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2007 DIGILAW 1918 (RAJ)

Budharam v. Ramesh Chand

2007-10-04

N.K.JAIN

body2007
Honble JAIN, J.–Heard learned counsel for both the parties. (2). These two appeals involve same parties litigating for the same property, hence both the appeals are heard together and being disposed of by this common judgment. (3). Plaintiff-appellant Budharam filed a Civil Suit No. 86/1999 (122/1991) in the trial Court against defendants-respondents Rameshchand and Gram Panchayat, Tehla, for declaration to declare `patta dated 10th November, 1975, issued by defendant No.2 Gram Panchayat in favour of defendant No.1 Rameshchand, to have been issued without jurisdiction and to cancel the same; and for permanent injunction restraining the defendants not to interfere in the disputed property of the ownership and possession of the appellant and not to dispossess the appellant from the disputed property. It was pleaded in the plaint that the disputed plot of land was purchased by the appellant through registered sale- deed dated 9th May, 1969 from Puranmal and since then he is owner and in possession of the said plot. The respondent Rameshchand got one `patta issued in his favour from respondent No.2 Gram Panchayat, and, under the garb of said `patta, he wants to raise construction over the disputed plot of land belonging to the appellant Budharam. (4). The defendant-respondent No.1 Rameshchand filed his written- statement pleading therein that he was allotted with a land by defendant No.2 Gram Panchayat and `patta was also issued in his favour in accordance with the provisions of law. The appellant Budharam wants to encroach upon the land of the respondent No.1 for which he has no right. The appellant Budharam has raised some construction of a shop over the land of the respondent No.1. Rameshchand. It was further pleaded that the land purchased by appellant Budharam from Puranmal is different from the land allotted to the respondent No.1 Rameshchand by respondent No.2 Gram Panchayat, and for which a `patta has also been issued. (5). Another Suit No. 88/1999 (13/1991) was filed by plaintiff- respondent Rameshchand against defendants (appellants in Appeal No. 516/2006) Budharam, Ganpat and Jagan, for permanent injunction in the trial Court, wherein it was pleaded that he is the owner of the plot, the description of which is mentioned in the plaint, and the same was allotted to him by Gram Panchayat, Tehla, vide order dated 10th November, 1975, and a `patta was also issued in his favour. He is in the possession of the said plot also. He is in the possession of the said plot also. The appellants herein raised construction over the plot belonging to the respondent Rameshchand during the intervening night of 2nd and 3rd of February, 1991, in the shape of shop/kotdi, measuring 114" in length and 96" in width of four feet height. It was prayed that the said construction raised by appellants is unauthorized and the same is liable to be demolished,and further they are liable to be restrained from interfering with the peaceful possession of the respondent Rameshchand over the plot, in dispute. (6). Appellants Budharam & others contested the suit of respondent Rameshchand by filing written-statement and it was pleaded that the land was not belonging to Gram Panchayat, Tehla, therefore, Gram Panchayat had no power to allot the same to the respondent Rameshchand. (7). The trial Court framed issues in both the suits separately. Both the parties led their oral and documentary evidence in support of their respective pleadings. (8). The trial Court, vide its judgment and decree dated 26th April, 2001, dismissed the Civil Suit No. 86/1999 (122/1991) of appellant Budharam. Being aggrieved with the same, Regular First Appeal No. 11/2001 was preferred by appellant Budharam. The learned first appellate Court dismissed the said appeal vide its judgment dated 22nd August, 2006, and confirmed the judgment and decree dated 26.4.2001 passed by the trial Court. Being aggrieved with the same, the present second appeal No. 518/2006 has been preferred by appellant Budharam. (9). The trial Court, vide its judgment and decree dated 2.5.2001, partly decreed the Civil Suit No. 88/1999 (13/1991) filed by respondent Rameshchand. The relief relating to permanent injunction was refused,but the suit in respect of mandatory injunction was decreed and it was directed that construction of `Kotdi raised by appellants herein, towards south and west part of the plot of respondent Rameshchand measuring 116"x99"x41" will be demolished and possession thereof will be handed over to respondent Rameshchand. Being aggrieved with the same, appellants Budharam and other preferred Civil First Appeal No. 