? II. Whether the court of appeal below has illegally reversed the judgment and decree of trial court without meeting the reasons assigned by trial court and acted beyond the scope of Order XLI Rule 31 to 34 of the Code of Civil Procedure, 1908?” Arguments of the appellants 3. The learned counsel appearing on behalf of the appellants submitted that if substantial question No. II is decided in favour of the appellants, then under such circumstances, the matter has to be remitted to the learned 1st appellate court for fresh decision. 4. The learned counsel submitted that the impugned judgment of the 1st appellate court is a judgment of reversal and the perusal of the judgment reveals that the findings recorded by the learned trial court has been neither reversed nor discussed by the learned 1st appellate court. He also submitted that even the reasons given by the learned trial court has not been discussed by the learned 1st appellate court. Rather, the learned 1st appellate court was of the view that the real controversy between the parties was something else. The learned counsel also submitted that even if that be so, the findings recorded by the learned trial court on the various issues framed by the learned trial court was required to be addressed and considered by the learned 1st appellate court. If the findings were not reversed, then the decree also could not be reversed. He also submitted that if the substantial question No. II is decided by way of remand, then there is no need to go into substantial question No. I as that will be essentially on the merits of the case and should be decided on remand. 3 Arguments of the respondents 5. Learned counsel appearing on behalf of the respondents, on the other hand, opposed the prayer and submitted that the learned 1st appellate court has considered the real controversy between the parties, discussed the materials on record and has reversed the decree. He submitted that since the learned trial court was completely misdirected in its approach as recorded by the learned 1st appellate court, there was no need to further discuss the findings recorded by the learned trial court. The learned 1st appellate court has applied independent mind on the various materials placed on record and has come to definite findings. 6. The learned counsel also submitted that the sale deed of the year 1936 was not hit by the provisions of Section 17 of the Registration Act, 1908, inasmuch as, the property was valued less than Rs.100. He also submitted that the subsequent transfers cannot be said to be illegal. The learned counsel submitted that the learned trial court had applied the provisions of Hindu Succession Act, 1956, although the transactions were relating to the period prior to 1956. 7. The learned counsel has also submitted that the petition under Section 87 of the Chhota Nagpur Tenancy Act was pending which was essentially in connection with the dispute regarding entry made in the record of rights and therefore the learned trial court was not justified in recording the findings. The learned counsel submitted that the 1st appellate court has entered into the real controversy between the parties and has reversed the decree. He also submitted that the provision of Order XLI Rule 31 to 34 of CPC has been duly followed and therefore both the substantial questions of law are to be answered in favour of the respondents and the appeal is fit to be dismissed. Findings of this Court 8. The suit was filed seeking a declaration of title of the plaintiffs over the suit land and for confirmation of possession of the plaintiffs over the 4 suit land. A further relief was prayed seeking a direction upon the defendants to remove the encroachment and unauthorized construction over the suit land and a prayer was made to put the plaintiffs in possession of the suit property through process of law. A prayer was also made for appointment of a Pleader Commissioner for demarcation of the suit land. A further prayer was made that the Sale Deed No.1285 dated 03.07.2006 executed by the Defendant No.1 in favour of the Defendant Nos. 2 and 3 for the suit land be cancelled. 9. As per the plaint, the land was recorded in the name of Tufani Sao who expired issueless. He had full brothers, namely, Mujar Sao who died issueless and Chhathu Sao who had three sons, namely, Dumri Sao, Hari Sao and Kauleshwar Sao. It was further case that there was a partition and it was recorded in the memorandum of partition dated 04.04.1940 and by that process of partition, the suit plot was allotted to Kauleshwar Sao and he was put in possession. Therefore, legal heir of Dumri Sao and Hari Sao were not made party in the suit. It was further case that new khatiyan was wrongly prepared in the name of Kauleshwar Sao son of Chhathu Sao, Ram Lakhan Sao son of Hari Sao and Ramchandra Sao, Sarju Sao, both sons of Dumri Sao and in the remark column, it was falsely recorded to be in possession of Defendant No. 1 against which one Revenue Suit No. 2558 of 1992 under Section 87 of the Chhota Nagpur Tenancy Act was filed which was pending. It was further case that Ram Prasad Sao was not the legal heir of the recorded tenant and he had no right to transfer the suit plot and as per the provisions of Chhota Nagpur Tenancy Act,1908 and the rules framed thereunder no transfer of raiyati land is valid, unless the transfer is by a registered document and therefore, the claim of the Defendant No.1 was not correct. In the aforesaid background, the suit was filed. 10. A written statement was filed on behalf of the Defendant Nos. 1, 2 and 3 who claimed that the suit was not maintainable. It was barred by 5 law of limitation and a different genealogy was mentioned in the written statement in which Sheo Chand Sao was shown as son of Majahar Sao and Majahar Sao was shown as brother of Tufani Sao, the recorded tenant who was said to have died issueless. The second brother of Tufani Sao was named as Chhathu Sao and further genealogy was given. It was the case of the defendants that it was wrongly shown that Majahar Sao died issueless in fact he had one son, namely, Sheo chand Sao who inherited the suit property after death of the recorded tenant Tufani Sao and was in peaceful possession of the property. It was their further case that the plaintiffs had no right, title, interest and possession over the suit land and the suit land was transferred by Ram Prasad Sao in the year 1936 which was within the knowledge of Chhathu Sao and neither Chhathu Sao challenged the sale deed executed by Ram Prasad Sao, nor the plaintiffs challenged the sale-deed and the defendants were coming in possession of the suit property since 1936 and had perfected their right, title and also claimed adverse possession. 11. The learned trial court framed the following issues for consideration: - (i) Whether the suit is maintainable as framed? (ii) Whether the suit is barred by law of limitation, estoppel, waiver, acquiescence, ouster and adverse possession? (iii) Whether the suit is barred by section 34 of the Specific Relief Act? (iv) Whether the suit is bad for non-joinder and mis-joinder of parties? (v) Whether Majahar Sao (S/o Khedu Sao) died issueless or had one son namely, Sheochand Sao? (vi) Whether Sheochand Sao validly sold the suit land to Ram Prasad Sahu? 6 (vii) Whether the plaintiffs have valid right, title over the suit land? (viii) Whether the defendant no. 1 was not entitled to transfer the suit land in favour of defendant no. 2 & 3? (ix) Whether the plaintiffs have got valid cause of action? (x) Whether the plaintiffs are entitled to any other reliefs? 12. One of the issues was Issue No. 5 as to whether Majahar Sao died issueless or he had one son namely Sheo Chand Sao and Issue No. 6 was as to whether Sheo Chand Sao has duly sold the property to Ram Prasad Sao. 13. This Court finds that the learned trial court considered all the issues and scrutinized the materials on record and came to a conclusion while deciding Issue Nos. 5, 6, 7 and 8 that the claim of the defendants with respect to the property was illegal right from the beginning as the suit land was not duly transferred by the owner of the suit land and with the passage of time, the initial illegality cannot be rectified and held that the initial sale deed itself was illegal and therefore the subsequent sale was also illegal. The learned trial court also recorded in the final order that there was no person namely, Sheo Chand Sao and also referred to certain provision of Hindu Succession Act and also recorded that the transfer was against the provisions of Rule 4 under the Chota Nagpur Tenancy Act which provides that the sale deed is required to be registered. The suit was decreed. 14. The learned 1st appellate court recorded the case of the appellants therein (Respondent Nos.2 & 3 herein) in Paragraph-7 and the respondents therein (appellants herein) in Paragraph-8. The appellants therein had challenged the findings recorded by the learned trial court while deciding Issue Nos. 5, 6, 7 and 8 and made submissions in that regard, but the learned 1st appellate court did not record any finding in connection with Issue Nos. 5, 6, 7 and 8. Rather, in Paragraph 9, the 7 learned 1st appellate court was of the view that the actual controversy in the appeal was that whether the finding recorded by the learned trial court without having cancelled the sale deed was justified in holding that since the initial transfer was bad, subsequent transfer could not be upheld and rather this shall be illegal. The learned 1st appellate court referred to the various materials and decided the case by observing that there was a strong presumption with regard to registered sale deed of the year 1936 and there was uninterrupted possession of the defendants and ultimately held that the trial court was misdirected from the real controversy and committed grave error in ignoring registered sale deed without having cancelled the same and it was not justified in holding that the suit was to be decreed in favour of the plaintiffs and in the final order, the learned first appellate court simply reversed the findings of the learned trial court and dismissed the suit. 15. This Court finds that the learned 1st appellate court has not discussed the reasoning given by the learned trial court wherein the learned trial court held that there was no person called Sheo Chand Sao and also held that that initial transfer itself was not in accordance with law. The learned trial court had also recorded a finding that nobody had seen or known Sheo Chand Sao as son of Majahar Sao. The exhibit- J which is an unregistered sale deed of the year 1936 showing the name of vendor as Sheo Chand Sao as son of Majahar Sao and has relied upon by the learned 1st appellate court by stating that the sale deed for value less than Rs.100/- need not be registered. The learned 1st appellate court has ignored the findings as well as the reasons of such findings recorded by the learned trial court while reversing the decree. The learned 1st appellate court while reversing the judgement and decree passed by the learned trial court has also ignored the numerous materials placed on record which were discussed by the learned trial court to come to findings and decree the suit decree the suit. This Court finds that the reasons given by the trial 8 court and the findings derived and consequences of such findings have neither been discussed nor considered while reversing the decree. 