Gangadhar v. Shri Hanumangadi Registered Trust, Ajmer
2011-03-29
NARENDRA KUMAR JAIN
body2011
DigiLaw.ai
Hon'ble JAIN, J.—Heard learned counsel for the parties. 2. Plaintiff-respondent Shri Hanumangadi Registered Trust filed a suit for possession and damages in respect of disputed property against the defendant-appellant pleading therein that the defendant was son of its ex-pujari, Shri Gauri Shankar and disputed property was given to him as licensee. Now, they have terminated his license, therefore, he is trespasser and the plaintiff is entitled to get possession of the disputed property. Suit was contested by the defendant on the ground that he is not a licensee of the disputed property, but he is residing there since his birth. Trial Court framed five issues. Thereafter, three issues were further framed. Issue No.1 was whether the defendant took the disputed property as a licensee from the plaintiff. Issue No. 5(B) was whether the plaintiff has cancelled the license of the defendant vide notice dated 03.06.1981 and it had an authority to do it or not. Trial Court after considering oral and documentary evidence available on record decided both the issues in favour of the plaintiff and passed a decree of possession and damages. 3. Being aggrieved with the same, the defendant preferred regular first appeal, which was dismissed by first appellate Court vide judgment and decree dated 21.01.2010. Thereafter, present second appeal has been preferred by the defendant. 4. Submission of learned counsel for the appellant is that the defendant was not a licensee of the disputed property, as his possession over the disputed property was since his birth. He submitted that both the Courts below did not appreciate the evidence available on record. He also referred the statements of plaintiff's witnesses in support of his submissions. 5. Learned counsel for the respondent submitted that disputed property was given to the defendant on license, which was terminated by valid notice. Trial Court as well as first appellate Court both have recorded a finding that the defendant was licensee of the disputed property. This is purely a question of fact and there is concurrent finding of fact by the courts below, which should not be interfered by this Court in second appeal under Section 100 C.P.C. 6. I have considered submissions of learned counsel for the parties in the light of reasons assigned by both the courts below for deciding the relevant issues in favour of the plaintiff and for decreeing the plaintiff's suit. 7.
I have considered submissions of learned counsel for the parties in the light of reasons assigned by both the courts below for deciding the relevant issues in favour of the plaintiff and for decreeing the plaintiff's suit. 7. The relevant issues framed in the present suit were relating to questions of facts and there is concurrent finding of facts by both the courts below, which cannot be interfered with by this Court in second appeal under Section 100 C.P.C. 8. A three-Judges Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand (1981) 2 SCC 414 , 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 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 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 Sec. 100, C.P.C., which defines the contours of the power of the High Court in second appeal......." 10. The Hon'ble Supreme Court in Gurdev Kaur & Ors. vs. Kaki & Ors. (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 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." 11. No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine.