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2012 DIGILAW 1536 (PAT)

Kedar Prasad Singh v. Murti Devi

2012-11-06

MUNGESHWAR SAHOO

body2012
Judgment Mungeshwar Sahoo, J. 1. This appeal has been filed by the plaintiff against the judgment and decree dated 13.8.1991 passed by the learned 4th Additional District Judge, Nalanda in Title Appeal No. 18 of 1990/ 4 of 1991 whereby the learned lower appellate court allowed the appeal and set aside the judgment and decree of the trial court dated 20.2.1990 passed by the learned Munsif, Biharsarif in Title Suit No.82 of 1983. 2. The plaintiff appellant filed the aforesaid suit for declaration of title and recovery of possession over the suit land fully described in Lot Nos. 1 and 2 of the plaint. The plaintiff also prayed for declaration that the defendants respondents have got no right to close the windows in the eastern and northern wall of the plaintiff’s house and further for a mandatory direction to remove the construction made over the suit land and for permanent injunction restraining the defendants from making any construction. 3. According to the plaintiff, he purchased the suit house from Upendra Nath by registered sale deed dated 13.10.1982 for consideration of Rs.67,000/-and came in possession over the same. Some Parti land was left in east, north and south of the suit house at the time of construction. Widows, Jhampass and Ventilators are there in the northern, southern and eastern wall of both floors of the suit house from the very beginning. The exit of the house is in the west on public road. The plaintiff and his family members had gone to their village to attend marriage and stayed there for one month and when they returned they found that the defendants constructed a wall in the eastern side of the house and a Pucca room was also constructed over the said wall and the plaintiff’s window and ventilators etc. were completely closed by the defendants. They are also constructing pillars touching the northern wall of the plaintiff’s house and also put Pucca room over the entire vacant land which was used as a passage and thereby they closed northern window and the drain of plaintiff’s house. 4. The defendants filed contesting written statement. According to their defence, the defendants purchased holding No. 765 from Naresh Prasd and Kamla Devi by registered sale deed dated 12.9.1981. All the constructions are there from before. 4. The defendants filed contesting written statement. According to their defence, the defendants purchased holding No. 765 from Naresh Prasd and Kamla Devi by registered sale deed dated 12.9.1981. All the constructions are there from before. After purchase the defendants made certain constructions over the Parti piece of land and the construction in the east is on the old foundation. The windows and ventilators were made later on for the purpose of the suit. 5. The trial court decreed the plaintiff’s suit recording a finding that there is no vagueness in the description of the suit land or in the description of holding No.764. The plaintiff has got title over holding No. 765 and there was Parti land in the east, north of the plaintiff’s house and there was no house just adjacent to the land of the plaintiff. The ventilators and windows were in existence from the time of construction of the house and it is clear from the documentary evidences that the plaintiff’s vendor had left land towards north and east at the time of construction of the house. The defendants have encroached the land of the plaintiffs towards north and east of the house of the plaintiff and the defendants had closed the windows and ventilators of the plaintiff’s house on the northern and eastern wall therefore, the defendants are liable to demolish the said construction. 6. On appeal, the appellate court recorded the finding that there was no Parti land left towards north and east of the plaintiff’s house and the windows and ventilators were constructed later on before filing of the suit for the purpose of the suit and accordingly, allowed appeal and set aside the trial court judgment. 7. At the time of admission on 21.4.1993 the following substantial question of law was formulated:- “Whether while reversing the decree of the trial court decreeing the plaintiff appellant’s suit for declaration of title and for removal of encroachment, the court of appeal has committed an error in not considering the evidence of PWs 2, 3, 10 and Ext.1-B, 2, 3, 4, 6, 10, 11, B, B/1 and D, considered and relied upon by the trial court” 8. The learned counsel Mr. The learned counsel Mr. Kumar Uday Singh appearing on behalf of the appellant submitted that the lower appellate court reversed the finding of the trial court without considering the material evidences as mentioned in the substantial question of law formulated, therefore, the judgment of the lower appellate court is perverse. The findings recorded are on assumption and presumption made by the lower appellate court. The oral evidences have been produced by the appellant to the effect that the windows and ventilators were in existence since the time of construction of the house and Parti lands were left in the three sides of the house and in support of the said fact the appellant also produced documentary evidences i.e. the Ext.