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2006 DIGILAW 2083 (RAJ)

Champa Lal v. Lrs. of Meghraj

2006-07-03

S.P.PATHAK

body2006
Judgment S.P. Pathak, J.-The appellants, who are the original defendants, and the respondents, who are the original plaintiffs, for convenience sake, are hereinafter referred to as ‘plaintiffs’ and ‘defendants’. 2. Briefly stated, the facts giving rise to the present second appeal are that plaintiffs filed a suit for possession and mesne profits in the Court of Munsif , Sojat in relation to suit property situated in Sojat. It was inter-alia stated therein that the suit property which is a house/Nohra, description of which has been made in Para No. 1 of the plaint, was in the ownership of the plaintiffs. It is further stated that the defendants wanted to purchase the property, as their property was also adjacent to the property of the plaintiffs, and they approached one Shri Fateh Lal, who was a relative of Motilal defendant at Baroda but the plaintiff did not accept the proposal made by the defendants and declined the same. This was done somewhere in the year 1966-67. The defendants thereafter taking advantage of plaintiffs being away from Sojat, illegally and in an unauthorized manner encroached upon the suit property on 28.05.1966. On coming to know about the encroachment made by the defendants, the plaintiffs instructed Advocate Shri Vishanraj to contact defendants to vacate the suit premises as the same was illegally and unauthorizedly occupied by the defendants. The defendants did not agree to vacate the premises, as such a notice was sent by Shri Vishanraj Advocate to the defendants, who in turn replied the notice and stated that the suit property was in their ownership. The plaintiffs in the above circumstances filed the suit making a prayer therein that defendants be evicted from the suit property and the possession thereof be handed over to them and claimed mesne profits also. The suit was filed in the year 1968. In the written statement filed by the defendants, the averments made in the plaint in its totality were denied and defendants set out their case that the description of the property made in the plaint did not tally with the suit property, the property in dispute was in possession of the defendants since last 60 years and on account of long possession they became owner of the property. It was also the case of the defendants that they also moved before the municipality for making construction on the suit premises as the house in question was in precarious condition, the Municipality granted permission and since the suit land was Khalsa land as such a sum of Rs. 960 was deposited in the municipality, sale-deed whereof was issued in their favour and after permission of the municipality they made construction on the suit premises which cost them about Rs. 600/-. It was also the case of the defendants that the suit was barred by limitation and was not filed on proper Court fees, therefore, was liable to be dismissed. In the alternate, it was also the case of the defendants that in case for any reason it is found that possession of the suit premises is to be handed over to the plaintiffs then the amount spent by them may be ordered to be paid back to them alongwith interest. 3. The learned trial Court, on the basis of pleadings of the parties, framed 4 issues including relief . Issue No. 1 was in relation to ownership of the plot with patta. Issue No. 2 was in relation to illegal encroachment made by defendants on 28.05.1966 and Issue No. 3 was in relation to mesne profits @ Rs. 5 per month. Issue No. 4 was in relation to relief. During the course of trial, the plaintiffs produced 5 witnesses and in documentary evidence 8 documents were produced. The defendants examined 6 witnesses. 4. The trial Court, after hearing both sides, decided Issue Nos. 1 and 2 in favour of the plaintiff and Issue No. 3 was decided against the plaintiff . The suit, therefore, was decreed in relation to possession vide Judgment and decree dated 23.08.1988. The defendants feeling aggrieved preferred first appeal against the aforesaid Judgment and decree but without any success, hence the present appeal has been filed. 5. Heard learned Counsel for the parties and perused the material available on record. 6. The suit, therefore, was decreed in relation to possession vide Judgment and decree dated 23.08.1988. The defendants feeling aggrieved preferred first appeal against the aforesaid Judgment and decree but without any success, hence the present appeal has been filed. 5. Heard learned Counsel for the parties and perused the material available on record. 6. It has been contended by the learned Counsel for appellants that in the instant case, the learned trial Court has miserably failed to appreciate the evidence led and in the case it has been amply proved that the suit property was in their old possession and the plaintiffs could not prove the ownership of the suit property, therefore, the trial Court has committed illegality in deciding Issue Nos. 1 and 2 in favour of the plaintiffs. It has also been contended that the trial Court has misinterpreted the documents and the documents submitted by defendants subsequently i.e., registered sale-deed and the map, issued by the municipality, were not considered at all. The contention of the learned Counsel is that though the application in relation to above two documents under Order 41 Rule 27 CPC was filed in the First Appellate Court and the Appellate Court allowed the application but in a revision petition filed in the High Court, the order of the First Appellate Court was set aside but then also for a proper and just decision the above documents are required to be considered as an application has already been filed under Order 41 Rule 27 