12/2001. Respondent Rameshchand also preferred cross-objection against refusal of permanent injunction. The first appellate Court, vide its judgment dated 22nd August, 2006, dismissed the appeal as well as cross-objection, both. Being aggrieved with the same, appellants Budharam and two others have preferred S.B. Civil Second Appeal No. 516/2006. (10). Respondent Rameshchand also preferred cross-objection against refusal of permanent injunction. The first appellate Court, vide its judgment dated 22nd August, 2006, dismissed the appeal as well as cross-objection, both. Being aggrieved with the same, appellants Budharam and two others have preferred S.B. Civil Second Appeal No. 516/2006. (10). The learned counsel for the appellants, Shri M.M. Ranjan, contended that the `patta issued in favour of respondent No.1 Rameshchand respondent No.2 Gram Panchayat was without jurisdiction and he does not acquire any title in respect of the plot, in dispute, by virtue of the said `patta. So far as the appellants title is concerned, the learned counsel for the appellants contended that he purchased the plot of land through sale-deed dated 9th May, 1969 from Puranmal and had raised construction on his own land, therefore, the direction issued by the learned trial Court for demolition of the constructed room/kotdi is liable to be set-aside. (11). The learned counsel for the respondent No.1, Shri J.P. Goyal, contended that the plot of land purchased by appellant Budharam through registered sale-deed dated 9th May, 1969 is altogether different than the plot of land to the respondent No.1 Rameshchand by respondent No.2 Gram Panchayat and the `patta for which has also been issued on 10th November, 1975. He contended that some different land belongs to the appellant and it is not the disputed land. The appellant Budharam encroached upon the land of the respondent Rameshchand and also constructed the disputed room/kotdi for which the respondent Rameshchand filed the suit, which has been decreed by both the Courts below. He also contended that there is a report of Commissioner, appointed by the trial Court, in this regard. Not only this, the Presiding Officer of the trial Court himself visited the spot and, as per his inspection-report dated 15th March, 2001, it is clear that the plot of land of appellant Budharam, purchased through sale- deed dated 9th May, 1969, is different to that of the land of respondent No.1. Rameshchand allotted by respondent No.2 Gram Panchayat vide `patta dated 10th November, 1975, and further that the appellant Budharam has encroached upon the land of respondent No.1 Rameshchand and also raised disputed construction for which he had no right. The Presiding Officer of the trial Court also prepared a map, which has been annexed with the report dated 15th March, 2001, which explains the entire position. The Presiding Officer of the trial Court also prepared a map, which has been annexed with the report dated 15th March, 2001, which explains the entire position. He also contended that both the Courts below have dismissed the suit of the appellant Budharam and have decreed the suit of respondent No.1 RameshChand. The questions involved in the present matters are relating to question of facts and there is concurrent finding of facts by the courts below in both suits and no substantial question of law is involved in these second appeals, therefore, both the appeals are liable to be dismissed. (12). I have heard learned counsel for both the parties and examined the impugned judgments passed by both the Courts below in both the matters and also gone through the record of the trial Court in Appeal No. 518/2006, which was summoned. (13). The issues framed in both the cases reveal that they are relating to the question of facts and there is concurrent finding of fact by both the Courts below in both the suits. The suit of the appellant Budharam has been dismissed by both the Courts below and, on the other hand, the suit filed by the respondent Rameshchand has been decreed by both the Courts. It is also correct that the Presiding Officer of the trial Court visited the spot and prepared his inspection-report along with the map, which clearly shows that the land purchased by appellant Budharam through registered sale-deed dated 9th May, 1969, is different from the land of respondent Rameshchand, which was allotted to him by respondent No.2 Gram Panchayat vide `patta dated 10th November, 1975. It also reveals that the appellant Budharam has encroached upon the land of the respondent No.1 Rameshchand and also raised construction thereon for which the trial Court has already issued a direction for demolition thereof. The respondent No.1 Rameshchand has not encroached upon the land of the