-3 the order-sheet of the municipality of the year 1940 wherein there is sketch map of the house showing vacant land left in three sides that is east, south and north side, the Ext.-4 the map sanctioned by the municipality wherefrom it will appear that some Parti lands were left in three sides of the holding. From these maps it is clear that ventilators and windows were also shown in the map. The trial court relied upon these documentary evidences and recorded the finding that there was Parti land by the side of the house of the plaintiffs. The lower appellate court without discussing these materials, evidences reversed the finding of the trial court only on the ground that in the sale deed in the description of the house it is not mentioned that any Parti land was left by the side of the house. The learned counsel further submitted that in the sale deed generally the boundary of the holding is given because the plaintiff purchased the holding consisting of a double storied house. The lower appellate court has not assigned any cogent reason for describing the reasoning assigned by the trial court and also not assigned any reason as to why the map sanctioned by the municipality as far back as in the year 1940 and also the map Ext.4 which was filed by the plaintiff for obtaining loan in the bank should not be relied upon. According to the learned counsel if the lower appellate court relied upon these evidences the findings would have been otherwise. 9. According to the learned counsel if the lower appellate court relied upon these evidences the findings would have been otherwise. 9. It may be mentioned here that nobody appeared on behalf of the respondent at the time of hearing of the second appeal. 10. From perusal of the schedule mentioned in the plaint it appears that the plaintiff described the suit land as 3 feet wide east to west and 36 feet long north to south vacant land on which the defendants have constructed a 5 inch wall touching the wall of the plaintiff’s house, as a result of which the windows and the ventilators became closed. The plaintiff also pleaded that some land was left by the defendants also and, therefore, the lands left by the plaintiff and the defendants were jointly used as common passage but the defendants constructed the wall touching the wall of the plaintiff’s house and thereby encroached the plaintiff’s land also vide paragraph 12 of the plaint. 11. The trial court after trial found that Ext.1/b is a registered deed of settlement dated 30.1.1948. It shows that there was construction of house at that time also and in the east and north there were Parti land and no house just adjacent to the land of the plaintiff. Ext.-3 is the petition and building plan dated 5.2.1940 submitted by the original owner Neelkanth Sao in the municipality for sanction. Since the original was not produced by the municipality, the certified copy was marked exhibit. From perusal of the said Ext.-3 it was found that a proposal was made for construction of double storied building and in the plan there were provision for windows in the northern, eastern and western side of the house and in the plan some land was left towards north, east and south in the holding. Ext.-10 is the registered gift deed. The trial court considering Ext.10 and found that there was a Gali in between the suit house and house of Vasudeo Babu. The trial court also considered Ext.-4 which is map submitted by the plaintiff in the bank and found that in the map there are ventilators, windows in the eastern, northern and southern wall of the building and there are some lands of the said holding towards north and east. The trial court also considered Ext.-4 which is map submitted by the plaintiff in the bank and found that in the map there are ventilators, windows in the eastern, northern and southern wall of the building and there are some lands of the said holding towards north and east. Thereafter the trial court considered evidences of the witnesses and then recorded the finding that there was Parti land left in the plaintiff’s holding after construction of the house which was encroached by the defendants. 12. It appears that earlier the lower appellate court set aside the trial court judgment and remanded the case again to the trial court directing the trial court to appoint an Advocate Commissioner. On remand, the trial court appointed Advocate Commissioner who was examined as PW 14. The Advocate Commissioner had filed his report i.e. Ext.-9. The trial court discussed Ext.-9 wherein the Advocate Commissioner found that there are ventilators, windows in the wall of the plaintiff’s house which are old and, therefore, the trial court recorded the finding that the Advocate Commissioner’s report supports the plaintiff’s case. The trial court also considered Ext.-B the sale deed of the defendants and the Ext.