Daulat Singh v. Moradabad Development Authority, Moradabad
2014-07-07
ANIL KUMAR
body2014
DigiLaw.ai
JUDGMENT : Anil Kumar, J. Heard Shri Arvind Kumar holding brief of Shri Rahul Chaudhary, learned counsel for the appellant and perused the record. 2. By means of the present appeal, the appellant has challenged the judgment and decree dated 4.3.2014 passed by Additional District Judge, Court No.14, Moradabad in Civil Appeal No. 32 of 2003 as well as judgment and decree dated 31.01.2013 passed by Civil Judge (Junior Division), Moradabad in Original Suit No.160 of 2009. 3. Facts in brief of the present case are that in respect of land recorded as Gata No. 229 Rakbai 0.190 hectare situated in Gram Harthala, Moradabad (hereinafter referred to as land in dispute), plaintiff/appellant filed a suit registered Original Suit No.160 of 2009 for permanent injunction, dismissed by order dated 31.01.2013 passed by Civil Judge, Junior Division, Moradabad. 4. Aggrieved by the said order, the plaintiff/appellant preferred a Civil Appeal No.32 of 2013, dismissed by order dated 04.03.2014 passed by Additional District Judge, Court No. 14, Moradaba. 5. Thereafter, on behalf of the respondent, a written statement has been filed taking a defence that the land in question has been acquired and compensation has been awarded in view of the provisions a provided under Land Acquisition Act. Hence, the plaintiff/appellant is not entitled for any relief. 6. In view of the above said factual background, the present appeal has been filed before this Court. 7. Learned counsel for the appellant has pressed the second appeal on the following substantial question of law :- "Whether the learned courts below failed to exercise the powers inherited in it in rejecting the suit and Civil Appeal of the appellants merely on the ground of non maintainability? Whether the courts below appreciated the fact that the plaintiff is the bhumidhar of abadi land and is residing in his kothri with is family members and the same fact was unrebutted and was not denied by the defendants/respondent at any stage?" 8. After hearing learned counsel for the appellant, the position which emerges out is that the notification dated 14.03.1990 and 22.03.1990 have also been issued under the provisions of Land Acquisition Act for acquiring land for Moradabad Development Authority and compensation has been awarded. The said documents are on record and the said facts has not disputed by learned counsel for the appellant while pressing the present appeal. 9.
The said documents are on record and the said facts has not disputed by learned counsel for the appellant while pressing the present appeal. 9. Thus keeping in view the said finding of facts given by the Courts below in the present case as well as taking into consideration that 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 cannot be sufficient for interference under Section 100 C.P.C. 10. In Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar, 1998 (6) SCC 423 by the Supreme Court as under :- "At the outset, we would like to point out that the findings on facts by the lower appellate court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as a perverse or based on no evidence. That being the position, we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of Lower Appellate Court on facts merely on the ground that on the fact found by the Lower Appellate Court another view was possible." 11. Similar view was given by the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, 1999 (36) ALR 218 (SC) and Hamida and other v. Md. Khalil, 2001 (45) AlR 23 (SC)., wherein it is held :- "It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first Appellate Court. It is true that the lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in Second Appeal when it is found that the Appellate Court has given satisfactory reasons for doing so.
It is true that the lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in Second Appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the Lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the Lower Appellate Court where erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence." 12. It is well settled by a long series of decisions o the judicial committee of the Privy Council and of this Court that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-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. 13. In view of the above said facts and circumstances and after a careful consideration of arguments of the respective Counsel, I do not find any error of law in the two concurrent conclusions recorded by the Courts below. No substantial question of law arises in the instant appeal. The judgment under challenged cannot be interfered in this appeal in exercise of jurisdiction under Section 100 C.P.C. 14. For the foregoing reasons, the present appeal lacks merits and is dismissed. 15. No order as to costs.