Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 366 (JK)

Jalla Banoo v. Habib-Ullah Shora

2012-07-04

HASNAIN MASSODI

body2012
1. The Civil 2nd. Appeal on hand directed against the judgment of the Ist. Appellate Court in Civil Ist. Appeal dated 27.12.2002 titled Mst. Jalla Banoo v. Habib-Ullah Shora in file No. 63, stands admitted on the following substantial questions of law:- (a) Whether the appellate Court, in the facts and circumstances of the case, was bound to decree the suit of the appellant plaintiff on its own finding and conclusion that the appellant plaintiff was in settled possession of the suit property as on the date of institution of the suit and prior to it? (b) Whether in the facts and circumstances of the case, the court below have misinterpreted and misconstrued the order of the Supreme Court of India dated March 3,1976? (c) Whether in the facts and circumstances of the case, the court below, were in law bound to reject opinion of the hand writing expert, namely M. K. Mehta, it being in direct conflict with the testimony of the witnesses who had proved the receipts and other documents. Conversely, in case of a conflict between the "direct evidence" and the "opinion of hand writing expert" which evidence constitutes acceptable evidence for a civil court for purpose of determining rights or liabilities of the parties before it? (d) Whether in the facts and circumstances of the case the first appellate Court left out from its consideration vital evidence and testimony of Ama Bhat, which has the effect of vitiating the judgment? (e) Whether the finding of the courts below with regard to acquisition of the land, not being benami, is a "perverse" finding based on no evidence and in ignorance of the relevant evidence and material relating to its acquisition? 2. The factual background may be noticed, in the first place. 3. The parties to the Appeal were married in the year 1957, and lived as husband and wife till their marriage was dissolved on 10th June, 1972. With the dissolution of their marriage a dispute arose between them as regards ownership of a plot of land—plot No. 44 at Jawahar Nagar, Srinagar and residential house constructed thereon during subsistence of the marriage. The appellant on 14.06.1972 i.e. four days after marriage was dissolved, filed a civil suit at Srinagar registered as COS 42 of 1972. The appellant's case before the trial Court was that she had handed over her ornaments and cash amounting to Rs. The appellant on 14.06.1972 i.e. four days after marriage was dissolved, filed a civil suit at Srinagar registered as COS 42 of 1972. The appellant's case before the trial Court was that she had handed over her ornaments and cash amounting to Rs. 30,000/- to the respondent for purchase of the plot in question and construction of house thereon, and that as the respondent was reluctant to handover the Sale Deed whereby the plot was purchased, to the appellant, a suspicion had arisen that the respondent might have purchased the plot in his own name, though the consideration amount was paid by the appellant. The appellant, in the circumstances sought a declaratory decree, declaring her owner of the suit property and also a decree of perpetual injunction permanently restraining the respondent from interfering in her possession over the suit property. The respondent claiming to be owner of the suit property, disputed the claim set up by the appellant and further insisted that the Court lacked pecuniary jurisdiction to try the suit. The trial Court accepted the respondent's stand and returned the plaint on 13.09.1974, giving liberty to the appellant to present it before the competent Court. 4. The appellant instead of presenting the plaint before the Court having pecuniary jurisdiction to entertain and try the suit, on 23.10.1974 filed another suit in the Court of City Judge, Srinagar. The appellant this time merely asked for a decree of permanent injunction, perpetually restraining the respondent from interfering in the suit property—House No. 44 at Jawahar Nagar, Srinagar. The appellant's case was that she was owner in possession of the suit property a part whereof was let out by her on rent, as the consideration amount for purchase of the plot and construction of the residential house was paid by the appellant to the respondent. The respondent again controverted the averments made in the plaint. 5. In the meantime, during pendency of the first suit COS 42 of 1972, the Police Station, Shergari on 28th August, 1973 laid an application under Section 145 Cr.PC before the Chief Judicial Magistrate, Srinagar for initiation of proceedings under Section 145 Cr.PC. It was reported that the dispute between the parties as regards possession of the aforesaid property was likely to endanger public peace and tranquility. It was reported that the dispute between the parties as regards possession of the aforesaid property was likely to endanger public peace and tranquility. Pleading that there was an emergency in the matter, Police Station Shergari, sought attachment of the property under Section 145(4) Cr.P.C. The JMIC/Judge Small Causes, Srinagar to whom the application was transferred on 17th October, 1973 framed a preliminary order and thereafter attached the