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2001 DIGILAW 42 (KAR)

M. Sadiq Ali v. B. Basavaraj

2001-01-10

V.GOPALA GOWDA

body2001
JUDGMENT V. Gopala Gowda, J.—This second appeal is filed by the Plaintiff challenging the legality and validity of the judgment and decree passed by the first appellate Court namely Small Causes Judge, Mysore, dated 12.8.1988 in R.A. No. 42 of 1987 in reversing the judgment and decree dated 27.11.1985 passed by the Court of II Munsiff, Mysore in O.S. No. 592 of 1983 urging that the substantial question of law as formulated by this Court at the time of admission of this appeal arise for consideration and exercise of its power in this Appeal under Section 100 Code of Civil Procedure. 2. For the sake of convenience, parties are referred as per their ranking in the original suit proceedings. 3. The brief facts of the case necessary for considering the rival contentions of the parties are stated as hereunder: The Plaintiff filed the suit for a decree of declaration that the suit schedule property is part and parcel of Shop No. 70, Devaraja Market, Mysore, which is subject to leasehold rights of the Plaintiff; for a declaration that the subsequent lease, if any in favour of the 2nd Defendant by the 1st Defendant is illegal and not binding on the Plaintiff's occupancy right and also for a direction to the Defendant to deliver back the suit schedule property to the Plaintiff as a lessee of Shop No. 70 with costs. The claim of the Plaintiff was seriously contested by the Defendants inter-alia, contending that the suit is not maintainable; that the schedule property was not leased in favour of the Plaintiff; on the other hand, it was leased to the 2nd Defendant along with Shop Nos. 71, 72, 73, 73/A and 73/B and that the 2nd Defendant has put up rolling shutters to shop No. 70/1 after obtaining licence etc. The trial Court after appreciating the evidence on record has passed the judgment and decree dated 27.11.1985 decreeing the suit. Being aggrieved by the same, the 2nd Defendant filed R.A. No. 42 of 1987 on the file of the Small Causes Judge, Mysore. The first appellate Court in exercise of its jurisdiction and power has set aside the judgment and decree passed by the trial Court. Being aggrieved by the same, the Plaintiff/appellant has preferred this appeal. 4. Being aggrieved by the same, the 2nd Defendant filed R.A. No. 42 of 1987 on the file of the Small Causes Judge, Mysore. The first appellate Court in exercise of its jurisdiction and power has set aside the judgment and decree passed by the trial Court. Being aggrieved by the same, the Plaintiff/appellant has preferred this appeal. 4. This Court at the time of admission of this appeal on 25.11.1988 has framed the following substantial questions of law for its consideration: 1) Whether the Lower Appellate Court was justified in law in denying the appellant an injunction that would have enabled the appellant to make use of the passage in front of his shop-premises? 2) The suit property being a passage affording access to the appellant's shop premises, was it therefore, proper to the landlord of the shop premises to designate the passage as a separate unit and to dispose off the same in favour of the second Defendant? 3) Is the view of the lower appellate Court that the Plaintiff's suit was barred by time tenable in law? 5. The learned Counsel for the Plaintiff in support of the substantial questions of law framed by this Court and inviting the attention of this Court the evidence of DW-2 and Exs.D.70 and P.104 and also the relevant reasoning portions of the trial Court submitted that the admission of DW-2 and Exs.D-70 and P.104 would clearly go to show that the Plaintiff is in possession and enjoyment of the schedule property and that therefore the findings recorded by the first appellate Court in the impugned judgment are erroneous in law. But the learned Counsel for the Defendants have sought to justify the impugned judgment placing reliance upon the material evidence on record and the Judgments of the Apex Court which are referred to in this judgment. 6. I have perused the judgment of the trial Court. The trial Court has answered the issues framed by it holding that the Plaintiff has proved that the first Defendant has leased the suit schedule property in his favour and recorded a finding in his favour, and it has granted the decree as prayed in the suit. 6. I have perused the judgment of the trial Court. The trial Court has answered the issues framed by it holding that the Plaintiff has proved that the first Defendant has leased the suit schedule property in his favour and recorded a finding in his favour, and it has granted the decree as prayed in the suit. The first appellate Court on re-appreciation of the material evidence on record has assigned valid and cogent reasons while answering the points formulated by it for its consideration and has set aside the Judgment and Decree of the trial Court holding that the trial Court has committed an error in answering the issues in favour of the Plaintiff contrary to the material evidence on record. I have carefully examined and considered the legal contentions urged by the learned Counsel on behalf of the parties in support and against the substantial questions of law framed by this Court to find out as to whether the same would arise for consideration or not in this case. In respect of the legal contentions raised by the learned Counsel on behalf of the Plaintiff, I have gone through the findings and reasons recorded by the first appellate Court on point Nos. 1 and 2 at paragraphs 13 to 18 and repeated paragraphs 16 to 18 in the impugned judgment. On re-appreciation of evidence on record, the first appellate Court has recorded a finding that Shop No. 70 faces west and it is inside the market and behind Shop No. 