JUDGMENT
G. Rohini, J.
1. The second appeal is directed against the judgment dated 5.2.2001 in A.S. No. 1 of 1998 on the file of the Court of the Senior Civil Judge, Asifabad confirming the judgment and decree in O.S. No. 3 of 1995 on the file of the Court of the Junior Civil Judge, Sirpur.
2. The appellant is the defendant who lost in both the Courts below. The respondent herein, who is the plaintiff filed O.S. No. 3 of 1995 seeking a declaration that she is the owner of the suit schedule land and for recovery of possession of the same. She also sought a mandatory injunction by directing the defendant/appellant to fill up the pit of the well which is dug in the suit land and for removal of the structure of a house raised in the suit land. The said suit was decreed by the learned trial Judge as prayed for. The appeal, A.S. No. 1 of 1998 preferred by the defendant was dismissed confirming the judgment and decree granted by the trial Court. Hence the second appeal by the defendant. The parties shall be referred to as plaintiff and defendant throughout this judgment for the sake of convenience.
3. The case of the plaintiff as per the plaint averments in O.S. No. 3 of 1995 is that she is a refugee and was rehabilitated by the Government long back along with her two minor sons and she was assigned the suit schedule land admeasuring Ac. 1-50 cents situated in Survey No. 17/87/1 at Nazrulnagar, Kagaznagar Mandal, Adilabad District for the livelihood of her family. Out of the said Ac. 1.50 cents the plaintiff developed one acre and has been raising
paddy crop till the year 1993. Though the remaining Ac.0.50 cents was kept fallow, the entire land was under her possession and enjoyment. While so, in the month of May, 1994, she left for Jabalpur, where her son was staying. She fell sick and she could return to Nazrulnagar after a long gap. By that time the defendant illegally occupied the suit schedule land and also constructed a Mangalore tiled house and he also started digging a pit for construction of a well in the month of January, 1995. In spite of best efforts made with the help of village elders, the plaintiff could not recover the vacant possession of the suit schedule land from the defendant. Hence the suit seeking the aforesaid reliefs.
4. The defendant filed a written statement denying the plaint averments. It is the specific case of the defendant that the suit schedule land was assigned in his favour by the Government. He further contended that the suit land, which is in his possession, is actually situated in Survey No. 17/87, but not in Survey No. 17/87/1 as claimed by the plaintiff. He pleaded that he occupied Ac.3.00 cents of Government land in the year 1982 in Survey No. 17/87, out of which subsequently in the year 1990, he was assigned Ac. 1.50 cents by the Government. Thus, according to him he has been in possession and enjoyment of the said land from the year 1982 and that he developed the same by spending considerable amounts and also constructed a pucca house in the year 1991 and also dug a well. He alleged that the plaintiff filed the false suit at the instance of the former Sarpanch to grab the land belonging to the defendant and to harass him and that there is no cause of action for the suit, and therefore, the suit is liable to be dismissed in limini.
5. On the above pleadings, the following issues were settled by the trial Court for trial;
“1. Whether the plaintiff is entitled for declaration and consequential possession as prayed for?
2. Whether the plaintiff is entitled for mandatory injunction as prayed for?
3. To what relief?”
6. On behalf of the plaintiff two witnesses were examined and Exs.A1 to A5 documents as well as Exs. C1 and C2 were marked to substantiate the suit claim. On behalf of the defendant, three witnesses were examined and Exs.B1 to B3 documents were marked. The learned trial Judge, on appreciation of the evidence on record held all the issues in favour of the plaintiff and accordingly decreed the suit as prayed for. In appeal the findings recorded by the trial Court are affirmed and the appeal was dismissed by judgment dated 5.2.2001. The correctness of the said judgment is now in question in this second appeal at the instance of the defendant.
7. I have heard the learned Counsel for the appellant as well as the learned Counsel for the respondent.
8. The learned Counsel for the appellant strenuously contended that the findings recorded by both the Courts below are not based on the evidence on record and therefore unsustainable. He also contended that the judgment of the lower appellate Court in which points for determination are not framed and the decision thereon is not recorded, is not in conformity with the mandatory provisions of Order 41, Rule 31 of Code of Civil Procedure, and therefore, cannot be sustained and liable to be set aside on that ground alone.
9. On the other hand, the learned Counsel for the respondent while supporting the findings recorded by the Courts below contended that the concurrent findings of
fact do not warrant any interference in exercise of jurisdiction under Section 100 of Code of Civil Procedure by this Court.
