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2006 DIGILAW 115 (MP)

BAJII ALIAS BAIJANATH v. NARAIN KRISHANA BAI

2006-01-19

U.C.MAHESHWARI

body2006
Judgment ( 1. ) APPELLANTS/defendants having unsuccess in both the Courts below have knocked the door of this Court under Section 100 of CPC being aggrieved by the judgment and decree dated 6th of August 1994, passed by Additional District judge, Narsinghpur in Civil Regular Appeal No. 6-A/84 confirming the decree for possession and perpetual injunction dated 13-3-1984 passed by IInd Civil judge, Class-II, Narsinghpur in Civil Original Suit No. 133-A/82. ( 2. ) THE predecessor of the respondents Narain had filed a suit for possession and perpetual injunction in respect of the house situated in village bauchhar Tahsil and District Narsinghpur, at Survey No. 429 against the appellants. ( 3. ) AS per plaint, the said property was purchased by the plaintiff from appellant No. 1 Bajji alias Baijnath for consideration of Rs. 600/- vide registered sale-deed dated 17-4-1973. The possession was not delivered to the predecessor of the respondents. Hence the suit for possession and damages / mesne profits was filed by the said predecessor against the appellant No. 1. The same was decreed on 8-11-1976. On not filing the appeal, the decree had become final. In execution of it, by breaking the lock the possession of the suit house was delivered to the said predecessor of respondents on dated 18-7-1977 by the court officials. Subsequent to it, on dated 27-7-1977, in the absence of the respondents predecessor, the appellants has taken over the possession of the house unlawfully by breaking his lock. They were asked to return the same but not availed. A Criminal case was also registered against the appellants in this regard in which they were prosecuted and acquitted on account of benefit of doubt vide judgment dated 21-7-1980. Thus, the respondent has filed another suit for possession and perpetual injunction. ( 4. ) THE appellants being defendants has admitted the aforesaid earlier decree in their written statement. According to it, the earlier decree was obtained on false averments and other allegations made in the plaint are also denied. It is pleaded that appellants did not have any knowledge about execution of the earlier decree. The delivery of the possession in the aforesaid execution was also denied. According to other averments of it the possession of the same was never delivered to respondents. Forcefully possession by breaking the doors was not taken by them. It is pleaded that appellants did not have any knowledge about execution of the earlier decree. The delivery of the possession in the aforesaid execution was also denied. According to other averments of it the possession of the same was never delivered to respondents. Forcefully possession by breaking the doors was not taken by them. Respondents are not entitled for the decree of possession and the perpetual injunction and prayed for dismissal of the suit. ( 5. ) THE evidence was recorded after framing the issues and on appreciation of the same by holding the house as property of the respondents the suit was decreed for possession and perpetual injunction. The same was appealed but by affirming the decree of the Trial Court the same was dismissed hence this appeal was preferred and the same was pending for admission since 1994. ( 6. ) SHRI Ashok Tiwari, learned Counsel for appellants by submitting the aforesaid facts as mentioned in the written statement has submitted that the appellants have not been given ample opportunity to lead their evidence. Even by order dated 28-8-1982 the right of the appellant to lead evidence was closed contrary to the provisions. There was sufficient circumstance to adjourn the case and on non-adjourning the matter, the Court was bound to pass the judgment on the same day as per provisions of Order 17 of the CPC but the same was not followed. Thereafter, an application under Order 18 Rule 17-A read with section 151 of the CPC was filed on behalf of appellant on dated 16-2-1984 but the same was dismissed on 28-2-1984 and they have been deprived to call and examine the witnesses. Subsequent to it the decree was passed. Accordingly the grave error was committed by the Trial Court in passing the decree. It is also submitted that during pendency of the appeal, an application, under Order 41 rule 27-A of the CPC for examining some witnesses in support of their case, was filed on 30-7-1985 the same was directed to be heard alongwith the appeal but on deciding the appeal it was not considered and disposed of on merits hence, the Appellate Court has also committed grave error. According to his further submission the impugned suit was not maintainable in view of the principle of res judicata as the earlier decree was in existence. The suit was not properly valued. According to his further submission the impugned suit was not maintainable in view of the principle of res judicata as the earlier decree was in existence. The suit was not properly valued. In the absence of the original sale-deed of the respondents in lack of proof of title, the decree was wrongly passed in the subsequent suit. The proceedings of earlier execution case regarding delivery of the possession has not been proved. In view of all these circumstances he has submitted that many substantial questions of law are involved in this appeal at this stage, accordingly, it be admitted for adjudication on merits. ( 7. ) HAVING heard the learned Counsels, on perusing the records it appears that on the strength of title of the property the earlier suit for possession was filed by the predecessor of respondents the same was decreed by Civil Judge class II, Narsinghpur in C. D. S. No. 12a/75 vide dated 8-11-1976 by the judgment Ex. P/6, and the decree Ex. P/2 and the same is admitted fact in the case at hand. In execution of it, the possession of the house was delivered to the predecessor of the respondents by issuing the warrant for possession Ex. P/3 with a direction to Process server to break the door and deliver the possession and as per further endorsement on it the same was executed on dated 18-7-1977 and by receipt Ex. P/8 the possession was handed over to the predecessor of the respondents. All these proceedings being the proceedings of the Court or it is subordinate officials for which there is presumption under the law under Section 114 (e) of the Evidence Act that all official and judicial acts are being regularly performed unless contrary is proved and according to the available record this presumption has not been rebutted by the appellants. Thus, there was sufficient circumstance to draw an inference that in the execution of the said earlier decree the possession was delivered to the respondents predecessor. Thus, so far