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2014 DIGILAW 1516 (ALL)

Barkai v. Mahmood Khan

2014-05-09

ANIL KUMAR

body2014
JUDGMENT Anil Kumar, J.: - Heard Shri U. S. Sahai, learned counsel for the appellants and perused the record. 2. Facts in brief of the present case are that the plaintiffs-respondents filed a suit for demolition of structures and also for possession over the land in dispute recorded as abadi plot No.3545 in which there is a dilapidated house over the land on the ground that the same has been purchased from Baleshwar who is tenure-holder, by way of sale deed dated 14.10.1965. 3. In the plaint, the plaintiffs had pleaded that the house has fallen down and the defendants have dispossessed the plaintiffs and raised structures and hence the suit for demolition and possession. Accordingly, the suit was registered having Regular Suit No.462 of 1996. Thereafter, the trial court by judgment and order dated 24.04.1971 has decreed the suit for possession in respect of the land in dispute. In this regard, both the courts below have given a concurrent finding which is based on the material on record. 4. The suit was resisted by the defendants-appellants on the ground that the land is suit is Sahan land of the defendants-appellants having their Ghari, Charni, pegs and Khalian and other agricultural structures/equipment etc. on it. 5. Aggrieved by the said observations made in the trial court, plaintiffs filed an appeal bearing Civil Appeal No.73 of 1971 "Mahmood Khan vs. Barkayi & Ors.", allowed by judgment and decree dated 04.05.1972 and the matter was remanded back to the trial court with a direction that it shall register the suit at its original number. The trial court was further directed to frame additional issues in the light of observations made in the body of appellate judgment after giving opportunity to the parties concerned to issue commission for determination as to whether the land in dispute falls part of plot No.3545 or not and shall decide the case in accordance with law. 6. In view of the factual background, the matter again built up before the trial court. The trial court in order to decide the controversy involved in the present case has framed the following issues : - "Whether the land in suit belongs to the plaintiffs ? Whether the alleged construction and Khutas, as alleged in the plaint are new or old? In either case its effect? Whether there existed any house belonging to one Baleshwar over the land in suit? Whether the alleged construction and Khutas, as alleged in the plaint are new or old? In either case its effect? Whether there existed any house belonging to one Baleshwar over the land in suit? Whether the suit is within time?" 7. After considering the material on record (oral and documentary evidence) as well as commission report, the trial court by judgment and decree dated 29.08.1977 had decreed the suit of the plaintiffs challenged by filing an appeal bearing Civil Appeal No.118 of 77 "Sri Barkayee & 3 Ors. vs. Sri Mahmood Khan & 3 Ors.", dismissed by judgment and decree dated 8.8.1978. 8. In view of the above said facts, the present second appeal has been filed by the defendants-appellants (During the pendency of the present appeal, appellant Nos.1, 2 and 4 as well as respondent No.1 have died and substituted by their legal representatives). 9. Shri U. S. Sahai, learned counsel for the appellants has pressed the second appeal on the following questions of law : - "Whether the land of abadi after the date of vesting having been vested in the State can be transferred by the Ex-zamindar and the transferre can have any title or right over the land so transferred? Whether a transfer of abadi land after the enforcement of U.P. Act No. 1 of 1951 of abadi land is void and can create any right on the transferre? Whether assuming that the plaintiff taking a transfer of land from ex-zamindar of land appurtenant to the defendant's appellant's house and the land in suit being sahan darwaza land of the defendant-appellant the plaintiff can have any right over such a land having been vested under section 9 of U.P. Act No.1 of 1951 and settled with the defendant-appellant? Whether non-framing of a vital issue with respect to the fact that whether Baleshwar had transferable rights over the land in dispute basically connected with the plaintiff's title and resulting the serious prejudice to the defendant's case results in vitiating the findings of the courts below in the absence of an important and basic issue having been framed and tried by the courts below?" 10. I have heard learned counsel for the appellants and perused the record. 11. The main question involved in the present case is whether the land in dispute was originally owned by Baleshwar or it was Sahan land of defendants. I have heard learned counsel for the appellants and perused the record. 