10. I have perused the judgments of both the Courts below as well as other material on record. It is to be noted that the specific case of the plaintiff is that she was assigned the suit schedule land and the same was in her possession and enjoyment till 1994 and during her absence, the defendant illegally occupied the same. The plaintiff who examined herself as PW1 reiterated the averments in the plaint. To support the plea as to her title to the suit schedule land she got marked Ex.A1 pahani for the year 1992-93 which indicates that the plaintiff is the pattedar and possessor of the land in question. Exs.A2 and A3 which are adangals for the year 1993-94 and 1994-95 show that the plaintiff is the pattedar of the suit land in Survey No. 177 87/1. Ex.A4 is the ‘Form-B’ Certificate issued by the Mandal Revenue Officer, Kagaznagar in favour of the plaintiff. Ex. A5 which is a pass book issued under Record of Rights Act also substantiates the case of the plaintiff.
11. However, the contention of the defendant is that the suit land is situated in Survey No. 17/87, but not in Survey No. 17/ 87/1 as pleaded by the plaintiff and that he is in possession and enjoyment of the said land in Survey No. 17/87 from the year 1982.
12. It is pertinent to note that Ex.C1-Commissioner’s Report, supported by Ex.C2 sketch clearly shows that the land in Survey No. 17/87 comprises three acres which was subsequently divided in the year 1987 into three portions namely Survey Nos. 17/87/1, 17/87/2 and 17/87/3.
13. The Mandal Surveyor, Kagaznagar, who demarcated the land basing on the Government Map, deposed as PW2 and reiterated the aforesaid facts. His evidence
discloses that the extent of Survey No. 17/ 87/1 is Ac. 1.50 cents, the extent of Survey No. 17/87/2 is Ac.0.75 cents and the extent of Survey No. 17/87/3 is Ac.0.75 cents. The same has been tallied with Ex.C1 report and Ex.C2 sketch. It is also pertinent to note that the defendant did not file any objections to the report submitted by the Commissioner.
14. On the basis of the aforesaid evidence the learned trial Judge concluded that no land is existing in Survey No. 17/87 and that the suit land is situated only in Survey No. 17/87/1 and that the plaintiff has got title in respect of the same as established by Exs.A1 to A5.
15. The contention of the learned Counsel for the appellant is that the finding recorded by the trial Court as affirmed by the learned appellate Judge is not based on evidence on record. I am unable to agree with the contention. The evidence produced by the plaintiff is sufficient to establish the title of the plaintiff and also her possession till 1994. The finding recorded by the Courts below cannot be said to be without any basis.
16. As can be seen the only defence, put forth by the defendant is that he has been in occupation of the suit schedule land from the year 1982 and subsequently he was also granted a patta by the Government under Ex.B1 in the year 1990. Ex.B1 shows that the defendant was assigned Ac. 1.50 cents in Survey No. 17/87. However, it does not tally with Ex.C1- Commissioner’s Report, according to which Survey No. 17/87 to a total extent of Ac.3.00 was sub-divided in the year 1987 itself into three parts. There was absolutely no scope for the defendant to obtain a patta in the year 1990 in respect of Ac. 1.50 cents of land in Survey No. 17/87. Further, the defendant could not produce any other evidence to show that he is in occupation of the suit
schedule land under Ex.B1 patta and his name has been entered in revenue records. On the other hand, he deposed in his evidence as DW1 that though he requested the concerned officials to enter his name in the pahanis, the same was not done. The fact that the revenue authorities did not enter the name of the defendant in the revenue records itself throws any amount of doubt regarding the genuineness of Ex.B1. The defendant having pleaded that though the land in Survey No. 17/87 was assigned to him under Ex.B1, the Patwari has shown to him only Ac. 1.50 cents out of Ac.3.00 cents, failed to examine the said Patwari to support his claim.
17. That apart though the defendant claimed that he occupied the suit land and continued to be in possession from the year 1982, D.Ws 2 and 3 who are the owners of adjacent lands categorically stated that the defendant came into possession of the suit land only in the year 1992 when Ex.B1 patta was issued in favour of the defendant. However, they admitted that they were not present at the time of the alleged delivery of the assigned land in favour of the plaintiff. The possession under Ex.B1 patta from the year 1990 is not supported by any adangals or any other revenue records. Though the defendant also claimed to be a refugee and contended that he was rehabilitated by the Government at Nazrulnagar, no documentary evidence was produced to substantiate the same. On the other hand, the defendant himself admitted in his deposition as DW1 that the land in Survey No. 17/87 is demarcated in the year 1987 itself into three parts and that as per the Government Map Survey No. 17/87/1 is in the name of the plaintiff. In the circumstances, on appreciation of the evidence on record, the learned trial Judge has rightly disbelieved Ex.B1 patta in favour of the defendant and recorded a finding that the plaintiff is the pattedar of the suit land situated in Survey No. 17/87/1,
ad measuring Ac. 1.50 cents and that the defendant has illegally occupied the same in the year 1994 in the absence of plaintiff and highhandedly constructed a house. The said finding of fact recorded by the Courts below, on appreciation of the evidence on record, does not suffer from any infirmity. The learned Counsel for the appellant could not draw my attention to any other evidence on record, which the Courts below failed, to take into consideration while reaching the conclusions in favour of the plaintiff.
