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2010 DIGILAW 2667 (ALL)

Neemur Alias Rafeeq v. Dost Mohammad

2010-08-31

ANIL KUMAR

body2010
JUDGMENT : Anil Kumar,J. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Moinuddin learned counsel for the appellant and Sri Prabhat Narain , learned counsel for the respondents. Present second appeal is directed against the judgment and decree dated 3.8.1979 passed by Civil Judge, Pratapgarh and the judgment and decree dated 24.2.1978 passed by Munsif, Pratapgarh. 2. The factual matrix involved in the present case are that the plaintiff-respondent Dost Mohammand filed a suit for injunction and the possession registered as Suit no. 167 of 1973 before the Munsif, Pratapgarh . In the plaint, case as set up by the plaintiff-respondents was that the disputed plot i.e. plot no. 283 area two bishwa situated in village Bahrupur Majre Kandhai Madhupur District Pratapgarn is a 'abadi' land (hereinafter referred to as ' land in dispute') initially the same belongs to one Smt. Rasheeda, who by way of registered sale-deed 27.9.1969 had sold the diputed land in favour of Sri Iqballuddin and Sri Minhajuddin, subsequently thereafter by way of registered sale deed dated 25.4.1973 the same was sold by the said persons, namely, Iqballuddin and Minhajuddin to the plaintiff- respondent. In the month of May, 1973, Sri Neemer (appellant/defendant) had started constructions on the land in dispute which obstruct the way of the plaintiff as such the suit in question had been filed by him. 3. Sri Neemer (now deceased) defendant/appellant filed a written statement inter alia denying the averments made by the plaintiff and stated that the disputed land belongs to him and he is the owner of the same in view of the provisions as provided under Section 9 of the U.P. Act No. 1 of 1951. 4. It was further submitted by him in his written statment that Smt. Rasheeda was not the owner of land in dispute as such she had no right to execute the sale-deed in favour of Sri Iqballuddin and Sri Minhajuddin so the subsequent sale-deed executed by said persons in favour of the plaintiff is void as they have no jurisdiction to execute the same in favour of the plaintiff and neither Iqballuddin and Minhajuddin nor plaintiff have possession over the disputed land. 5. The trial court in order to adjudicate and decide the controversy had framed eight issues, out of which issue nos. 1 and 2 (English version of same) are as under:- 1. 5. The trial court in order to adjudicate and decide the controversy had framed eight issues, out of which issue nos. 1 and 2 (English version of same) are as under:- 1. Whether the plaintiff is the owner of the disputed land ? 2. Whether the defendant is the owner of the disputed property as stated ? 6. On the basis of the pleadings; documentary and oral evidence on record, specially taking into consideration the commissioner's report submitted by the learned Commissioner which was confirmed subject to evidence led by the parties, the trial court had recorded a findings that the appellant-defendant was not able to prove that the land in dispute did not belong to Smt. Rasheeda, so the sale-deed executed in favour of the plaintiff (Dost Mohammad) by Iqballuddin and Minhajuddin who had purchased the same from Smt. Rasheeda by way of sale-deed dated 27.9.1969 is perfectly valid. 7. The trial court had also given a categorical finding while deciding the issue nos. 1 and 2 that defendant ( SriNeemer)was the neighbor of Smt. Rasheeda, who had executed the sale-deed in favour of Iqballuddin and Minhajuddin so it was totally incorrect on his part to say that he had no knowledge in respect of execution of sale deed and as he had not taken any steps for cancellation the sale-deed executed in favour of Iqballuddin and Minhajuddin with the statutory period of limitation as provided for the said purpose. So he cannot challenge the sale-deed (dated 25.4.1973) executed in favour of the plaintiff by them on the ground that Smt. Rasheeda had got no right to execute the sale deed(27.9.1969) in their favour, accordingly, the trial court by means of the judgment and decree dated 24.2.1978 decreed the suit in favour of the plaintiff . 8. So he cannot challenge the sale-deed (dated 25.4.1973) executed in favour of the plaintiff by them on the ground that Smt. Rasheeda had got no right to execute the sale deed(27.9.1969) in their favour, accordingly, the trial court by means of the judgment and decree dated 24.2.1978 decreed the suit in favour of the plaintiff . 8. Appellate court while dismissing the appeal vide judgment and decree dated 3.8.1979 had recorded a finding after taking into consideration the material documents (Commissioner's report dated 15.11.1975 and the map filed alongwith numbered as Paper No. 35 Ga) that disputed land is situated to south of the defendant respondent's house in front of his sahan darwaza and thereafter on the easter side of his house the house of Smt. Rasheeda (plaintiff), who executed a sale-deed dated 27.9.1969 in favour of Iqballuddin and Minhajuddin and they executed a sale-deed dated 25.4.1973 in favour of the plaintiff ( Dost Mohammad) so the case as set up by the defendant /appellant is misconceived and contrary to the facts on record. 