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2008 DIGILAW 1147 (RAJ)

Prabhat Son of Shri Gyarsa v. Mohan Son of Bhonra

2008-04-28

R.M.LODHA

body2008
JUDGMENT 1. - This second appeal has been admitted on 11th November, 1994. However, the proceedings reflect that no substantial question of law has been formulated. Section 100 of the Code of Civil Procedure , 1908 reads thus : 100. Second appeal (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, 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. (2) An appeal may lie under this section from an appellate decree passed exparte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.] 2. A bare perusal of Section 100 of the Code of Civil Procedure would show that the jurisdiction of the High Court in hearing the second appeal is founded on substantial question of law. The admission of second appeal without formulating substantial question of law is not admission in the eye of law. On this legal premise alone, the second appeal is liable to be dismissed. However, I heard the counsel for the appellant to find out as to whether any substantial question of law arises in this appeal or not. 3. It is true that the judgment of the appeal court is that of reversal but that does not make a finding of fact a finding in law. However, I heard the counsel for the appellant to find out as to whether any substantial question of law arises in this appeal or not. 3. It is true that the judgment of the appeal court is that of reversal but that does not make a finding of fact a finding in law. It needs to legal debate that the finding of fact recorded by the first appellate court cannot be questioned in second appeal and is not open to correction in exercise of jurisdiction under Section 100 of the Code of Civil Procedure save and except where the finding of fact is perverse or has been arrived at by misreading material piece of evidence affecting the conclusion vitally or such like reasons. 4. Bhonra (since deceased) and represented by his legal heirs (respondents No. 1 to 5) filed the suit against the present appellant (original defendant) that it be declared that a 'chabutra' ad-measuring 11 ft. (East-West) x 25 ft. (North-South) is owned and possessed by him. His case was that it is only through that 'chabutra' that he has access to his 'guwadi'. To establish his possession, he averred that for the last 10 years, he has put up the heap of stones on the said 'chabutra'. 5. The defendants traversed the plaintiff's claim and set up their case that as a matter of fact the defendants are in possession of the 'chabutra' and that his shed exists thereon. 6. On the basis of the pleadings of the parties, the trial court framed three issues. Issue No. 1 was to the effect whether the disputed 'chabutra' was in possession and ownership of the plaintiff. The issue No. 2 reflected the controversy as to whether the defendant illegally encroached upon the disputed 'chabutra' by putting up stones. Issue No. 3 related to relief. 7. In support of his case, the plaintiff examined himself (PW-1), Bhagwan Sahai (PW-2), Jagdish (PW-3), Raghuvar (PW-4) and Mohan (PW-5). The defendant examined six witnesses. He examined himself as DW-1, Ramji Lal (DW-2), Chhitar (DW-3), Kanhaiya Lal (DW-4), Jagdish (DW-5) and Mool Chand (DW-6). The trial court vide its judgment and decree dated 30th March, 1989 held that the plaintiff failed to establish his possession and ownership over the subject 'chabutra'. The trial court also held that the plaintiff failed to establish that the defendant had encroached upon the subject 'chabutra'. The trial court vide its judgment and decree dated 30th March, 1989 held that the plaintiff failed to establish his possession and ownership over the subject 'chabutra'. The trial court also held that the plaintiff failed to establish that the defendant had encroached upon the subject 'chabutra'. The trial court, thus, dismissed the suit. 8. The legal representatives of the original plaintiff preferred appeal aggrieved by the judgment and decree of the trial court which was heard and decided by the Additional District Judge No. 1, Alwar. The appeal court upon appraisal of the evidence found that the appellant has been able to establish that the subject 'chabutra' was in his possession and immediately before the suit was filed by the plaintiff, the defendant put up some shed. The appeal court, thus, up-turned the finding of the trial court on issues No. 1 and 2 and vide its judgment and decree dated 5th January, 1994 allowed the appeal and decreed the plaintiff's suit. 9. The appeal court has extensively referred to the deposition of PW-1 Bhonra. It also considered the evidence of PW-2, PW-3, PW-4 and PW-5 which was found to be on the same lines as that of PW-1. The oral testimony of PW-1 and the other witnesses was found duly supported by the Commissioner's report dated 18th February, 1987. Having perused the Commissioner's report (Ex.2) and the evidence of PW-1, PW-2 and PW-3, I find that the appeal court considered the evidence in right perspective and the finding of fact recorded by appeal court on issue No. 1 is not vitiated by any error of law. 10. The counsel for the appellant, relied upon the following decisions in assailing the finding of the appeal court; namely : (i) Bhavnagar Municipality v. Union of India and another, AIR 1990 SC 717 ; (ii) REMCO Indus. Workers House Building Cooperative Society v. Lakshmeesha M. and Ors., 2003 SAR (Civil) 804 ; and (iii) Raees Ahmed v. Shrigopal Prakash and Ors., 2003(l) DNJ 1 (Raj.) 370 . 11. Paragraph 6 of the decision in the case of Bhavnagar Municipality, upon which reliance has been placed by the counsel for the appellant reads thus : "6. Workers House Building Cooperative Society v. Lakshmeesha M. and Ors., 2003 SAR (Civil) 804 ; and (iii) Raees Ahmed v. Shrigopal Prakash and Ors., 2003(l) DNJ 1 (Raj.) 370 . 