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2014 DIGILAW 724 (HP)

Kaushalaya Devi v. Kaushalaya Devi

2014-06-05

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. The plaintiff is the appellant, who is aggrieved by the judgments and decrees passed by the learned Courts below. 2. The facts, in brief, may be noticed. The plaintiff filed a suit whereby decree was sought that the plaintiff is owner in possession of the house situated over the suit land shown as ABCDEFGHJKA and has right to peaceful, hygienic and pollution free enjoyment of the same. It was averred that the defendants/respondents who had constructed their house on the adjoining land comprising khasra No. 1680 to 1682 and had also encroached upon part of the suit land by extending projection of lintel of their house have also no right to throw the rain water, filthy water and kitchen water etc. towards the land and house of the plaintiff. It was also averred that the defendants should not raise construction of the septic tank and lavatory just in front of the window of the house of the plaintiff and have no right to cause damage to the house and walls of the plaintiff by digging and excavating or breaking boulders embedded in the land comprising khasra Nos. 1681 and 1682. It was averred that the defendants be restrained from changing the nature of the land until final partition with consequential relief of permanent injunction restraining the defendants from discharging filthy water of their house towards the plaintiff’s house comprising in Khasra No. 1678 and restraining the defendants from excavating the boulders adjoining to the suit land as well as from raising construction of the septic tank and in alternate mandatory injunction for directing the restoration of suit land to its original position. 3. The defendants contested the suit by filing written statement in which preliminary objections of locus standi, maintainability, estoppel, suit being bad for non-joinder of necessary parties and suit not being properly valued for the purpose of court fee and jurisdiction were taken. It was also averred that the defendants are in exclusive possession of the land comprising khasra Nos. 1679 to 1682 as owners and they have a house over that land in which they are residing. It was averred that the defendants are constructing septic tank on their own land and that having been dug to the extent of ten feet deep prior to the filing of the suit. 1679 to 1682 as owners and they have a house over that land in which they are residing. It was averred that the defendants are constructing septic tank on their own land and that having been dug to the extent of ten feet deep prior to the filing of the suit. It was averred that the septic tank is at the distance of 3-4 feet from the wall AB of the house of the plaintiff. The plaintiff had also constructed her septic tank over the land adjoining to their house. The encroachment in any way including extending of the eaves of the roof had also been denied and they prayed for dismissal of the suit. 4. The plaintiff filed replication to the written statement filed by the defendants and the averments as contained in the plaint were reasserted and those of the written statement were stated to be wrong. 5. On 11.8.1999 the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled for relief of injunction as prayed ?OPP 2. Whether the plaintiff has no locus standi to file the present suit ?OPD 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiff is estopped from filing the present suit by her act and conduct? OPD 5. Relief. 6. The learned trial Court after recording the evidence and evaluating the same, dismissed the suit of the plaintiff with special costs of Rs.1000/- vide judgment and decree dated 17.1.2003 passed in RRB C.S. No. 226/1999. 7. Aggrieved by the judgment and decree dated 17.1.2003 passed by the learned trial Court, the plaintiff/appellant preferred an appeal before the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala and the learned first Appellate Court vide judgment and decree dated 27.12.2006 in Civil Appeal No. 7-D/XIII/05/03 also dismissed the appeal giving rise to the present appeal. 8. On 3.5.2007 this Court was pleased to admit the appeal on the following substantial questions of law: 1. Whether the findings of the court below are perverse, based on misreading of the report of Local Commissioner and pleadings of the parties? 2. 8. On 3.5.2007 this Court was pleased to admit the appeal on the following substantial questions of law: 1. Whether the findings of the court below are perverse, based on misreading of the report of Local Commissioner and pleadings of the parties? 2. Whether the judgment passed in favour of a dead person Shri Bhagwan Dass, had to be set aside and the matter remitted to the trial Court for decision afresh in view of the earlier judgment of District Judge dated 15.11.2002 and non-substituting the heirs of Bhagwan Dass has vitiated the findings. 3. Whether in view of the fact that it was established that the defendants were making construction adjoining to khasra number 1678 and had diverted the water of the septic tank and drains towards the house of the plaintiff, had thereby infringed the easementary rights of the plaintiff and cause nuisance to the plaintiff entitling her for the relief of injunction. 4. Whether the inference which is drawn from the demarcation report which had not been carried out in accordance with the High Court Rules and Orders and instructions of the Financial Commissioner was justified and the plaintiff was entitled to a decree for injunction as prayed for. 5. Whether wrong inferences have been drawn from the facts proved on record in holding that the plaintiff had failed to establish the right to seek injunction as also the offending construction had not proved any damage to the plaintiff’s property. 6. Whether in view of the decision of the District Judge dated 15.11.2002 and the High Court dated 5.1.2002 that Bhagwan Dass had died and his legal representatives had not been substituted and brought on record, the decree passed in favour of Bhagwan Dass was nullity, the matter had to be remitted back for decision afresh by the trial Court which is court of first instance. 