16. Order 41 Rule 31 of CPC is quoted as under: - “Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and 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; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 17. This aforesaid provision was subject matter of consideration by the Hon’ble Supreme Court in the judgment reported in (2022) 3 SCC 90 (Manjula and others Vs. Shyamsundar and others). It has been held that the appellate court has the jurisdiction to reverse or affirm the findings of the trial court and it is settled law that an appeal is a continuation of the original proceedings and the jurisdiction of the appellate court involves re-hearing of appeal on question of law as well as the fact and all the questions of fact and law are open for consideration. It has also been held that the judgment of the appellate court must reflect conscious application of mind and must record the court’s findings, supported by reasons, for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. It has been held that the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements amounts to the serious infirmity in the judgment. Paragraph 8 of the aforesaid judgment is quoted as under: - “8. Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 9 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) 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. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.” 18. Similar view has been expressed by the Hon’ble Supreme Court in the judgment reported in (2010) 13 SCC 530 (B. V. Nagesh and Another) wherein it has been held that without framing points for determination and considering both facts and law and without proper discussion and assigning reasons, the first appellate court’s judgment cannot be sustained. Paragraphs 4 and 5 of the aforesaid judgment are quoted as under: - “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 10 court must, therefore, reflect its conscious application of mind and 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 appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar v. Sangram, SCC p. 758, para 5.) 1. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.” 19. In the judgment passed by Hon’ble Patna High Court reported in AIR 1985 Patna 214 (Narain Singh and others), it has been held that in case of reversal, it is all the more important for the Court of first appeal to consider the evidence and also the reasoning of the trial Court and only thereafter to give its own reasons for not agreeing with the findings of the trial Court. Paragraphs 18 and 19 of the aforesaid judgment are quoted as under: - 11 “18. It is well settled that if a finding of a fact is recorded without any discussion of the evidence, it is no judgment at all. The lower appellate Court is the final Court of fact and a very important duty is cast upon it. It is for this Court to decide final questions of fact on which the disposal of the suit might depend. On a perusal of the judgment of the lower appellate Court, it must appear that it has made an honest endeavor to make a proper appraisement of the merit of the case put forward by the parties. In case of reversal, it is all the more important for the Court of appeal below to consider the evidence and also the reasonings of the trial Court and only thereafter to give its own reasons for not agreeing with the findings of the trial Court. A perusal of the judgment must show that the lower appellate Court has applied its own mind independently to the evidences on the record. 19. It is also well-settled that every non-consideration of the reasons given by the trial Court in a judgment of reversal is not enough for interference by the High Court sitting under S. 100 of the C.P.C. What has to be seen is whether the lower appellate Court has failed to consider the most material evidence and if it has, then in that case finding is not binding on the High Court. If the finding arrived at by the lower appellate Court is sustainable from the reasonings given by the lower appellate Court, in that case finding cannot be interfered with.” 20. Upon perusal of the impugned judgment passed by the learned 1st appellate court and in view of the discussions made above in connection with the impugned judgement, this Court finds that the learned 1st appellate court has not adjudicated the 1st appeal in accordance with the provisions of Order 41 Rule 31 of CPC when read with the aforesaid judgments passed by the Hon’ble Supreme Court and the Hon’ble Patna High Court. 21. Accordingly, substantial question No. II is answered in favour of the appellants and against the respondents. 12 22. In view of the aforesaid reasons, the matter is required to be remanded to the learned 1st appellate court for fresh decision in accordance with law. 23. So far as substantial question No. I is concerned, the same is touching upon the merits of the case and since the matter is being remanded to the learned 1st appellate court, this Court is of the view that the same need not be answered by this Court at this stage as the entire first appeal is to be decided afresh by the learned 1st appellate court. 24. The judgment passed by the learned 1st first appellate court is hereby set-aside and the matter is remitted to the learned 1st appellate court for fresh decision. 25. All the parties to appear before the learned 1st appellate court by filing fresh Vakalatnama on 28th of April 2025. 26. Considering the fact that the suit is of the year 2007, the learned first appellate court is directed to expedite the hearing. The parties to cooperate with the proceedings. 27. This second appeal is hereby disposed of in the aforesaid terms. 28. Pending I.A., if any, is closed. (Anubha Rawat Choudhary, J.) Mukul