NARAYAN SITARAMJI BADWAIK (DEAD) THROUGH LRS versus BISARAM AND OTHERS

Citation: [2021] 1 S.C.R. 701 · Decided: 17-02-2021 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Disposed off

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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   [2021] 1 S.C.R. 701
701
NARAYAN SITARAMJI BADWAIK (DEAD) THROUGH LRS.
v.
BISARAM AND OTHERS
(Civil Appeal No. 6124 of 2011)
FEBRUARY 17, 2021
[N.V. RAMANA, SURYA KANT AND
ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908 – s. 100 and s.103 – Second
Appeal – Appellant had filed suit for possession of the property in
dispute on the basis of a sale deed dated 26.09.1978 – Respondent
contended that no such sale took place – The Trial Court, after
looking into the evidence had dismissed the suit of the appellant –
The First Appellate Court (District Judge) reversed the findings of
the Trial Court and decreed the suit in favour of the appellant –
The High Court in the second appeal upheld the findings of the
Trial Court and dismissed the suit of the appellant – On appeal,
held: The High Court had noted that the First Appellate Court had
considered irrelevant material and had erred in appreciating the
legal issue involved – After highlighting the legal infirmities of the
judgment of the First Appellate Court, and answering the substantial
question of law framed in favour of the respondents, it appears
that the High Court did not note that the First Appellate Court, due
to its erroneous approach, had failed to consider the evidence in
the correct light – In such a circumstance, it would have been
appropriate for the High Court to remand the matter to the First
Appellate Court to determine the factual issues in light of the legal
point as decided by it, or should have itself taken a decision on the
facts u/s. 103 of the Civil Procedure Code –  Instead, after
negativing the observations and holding of the First Appellate
Court, the High Court mechanically upheld the decision rendered
by the Trial Court – High Court decided the appeal without any
assessment of the evidence on record – Accordingly, the order of
the High Court is set aside and the matter is remanded to the High
Court for fresh consideration of the appeal, on facts and law.
Municipal Committee, Hoshiarpur v. Punjab State
Electricity Board, (2010) 13 SCC 216 : [2010] 13 SCR
658 – relied on.
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SUPREME COURT REPORTS
[2021] 1 S.C.R.
Santosh Hazari v. Purushottam Tiwari (deceased) by
LRs, (2001) 3 SCC 179 : [2001] 1 SCR 948 – referred
to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6124
of 2011.
From the Judgment and Order dated 15.10.2009 of the High Court
of Judicature at Bombay, Nagpur Bench in Second Appeal No.358 of
1997.
Mrs. B. Sunita Rao, Adv. for the Appellants.
The Judgment of the Court was delivered by
N. V. RAMANA, J.
1. When the matter came up last time, on 03.02.2021, this Court
passed the following order:
“In spite of service, no one has appeared on behalf of the
respondents.
Heard learned counsel for the appellants.
Taking into consideration the non-appearance of the counsel for
the respondents and to know the exact position of the disputed
property as well as whether any compromise has taken place
between the parties, we grant two weeks to the counsel for the
appellants to do the needful.
List the matter immediately after two weeks.”
2. Even today, when the matter was called out, nobody appeared
for the respondents in spite of service of notice.
3. Heard the learned counsel appearing for the appellants.
4. In response to our earlier query, it is represented by the learned
counsel for the appellants that no settlement has taken place between
the parties, and according to her the parties intend to continue with the
litigation.
5. Taking into account the long pendency of the present appeal
before this Court, and the fact that, despite service of notice, the
respondents have not entered appearance from the very beginning as
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per the Office Reports, we are of the opinion that we should dispose of
the matter with the assistance of the counsel for the appellants.
6. The facts of the case necessary for the disposal of the present
appeal are as follows: the Narayan Sitaramji Badwaik (since deceased
and now represented through his legal representatives and who shall
hereinafter for the sake of convenience be referred to as the appellant)
had filed a suit for possession of the property in dispute, on the basis of
a sale deed dated 26.09.1978, for Rs.10,000 from some of the respondents.
On the other hand, the respondents contend that no such sale took place,
and in fact, the document executed was only collateral for a loan extended
by the appellant to respondents. The appellant sought possession of th

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