9. it was also held by the appellate court that the defendant had not said anything rather not disputed the sale-deed executed by Iqballuddin and Minhajuddin in favour of the plaintiff but they had disputed the sale deed executed by Smt. Rasheeda in favour of Iqballuddin and Minhajuddin on the ground that the disputed land does not belong to her so she had got no right to execute the sale deed dated 27.9.1969. the said pleas was rejected by the appellate court on the ground that in a regular suit no. 207 of 1970, a compromise dated 25.4.1973 was entered between the parties in which Smt. Rasheeda was plaintiff admitted that the sale-deed dated 27.9.1969 executed by her is correct and valid. 10. Needles to mention herein that the said findings has been recorded by the appellate court after going through the original file of suit no. 207 of 1970 and it was observed by the court below that if the land in question does not belongs to Smt. Rasheeda then in that circumstances Sri Neemur ( defendant) who is residing in the same area should have filed a suit for cancellation of the said sale-deed within the limitation period provided for the said purpose and the same had expired so they cannot challenge the sale-deed dated 27.9.1969. On the basis said findings and after taking into consideration the material evidence, oral as well as documentary on record, the appellate court has passed the judgment and decree dated 3.8.1979. 11. Aggrieved to the judgment passed by the court below, the appellant has filed the second appeal before this Court. 12. Initially at the time of filing of the of appeal twelve question of law are framed by the defendant-appellant as substantial question of law for the purpose of admission of the appeal but this Court after hearing the learned counsel for the appellant on 30.10.1979 had admitted the appeal only on substantial question of law as framed at serial no.1 in the memo of appeal (the English version of the same) is as under:- "1. Whether it is was necessary for the appellant to get the sale-deed dated 27.9.1969 quashed by the competent court which was executed by Smt. Rasheeda in favour of Iqbaluddin and Minhajuddin and whether the appellant was affected by it when he was not a party to it." 13. Sri Mohd. Arif Khan learned Senior Advocate at the time of hearing of appeal submits that in addition to substantial question of law as framed in this Court at the time of admission question of law, namely, 10 and 11 as mentioned in the memo of appeal also raised from the judgments and decrees which are under challenge in the present second appeal to considered as substantial question of law and accordingly decided in the present appeal be also decided after taking into consideration thus the english version of the said questions of law as framed by the appellant are as follows:- "10 Whether it was appropriate for the learned appellate court to dismiss the appeal on merits when the application for transfer the case to another court was made to it and to state that the application was made after the pronouncement of judgment. 11. Whether the disputed land which is situated south of the appellant's house can be considered as open space of answering respondent even when it is not situated in south but at a little distance. 14. 11. Whether the disputed land which is situated south of the appellant's house can be considered as open space of answering respondent even when it is not situated in south but at a little distance. 14. Sri Prabhat Narain, Learned counsel for the respondent has opposed the said argument advanced by the learned Counsel for the appellant and submits that in view of the provisions as provided under Section 100 Code of Civil Procedure (C.P.C.), this Court at the time of final hearing can only decide the appeal on the basis of substantial questions of law as framed at the time of admission of the second appeal. In support of his arguments, he relied upon the judgment of the Hon'ble the Supreme Court given in the case of Narayanan Rajendran and another Vs. Lakshmy Sarojini and others which are reproduced as under:- "A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 C.P.C. Only on the basis of substantial questions of law which are framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait V. Santosh Kumar Purkait, and Sheel Chand Vs. Prakash Chand, that the judgment rendered by the High Court under Section 100 C.P.C. Without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed." In order to dissolve the said controversy it is appropriate to look into the provisions which are provided under Section 100 C.P.C. that the second appeal would lie to the High Court from a decree passed in an appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case " involves a substantial question of law." 15. Bare perusal of Section 100 of the Code makes it clear that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal. Section 100 reads:- "100. Bare perusal of Section 100 of the Code makes it clear that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal. Section 100 reads:- "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 involved a substantial question of law. (2) An appeal may lie under this Section from any appellate decree passed ex-parte. (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." 