11. Paragraph 6 of the decision in the case of Bhavnagar Municipality, upon which reliance has been placed by the counsel for the appellant reads thus : "6. The learned counsel for the appellant contended that the High Court should have given a finding on title as Article 65 of the Limitation Act, 1963 is applicable to this case since the suit was filed on 3rd March, 1964, and that on the finding of the trial court in favour of the plaintiff on the question of title in respect of 'Parade 14 Ground', and in the absence of specific plea of adverse possession in the written statement, the trial Court's decree should have been confirmed. He also assailed the finding of the High Court on the question whether the plaintiff was handed over or taken possession of the suit property in pursuance of the Resolution 1! dated 19th January, 1948. We are of the opinion that the learned counsel for the appellant is well-founded in his contention that Article 65 of the Limitation Act, 1963 is applicable in this case as the suit was filed on 3rd March, 1964 but the Act had come into force on 1st January, 1964. Therefore, since the suit is for 2 possession based on title to the suit property and the defendants had denied title of the plaintiff, it is necessary for the Court to give a finding on title of the plaintiff even if the defendants in possession had not pleaded adverse possession. We also think that it is just and necessary that we ourself consider the question of title and 2 that it is not necessary to remand the case for that purpose. We, therefore, proceed to consider the question of title of the plaintiff to the suit properties." 12. I am afraid, the said decision has no application. 13. A perusal of the plaint would show that it is not a suit for 3 possession based on title. Rather, the plaintiff claimed title on the basis of possession. Bhavnagar Municipality, therefore, has no application. 14. In the case of REMCO Indus. I am afraid, the said decision has no application. 13. A perusal of the plaint would show that it is not a suit for 3 possession based on title. Rather, the plaintiff claimed title on the basis of possession. Bhavnagar Municipality, therefore, has no application. 14. In the case of REMCO Indus. Workers House Building Cooperative Society, it has been held that the plaintiff has to succeed on the strength of its own and not on the weakness of the case of the defendant. Paragraph 15 3 of the report, reads thus : "15. It cannot, however, be lost sight of that the burden to prove title and claim for possession of specific land in Survey No. 132/2 was initially on the plaintiff. The defendant No. 1 in the written statement contested the claim of the plaintiff and claimed title in itself. The grant of Occupancy Rights in favour of tenant Maniyappa contained in the order dated 28.05.1965 (Ex.D-3) was produced in the trial court without objection from the plaintiff and allowed to be exhibited and marked as Ex.D- 3. When such a document of grant of suit land to the extent of 1 acre and 3 guntas in favour of defendant No. 1 was before the trial court, it was necessary for it to consider its effect on the subsequent grant dated 09.12.1969 (Ex.P-1) in favour of the erstwhile Inamdar. The legal position not in dispute is that if the suit land in Survey No. 132/2 area 1 acre 3 guntas had already been granted by order dated 28.05.1965 (Ex.D-3) to the tenant, Maniyappa, the same land could not have formed part of the grant to the extent of 1/7th share to erstwhile Inamdar in the order dated 09.12.1969 (Ex.P-1). A clear issue, based on earlier grant dated 28.05.1965 (Ex.D-3) and the subsequent grant dated 09.12.1969 (Ex.P-1) with the identity of the land under the two grants did arise before the trial court as well as the appellate court. The said issue has not been answered by any of the two courts below. The plaintiff has to succeed on the strength of its own case and not on the weakness of the case of the defendant. In opposing the prayer for remand, learned counsel appearing for the plaintiff/respondent has placed strong reliance on the decision of Privy Council in Kanda & Ors. The plaintiff has to succeed on the strength of its own case and not on the weakness of the case of the defendant. In opposing the prayer for remand, learned counsel appearing for the plaintiff/respondent has placed strong reliance on the decision of Privy Council in Kanda & Ors. v. Waghu, AIR(37) 1950 Privy Council 68 . The contention advanced is that since pleadings based on Ex.D- 3 were not raised in the written statement of defendant No. 1 and no issue on the basis of Ex.D-3 having been raised in the trial court, this Court should not remit the matter for retrial on the said issue." 15. The proposition that the plaintiff has to succeed on the strength of his own case and not on the weakness of the case of the defendant admits of no legal debate. The plaintiff has sought to succeed on strength of his own case by leading oral evidence which gets support from the Commissioner's report. It cannot be said that the finding recorded by the appeal court is based on no evidence or is perverse. In view of the facts that have been found by the appeal court, I am of the view that the judgment of the Supreme Court in the case of REMCO Inds. Workers House Building Cooperative Society cannot be applied. 16. The Single Judge of the Rajasthan High Court in the case of Raees Ahmed v. Shrigopal Prakash and others , observed thus : "19. Here I am advert to significant provisions of Section 109 and 110 of the Evidence Act which relates to burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. As per Section 109, ibid, when the question is whether persons are partners, landlord and tenant, or principal and agent, and if it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. Similarly according to Section 110, ibid, which relates to burden of proof as to ownership, when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner." 17. In so far as present case is concerned, the plaintiff has sought to discharge his burden by leading oral evidence which has been believed by the appeal court as it gets corroborated from the Commissioner's report. 18. All in all, I find that the findings recorded by the appeal court are concluded on facts. They do not give rise to any question of law much less substantial question of law. 19. The second appeal, accordingly, is liable to be dismissed and is dismissed with no order as to costs.Second appeal dismissed. *******