disputed property. The order was executed on 24th January, 1976. The matter finally landed in the Supreme Court and was disposed of, on 03.03.1976, by the following order:- The appellant shall continue in possession of the disputed property as agents of the Nazir who has been appointed as a custodian by the criminal court under S. 145 of the Code of Criminal Procedure. The appellants agree and undertake to this court, that if their suits are dismissed the trial Court they shall handover vacant and peaceful possession of the suit property to the Nazir, who, in turn, shall handover possession to the respondent No. 2. We (sic) reserve liberty to the parties and to the Nazir to apply to the learned Magistrate for appropriate directions as and when necessary. The civil suit filed by the first appellant for establishing her title to the property shall be disposed of by the trial court, as far as possible within four months from to-day. The civil court in which the suit filed by the first appellant is pending shall, if necessary, allow the first appellant to amend the plaint so as to put the title in issue in the suit. With these observations, the appeal stands disposed of. The proceedings under Section 145, Code of Criminal Procedure, shall be treated as closed on the disposal of the two suits pending in the civil court. 6. The observations made by the Supreme Court while disposing of the Criminal Appeal, prompted the appellant to amend the suit so as to plead the 'title' over suit property. The trial Court dismissed the suit vide judgment dated 22nd. February, 2002. The trial Court took the view that the appellant had failed to prove her title over the suit property and as possession was to follow title, the appellant was not entitled to any relief. 7. The trial Court dismissed the suit vide judgment dated 22nd. February, 2002. The trial Court took the view that the appellant had failed to prove her title over the suit property and as possession was to follow title, the appellant was not entitled to any relief. 7. Aggrieved with the judgment and decree dated 22nd February, 2002 whereby the appellant's suit was dismissed, she questioned the judgment and decree in Civil Ist. Appeal registered as file No. 63 of 2002. The Ist. Appellate Court upheld the finding returned by the trial Court on all issues except issue No. 2. The Court held the plaintiff to have been in possession of the suit property even after she was divorced by the respondent as also on the date of filing of the suit. The finding returned by the trial Court on issue No. 2 was accordingly set aside to the extent the appellant was held not to have been in possession of the suit property. However, the Ist. Appellate Court notwithstanding the finding returned on issue No. 2 held the appellant not entitled to any relief for the reason that the respondent had succeeded in establishing his title over the suit property. The appeal was accordingly dismissed vide judgment dated 22nd. December, 2002. 8. The judgment and decree rendered by the Ist. Appellate Court on 27th December, 2002 are questioned in Civil 2nd Appeal on hand on the grounds set out in the memorandum of appeal. 9. I have gone through the memorandum of appeal and the record received from Court below. I have heard Counsel for the parties. 10. The appellant seeks to built her case and persuade this Court to over-set the judgement rendered by Ist. Appellate Court on the following finding returned by said Court, "On a comparative assessment of evidence by the parties on the factum of possession, it appears that the plaintiff has succeeded in establishing that she was in possession of the said property on the date of filing of the complaint. The plaintiff has produced sufficient evidence to establish this fact. On the other hand the evidence produced by the defendant is not sufficient to rebut the evidence produced by the plaintiff. The defendant's assertions regarding his possession over the suit property are not getting any corroboration from the evidence produced by him. The plaintiff has produced sufficient evidence to establish this fact. On the other hand the evidence produced by the defendant is not sufficient to rebut the evidence produced by the plaintiff. The defendant's assertions regarding his possession over the suit property are not getting any corroboration from the evidence produced by him. His most important statement that the plaintiff left his house three months prior to the divorce does not get support from even a single witness produced by him. Thus the evidence produced by the plaintiff on this issue is more convincing and cogent. All these facts point out to the conclusion that the plaintiff continues to remain in possession of the suit property even after her divorce and that she was in possession of the same at the time of filing the suit. The fact that the defendant was in a possession is also proved from evidence as the most important circumstances in this behalf is the police report under Section 145 Cr.PC which points out, the fact that there was apprehension of breach of piece of support" 11. The appellant's case is that once the Ist. Appellate Court on the basis of evidence available on the file arrived at the conclusion that the appellant/plaintiff