9. I have heard learned counsel for the parties and have also gone through the records meticulously and carefully. Substantial questions of law No. 1, 3 and 5: 10. What appears from the record is that the plaintiff and defendants are neighbours. The defendants had constructed their house somewhere in the year 1974-75 whereas the plaintiff constructed her house in the year 1990. There is no dispute regarding the ownership of the land of the respective parties. Substantial questions of law No. 1, 3 and 5: 10. What appears from the record is that the plaintiff and defendants are neighbours. The defendants had constructed their house somewhere in the year 1974-75 whereas the plaintiff constructed her house in the year 1990. There is no dispute regarding the ownership of the land of the respective parties. As per the plaintiff, the defendants have extended the eaves of the house upon the land of the plaintiff and have also started work of construction of the septic tank near the house of the plaintiff. Therefore, in this background, the only question required to be determined by the learned Courts below was with respect to the alleged extension of the eaves by the defendants over the land of the plaintiff as also construction of the septic tank. 11. The learned Courts below have concurrently found against the plaintiff not only on the basis of the evidence led but also on the basis of the report of the Local Commissioner appointed by the Court whose report dated 26.10.2004 was also taken into consideration while answering the findings against the plaintiff/appellant. Such findings, being pure findings of fact cannot be interfered with by this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. Reliance in this behalf can conveniently be placed on the judgment of Hon’ble Supreme Court in Hero Vinoth (minor) vs. Seshammal (2006) 5 SCC 545 wherein it was held: “12. We shall first deal with the question relating to jurisdiction of the High Court to interfere with the concurrent findings of fact. Reference was made by learned counsel for the appellant to Chandra Bhan v. Pamma Bai and Anr. (2002) 9 SCC 565 and Sakhahari Parwatrao Karahale and Anr. v. Bhimashankar Parwatrao Karahale (2002) 9 SCC 608. So far as the first decision is concerned, in view of the factual findings recorded by the lower Court and the first Appellate Court it was held that interference with the concurrent findings of fact are not justified. The question related to possession and two Courts primarily considering factual position had decided the question of possession. In that background, this Court observed that jurisdiction under section 100 CPC should not have been exercised. The question related to possession and two Courts primarily considering factual position had decided the question of possession. In that background, this Court observed that jurisdiction under section 100 CPC should not have been exercised. So far as the second decision is concerned, the position was almost similar and it was held that findings contrary to concurrent findings of lower Courts and having no basis either in pleadings, issues framed or in questions actually adjudicated upon by any of the lower Courts cannot be sustained. That decision also does not help the appellant in any manner as the factual scenario is totally different in the present case. 13. Though as rightly contended by learned counsel for the appellant the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, and re-appreciation of evidence is not permissible (sic except) where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law. 14. As was noted in Yadarao Dajiba Shrawane v. Nanilal Harakchand Shah (2002) 6 SCC 404 if the judgments of the trial Court and the first Appellate Court are based on misinterpretation of the documentary evidence or consideration of inadmissible evidence or ignoring material evidence or on a finding of fact has ignored admissions or concession made by witnesses or parties, the High Court can interfere in appeal. 15. In Neelakantan and Ors. v. Mallika Begum (2002) 2 SCC 440 it was held that findings of fact recorded must be set aside where the finding has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties. (See: Krishna Mohan Kul v. Pratima Maity (2004) 9 SCC 468]). 16. It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. 16. It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an “easement of necessity” thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law. 17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. 18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. 1962 Supp (3) SCR 549 held that: (SCR pp. 557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 19. 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 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 of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were 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 by ignoring material evidence. 20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. There mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the fact appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. Where the fact appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976) 1 SCC 803 held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.([See: Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 ]. 21. The phrase "substantial question of law", as occurring in the amended Section 100 of the CPC is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta (AIR 1928 PC 172), the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sri Chunilal's case (supra), the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju ( AIR 1951 Mad. 969 ): (Sir Chunilal case (supra), SCR p. 557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. 969 ): (Sir Chunilal case (supra), SCR p. 557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to be particular facts of the case it would not be a substantial question of law." This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal case (supra), SCR pp. 557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 22. In Dy. Commr. v. Rama Krishna Narain ( AIR 1953 SC 521 ) also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 of the CPC. 23. 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, insofar as the rights of the parties before it are concerned. 23. 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, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See: Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 ]. 24. The principles relating to Section 100 CPC, relevant for this case, may be summarised thus:- (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” Accordingly, the substantial questions of law No. 1, 3 and 5 are answered against the appellant. Substantial questions of law No. 2 and 6: 12. The plaintiff is trying to seek advantage of her own wrong since it was her duty to have brought on record the legal representatives of deceased Bhagwan Dass, one of the defendant. Admittedly, this is not a case wherein a judgment and decree has been passed against a dead person rather it is a case where the suit itself was instituted against a dead person. Since the suit of the plaintiff itself has been dismissed, therefore, death of the defendant Bhagwan Dass has no effect and it cannot be held that the suit had abated. Accordingly, the substantial questions of law No. 2 and 6 are answered against the appellant. Substantial question of law No. 4: 13. There is no material placed on record whereby it can be inferred that the demarcation had not been carried out in accordance with the High Court Rules and Orders and the instructions of the Financial Commissioner. Accordingly, the substantial questions of law No. 2 and 6 are answered against the appellant. Substantial question of law No. 4: 13. There is no material placed on record whereby it can be inferred that the demarcation had not been carried out in accordance with the High Court Rules and Orders and the instructions of the Financial Commissioner. Even during the course of the arguments, the learned counsel for the appellant could not substantiate this plea and, therefore, this substantial question of law is answered against the appellant. 14. In view of above discussion, there is no merit in the present appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. CMP No. 20338 of 2013 has become infructuous in view of disposal of the main appeal.