35 which faces east and Sayyajirao road; that the Plaintiff has not proved that the suit schedule property was leased in his favour by the first Defendant/Corporation. While recording the said finding, the first appellate Court has taken into consideration the undisputed facts namely, shop No. 70 was taken on lease by the Plaintiff's father; and that shop No. 35 was taken on lease prior to Shop No. 70; that the suit schedule property bearing No. 70/1 located inside the Devaraja Market measures 10 feet east west and 12 feet north south. Further, referring to the documentary evidence produced by the 2nd Defendant namely Exs. Further, referring to the documentary evidence produced by the 2nd Defendant namely Exs. D.5 to D.7 and Ex.P.104 dated 4.10.1967 which is the photostat copy of the endorsement issued by the first Defendant produced and marked by the Plaintiff has observed that the said documents would not show that the suit schedule property was in enjoyment and possession of the Plaintiff and that he has not proved from Ex.P.104 that he wanted to enclose the varandha portion of Shop No. 35/70 and if it were to be the case of the Plaintiff, he would have summoned his original application submitted to the first Defendant/Corporation and that it is not elicited in the cross-examination of DW-2 that Shop No. 70/1 was recently given to the Plaintiff by the first Defendant/Corporation as undisputedly the shop No. 35 is facing east, Sayyajirao Road and the Plaintiff has not sought permission from the first Defendant for enclosing the varandha portion of both shop Nos. 35 and 70. Therefore, it has observed that the said document will not come to the aid of the Plaintiff; that document Ex.P.104 was not referrable to varandha portion of shop No. 70 as the said document has created a doubt as to whether the Plaintiff has applied for enclosing both the varandha portions of Shop Nos. 35 and 70 or only shop No. 35 and as it has recorded finding that the trial Judge was not justified in placing reliance upon the said document while answering the issues framed by it in favour of the Plaintiff holding that he has proved that he was a lessee in respect of the suit schedule property stating that said finding is erroneous for the reason that there is no evidence on record to hold that Plaintiff was lessee in respect of the property in question. As could be noticed from the reasoning portion of the judgment by the first Appellate Court at paragraph 16 wherein it is referred to the contention that the Plaintiff himself executed a lease deed in the year 1966 in favour of the first Defendant and khata was changed in his name in respect of the schedule property, the said document is also not produced by the Plaintiff. With reference to the evidence placed on record on behalf of the second Defendant that the documentary evidence produced by him the first Appellate Court has recorded its findings on the basis of material evidence on record which is in favour of the second Defendant that from about 1954 or 1958 the varandha portion of the shop No. 70 was numbered as 70/1 and the rent was recovered from the second Defendant's predecessors who were in possession and enjoyment of the suit schedule property and with reference to the undisputed fact the shop Nos. 71, 72, 73, 73A and 73B which were leased to one Mr. Puttaiah and thereafter to his son Srinivasaiah and in the year 1970 the said shops were transferred to the second Defendant's brother Rajashekaraiah from Srinivasaiah including the Shop No. 70/1. After careful examination and consideration of the impugned judgment, judgment of the trial Court and material evidence on record, I have to hold that the appellate Court is perfectly justified and right in recording the finding of fact and it has come to the correct conclusions on proper appreciation of the positive and material evidence on record including the documentary evidence on record at Ex.P.104 and also Ex.D70. The Appellate Court has also considered Ex.D70. The learned appellate judge has recorded a finding on fact after appreciation of evidence with reference to the contention of the Plaintiff whether there was a door or not from the west to shop No. 70 is not very material. The point that fell for consideration of the learned Judge of the First Appellate Court was, whether the suit schedule property was used as a passage or access to the shop No. 70 on the date of the suit. With reference to the said point framed for his consideration, he has answered the same on proper appreciation of evidence on record holding that it reveals from evidence that for number of years the Plaintiff was not using the schedule property as an access or passage to the Shop No. 70 as claimed by him. 7. With reference to the said point framed for his consideration, he has answered the same on proper appreciation of evidence on record holding that it reveals from evidence that for number of years the Plaintiff was not using the schedule property as an access or passage to the Shop No. 70 as claimed by him. 7. The learned first appellate judge has also considered the evidence of DW-2 upon which much reliance is placed by the learned Counsel appearing on behalf of the Plaintiff/appellant contending that non-consideration of the admission of the said witness in his evidence which is in favour of the Plaintiff, the finding of the appellate Court is vitiated or erroneous in law. With reference to the said contention I have examined the evidence and the reasons in the impugned judgment of the first Appellate Court wherein he has recorded a finding of fact holding that the Plaintiff has not cross examined the said witness with reference to the shop No. 70/1 which is the schedule property. The appellate Court on over-all appreciation of the material evidence on record of DW-2 has come to the