JUDGMENT
1. The 1st defendant is the appellant. The respondent filed the suit for a declaration that the ABCD land is carved out for the use of the owners of the plots EFGHUKL to reach the street on the northern side of the plots and for use of their men, cattle, carts and other allied purposes. In the sale-deed of D-1 for the plots G and K it was left out by the plaintiffs father for his use. Therefore D- 1 is bound by the said recitals. As a matter of fact, even prior to 1913 and subsequently also the plaintiff was taking his carts and was using it for his men and cattle from his plots, E.F. L, through the galli ABCD. In June,’73 the 1st defendant carted earth in a portion of the galli east of plot G causing obstruction to the plaintiff to use the said galli and in spite of protests the obstruction was not removed. The plaintiff sent a notice to the 1st defendant, to which a false reply dt. 6-7- 73 was given. Hence the suit.
2. The 1st defendant- appellant filed a- written statement contending that it is not true that the father of the 1st defendant purchased J plot. It is also denied that ABCD is a galli and carved out for use of the owners of plots FEGHIJKL to reach the street-on the north. It is stated that the site up to the southern boundary of G Plot from northern bazar is absolute property of the defendant and that neither the plaintiff nor his predecessors-in-time have ever used the site ABCD as a gaili for ingress and egress. The mere wrong description in the sale-deed of the 1st defendant’s father that there is a gate to the east of plot G is sought to be taken-, advantage of. Neither the plaintiff nor his, predecessors-in-time were taking their carts, from EFL through the galli ABCD. Every year the 1st defendant never questioned the same at any time. It is further stated that the plaintiff has got entrance to the eastern and southern bazars from his site and that he has been taking men, cattle and carts from his site into the east, south and western panchayat bazars from his site. The suit therefore, is liable to be dismissed with costs.
3. Defendants 2 and 3 remained ex parte.
4. The trial Court framed the necessary issues and during the trial the plaintiff examined P.Ws. 1 to 4 and marked Exs. A-1 to A-13 while the defendant examined D.WS. 1 and 2 and marked Exs. B1 to B9.
5. After considering the entire oral and documentary evidence the trial Court hold (i) the plaintiff is not having any right in the suit passage ABCD, (6) ABCD is not carved out as a galli for ingress and egress of men, cattle, etc., from plots, 1st and I and (iii) as the defendant himself is enjoying the suit passage up to the southern boundary of plots K and O from a long time prior to the suit he acquired title by adverse possession. All the issues have been held accordingly agains the plaintiff and the suit was dismissed.
6. Against the judgment and decree, ft plaintiff preferred an appeal Pending the appeal the plaintiff filed I.A. 1070181’to’ receive some more documents as additioal evidence. The lower Court received those documents and marked them as Exs. A-14 to A-17. The plaintiff was also permitted to amend the relief by including a prayer to grant mandatory injunction to remove the Obstruction in the ABCD galli. It is also brought to the notice of this court to receive some documents as additional evidence was rejected. The lower appellate Court holding that the plaintiff was using the galli ABCD allowed the appeal by reversing the judgment and decree of the trial Court. Thus, the suit stood decreed as prayed for.
7. Aggrieved by the judgment and decree of the lesser appellate Court, the present second appeal is filed by the 1st defendant.
8. The Learned counsel, Sri Raja Rao, appearing for the appellant contended that (i) the interpretation of the documents. Exs. A- 1 to A-17 and B-1 to B-9 given by the lower appellate court is not correct and that the lower appellate Court is not correctly reading the contents of those documents regarding the boundaries therein mentioned, which has restated in grave injustice to the 1st defendant, (ii) the lower appellate Court ‘failed to consider the evidence touching the question of adverse possession and has not given any finding on that point and (iii) the, lower appellate Court erred in receiving the additional evidence adduced by the plaintiff while rejecting the additional evidence ‘adduced by the defendant.
9. The learned counsel contended that Interpretation of the contents of the documents as well as the report of the commissioner, and non-consideration of evidence on the question of adverse possession resulting in failure to give any finding on that point are substantial questions of law for interference in this second appeal ‘The learned counsel for the respondent, on the other hand, contended that though the lower appellate Court did not give any specific- finding on the question of adverse possession it did hold that the plaintiff is entitled to ABCD galli, and therefore there is no substantial question of law for interference.
10. I have gone through the entire judgment of the lower appellate Court. From paragraph-10 onwards it discussed the documents and oral evidence touching only the question of plaintiffs right to the ABCD gale, but it did not give any clear finding whether the plaintiff was using the said galli in pursuance of the said right even though it has accepted that there was such a right. Further the lower appellate Court did not consider either the oral or documentary evidence on the question of adverse Possession and no finding in that regard is given. As per Order 41 Rule 31 C.P.C., it is been unden duty of the lower appellate Court o consider independently the entire facts and the law and give its own independent finding, more so after amendment to the Civil Procedure Code in 1976 because the second appellate Court is barred from looking into general questions of law.
11. It needs to be borne in mind that trial Court gave a positive and specific finding that the appellant herein perfected his title to ABCD galli by adverse possession while the lower appellate court without dealing with the evidence on the question of adverse posession and even without giving any finding that reversed the judgment of the trial Court.
12. In Ashok Kumar v. Basantilal it is held that the finding of the lower appellate Court would be vitiated and not sustainable if it did not give any ,agent reason for differing from findings of trial Court and ignored the material evidence.
13. Again in B. Pedda Narayanappa v. Venkatamnm, (1979) 2 APU (Short Notes) 63 it is held that the 1st appellate Court before amendment of the Civil Procedure Code by Act of 1976wasonlyafinalcourtonquestions of fact and the High Court was interfering on Questions of law, but after the amendment the High Court would not interfere unless it was substantial question of law, and therefore the first appeals on points of law arising in the cse, while deciding them. As laid down by the Madhya Pradesh High Court, the judgment of the lower appellate Court is vitiated since it did not either discuss the evidence touching the question of adverse possession or give a finding on that aspect. It further reversed the judgment and decree of the trial Court, which held that the defendant perfected his title by adverse possession. The lower Appefi4te Court does not also seem to be right in accepting the additional evidence adduced by the plaintiff while rejecting it when adduced by the defendant. Further as , laid down by this High Court after amendment of the Civil procedure Code in 1976 the lower appellate Court is bound to be more careful in dealing with first appeals on mixed questions of fact and law as the High Court does not interfere on simple question of law, leave apart questions of fact.
14. In these circumstances, the decree and Judgment of the lower Appellate Court are set aside and the matter is remanded to it for disposal afresh bearing in mind the observations made herein. The lower appellate Court wig also receive and consider the additional evidence sought to be adduced through I.A. No. 666181 by the defendant. :The second appeal is accordingly allowed, but in the circumstances without costs.
15. Order accordingly.