-D certified copy of the decree of partition suit filed by the defendants and found that there were Parti land and Sahan in the holding No. 765 and therefore, came to the conclusion that there were Parti land in between the house of the plaintiff and the defendants. The defendants not only constructed the house on his Parti land but also constructed the wall and close the ventilators and windows of the plaintiffs. On these findings, the trial court decreed the plaintiff’s suit. 13. The appellate court did not consider these evidences at all. The trial court at paragraph 10 and 11 held that the plaintiff is claiming right, title and interest over the suit land on the basis of the registered sale deed but in the registered sale deed there is no mention of the existence of the Parti land. The lower appellate court also discarded the report of the Advocate Commissioner PW 14 i.e. Ext. The lower appellate court also discarded the report of the Advocate Commissioner PW 14 i.e. Ext. 9 on the ground that the Advocate Commissioner found the encroachment over the disputed land but he did not take any fixed point while making measurement and he has measured the disputed land in links but in the examination he admitted that in place of link he has mentioned as feet. Therefore, the appellate court did not discuss the other material evidences oral as well as documentary and recorded the finding contrary to the finding of the trial court. 14. From perusal of the trial court judgment it appears that trial court had discussed each and every evidence including oral and documentary. Ext. 3 and Ext.4 has been relied upon by the trial court for giving finding that some Parti lands were left by the side of the plaintiff’s house in east, west and north. The Advocate Commissioner who was examined earlier as PW 8 also submitted the report that there was encroachment made by the defendants and the plaintiff’s windows and ventilators were closed. PW 14 the Advocate Commissioner appointed after remand and he also found encroachment and existence of old windows and ventilators and also found encroachment made by the defendants but the lower appellate court discarded the evidence on flimsy ground. 15. In the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs. 2001 (3) SCC 179 the Apex Court has held that while writing the judgment of reversal the appellate court must remain conscious of two principles. Firstly, the finding of fact based on conflicting evidence arrived at by the trial court must weigh with appellate court more so when the findings are based on oral evidence recorded by the same presiding/ who authors the judgment. Secondly, while reversing the finding of fact the trial court must assign its own reasons for arriving at different finding. An additional obligation has been cast on the first appellate court by the scheme of the present Section 100 of the Code of Civil Procedure. The first appellate court continues as before to be finding court of fact, pure finding of fact remain immune from challenge before the High Court in second appeal. An additional obligation has been cast on the first appellate court by the scheme of the present Section 100 of the Code of Civil Procedure. The first appellate court continues as before to be finding court of fact, pure finding of fact remain immune from challenge before the High Court in second appeal. Now first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous finding of the first appellate court even on question of law unless such question of law be a substantial one. In the present case, as discussed above the lower appellate court instead of examining the case of the parties independently and giving its own reason in deferring with the findings of the trial court only discussed some of the evidences which are not so very material and reversed the finding of the trial court. The Apex Court in the aforesaid decision has also held that the judgment of the trial court must therefore reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth. From perusal of the lower appellate court’s judgment it appears that lower appellate court only discussed some of the evidence and reversed the finding of the trial court without discussing the material and important documentary evidence and oral evidence which were relied upon by the trial court. Therefore, in other words it can very well be said that the judgment of the lower appellate court is vitiated for non-consideration of the material and vital documentary evidences and oral evidences and discarding the admissible evidences on flimsy grounds which were the sheet-anchor of the plaintiff’s case. 16. In view of my above discussion, I find that the judgment of the lower appellate court is unsustainable in the eye of law. Therefore, the substantial question of law is answered in favour of the appellant. Accordingly, this second appeal is allowed. The impugned judgment and decree of the lower appellate court is set aside and the judgment and decree of the trail court is restored. No orders as to costs.