of the CPC. It has also been contended that no proper issues were framed by the learned trial Court as would appear that as per the pleadings of the parties an issue was required to be framed regarding limitation and also in relation to long/adverse possession of the defendants on the suit property which having not been done, the matter requires to be sent back for trial again. .7. On the other hand, it has been contended that the learned trial Court after framing proper issues and after hearing both sides decided the issues with reasons and decreed the suit and on an appeal the findings of the learned trial Court have been confirmed, therefore, in the second appeal findings of fact are not required to be disturbed. It has also been contended that neither the defendants nor their LRs. It has also been contended that neither the defendants nor their LRs. produced themselves in evidence though the case continued for years and no document whatsoever has been produced in the trial Court to show at all their connection with the suit property, therefore, the findings recorded by the learned trial Court were legal, just and proper and having been rightly confirmed by the first appellate Court requires no interference by this Court in the second appeal. It has also been submitted that the two documents submitted in the first appeal with application under Order 41 Rule 27 read with Order 13 Rule 2 of the CPC were allowed by the first appellate Court but in the revision petition filed against the order of the first appellate Court, the order passed by the learned first appellate Court has been set aside, therefore, there is no question of allowing the application moved in the second appeal and the same requires to be rejected. It has also been contended that even if the two documents i.e. sale-deed and the map issued by the municipality, as alleged by the defendants, are seen then it would emerge that the municipality could not have issued such documents in relation to the suit property when it was having no ownership. In the last, it has been submitted that it is a case where suit property, which is of the plaintiffs, having been unauthorizedly encroached upon in the year 1966 uptil now instead of decree passed in favour of the plaintiffs, still possession could not be handed over to them. .8. I have considered the rival submissions made before me. 9. In the present case, the points for determinations are; (i) as to whether the learned trial Court has correctly recorded the findings on issues framed by it and the Judgment and decree awarded by the Courts below requires any interference by this Court, (2) Whether the application moved under Order 41 Rule 27 of the CPC is required to be accepted, and (3) Whether the learned trial Court has misread the evidence, therefore, the Judgment and decree awarded by the Courts below requires to be quashed and set aside. 10. Since all the three points are inter-related with each other, as such the same are being disposed of together. 11. 10. Since all the three points are inter-related with each other, as such the same are being disposed of together. 11. It is to be seen that in the suit for possession and mesne profits the question involved was as to whether plaintiffs are the owners of the suit property or not? The trial Court while deciding Issue No. 1 in relation to ownership of the property, came to the conclusion that Lalchand PW1 has clearly and categorically stated that the suit property was purchased by his grandfather and in that connection he has proved Ex. 1 the sale-deed and patta Ex. 2. These two documents alognwith evidence of PW 3 Advocate Vishanraj and a letter Ex. 5 written to Fateh Lal, the relative of defendant Motilal by defendant Motilal regarding his intention to purchase the suit property, clearly prove the case of the plaintiffs. The trial Court also found that defendant Motilal wanted Shri Fateh Lal to persuade the plaintiffs to dispose of the suit property in their favour but as the suit property was ancestral one and the plaintiffs were having emotional attachment with it, the proposal was not accepted. PW. 3 Vishanraj is an Advocate who has clearly stated all the facts and has stated that he talked to the defendants that they should vacate the suit premises and ultimately a notice was sent to the defendants to vacate the suit property and the defendants replied the notice claiming their ownership on the suit property. PW 3 has proved notice Ex. 3, reply to the notice Ex. 4 and letter of Motilal Ex. 5 as well as Ex. 7 the documents of Municipality. The trial Court, after having analyzed the above evidence, reached to the conclusion that the evidence led by the plaintiffs was sufficient to prove the factum that they were owners of the property with Patta and sale-deed. .12. The trial Court, while deciding issue No.2, came to the conclusion that the plaintiffs were not able to prove the fact that in the year 1966 encroachment was made on the suit property by the defendants. The trial Court, while holding so has taken into consideration the evidence of PW 1 Lal .Chand, the plaintiff as well as the evidence of PW. 3 Vishanraj and PW 4 and 5 who are the employees of the Municipality, Sojat. The trial Court, while holding so has taken into consideration the evidence of PW 1 Lal .Chand, the plaintiff as well as the evidence of PW. 3 Vishanraj and PW 4 and 5 who are the employees of the Municipality, Sojat. It has been found that defendant Moti Lal had written a letter of his intention to his relative Fatehlal in the year 1967 i.e., on 19.01.1967 and the same was received by Fatehlal on 21.01.1967 as is borne out from the seal of the Post office. In this letter, Motilal has written that he had gone to Baroda to meet Fatehlal and Lalchand at that time had assured that he would be coming to Sojat at the time of Diwali but he did not come. Since the matter in relation to the suit property was pending in the Municipality and they were prepared to pay the market price of the suit property and the same was adjacent to their property, therefore, the plaintiffs were required to be persuaded to dispose of the suit property. It was also written in the letter that file in relation to the suit property was managed by him as his brother-in-law (Behnoi) was employed in the Municipality but it was not possible to delay anymore and keep pending the file in the municipality. The learned trial Court, on the basis of above evidence and further taking into consideration that in relation to part of the suit land which was required for a way known as Baroda way, acquisition proceedings were taken up and at that time no objection was made in relation to the suit land that the same was of their ownership on account of their long possession. The learned trial Court, further taken into consideration Ex. 7 and 8, the two documents, which have been proved by PW 4 and PW 5, who are municipality’s officers and these two documents show that the defendants never claimed the property in dispute to be their own property. These two documents have been brought on record by accepting as secondary evidence since the file of the present disputed property was not traceable in the municipality. The learned trial Court further discussed the evidence of the defendants and reached to the conclusion that the same was vague. One more important aspect which weighed with the learned trial Court was that PW. The learned trial Court further discussed the evidence of the defendants and reached to the conclusion that the same was vague. One more important aspect which weighed with the learned trial Court was that PW. 3’s grandfather took the suit property on rent for their maid servant and the property was of the plaintiffs. PW 3 Vishanraj has further stated that he disclosed the fact about encroachment made by the defendants in the year 1966-67 during the election time and he intimated the plaintiffs and on the instructions of the plaintiffs he gave notice to the defendants. It appears that no cross-examination was made to the witness on this point. The learned trial Court after taking into consideration the entire facts and circumstances of the case, held that the encroachment was made on the suit property in the year 1966-67 by the defendants. 13. The contention of the learned Counsel that proper issues were not framed in the present matter and certain more issues were required to be framed on the basis of pleadings of the parties, is not tenable for the simple necessity that since an issue has been framed with regard to making encroachment on the suit property by the defendants in the year 1967 then there was no reason to have framed a negative issue. Since this particular issue has been proved by the plaintiffs by their evidence as held by the trial Court and having been confirmed by the learned first appellate Court, therefore, the contention of the learned Counsel appears to be of without substance. It shall be proper here to take notice of the fact that as per the contentions, an issue was also required to be framed regarding limitation. As discussed herein below, since a specific issue in relation to making encroachment in the year 1966-67 was framed, therefore, framing issue regarding limitation was also not of significance and no prejudice whatsoever has been caused to the defendants by not framing the issue of limitation. 14. Another contention of the learned Counsel has been that the description of the suit property given in the plaint does not tally with the present surroundings of the suit property. 14. Another contention of the learned Counsel has been that the description of the suit property given in the plaint does not tally with the present surroundings of the suit property. This contention of the learned Counsel for the appellants is also without any merit because the learned trial Court has considered this matter and reached to the conclusion that since the property of the plaintiffs is an old property of 1920 and at the initial stage when the sale was made the owners were different and subsequently the other owners adjacent to the property came in existence. This aspect of the matter has been considered by the learned trial Court in light of evidence of PW. 1, PW. 3 and also evidence of DW. 1 Roopchand and other witnesses of the defendants. The above finding of fact having been confirmed by the learned first appellate Court, therefore, the contention of the learned Counsel for appellants deserves to be rejected and the same is hereby rejected. .15. The further contention of the learned Counsel for appellants that the learned trial Court has not properly appreciated the evidence led by the defendants for the purpose of considering adverse possession is concerned, it is suffice to make a mention that two Courts of facts have reached to the conclusion that the evidence of the plaintiffs particularly PW. 1 Lalchand, PW. 3 Vishanraj Advocate and DW. 1 Roopchand and other witnesses clearly establishes the fact that the suit property was of the plaintiffs. The plaintiffs in their evidence have established the fact that they were away from the suit .property and the suit property was purchased by their grandfather and subsequently in the year 1966-67 the defendants intended to purchase the same and for that they made efforts through Fatehlal but the plaintiffs never wanted to part with the property and declined to dispose of the same and the defendants taking advantage of the plaintiffs being away from the property made encroachment, therefore, a notice was served on them to which they claimed their