11. The main question involved in the present case is whether the land in dispute was originally owned by Baleshwar or it was Sahan land of defendants. On the basis of survey map, the land in dispute lies in plot No. 3545/0.10 and both the courts below have given a finding that the allegation of defendant Nos. 1 to 4 that the land in suit does not lie in plot No. 3545/0.10, is incorrect or wrong and Baleshwar's father Hira Lal was Zamindar of this village and his sir was in this village. Copy of Khatauni 1359 f. Ex.1 is on record which shows that 3545/0.10 is recorded in the name of Hir Lal. There is another document, namely, Khatauni of 1356 f. Ex.2 and Ex.4 (revenue record) from which it is clearly established that the land in dispute is recorded in favour of Hira Lal, the father of Baleshwar from whom plaintiffs have purchased a land in question. 12. In addition to the above said facts, the trial court has also given a finding that the allegation that defendant-appellant became owner of the land in dispute u/s 9 of U.P.Z.A. & L.R. Act is also not proved because defendants-appellants have failed in proving that they were in possession of the disputed land on the date when U.P.Z.A. & L.R. Act came into force. Therefore, defendants-appellants could not get any title over the land in dispute u/s. 9 of U.P. Z. A. & L. R. Act, so the argument advanced by learned counsel for the appellant has no forced and rejected. 13. Further, P.W.1-Baleshwar has stated that he transferred the land in suit to the plaintiffs-respondents. The sale deed is on record which is paper No. 30-ka.1, therefore from these documents as well as from the documents and statement referred above. It is proved that plaintiff-respondent became owner of the disputed land as alleged in the plaint. So, the finding given by both the courts below are based on the basis of documentary and oral evidence are perfectly valid. 14. It is proved that plaintiff-respondent became owner of the disputed land as alleged in the plaint. So, the finding given by both the courts below are based on the basis of documentary and oral evidence are perfectly valid. 14. It is well settled proposition of law as laid down by Hon'ble Supreme Court and by this Court that while adjudicating the dispute in the second appeal the finding of fact, which is recorded by the Court below can only be set aside if the same is contrary to the facts and perverse in nature. However, in the present case, the learned counsel for the appellant fails to point out that under what circumstances the findings which are recorded in this regard by the court below are contrary to the records and perverse in nature thus the submission made in this regard by the learned counsel for the appellant that the civil court has got no jurisdiction to entertain the suit and the jurisdiction lies under section 41 of the Land Revenue Act, has got no force accordingly the same is rejected. 15. In view of the above said facts, findings recorded by the Courts below cannot be set aside on flimsy arguments advanced on behalf of the appellants and without there being any question of law. In the instant case, arguments of the counsel for the appellants are factual in nature and by no stretch of imagination can constitute substantial questions of law. Re-appraisal of evidence is not permissible. Interference of the facts from recital or content of the document or after shifting oral evidence does not leave any scope of re-appraisal in exercise of jurisdiction under section 100 C.P.C. 16. It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, in second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be, the learned counsel for the 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. (See Mustafa Vs. Vakil @ Iqbal and another 2008 (105) RD 392 ). 17. (See Mustafa Vs. Vakil @ Iqbal and another 2008 (105) RD 392 ). 17. 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 can not be sufficient for interference under section 100 C.P.C. For ready reference, extract of paragraph No.7, of the vase of Veerayee Ammal V. Seeni Ammal reported in 2002 (1) SCC 134 =2001(45) ALR 691 (SC) is quoted below: "7......We have noticed with distress that despite amendment, the provisions of section 100 of the Code have been liberally construed and generously applied by some judges of the High Courts with the result that objective intended to be achieved by the amendment of section 100 appears to have been frustrated. Even before the amendment of section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal." 18. In the case of Santosh Hazari V. Purshottam Tiwari reported in 2001 (92) RD 336 (SC) had held that a point of law which admits of no two opinions may be preposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, 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. If will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case or not. The same view has been expressed again by the Apex Court in the case of Govinda Raju Vs. Marriamman 2005 (98) RD 731. 19. For the fore-going reasons, no substantial question of law involved in this appeal. The judgment and decree under challenged in the present case is perfectly valid and needs no interference. 20. In the result, the second appeal lacks merit and is dismissed.