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2004 DIGILAW 457 (PAT)

Mahesh Ram And Others v. Ganga Rai

2004-04-23

S.K.KATRIAR

body2004
Judgment S.K.Katriar, J. 1. The defendants are the appellants against a judgment of affirmance. This appeal is directed against the judgment and decree dated 18.9.2000, passed by the learned 1st Additional District Judge, Motihari, in title a Appeal No. 113/1989 Mahesh Ram and Ors. V/s. Ganga Rai and Ors., whereby he has affirmed the judgment and decree dated 25.4.89, passed by the learned Additional Munsif, Sikarhana, in title Suit No. 7/76 of 1885/1988 Ganga Rai V/s. Dewan Ram and Ors.. The suit was decreed which has been affirmed in appeal. Hence this appeal at the instance of the defendants. We shall go by the description of the parties occurring in the plaint. 2. The case of the plaintiffs-respondents in brief is that the suit land measuring 5 1/2 decimals, appertaining to khata No. 3, plot No. 270, stood recorded as Gairmazarua Malik land in RS Record of rights. The ancestors of one Sheo Raj Ram remained in possession till his life and after his death, his descendants came in possession and remained in possession openly to the knowledge of all including the then landlord. The title of Sheo Raj Ram over the suit land was perfected by lapse of time. Since Sheo Raj Ram was in possession of the suit land at the time of vesting of zamindari, he remained in possession in view of the provisions of Bihar Land Reforms Act. Rent was fixed in favour of Sheo Raj Ram in the year 1980-81. 2.1 The further case of the plaintiff is that Sheo Raj Ram then exchanged the suit land with the plaintiff by registered deed of exchange dated 10.10.83, whereafter the plaintiffs came in possession of the suit land and is continuing over the same and , in his turn, the plaintiff put Sheo Raj Ram in possession of his own land. The plaintiff-respondent claims title and possession by virtue of the registered deed of exchange. 2.2 The plaintiff sought relief that his title over the suit land be declared and his possession be confirmed and the defendants-appellants be restrained permanently from interfering with the possession of the plaintiff over the suit land. 3. The case of the defendants (appellants) is that Sheo Raj Ram was never in possession of the suit. 2.2 The plaintiff sought relief that his title over the suit land be declared and his possession be confirmed and the defendants-appellants be restrained permanently from interfering with the possession of the plaintiff over the suit land. 3. The case of the defendants (appellants) is that Sheo Raj Ram was never in possession of the suit. The story of rent-fixation in favour of Sheo Raj Ram is imaginary and if any such paper is filed for the same, the same would be forged and fabricated one. There is demarcating ridge between the lands of the plaintiff and the suit lands. 3.1 The further case of the defendants is that the suit plot is Gairmazarua Malik land which is adjacent to their house and so their ancestors extended their house over it and the rest portion is being used as Kalawari. The defendants, ancestors are coming in possession of the same and, after their death, these defendant are in possession of the same. 3.2 it is further pleaded that in course of Government drive--"Home for Homeless" and the "Land for Landless", the Government fixed rent by a letter No. 2199 dt. 18.6.74 in favour of defendants-appellants over 8 decimals of plot No. 270 of khata No. 3. The defendants are paying rent and getting rent-receipts. 4. The learned trial Court framed the following issues for determination : (I) Whether the suit as framed is maintable? (II) Whether the plaintiff has got cause of action or right to sue? . (III) Whether the plaintiff has got title over the suit land? (IV) Whether the plaintiff has got possession over the suit land? (V) Whether the plaintiff is entitled to get permanent injunction? 5. The learned trial Court found that the lands belonging to the defendants is different from that the suit land. It was further found that the plaintiff had acquired the suit land from Shiv Raj Ram by means of a registered deed of exchange and has perfect title to the same. The trial Court further held that the defendants have failed to prove their possession over the suit land and the plaintiff is in possession of the suit land. 6. The defendants appealed which has been dismissed by the impugned judgment, the learned Court of appeal below has held that the plaintiff has been able to prove the title of Shiv Raj Ram over the suit land. 6. The defendants appealed which has been dismissed by the impugned judgment, the learned Court of appeal below has held that the plaintiff has been able to prove the title of Shiv Raj Ram over the suit land. The plaintiff is entitled to get and order of permanent injunction. Hence this appeal at the instance of the defendants. 