18. The learned Counsel for the appellant contended that the suit for declaration of title cannot be decreed on the weakness of the defendant’s case and that in the instant case, there is no acceptable evidence in favour of the plaintiff to establish her title. I do not find any merit in the said contention. As expressed above, on the basis of the evidence of PW1 and PW2, coupled with Exs.A1 to A5 and Exs.Cl and C2 documents the plaintiff has successfully established her title to the suit schedule land. The finding recorded by the Courts below is based on proper appreciation of the said evidence produced by the plaintiff.
19. The defendant claimed title to the same land under Ex.B1, but the learned trial Judge has considered the evidence of the defendant both oral and documentary in detail and found that Ex.B1 patta is not genuine. Consequently his occupation is illegal and in my considered opinion, the Courts below rightly held that the plaintiff is entitled to a decree as prayed for.
20. Yet another contention raised by the learned Counsel for the appellant is that the judgment of the lower appellate Court is illegal and cannot be sustained since the learned appellate Judge failed to formulate the points for determination and to record the finding thereon as contemplated under
Order 41, Rule 31 of CPC. In support of his contention the learned Counsel placed reliance upon the decisions, reported in Gopinatha Rao v. Narayana, 1997 (4) ALT 258, and Katta Nageswara Rao v. Reddi Saraswathi, . There cannot be any dispute as to the requirements of Order 41, Rule 31 of CPC and the ratio laid down in the above two cases.
21. In the instant case, though the points for determination are not formally stated in the judgment, on a perusal of the judgment of the lower appellate Court, it is clear that the learned appellate Judge has discussed the evidence on record with regard to the disputed questions and expressed concurrence with the findings of the learned trial Judge. It cannot be said that the conclusion reached by the lower appellate Court is without application of mind to the pleadings and the evidence on record. It is well settled that when the appellate Court agrees with the view of the trial Court on evidence, it need not re-state the reasons given by the trial Court and the expression of general agreement with the reasons is ordinarily suffice vide Girijanandini v. Bijendra Narain, . Therefore, there is substantial compliance with the provisions of Order 41, Rule 31 of Code of Civil Procedure and I am unable to agree with the contention that the judgment under appeal cannot be sustained.
22. The learned Counsel for the appellant further contended that the lower appellate Court failed to consider the effect of Ex.B1 patta in favour of the defendant and the omission to record a specific finding as to the validity of the said crucial document produced by the defendant vitiated the entire judgment. Hence according to the learned Counsel the judgment under appeal is liable to be set aside and the matter requires remand to the
lower appellate Court for disposal afresh. It is pertinent to note that the trial Court has considered the said aspect at length and disbelieved Ex.B1 for the detailed reasons stated thereunder. It is true that the lower appellate Court failed to specifically refer to Ex.B1, but I am unable to hold that the judgment under appeal is liable to be set aside on the said ground.
23. It is clear from Section 103 of Code of Civil Procedure, as amended in the year 1976, that this Court while hearing second appeal is entitled to determine any issue necessary for the disposal of the appeal, which has not been determined by the lower appellate Court. The only restriction is that such determination shall be on the basis of the evidence on record.
24. In the instant case, on the basis of the evidence adduced by both the parties, the learned trial Judge held that the title claimed by the defendant under Ex.B1 cannot be accepted. Though the learned appellate Judge failed to determine the said aspect, on appreciation of the evidence on record and as expressed in para 17 supra, I hold that the defendant failed to prove his title pleaded under Ex.B1. In the circumstances, I am unable to agree with the contention of the learned Counsel that the case warrants remand.
25. For the reasons stated above, I do not find any factual or legal infirmity in the judgment under appeal. In my considered opinion the matter does not involve any question of law much less any substantial question of law. The findings of fact recorded by the Courts below are based on proper appreciation of the evidence on record and do not warrant any interference by this Court in exercise of jurisdiction under Section 100 of Code of Civil Procedure. Accordingly, the judgment under appeal confirming the judgment and decree granted by the trial Court in OS No. 3 of 1995 is upheld.
26. In the result, the second appeal is dismissed. However there shall be no order as to costs.