ownership. It is further to be seen that in the municipality when the defendants moved application for making construction on the suit property, they did not claim the ownership on the property and as has been pleaded in the written statement that the land being Khalsa they made certain payment in relation to the suit land. 16. It is further to be seen that in the municipality when the defendants moved application for making construction on the suit property, they did not claim the ownership on the property and as has been pleaded in the written statement that the land being Khalsa they made certain payment in relation to the suit land. 16. The above facts clearly establish one thing that the suit property was not the property owned by the defendants. The plaintiffs have filed Ex.1 sale-deed and Ex. 2 Patta and other documents such as Exs. 7 and 8 which clearly prove that the suit property was of the plaintiffs. The above finding is also a finding of fact and the first appellate Court has confirmed that. Therefore, in my humble opinion, the contention of the learned Counsel that the trial Court has not properly appreciated the evidence and has misread the evidence is also of no consequence and the same is hereby rejected. 17. It has also been the contention of the learned Counsel that the two documents submitted in the first appellate Court alongwith an application under Order 41 Rule 27 of the CPC read with Order 13 Rule 2 of the CPC requires to be allowed and those documents should be taken into consideration and in the light of above two documents the matter requires to be remitted back to the learned trial Court is concerned, it is suffice to say that since no steps were taken earlier and only at the first appellate stage the steps were taken for taking on record the above documents and the matter thereafter was considered by this Court in a revision petition and this Court while allowing the revision petition set aside the order accepting the application of the defendants under Order 41 Rule 27 of the CPC then there appears no cogent reason to sit over the Judgment rendered in the revision petition. The above two documents, even if perused, cannot be of any help to the defendants for the simple reason that by one of the documents it appears that the suit property has been considered by the municipality their property whereas infact the suit property was never of the municipality as the municipality itself started acquisition proceeding for that very land. The learned trial Court as well as the first appellate Court both have considered these aspects of the matter. The learned trial Court as well as the first appellate Court both have considered these aspects of the matter. Therefore, it is not necessary to go into detail and arrive at a finding different than the one which having been arrived at by the Courts of facts. My this view finds support from a decision rendered by this Court reported in 2006 (2) RLW 465, Sharwan Kumar vs. Bal Kishanji through LRs. In this case, in Para No.4, it has been observed as under:- “I find no substance in the argument of learned Counsel. The concurrent findings arrived at by the learned Courts below are based on proper appreciation of evidence and I am satisfied that no substantial question of law arises in this appeal. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gurjar, 1999 (3) SCC 722 it was held that:- “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.” 18. In RSRTC & Ors. vs. Khub Chand, 2006 (1) RLW 465, also, while referring the aforesaid case of Kondiba Dagadu Kadam vs. Savitrabi Sopan Gujar, (Supra), in Para 9 this Court has observed:- “In Kondiba Dagadu Kadam vs. Savitrabi Sopan Gujar, 1993 (3) SCC 722 = RLW 2000 (1) SC 89), their Lordship of Supreme Court indicated that in second appeal concurrent finding of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under Section 100 CPC” 19. In S.B. Civil Second Appeal No. 142/2005, Dhanna Lal vs. Bherulal, (decided on 22.08.2005), this Court while deciding the second appeal has held that findings of facts are not required to be disturbed in second appeal unless there appears that the Courts below have completely misread the evidence. 20. In S.B. Civil Second Appeal No. 142/2005, Dhanna Lal vs. Bherulal, (decided on 22.08.2005), this Court while deciding the second appeal has held that findings of facts are not required to be disturbed in second appeal unless there appears that the Courts below have completely misread the evidence. 20. In Durga Prasad vs. Naresh Chand & Anr., S.B. Civil Second Appeal No. 56/2004, decided on 11.2005, this Court has held that if the findings of fact are based on proper appreciation of evidence then there remains no scope for making interference in the second appeal under Section 100 of the CPC. 21. In case of Narendra Singh vs. Smt. Fateh Kanwar, S.B. Civil Second Appeal No. 10 of 2006, this Court while considering the matter in relation to a matter arising under the Rent Control Act has observed that when the two Courts below after appreciation of evidence reached to the conclusion that the plaintiff proved the need for the shop then findings of fact are not required to be interfered by this Court while exercising jurisdiction under Section 100 of the CPC. 22. In view of above settled position of law, the concurrent findings of facts are not required to be disturbed in second appeal unless the same is found to be perverse in nature and the evidence has been completely misread by the Courts of fact. 23. In view of discussions, the answer to Point Nos. 1 to 3 is accordingly. 24. In the result, I find no merit in this second appeal and there appears to be no substantial question of law involving in this appeal and the same requires to be dismissed. Hence, the appeal is dismissed.