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2014 DIGILAW 2121 (ALL)

Pardeshi v. Jubaida Khatoon

2014-07-17

ANIL KUMAR

body2014
JUDGMENT Anil Kumar, J. – Heard learned counsel for the appellants and perused the records. Facts in brief of the present case are that plaintiff/respondents filed a suit registered Original Suit No.180 of 1998 for permanent injunction restraining the defendant-appellants from raising any constructions in Gali of 6 ft. 9 inches shown by letters a,b,c,d,e,f,g and h in the map filed along with the plaint. On the allegations that one Abdul Rahman has executed the sale deed dated 6.8.1929 in favour of his wife Smt. Rafikun Bibi in lieu of Mehar and on the death of Rafikun Bibi her two sons, namel, Jaleel and Khaleel came into possession of the said house. However, the defendant tried to interfere the peaceful possession of the complainant without any right. 2. Defendant-appellants contested the suit by filing the written statement inter alia stating therein that there is no house of Western Side of Katawaru's house and no Gali on the spot. It has also been submitted that plaintiff-respondents have purchased the house from Vishwanath son of Katawaru by the registered sale deed dated 24.2.1994. 3. The learned Addl. Civil Judge (J.D.), Court No.21, Gorakhpur, by judgment and decree dated 8.2.2006, allowed the suit. 4. Aggrieved by the same, the defendant-appellants filed Civil Appeal No.11 of 2006, dismissed by the judgment dated 17.2.2014 and decree dated 24.2.2014. 5. In view of the above said factual background, the present second appeal has been filed before this Court. 6. Learned counsel for the appellants has pressed the appeal mainly on the following substantial question of law : - "Whether the courts below could decree the suit of the plaintiff-respondents, despite the fact that the plaintiff-respondents failed to prove that door of the plaintiff-respondent's house open in the Western side and they are using as Gali. Whether the courts below could rely on the agreement/compromise paper 31ga, which has not been entered by the defendant-appellants out of their own freewill. Whether if the land in question is of public use then the compromise could not have been entered by the plaintiff-respondents and defendant-appellants." 5. I have heard learned counsel for appellants and gone through the records. 6. Whether if the land in question is of public use then the compromise could not have been entered by the plaintiff-respondents and defendant-appellants." 5. I have heard learned counsel for appellants and gone through the records. 6. From the perusal of the impugned judgment passed by the court below, the position which emerges out is that the finding has been given that on the basis of the compromise entered between the parties, the land in question is not Sahan of the defendant, but it is a Gali. 7. In addition to the above said facts, the trial court had allowed the suit filed by the plaintiff-respondents taking into consideration the report submitted by the Advocate Commissioner on 28.04.1998 and the map prepared by him in which the disputed land has been shown A, B, C, D and mentioned as a Gali as well as report submitted by Amin dated 6.4.2005 in which it is categorically stated that the land in question is a Gali. The said reports are peace of evidence in the present case in view of the provisions as provided under Order 26 Rule 9 read with Order 10 (2) C.P.C. So, taking into consideration the said facts, the trial court has decreed the suit of the plaintiff and the appellate court has dismissed the appeal filed by the defendant-appellants. 8. Thus keeping in view the said concurrent finding of facts recorded by court below 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. 9. In Satya Gupta (Smt.) alias Madhu Gupta Vs. 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. 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 C.P.C., 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." 10. 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. 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." 11. 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. 12. 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. For the foregoing reasons, the present appeal lacks merits and is dismissed.