was in possession of the suit property after her divorce, and even on the date the appellant filed the civil suit, the right course available to the Ist. Appellate Court was to decree the suit and pass a permanent injunction decree against the respondent restraining the respondent from interfering with the suit property, except in accordance with law or till the appellant was evicted there-from in due course of law. The first substantial question of law on which the Civil Second Appeal on hand has been admitted reflected the assertion of the appellant in this regard. The case set up by the appellant may on the first blush sound convincing, but cannot stand a close scrutiny. There is no scope for any disagreement with the legal proposition that a person in possession of the property has a right to continue to be in such possession unless evicted there-from in due course of law. However, the proposition holds good against the stranger to a suit property. There is no scope for any disagreement with the legal proposition that a person in possession of the property has a right to continue to be in such possession unless evicted there-from in due course of law. However, the proposition holds good against the stranger to a suit property. The person in possession of the suit property without having title over such property has a right to retain possession or to continue in possession against all persons except against the person having title over the property. To go a step further a person in possession of immovable property including the trespasser has a right to have his possession protected by a legal process except against the person having title over the property. In the present case the Court while holding that the appellant was in possession of the suit property also held that the respondent had title over the suit property and was true owner thereof. Had the controversy in the present case been restricted to the question of possession simpliciter the appellant could have been heard saying that once she was found to have been in possession of the suit property on the date of institution of the suit, she was entitled to a decree of permanent injunction restraining the respondent from interfering with her possession unless she was evicted there- from in accordance with law. 12. However, in the present case as already pointed out the question before Court was not one of possession simpliciter. The question of possession was intertwined with the question of title over the suit property. The appellant did not built her case on the edifice of possessory rights, but claimed to be owner of the suit property and her right to have possession over the suit property to flow from her ownership. The respondent on the other hand while resisting the appellant's case, claimed to be true and rightful owner of the suit property. The Court held the respondent to be owner of the suit property, though the appellant was held to have been in possession of the suit property on the date of institution but not as an owner thereof. In the circumstances, the appellant's possession over the said property was permissive though she continued to be in possession even after her marital relation which respondent came to an end. In the circumstances, the appellant's possession over the said property was permissive though she continued to be in possession even after her marital relation which respondent came to an end. Against the said backdrop the appellant could not claim a decree of permanent injunction restraining the true owner from interfering in the suit property. The Ist. Appellate Court was therefore right in declining any relief to the appellant while holding the appellant to have been in possession of the suit property even after her divorce and on the date she filed a suit. The first question is answered accordingly. 13. The dispute between the parties in respect of the suit property was also subject matter in application under Section 145 Cr.PC moved by SHO Police Station, Shergari. The suit property was attached and at the instance of Police Station, Shergari the matter went up to Supreme Court. The appellant was allowed to continue in possession of the suit property as agent of the Nazir on her undertaking to handover peaceful possession of the suit property to the Nazir appointed as Custodian of the property by the Magistrate, in proceedings under Section 145 Cr.PC, Nazir of the Court in terms of Supreme Court order dated 03.03.1976 was to handover the possession to the present respondent. The civil suit filed by the present appellant "for establishing her title to the property" was directed to be disposed of, as far as possible within four months and the appellant to be given liberty to amend the plaint so as to put the 'title' in the issue in the suit. The appellant accordingly amended the suit on 10.07.1976. The civil suit filed by the present appellant "for establishing her title to the property" was directed to be disposed of, as far as possible within four months and the appellant to be given liberty to amend the plaint so as to put the 'title' in the issue in the suit. The appellant accordingly amended the suit on 10.07.1976. Issues 1-4 settled by the trial Court on perusal of the amended pleadings read