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2015 DIGILAW 1338 (HP)

Wattana v. Kesar

2015-09-21

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Defendants-appellants Shri Wattana, Smt. Trishala Devi and Harmesh, hereinafter referred to as the defendants, have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 29.4.2006, passed by Additional District Judge, Una, District Una, Himachal Pradesh, in Civil Appeal No.90/2005, titled as Kesar v. Wattana and others, whereby judgment and decree dated 11.3.2002, passed by Sub Judge 1st Class, Court No.1, Una, District Una, Himachal Pradesh, in Civil Suit No.277/92, titled as Kesar v. Wattana and others, stands reversed. 2. Appeal stands admitted on the following substantial question of law: Whether the first Appellate Court has not appreciated the evidence on record in a proper and lawful manner and this has led to wrong fining that the respondent-plaintiff is in possession of the suit land? 3. The issue, which arises for consideration, is as to who is in possession of the suit land. By relying upon the statement of the plaintiff, so recorded on 14.7.1989 (Ex.DW-4/A) before the Land Reforms Officer, trial Court held the defendant to be in possession of the suit land. On the other hand, the lower Appellate Court, finding such statement not to be recorded before a competent authority, could not persuade itself to be bound by the same in returning findings favouring the plaintiff, holding him to be in possession of the suit land. In Paras 22, 23 and 24 of the judgment, lower Appellate Court has also assigned other reasons, based on documentary evidence, i.e. revenue record (Ex.P-1, P-2, P-3 & P-4). 4. Noticeably, statement (Ex. DW-4/A) was recorded in the proceedings pending before the Tehsildar cum-Land Reforms Officer, so initiated by the defendants against the plaintiff. No doubt, in the said proceedings, plaintiff admitted the defendants to be in possession of the suit land, but significantly this statement was recorded on 14.7.1989 whereas the plaint in question was filed in the year 1992. In the interregnum possession remained with the defendant is what he has failed to establish. 5. Plaintiff filed the suit claiming possessory title over the suit land. Resistance to the suit was not rested on statement (Ex. DW-4/A) but on the basis of plaintiff/his predecessors-in-interest having sold the land to defendant No.1 and/or his predecessors. 6. Record reveals that the land in question is owned by the State of Himachal Pradesh. 5. Plaintiff filed the suit claiming possessory title over the suit land. Resistance to the suit was not rested on statement (Ex. DW-4/A) but on the basis of plaintiff/his predecessors-in-interest having sold the land to defendant No.1 and/or his predecessors. 6. Record reveals that the land in question is owned by the State of Himachal Pradesh. Thus, no sale of this land could have ever been effected. Also, there is nothing on record to establish that after 1989, defendants remained in possession of the suit land. In fact, Patwari Shri Sohan Lal (DW-4), in his un-controverted testimony, has clearly deposed that possession over the suit land is that of the plaintiff. This evidence is apart from other evidence led by the plaintiff, establishing his possession over the suit land. 7. Mr. R.K. Gautam, learned Senior Counsel, has invited attention of the Court to Ninge Gowda v. Linge Gowda and others, (1997) 1 SCC 477 , wherein the Apex Court has dealt with the scope of interference by High Court in an appeal filed under the provisions of Section 100 of the Code of Civil Procedure. First Appellate Court is the final Court of fact, interference with the same has been held to be unwarranted. 8. In Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134 , the Hon'ble Supreme Court of India, held that the High Court cannot assume jurisdiction to interfere in the second appeal, only for the reason that another view is possible on appreciation of evidence. 9. What is a ‘substantial question of law’ has been discussed by Hon'ble the Supreme Court of India in its decision in Rajeshwari v. Puran Indoria, (2005) 7 SCC 60 . The Court has held that: “……Could it be appropriate to understand these questions purely as questions of fact in the context of Section 100 of the Code of Civil Procedure, 1908? In Raghunath Prasad Singh v. Deputy Commissioner of Pratabgarh, (54 Indian Appeals 126), the Privy Council, though, in the context of Section 110 of the Code of Civil Procedure, negatived the theory that to be a substantial question of law, a question of law has to be of general importance and stated that "a substantial question of law' is a substantial question of law as between the parties in the case involved. This approach was adopted by this Court in Deputy Commissioner v. Rama Krishna, ( AIR 1953 SC 521 ). This Court held, again in the context of Section 110 of Code of Civil Procedure, that since the ground on which the appeal was dismissed by the High Court raised a question of law of importance to the parties, on that ground alone the appellant was entitled to a certificate under Section 110 of the Code. In Chunilal V.Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. ( AIR 1962 SC 1314 ) this Court, again in the context of Section 110 of the Code and Article 133 (1) (a) of the Constitution of India, had occasion to consider the question. A Constitution Bench of this Court held that the proper test for determining whether a question of law raised in the case is substantial would 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. Thus, it was accepted that a question of law would be a substantial question of law if it directly and substantially affects the rights of the parties and if it was not covered by a decision of the Supreme Court or of the Privy Council or of the Federal Court.” 10. In the instant case, defendants have not been able to establish as to how rights of the parties are affected, and the appreciation of evidence cannot be said to be perverse, erroneous or illegal. 11. As such, it cannot be said that the findings returned by the first Appellate Court are illegal, perverse or erroneous, warranting interference by this Court. Substantial question of law is answered accordingly. For all the aforesaid reasons, the appeal is dismissed, so also the pending applications, if any. Appeal dismissed.