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2011 DIGILAW 411 (RAJ)

Nandlal Siyaram (since deceased) Thro’ his Lr’s v. Shri Digmber Jain Khandelwal Samaj Bundi

2011-02-23

NARENDRA KUMAR JAIN

body2011
JUDGMENT 1. - Heard learned counsel for the parties. 2. Plaintiff/respondent filed a suit for eviction against defendant/appellant in respect of a suit premise on the ground of default in making payment of rent and denial of title. Plea of defendant in the written statement was that he is in adverse possession of the property in dispute and he is not a tenant. 3. It is relevant to mention that defendant also filed a separate suit for declaration to declare him as owner of the property in dispute on the basis of his adverse possession. Both the suits were consolidated. 4. The learned trial Court, after recording the evidence of the parties and hearing the submissions of the parties, decreed the suit of plaintiff for eviction on the ground of denial of title. So far as ground of default is concerned, the learned trial Court gave benefit of first default and did not pass a decree of eviction. So far as suit of defendant for declaration is concerned, the same was dismissed. 5. Being aggrieved with the judgment passed by the trial Court, the defendants preferred an appeal. The First Appellate Court affirmed the finding of the trial Court and dismissed the appeal. Hence, this second appeal has been preferred on behalf of the defendants. 6. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by both the Courts below for deciding the issues relating to denial of title and/or adverse possession of the defendants. 7. No illegality or perversity has been pointed out in the finding of both the Courts below. The questions involved in the appeal are purely questions of facts and there is concurrent finding of fact by both the Courts below, therefore, no interference in the same can be made by this Court in second appeal under Section 100 CPC. 8. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram v. Ameerchand, (1981) 2 SCC 414 , considered the effect of amendment made in Section 100 of the CPC 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 particularly misconstruction of the rent note. Even if we accept the main reason 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." 9. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar v. Mathayan Padayachi, AIR 1992 SC 115 , while considering the scope of Section 100 CPC, 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, Civil Procedure Code, which defines the contours of the power of the High Court in second appeal. ....." 10. The Hon'ble Supreme Court in Gurdev Kaur & Others v. Kaki & Others, (2007) 1 SCC 546 , considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, 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: "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 CPC 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 CPC. 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 cry-stallized 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." 11. In view of the clear legislative mandate cry-stallized 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." 11. No substantial question of law is involved in this second appeal and the same is, accordingly dismissed in limine.Appeal dismissed. *******