16. Clause 3 of Section 100 provides that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved in a case formulate the said question. Sub-section (5) provides that "the appeal shall be heard on the question so formulated." It reserves the liberty with the respondent against whom the appeal was admitted ex-parte and the question of law was framed in his absence to argue that the case did not involve the question of law so framed. 17. Proviso to sub-section (5) states that the question of law framed at the time of admission would not take away or abridge the power of High Court to frame any other substantial question of law which was not formulated earlier, if the court is satisfied that the case involved such additional questions after recording reasons for doing so. 18. 17. Proviso to sub-section (5) states that the question of law framed at the time of admission would not take away or abridge the power of High Court to frame any other substantial question of law which was not formulated earlier, if the court is satisfied that the case involved such additional questions after recording reasons for doing so. 18. A reading of Section 100 makes it abundantly clear that if the appeal is entertained without framing the substantial question of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. In a number of judgments it has been held by the Hon'ble Supreme Court that the existence of the substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code of Civil Procedure. [see Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. Panchugopal Barua v. Umesh Chandra Goswami Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, Santosh Hazari v. Purushottam Tiwari (Deceased) By LRs., Thiagarajan & Ors. v. Sri Venugopalaswamay B. Koil & Ors. 19. In Santosh Hazari's case (supra) Hon'ble supreme Court after examining the provision of Section 100 exhaustively has concluded that the scope of hearing of the second appeal by the High Court is circumscribed by the questions formulated by the High Court at the time of the admission of the appeal and that the High Court has to hear the appeal on the substantial questions of law so framed. 20. Thus, the High Court would be at liberty to hear the appeal on any other substantial question of law, not earlier formulated by it, if the court is satisfied of two conditions i.e. (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its satisfaction. 21. In view of the above said legal position as per the Clause (3) of Section 100 CPC the person preferring the second appeal is required to precisely state the substantial question of law involved in the case and the High Court being satisfied that a substantial question of law is involved in the case shall formulate the said question. 21. In view of the above said legal position as per the Clause (3) of Section 100 CPC the person preferring the second appeal is required to precisely state the substantial question of law involved in the case and the High Court being satisfied that a substantial question of law is involved in the case shall formulate the said question. The appeal can be heard on the questions so formulated or on any additional question of law which may be framed later on if the Court is satisfied that the case involves such question. 22. In the present case as stated above at the time of admission of the second appeal only one substantial question of law has been formulated as such the the arguments which is advanced by Mohd. Arif Khan , Senior Advocate , learned counsel for the appellants that the question of law, namely, 10 and 11 as formulated in the memo of appeal also be considered as "substantial question of law" while deciding the appeal , has got no merit in view of the above said facts and the following facts :- (a) So far as question of law no. 10 which is sought to be framed as substantial question of law as per the arguments advanced by the learned counsel for the appellant is concerned , from the perusal of the order-sheet of the case it is clearly established that on 31.7.1979 the appellate court after hearing the arguments of the learned counsel for the parties had fixed 3.8.1979 for delivery of judgment and on 3.8.1979 the appellant- defendant had moved an application ( Paper no. 24 Ga) inter alia stating therein that as the date for delivery was fixed 4.8.1979 so fifteen days time may be granted to him to move an application for transfer of the case from the appellate court before the High Court. 23. However, on 3.8.1979 the judgment was pronounced by the appellate court. 24 Ga) inter alia stating therein that as the date for delivery was fixed 4.8.1979 so fifteen days time may be granted to him to move an application for transfer of the case from the appellate court before the High Court. 