delivery of possession in execution of earlier decree is concerned, the Court below have not committed any error or perversity in holding the same against the appellants and such findings do not require any consideration at this stage of appeal. ( 8. Thus, so far delivery of possession in execution of earlier decree is concerned, the Court below have not committed any error or perversity in holding the same against the appellants and such findings do not require any consideration at this stage of appeal. ( 8. ) SO far the cause of action of the present suit is concerned, it suffices to say that after delivery of the possession on 18-7-1977, on 26-7-1977 the forcefully possession was taken by the appellants by breaking the door of this house. The same was reported to police and the appellants were charge-sheeted. Although they have been acquitted but such judgment is not binding in the Civil Court. The civil cases always decided on appreciation of the evidence recorded by itself and according to the appreciation of it. The forcefully taking over the possession of this house by respondents has been proved by admissible evidence and such findings of fact do not raise any question of law rather than substantial question of law. Thus, this argument is also failed. ( 9. ) SO far objection of res judicata is concerned, the earlier suit was filed on a different cause of action while the instant suit was filed by mentioning the cause of action subsequent to the execution of the earlier decree. The issues involved in the present case was not an issue in the earlier suit. The issues involved in this suit arose after the execution of the earlier decree. Thus, as per spirit of the Section 11 of the CPC the principle of res judicata is not applicable in this case so this is also not a question which could be adjudicated in this appeal. ( 10. ) NOW, coming to the proceeding dated 28-8-1982 of the Trial Court. Mere perusing of this proceeding reflects that no application was filed for producing the evidence but the application was filed for adjournment for obtaining the stay from High Court in some revision. Thus the submission of the appellant that the opportunity to lead the evidence was not given to them is contrary to record. The said proceeding specifically says that on asking to adduce the evidence the appellants were unable to adduce the same then the case was closed. According to me, no error of jurisdiction was committed by the Trial court in it. ( 11. The said proceeding specifically says that on asking to adduce the evidence the appellants were unable to adduce the same then the case was closed. According to me, no error of jurisdiction was committed by the Trial court in it. ( 11. ) BESIDES this, on considering the other submission in respect of the proceedings dated 28-2-1984 by which an application filed by the appellant under Order 18 Rule 17 A read with Section 151 of the CPC was dismissed. On going through this order it appears that no error of jurisdiction has been committed by the Trial Court in dismissing the same because the same is dismissed by passing the elaborate order according to it the Mala fide on the part of the appellants in filing the said application was found by the Trial Court as the evidence was closed by order dated 28-8-1982 and said application was filed on 16-2-1984 after more than 1-1/2 (one and half) years under the law no one can be permitted to prolong the trial for unnecessary reasons. Even on perusing the averments of the application in the facts and circumstances of the case the Trial court has not committed any error in dismissing the same. Therefore, these proceedings are also not raising any question which could be treated as substantial question of law. ( 12. ) SO far the application under Order 41 Rule 27 A of the CPC filed on behalf of the appellants before the subordinate appellate court as alleged same was not specifically considered and decided by such Court is concerned, firstly the application was not supported by an affidavit; secondly whatever factual matrix mentioned in it are not relevant with the case at the stage of appeal. Without mentioning the reasons and the relevance of those witnesses with the case it was filed the same could not be entertained in the lack of proper pleadings. It was filed only to call the witnesses while this relief was already negatived by the Trial Court as said above. In deciding the appeal the Appellate court in Para 5 of its judgment had considered and answered in this regard. So in such circumstances, mere on account of non-disposing of the application by the Appellate Court appellants are not entitled to get any relief. In deciding the appeal the Appellate court in Para 5 of its judgment had considered and answered in this regard. So in such circumstances, mere on account of non-disposing of the application by the Appellate Court appellants are not entitled to get any relief. According to me, by upholding the judgment and decree of the Trial Court the Appellate court has also upheld all interlocutory proceedings drawn up by the Trial Court during pendency of the suit in which the question raised by the appellant in such application has also been concluded so mere on account of this lacuna appellant do not deserve for any relief before this Court as it does not rise any substantial question of law. ( 13. ) EVEN otherwise, on perusing the entire evidence I have not found any perversity or irregularity in between the judgment and evidence. I have also not found any circumstances which do rise any question of law muchless the substantial question of law in this appeal. Hence in the lack of it, by holding that the findings of the Courts below being concurrent findings of fact which can not be interfered under Section 100, CPC at this stage. My aforesaid view is fortified by the dictum of the Apex Court laid down in the matter of Kondiba Dagadu kadam Vs. Savitribai Sopan Gujar and others, reported in AIR 1999 SC 2213 , in which it is held as under:- "the right of appeal is neither natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force of the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal can not be decided on merely equitable grounds. The concurrent findings of facts however, erroneous can not be disturbed by the high Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of law. 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. The substantial question of law has to be distinguished from a substantial question of law. 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 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 can not 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. " ( 14. ) THEREFORE, this appeal being devoid of merits, deserves to be and is hereby dismissed at the initial stage in limine. Second Appeal dismissed.