as under:- (i) whether the plaintiff has purchased the suit land and constructed the house over it through defendant by selling her ornaments and raising loans from her relations.........OPP (ii) Whether the plaintiff proves that she is the owner in possession of the suit land?..........OPP (iii) Whether defendant taking advantage of the simpleness and illiteracy of the plaintiff and as authority has declared that suit property belongs to him.....OPP (iv) Whether at the time of purchase of the suit land and construction of the house over it defendant was of humble means and incapable of purchasing the suit land and constructing the house over it........OPP The trial Court on 14th July, 1976 framed the following additional issue:-(11) Whether the plaintiff is real owner of the suit property and defendant-is a benamidar........OPP 14. The above developments make it abundantly clear that the suit was initially a suit for injunction simpliciter assumed a different character after the Supreme Court disposed of, the Criminal Appeal No. 20 of 1976 by it's order dated 3rd March, 1976 observing that, "the civil suit filed by Ist. appellant for establishing her title to the property shall be disposed of, by the trial Court, as far as possible within four months, and that the appellant be given liberty to amend the plaint so as to put the title in issue in the suit". The Ist. Appellate Court, on the basis of observations made by the Supreme Court while disposing of the aforesaid criminal appeal and the subsequent developments thereto, was right in concluding that the "appellant's suit did not remain as a suit for permanent injunction" and that the appellant was to succeed only if she established title over the suit property. The Ist. Appellate Court, on the basis of observations made by the Supreme Court while disposing of the aforesaid criminal appeal and the subsequent developments thereto, was right in concluding that the "appellant's suit did not remain as a suit for permanent injunction" and that the appellant was to succeed only if she established title over the suit property. The Ist. Appellate Court was also right in observing that the respondent had taken over possession of the suit property after appellant's suit was dismissed in accordance with law, in as much as the respondent in terms of Supreme Court judgment dated 03.03.1976 approached the trial Court with an application for restoration of the possession which was allowed and possession handover to the respondent. It needs to be recalled that the appellant had under-taken bafore the Supreme Court to handover possession of the suit property to Nazir of the Court in capacity as Custodian of the property appointed by the Magisterial Court, for onward delivery of the possession to the respondent. It is equally important to note that the Supreme Court had given liberty to the parties and Nazir to apply to the learned Magistrate for appropriate directions, as and when necessary. The respondent in the circumstances, proceeded within the frame work of Supreme Court judgment dated 03.03.1976 and as pointed out by the Ist. Appellate Court received possession of the said property in accordance with law. There is thus no reason to find fault with the interpretation placed by the Ist. Appellate Court on the Supreme Court judgment dated 03.03.1976. The substantial question of law reflected in (a) and (b) are answered accordingly. 15. The questions raised in (c to e) are not substantial questions of law and in fact relate to appreciation of evidence by the Trial Court and thereafter the Ist. Appellate Court. The Trial Judge having regard to the evidence brought on record placed reliance on testimony rendered by DW-39 Shri M.K. Mehta and held the evidence adduced by the respondent more reliable and creditworthy as against evidence adduced by the appellant and accordingly returned finding on issue 1 to, 4 and 11. The Learned Trial Judge did not find the evidence adduced by the appellant to discharge burden of proving issues onus whereof was put on the appellant, cogent and convincing, so as to decide issues in her favour. The Ist. The Learned Trial Judge did not find the evidence adduced by the appellant to discharge burden of proving issues onus whereof was put on the appellant, cogent and convincing, so as to decide issues in her favour. The Ist. Appellate Court re-appreciated the evidence brought on record and did not find fault with the discussion made conclusion drawn by the Learned Trial Judge and finding returned on the issues pivotal to the disposal of the suit. The appellant by raising questions reflected in (r to e) seeks to get the evidence again appreciated and make the Court to revisit the controversy and scan, sift and analyze evidence brought on record. It needs no emphasis that a Civil Second Appeal would not lie on a finding on the fact, when substantial question of law is not involved and that the Court cannot entertain a Civil Second Appeal so as to interfere with the finding returned on question of fact. Such an exercise cannot be made while dealing with a Civil Second Appeal within the meaning of Section 100 Civil Procedure Code. 16. For the reasons discussed, the Civil Second Appeal on hand fails and is accordingly dismissed.