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2014 DIGILAW 430 (GAU)

MINIT KHASIA v. DHOLAI TEA GARDEN

2014-04-09

A.M.SAPRE

body2014
JUDGMENT AND ORDER This is a second appeal filed by the defendant under Section 100 of the Code of Civil Procedure against the judgment /decree dated 5.12.2002 passed by Civil Judge (Sr. Divisions), Hailakandi in Title Appeal No.5/2000 which in turn arise out of judgment dated 29.11.1999 and decree dated 7.12.1999 passed by Civil Judge (Jr. Division) in Title Suit No.26/1997. By impugned judgment/decree, the first appellate court confirmed the judgment and decree passed by the trial court which had decreed the plaintiff’s suit for declaration and possession of the suit land against the defendant, This second appeal was admitted for final hearing on following substantial question of law: “Whether the concurrent finding of fact arrived at by the Courts below is bad in law for non compliance of the provisions of Order 7 Rule 3, CPC?” Facts of the case are short:- The respondent (plaintiff) – a registered company filed a civil suit against the appellant (defendant) out of which this appeal arises claiming a declaration that they (plaintiff) are the owners of the suit land described in the schedule to the plaint and that since the defendants have been in its wrongful possession without any right, title and interest in the said land to the detriment of plaintiff’s interest and hence the plaintiff is entitled to claim possession from the defendants on the strength of they being the owner of the suit land. The defendants admitted their possession over the suit land but denied the plaintiff’s title over the suit land and instead claimed the title in themselves. The trial court framed issues. Parties adduced evidence. The trial court vide its judgment dated 29.11.1999 and Decree dated 7.12.1999 decreed the suit and answered all the issues in plaintiff’s favour and against the defendant. The trial court held that plaintiff was the owner of the suit land, that defendants had no right, title and interest in the suit land, that their possession over the suit land was wrongful, that it was in the nature of trespass on their land by the defendants and hence defendants were liable to deliver possession of the suit land to the plaintiff. The defendants felt aggrieved of the aforesaid judgment/decree, filed first appeal. The first appellate court affirmed all the findings of the trial court and dismissed the appeal giving rise to filing of this second appeal by the defendant. The defendants felt aggrieved of the aforesaid judgment/decree, filed first appeal. The first appellate court affirmed all the findings of the trial court and dismissed the appeal giving rise to filing of this second appeal by the defendant. Having heard the learned counsel for the parties and on perusal of the record of the case, I find no merit in this appeal. As would be clear from the substantial question of law framed supra, the only question which need to be decided in this appeal is whether the concurrent finding of fact recorded by the two courts below which resulted in decreeing plaintiff’s suit against the defendants is liable to be set aside for want of non compliance of provisions of Order 7 Rule 3 of the Code? In my considered opinion, none of concurrent finding of fact recorded by the two courts below are liable to be interfered with/set aside much less on the ground of non compliance of Order 7 Rule 3 ibid for more than one reason. In the first place, both the courts having concurrently recorded the categorical findings of facts in plaintiff’s favour by appreciating the entire oral and documentary evidence, such findings are binding on the second appellate court, Secondly all the findings apart from being concurrent in nature, are neither against the pleadings nor evidence nor any provision of law and nor are perverse to the extent that no man of reasonable prudence would ever record. In other words, the findings are such that they were capable of being recorded by the courts below on appreciation of evidence and hence once such finding is recorded, they are binding on the second appellate court. Thirdly the issue which is now being raised in the substantial question of law framed, was not raised by the defendants specifically either before the trial court or before the first appellate court. In this view of the matter, no specific finding was recorded by the two courts on such issue. Fourthly, in the absence of any finding, it cannot be allowed to be urged before the second appellate court for the first time and now contend that the decree passed by the two courts is bad in law for want of non-compliance of Order 7 Rule 3 ibid. Fourthly, in the absence of any finding, it cannot be allowed to be urged before the second appellate court for the first time and now contend that the decree passed by the two courts is bad in law for want of non-compliance of Order 7 Rule 3 ibid. If the issue was not raised either before Trial Court or first appellate court then in my considered opinion, it can be said to arise for its decision before the second appellate court. Apart from what is held above even when I examine on its merits treating to have arisen in the case, in my opinion, it is misconceived one as rightly argued by the learned counsel for the respondent on the strength of Section 100 (5) ibid which enables the respondent to raise such objection at the time of hearing of second appeal. Order 7 Rule 3 provides that the plaintiff has to give full description of the suit land in the plaint. In this case, admittedly the plaintiff has given full particulars of the land in suit in the schedule attached to the plaint. The plaintiff also filed revenue records in its support to prove the identity of the land and adduced oral evidence. The trial court found no difficulty in identify the land and passing the decree in relation to such land. It was also upheld by the first appellate court when he affirmed the finding of trial court on such issue. The plaintiff thus fully complied with the requirements of Order 7 Rule 3 ibid leaving no ambiguity in the description of land. The object of Order 7 Rule 3 is to ensure that no difficulty arise in identifying the land in suit. If the case of defendant is that there was some kind of ambiguity in the description of the land then it was for them to have adduced adequate evidence in rebuttal to prove it. They however did not do so. In the light of foregoing discussion, in my view, firstly - the substantial question of law framed did not arise in the case and secondly - even if arose, it has to be answered against the appellant. It is accordingly answered against the appellant. Learned counsel for the appellant took me to the entire oral and documentary evidence to show that findings of two courts were perverse. It is accordingly answered against the appellant. Learned counsel for the appellant took me to the entire oral and documentary evidence to show that findings of two courts were perverse. With respect, I cannot entertain his submission for the simple reason that this is a second appeal and no substantial question of law was framed on any of the issues except the one relating to non-compliance of Order 7 Rule 3 ibid. Since no substantial question of law was framed on any other issue and hence any argument even if pressed in service by the appellants was of no significance. Section 100(4) in no uncertain terms provides that appeal shall be heard only on the question of law framed and in no other question which is not framed. It is for this reason, I reject the submission as totally untenable. In view of foregoing discussion, I find no merit in this appeal. It fails and is accordingly dismissed. No cost.