23. However, on 3.8.1979 the judgment was pronounced by the appellate court. In view of the above said fact the assertion as made by the learned counsel for the appellant that the appellate court was under obligation to grant him time, is totally incorrect and wrong because on 31.7.1979 in presence of the counsel for the parties and after hearing the same, the date of delivery of judgment was fixed as 3.8.1979 and not 4.8.1979 as mentioned in the application moved by the appellant plaintiff for transfer of the case. Further on the basis of the material on record, said application was moved by the appellant-defendant only with oblique motive and purpose in order to linger on the matter. So question of law no.10 as formulated by the appellant in the memo of the appeal sought to be treated and made as substantial question of law at the time of hearing, cannot in any manner be a substantial question of law. 24. So far as the question of law at serial no.11 in the memo of appeal is concerned which argued by the learned counsel for the appellant that it should also be considered as substantial question of law at the time of deciding the appeal, is also not a substantial question of law in view of the Apex Court's judgment in the case of Santosh Hazari Vs. Purshotatam Tewari wherein it is held that a point of law which admits of no two opinion may be preposition of law but cannot be a substantial question of law. To be a 'substantial' a question of law must be debatable ; not previously settled by law or a binding president 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. 25. Now reverting the controversy which is involved in the present second appeal which is to be adjudicated and decided on the substantial question of law framed at the time of admission. "1. 25. Now reverting the controversy which is involved in the present second appeal which is to be adjudicated and decided on the substantial question of law framed at the time of admission. "1. Whether it is was necessary for the appellant to get the sale-deed dated 27.9.1969 quashed by the competent court which was executed by Smt. Rasheeda in favour of Iqbaluddin and Minhajuddin and whether the appellant was affected by it when he was not a party to it." 26. Sri M.A. Khan learned Senior Advocate for the appellant while arguing the same , submits that it is incumbent upon the plaintiff to prove the execution of sale-deed by Smt Raseeda in favour of Iqbaluddin and Minhajuddin to whom he had purchased the land in question and once they failed to discharge his duty and has also not proved that the land in question belongs to Smt. Rasheeda as such the judgment and decree by the court below are perverse and contrary to the material fact on record is liable to be set aside. 27. The said arguments advanced by the learned counsel for the appellant has got no force as the trial court has framed the issue no.1 in this regard and on the basis of the same has decided in favour of the plaintiff holding therein that the sale-deed dated 25.4.1973 has been validly executed by Iqbaluddin and Minhajuddin and they have got right to execute the same in favour of him. Further the appellate court has also given a finding to the effect that the land in question belongs to Smt. Rasheeda, who had executed the sale-deed dated 27.9.1969 in favour of Iqbaluddin and Minhajuddin, the said fact has been accepted by him in a compromise filed in regular suit no. Further the appellate court has also given a finding to the effect that the land in question belongs to Smt. Rasheeda, who had executed the sale-deed dated 27.9.1969 in favour of Iqbaluddin and Minhajuddin, the said fact has been accepted by him in a compromise filed in regular suit no. 207 of 1979 and after considering the said fact and after taking into consideration the fact that the defendant-appellant is residing in nearby place and in the same vicinity/ area in which Smt. Rasheeda was residing has not taken any plea for cancellation of the said sale-deed dated 27.9.1969 and the bar of limitation of three years had expired , has further held that in the sale-deed Smt. Rasheeda is the owner of the land in dispute, she executed a sale-deed dated 27.9.1969 in favour of Iqbaluddin and Minhajuddin and from the contents of the sale-deed and the material evidence on record, it transpires that the sale deed is a valid sale-deed. 28. The said finding recorded by the court below are findings of fact given after appraisal of the evidence on record. This Court, in a second appellate jurisdiction cannot reverse the finding of fact rendered by courts below when the same is based on appreciation of evidence unless it is proved to be a perverse finding. 