Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2593 (ALL)

Maqsoodan v. Meraj Mian

2014-08-25

ANIL KUMAR

body2014
JUDGMENT Anil Kumar,J. Heard learned counsel for appellants and perused the record. 2. Present appeal has been filed against the judgment dated 23.04.2012 and decree dated 05.05.2012 passed by Additional District and Sessions Judge, Court No. 6, Bareilly in Civil Appeal No. 90/2009 (Smt. Maqsoodan and others Vs. Meraj MIan and another) and the judgment and decree dated 05.11.2009 passed by Civil Judge (Jr. Div.) Shahar, Bareilly in O.S. No. 191/1987. 3. Learned counsel for appellants has pressed the present appeal on the following substantial question of law: - "I. Whether the trial court was legally justified in non suiting the claim of the plaintif/appellants herein inasmuch as it failed to record any findng on any issues as framed by it and futher more same is in teeth of Order XX Rule 4(2) of C.P.C. ? II. Whether the lower appellate court was well within its bound in non-suiting the claim of the plaintiff/appellant herein inasmuch as entire exercise was within teeth of statutory provision of Order XLI Rule 31 of C.P.C.?" 4. After hearing learned counsel for appellant and going through the record, the position which emerged out that the appellants/plaintiffs filed the suit for prohibitory injunction as well as possession. 5. Thereafter, by an order dated 25.05.20098, the matter/suit has proceeded ex-parte against the defendant-respondent, however, the trial court on the basis of the material on record had come to the conclusion that the plaintiffs/appellants have failed to prove their ownership/possession over land in dispute as shown A, B, C, and D in the map filed along with the plaint and dismissed the suit and the appeal filed by the plaintiffs was also dismissed. 6. While dismissing the appeal, the appellate court had confined the findings given by the trial court in regard to the ownership/possession of the plaintiff that he is not able to prove the same and also held that rom the receipt (document NO. 6. While dismissing the appeal, the appellate court had confined the findings given by the trial court in regard to the ownership/possession of the plaintiff that he is not able to prove the same and also held that rom the receipt (document NO. 9Ga) issued by the Jal Sansthan and the receipt issued by the Electricity Department, it is not established that appellant/plaintiff is the owner of the property in dispute, and the name of defendant/Sri Meraj is recorded as the owner of the land in dispute, further from the document of the list of the Nagar Mahapalika filed by the defendants in support of their case, it is clearly established that the land is recorded in the name of defendant/Meraj Miya and from the report of the Advocate Commissioner, it is mentioned that the appellant-plaintiff is not in possession. 7. Needless to mention herein that after perusal of the original record, the finding recorded by the court below are based on the material document/evidence on record. 8. Further, from the perusal of the report submitted by Advocate Commissioner dated 08.04.1987, it is crystal clear that in the said report, it is categorically mentioned by the Advocate Commissioner that on the land in dispute Sri Ram Avatar is running a Milk Dairy which is not dispute rather admitted by learned counsel for appellants that Sri Ram Avtar is a tenant of Sri Meraj Miyan, so from the said fact, it is clearly established that plaintiff-appellant is not in possession over the land in dispute. 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 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. 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. 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. 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 appellant 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 .