appellant Budharam in any manner whatsoever, rather it is the appellant Budharam, who has encroached upon the land of the respondent No.1 Rameshchand. The respondent No.1 Rameshchand has not encroached upon the land of the appellant Budharam in any manner whatsoever, rather it is the appellant Budharam, who has encroached upon the land of the respondent No.1 Rameshchand. The trial Court as well as first appellate Court, which are the facts-finding-Courts, have examined and considered the oral and documentary evidence of both the parties, in detail, and have recorded a finding of fact that the appellant and respondent, both, have their plots of land independently having their title and possession by virtue of sale-deed dated 9.5.1969 and `patta and 10.11.1975, and further that the appellant Budharam has encroached upon some part of the plot of land of respondent Rameshchand and raised construction of disputed room/kotdi thereon illegally. These are pure questions of facts and there is concurrent finding of facts by both the Courts below in this regard. (14). The shortcomings in the findings of both the Courts below, pointed out by the learned counsel for the appellants, cannot alter the situation that the findings of both the Courts below are relating to facts and there is concurrent finding of fact by both the courts below in the present matter, which cannot be interfered with by this Court in second appeal under Section 100 of the Code of Civil Procedure, even if the findings are erroneous or inexcusable, as held by the Honble Supreme Court in the case of Bholaram vs. Ameerchand (1981) 2 SCC 414 ; wherein A three-Judges- Bench considered the effect of amendment made in section 100 of the C.P.C. in 1976, and held as under: ".....The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the Courts below were perverse and were given in utter disregard of the important materials on the record particular misconstruction of the rent note. Even if we accept the main reasons given by the High Court the utmost that could be said was that the findings of fact by the Courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law." (15). Even if we accept the main reasons given by the High Court the utmost that could be said was that the findings of fact by the Courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law." (15). The Honble Supreme Court, in Ramaswamy Kalingaryar vs. Mathayan Padayachi - AIR 1992 SC 115 , while considering the scope of Section 100 C.P.C., held as under: "....Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of Section 100, C.P.C., which defines the contours of the power of the High Court in second appeal. ....." (16). In Madhavan Nair vs. Bhaskar Pillai - (2005) 10 SCC 553, the Honble Supreme Court observed that the High Court was not justified in interfering with the concurrent findings of fact. The Honble Supreme Court further observed that it is well settled that even if the first appellate Court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. (17). In H.P. Pyarejan vs. Dasappa - (2006) 2 SCC 496 , the Honble Supreme Court observed that under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the Courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes re-appreciation of evidence. The Honble Apex Court found that the impugned judgment of the High Court was vulnerable and needed to be set aside. (18). The Honble Supreme Court in Gurdev Kaur & Others vs. Kaki & Ors. - (2007) 1 SCC 546 = (2007(1) RLW 636 (SC), considered the true import, scope and ambit of Section 100 C.P.C. by referring the Section 100 C.P.C., before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under:- "60. The comprehensive fifty-fourth Report of the Law Commission of India submitted to the Government of India in 1973 gives historical background regarding ambit and scope of Section 100 C.P.C. According to the said report, any rational system of administration of civil law should recognize that litigation in civil cases should have two hearings on facts - one by the trial Court and one by the Court of appeal. ... ... ... ... 73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous findings of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100. ... ... ... ... 81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 C.P.C. in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 C.P.C. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the Courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs. (19). In view of the above, I do not find any force in any of the contentions of the learned counsel for the appellants and further that no substantial question of law is involved in any of the appeals, hence both the appeals fail and the same are hereby dismissed in limine.