7. The following substantial questions of law had been framed by order dated 1.8.2003 : (i) Whether or not the learned Court of appeal below has properly discharged its duty as the first appellate Court, being the last Court of facts? (ii) Whether in absence of any documents showing boundaries of the land in favour of Shivraj Ram prior to the so-called deed of exchange, can any reliance be placed upon the boundaries given indeed of exchange and subsequent documents? 8. Learned counsel for the defendants (appellants) assails the validity of the impugned judgment on the ground that both the Courts below had relied on Ext. 3, but the same does not give the boundaries of the suit property. He next submits that the State of Bihar is a necessary party but has not been impleaded. He next submits that both the Courts below had erred in concluding that the plaintiff is in possession of the suit land because the defendants have been able to prove their possession. He, therefore, submits that the plaintiff must stand or fall with their own case. He relies on the following reported judgments : (i) AIR 1957 Patna 64 (Para 3), Ramadhin Singh V/s. Siaram Singh. (ii) AIR 1974 Calcutta 248 (Para 10), Sk. Nasirul V/s. Johora Khatun. (iii) AIR 1978 SC 1329 (Paras. 48 and to 50), Jadu Gopal Chakravarty V/s. Pannalal Bhowmick and Ors. 9. Learned counsel for the plaintiffs (respondents) have supported the impugned judgment. 10. I have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to me that the Courts below have concurrently found that the plaintiff has title to the suit property. He has, in fact, been able to establish the title of Shiv Raj Ram from whom he had obtained the suit land by means of a registered deed of exchange. It has been further found concurrently that the plaintiff is in possession of the suit land. He has, in fact, been able to establish the title of Shiv Raj Ram from whom he had obtained the suit land by means of a registered deed of exchange. It has been further found concurrently that the plaintiff is in possession of the suit land. In that view of the matter, the grievance of the defendants before me that the plaintiff must stand or fall with his own case does not arise in the facts and circumstances of the present case. The judgments relied on by him are inapplicable to the facts and circumstances of the present case. 11. Learned counsel for the plaintiff (respondent) has rightly submitted that the issues are concluded by concurrent findings of facts which bind this Court in second appellate jurisdiction. Reliance may be placed on the judgment of the Supreme Court reported in AIR 1999 SC 3325 , Hari Singh V/s. Kanhaiya Lal. The following portion of paragraph-16 of the judgment may be usefully quoted : Similarly, the High Court interfered with the concurrent finding of facts that nuisance was created by the respondent by obstructing the passage leading to the appellant house by keeping onion bags leaving out of space of 11 feet to 3 feet only. The fact of this obstruction is also supported by the Commissioner report submitted in the present proceedings. The finding recorded on sub-letting and nuisance by both the Courts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial question of law by the High Court cannot be sustained and further we also do not find any substantial question of law arising therein. Learned counsel for the respondent tried to submit with force by attempting to take us to the evidence of the witnesses to show their unworthiness for reliance. It is neither a case of no evidence nor perverse finding. All these submissions are within the realm of appreciation of evidence which should not have been interfered by the High Court far less for us to examine." Reference may also be made to the judgment of the Supreme Court reported in (1999) 3 SCC 722 , Kondiba Dagadu Kadam V/s. Savitribai Sopan Gujar and Ors., paragraph 5 of which is set out hereinbelow for the facility of quick reference : 5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous, being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 12. It is manifest from the foregoing discussion that no substantial question of law arises in this appeal. The issues which may be taken to be a substantial question of law in second appellate jurisdiction fell for the consideration of the Supreme Court in its judgment reported in AIR 2001 SC 965 , Santosh Hazari V/s. Purushottam Tiwari, the relevant portion of which is set out hereinbelow for the facility of quick reference." "A point of law which admits of no two opinions may be proposition of law but cannot be a substantial question of law. To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the ease unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any list." 13. I had the occasion to apply the same in my judgment reported in 2003 (3) PJLR 100, Shoe Chand Choudhary alias Sheo Chand Choudhary V/s. Adalat Hussain and Ors.. The judgment of the Supreme Court in (1999) 3 SCC 722 , Kondiba Dagadu Kadam V/s. Savitribai Sopan Gujar and Ors., is illuminating and is to the same effect. 14. In the result, the appeal fails and it dismissed with costs.