MATADIN SURAJMAL RAJORIA (DECEASED) THROUGH SOLE LEGATEE LALITA SATYANARAYAN KHANDELAWAL versus RAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. & ORS.

Citation: [2021] 6 S.C.R. 232 · Decided: 21-09-2021 · Supreme Court of India · Bench: R. SUBHASH REDDY · Disposal: Appeal(s) allowed

Judgment (excerpt)

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232
SUPREME COURT REPORTS
[2021] 6 S.C.R.
MATADIN SURAJMAL RAJORIA (DECEASED) THROUGH
SOLE LEGATEE LALITA SATYANARAYAN KHANDELAWAL
v.
RAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. & ORS.
(Civil Appeal No. 5847 of 2021)
SEPTEMBER 21, 2021
[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
Civil Procedure – Appeal – Second Appeal – Suit filed for
declaration, injunction and possession alleging encroachment on
land by the defendants – Suit dismissed by trial Court – Decree
affirmed by first appellate court – Second appeal by plaintiff –
On direction of High Court, a surveyor/ Court Commissioner was
appointed to measure the suit property; and on conclusion of the
survey exercise, the first appellate court was ordered by the High
Court to certify the findings on encroachment as recorded by the
trial court, in terms of Rule 470 of the Civil Manual – First
Appellate Court reversed the findings of trial court and held that,
as per the map prepared by the Court Commissioner, the defendants
had committed encroachment – In view of such development, the
High Court framed a substantial question of law for decision in
the Second Appeal – Plaintiff’s second appeal was however
dismissed – Held: While concurrent findings of Courts below are
not to be routinely interfered, on facts, there was a second round
in the litigation and another substantial question of law was
formulated by the High Court for adjudication of the second
appeal – However, no specific finding on such question of law was
ever recorded in the impugned judgment – The High Court skirted
the issue and instead endorsed the findings of the courts below to
the effect that the defendants had not made any encroachment –
The High Court erred in not recording a finding on the question
of law formulated later, to account for the Court Surveyor’s report,
vis-à-vis the legal battle over the suit land – Without the decision
on the relevant aspect which goes to the root of the dispute, the
impugned judgment fails the scrutiny of law – Matter remanded
back to the High Court to consider and render a finding on the
substantial question of law framed by the High Court itself.
   [2021] 6 S.C.R. 232
232
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Allowing the appeal, the Court
HELD: 1.1. While concurrent findings of Courts below are
not to be routinely interfered, it is seen that there was a second
round in the litigation and another substantial question of law
was formulated by the High Court for adjudication of the second
appeal. However, no specific finding on such question of law was
ever recorded in the impugned judgment. The High Court
skirted the issue and instead endorsed the findings of the courts
below to the effect that the defendants had not made any
encroachment, after the plaintiff purchased the land on
28.12.1995 under the Exhibit 47 Sale deed. The conclusion in
the second appeal was therefore devoid of any independent
finding on the substantial question of law formulated by the Court
itself on 2.5.2018. With the required finding on the additional
issue, a contrary conclusion favouring the other side, can’t
entirely be ruled out in the second appeal. This is particularly
possible because of the mismatch between the area under
occupation of the defendants and the smaller area covered in
their two sale deeds. The aspect of defendants occupation of
certain lands, being mentioned in the plaintiff’s sale deed, must
also weigh with the Court, in view of the fresh evidence
generated by the court appointed surveyor. [Para 10][237-E-H]
1.2. The High Court erred in not recording a finding on
the question of law formulated later, to account for the Court
Surveyor’s report, vis-à-vis the legal battle over the suit land.
Without the decision on the relevant aspect which goes to the
root of the dispute, the impugned judgment fails the scrutiny of
law. [Para 11][238-A-B]
2. The matter is remanded back to the High Court to
consider and render a finding on the substantial question of law
framed by the High Court itself. Regard being had for the long
pendency for the case and the restricted remand, the High Court
is requested to decide the second appeal expeditiously.[Para
12][238-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.5847
of 2021.
MATADIN SURAJMAL RAJORIA (D) THR. SOLE LEGATEE LALITA SATYANARAYAN
KHANDELAWAL v. RAMDWAR MAHAVIR PANDE (D)
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
From the Judgment and Order dated 14.08.2018 of the High
Court of Judicature at Bombay, Nagpur Bench, Nag

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