29. The said position does not exist in the present case. Further, the arguments as advanced by Sri Mohd. Arif Khan, learned counsel for the appellant that the land in question is a Sahan land, is also incorrect and wrong submission as transpires from the material pleadings and evidence on record as well as from the perusal of the Commissioner Report alongwith map submitted by the learned Commissioner which a part of evidence in the present case, confirmed by the court below subject to evidence led by the parties that the land which defendant claims is not a Sahan Land. The said fact has been taken into consideration by the court below while rejecting the claim of the defendant, the same is also confirmatory as per the law as laid down by the Hon'ble the Supreme Court in the case of Maharaj Singh Vs. The said fact has been taken into consideration by the court below while rejecting the claim of the defendant, the same is also confirmatory as per the law as laid down by the Hon'ble the Supreme Court in the case of Maharaj Singh Vs. State of Uttar Pradesh and others AIR 1976 Supreme Court 2602 as a matter of fact on record in the instant case and on the basis of the material, pleadings and evidence on record as well as from the perusal of the Commissioner's report and the map submitted by the learned Commissioner which is confirmed by the court below it does not came to the light what is the distance of the disputed land from the house of the defendant even Sri M.A. Khan does not able to point out that what is the exact distance . In the case of Maharaj Singh (Supra) the Apex Court in paragraphs 25 and 26 has held as under:- "25. The heated debate at the bar on this and allied aspects need not detain us further also because of our concurrence with the second contention of the Solicitor General that the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures. What is integral is not necessarily appurtenant. A position of subordination, something incidental or ancillary or dependent is implied in appurtenance. Can we say that the large spaces are subsidiary or ancillary to or inevitably implied in the enjoyment of the buildings qua buildings? That much of space required for the use of the structures as such has been excluded by the High Court itself. Beyond that may or may not be necessary for the hat or mela but not for the enjoyment of the chabutras as such A hundred acres may spread out in front of a club house for various games like golf. But all these abundant acres are unnecessary for nor incidental to the enjoyment of the house in any responsible manner. It is confusion to miss the distinction, fine but real. 26. Appurtenance in relation to a dwelling or to a school, college...... includes all land occupied therewith and used for the purposes thereof (words and Phrases Legally Defined- Butterworths (2nd Edn.) "The word appurtenances' has a distinct and definite meaning ...... It is confusion to miss the distinction, fine but real. 26. Appurtenance in relation to a dwelling or to a school, college...... includes all land occupied therewith and used for the purposes thereof (words and Phrases Legally Defined- Butterworths (2nd Edn.) "The word appurtenances' has a distinct and definite meaning ...... Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant and which would in truth, pass without being specially mentioned. Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression 'appurtenance'. If some other purpose was being fulfilled by the building and the lands, it is not possible to contend that those lands are covered by the expression appurtenances'. Indeed ' it is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurtenant to land. The word appurtenances' includes all the incorporeal here-ditaments attached to the land granted or demised, such as rights of way, of common but it does not include land in addition to that granted. 30. The Apex Court depreciated the liberal construction and generous application of provisions of Section 100, C.P.C. Hon'ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference under Section 100 C.P.C. 31. In Satya Gupta (Smt.) alias Madhu Gupta Vs. Brijesh Kumar, by the Supreme Court as under :- "At the outset, we would like to point out that the findings on facts by the lower appellate court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as a perverse or based on no evidence. That being the position , we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. That being the position , we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of Lower Appellate Court on facts merely on the ground that on the fact found by the Lower Appellate Court another view was possible." 32. Similar view was given by the Supreme Court in Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others, and Hamida and other V. Md. Khalil, wherein it is held :- "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 where 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." 33. It is well settled by a long series of decisions o the judicial committee of the Privy Council and of this Court that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. It is well settled by a long series of decisions o the judicial committee of the Privy Council and of this Court that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-appellant did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact. 34. In view of the above said facts and circumstances and after a careful consideration of arguments of the respective Counsel, I do not find any error of law in the two concurrent conclusions recorded by the Courts below. No substantial question of law arises in the instant appeal. The judgment under challenged cannot be interfered in this appeal in exercise of jurisdiction under Section 100 C.P.C. 35. For the foregoing reasons, the present appeal lacks merits and is dismissed. 36. No order as to costs.