correct conclusion and recorded its finding against the Plaintiff holding that he is not in possession and enjoyment of the said premises as a lessee. For the reasons stated supra there is no merit in the contentions urged on behalf of the learned Counsel for the Plaintiff as the same are devoid of merits. In my considered view, the appellate Court has considered the positive, substantive and material evidence on record and the same is properly appreciated by him and recorded his findings after coming to the correct conclusions by assigning valid and cogent reasons in support of his findings, and rightly set aside the findings of the trial Court, holding that the findings of the trial Court are erroneous in law. The learned first Appellate Judge while answering the point No. 3 at paragraph 21, he has clearly recorded a finding of fact on the basis of evidence on record to show that the Plaintiff was in possession of the suit schedule premises within 12 years from 31.8.1981 the date on which suit was filed and there is no sufficient evidence on record to prove that he closed the western entrance to shop No. 70 from 1970 only. The first Appellate Court has placed reliance upon the Judgment of the Apex Court reported in AIR 1966 SC 605 in support of the findings recorded by it on appreciation of evidence on record. In my considered view the finding recorded on point of limitation for institution is rightly held against the Plaintiff and therefore the view taken by it on the question of limitation for institution of the suit is tenable in law and therefore these substantial question of law framed by this Court has to be answered against the Plaintiff. For the reasons recorded by me, in this judgment the submissions of the learned Counsel appearing on behalf of the Plaintiff stating that there are substantial questions of law have arisen in this case as formulated by this Court are not tenable in law for the reasons that there are no substantial questions of law has arisen in this Appeal for consideration of this Court as contended by the learned Counsel for the Plaintiff, hence the submissions made in this regard cannot be accepted by this Court. 8. But on the other hand, the learned Counsel appearing on behalf of the Defendants have rightly justified the impugned judgment in this Appeal. The learned Counsel Mr. G.S. Visweswaraiah appearing on behalf of the second Defendant has rightly placed the reliance upon the judgment of the Apex Court reported in Dr. Ranbir Singh Vs. Asharfi Lal, JT (1995) 6 SC 668 at paragraph 14 and Kashibai W/o Lachiram and Another Vs. Parwatibai W/o Lachiram and Others, (1995) 97 BOMLR 80 in support of his legal submissions that the scope of this Court's power under Section 100 of Code of Civil Procedure to interfere with the findings of fact recorded in the impugned judgment. In the first case, the Apex Court at paragraph 14 has laid down the law as hereunder: 14. Sub-section (1) of Section 100 of the Code of Civil Procedure contemplates that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of Section 100 further provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section (4) of Section 100 further provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. But it may be pointed out that the High Court formulated no such question of law on basis of which it proposed to interfere with the findings of facts. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based upon an appreciation of the relevant evidence. There is a plethora of case-law in support of this view. To quote a few, references may be made to the decision in V. Ramachandra Ayyar v. Ramalingam Chettiar where this Court took the view that even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure and the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court. This view has been reiterated by this Court in Bhagwan Dass Vs. Jiley Kaur. This being the position, the High Court was not justified in reappreciating the evidence and substituting its own conclusions for the well reasoned findings recorded by the Courts of fact. 9. The consistent view of the Apex Court with regard to the jurisdiction of this Court under Section 100 of Code of Civil Procedure holding that it has no power to entertain the second appeal on the ground of erroneous finding of fact based upon appreciation of the relevant evidence further it has held that there is a plethora of case law in support of the said view. A few references were cited in the said judgment namely V. Ramachandra Ayyar's case referred to supra and further held the Apex Court took the view that even in the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded by the Appellate Court is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure and the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court. Further in the case of Dr. Further in the case of Dr. Ranbir Singh, another judgment of the Apex Court in Bhagwan Deas v. Jitey Kaur reported in 1991 (2) (Supp) SCC 300 is also referred in support of the above view. The Apex Court in the case of Kashibai W/o Lachiram and Another Vs. Parwatibai W/o Lachiram and Others, (1995) 97 BOMLR 80 the similar view is taken. In view of the clear pronouncement of law regarding the power of this Court under Section 100 Code of Civil Procedure the questions of law formulated by the learned Counsel appearing on behalf of the appellant do not arise for consideration of this Court for the reason that the first appellate Court in exercise of its Appellate power and jurisdiction after proper appreciation of the evidence on record it has recorded a finding of fact holding that the Plaintiff has not proved his case. Therefore, this Court cannot interfere with the impugned judgment and decree. 10. For the reasons stated supra, the Appeal must fail. Accordingly the Appeal is dismissed.