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2015 DIGILAW 197 (ORI)

Sabitri Sahu v. Trinath Nayak

2015-03-25

D.DASH

body2015
JUDGMENT This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Gajapati-Parlakhemundi in R.F.A. No. 18 of 2010 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Parlakhemundi in Civil Suit No. 53 of 2007. 2.Facts necessary for the purpose of this appeal are as under: Respondent no. 2 as the plaintiff has filed the suit for declaration of right, title and interest, recovery of possession, permanent injunction …………….so far as the suit land is concerned. That her husband with his brother were originally the owners of land measuring Ac. 0.103 dec. of homestead and in an amicable partition her husband got a thatched house with some vacant land adjoining thereto. The eastern side fell to the share of her husband’s brother. It is further stated that the plaintiff’s husband sold away land measuring 7 feet and 4 inches X 150 feet, to the appellant by a registered sale deed in the year 1980 and the rest of his land was lying vacant. The children of the plaintiff got married in the meantime and her husband became physically weak. So he executed a Will in favour of the plaintiff on 22.12.2002 and thereafter died on 31.05.2003. It is stated that the respondent no. 1 being the sole defendant initially in the suit with the consent of the husband of the plaintiff erected a shed over a portion of the suit land when the plaintiff was residing at her parent’s place. In the year 2007 she came to Paralakhemundi and wanted to construct a house over the suit land. The defendant no. 1 then did not vacate. Hence the suit. 3.The defendant no. 1 while traversing the plaint averments claimed that he has been in possession of the suit land under an impression that it is a piece of Government land. He claims to have constructed a thatched house over the same; running a broiler farm and also carrying on poultry business. Thus, he claimed to have perfected title over the suit land by adverse possession. 4.The present appellant during the suit filed an application under Order-1, Rule-10 of the Code of Civil Procedure, asserting her right over the suit land. It is her case that she had purchased the land from out of the share of the husband of the plaintiff by a registered sale deed. 4.The present appellant during the suit filed an application under Order-1, Rule-10 of the Code of Civil Procedure, asserting her right over the suit land. It is her case that she had purchased the land from out of the share of the husband of the plaintiff by a registered sale deed. It is further stated that at the time of sale, the husband of the plaintiff had disclosed that she would also the owner of the balance land not described in the sale deed and since then she has been in possession of the suit land. 5.The trial Court on such rival pleading framed seven issues and the important out of those are issue nos. 4,5 and 6. Issue No. 4 is regarding the right, title and interest of the plaintiff over the suit land whereas issue nos. 5 and 6 concern with the relief of recovery of possession vis-à-vis the claim of the defendant no. 1 as regards perfection of right by adverse possession. It may be stated here that so far as issue no. 4 is concerned, the same has been decided in favour of the plaintiff. In respect of issue nos. 5 and 6 the finding being that defendant no. 1 has not perfected title by adverse possession, accordingly the entitlement of the plaintiff to the relief of recovery of possession of the suit land has been found out. The other issues relating to maintainability of the suit, existence of cause of action and the suit being barred by res judicata have been dealt together and answered in favour of the plaintiff. It is stated by the defendant no. 2 that she has filed C.S. No. 49 of 2007 against the plaintiff and defendant no. 1. It is further stated that the dispute having been settled in that suit, the present suit is barred by principle of res judicata. The Court below having gone through the certified copy of the judgment, marked as Ext. 1 has given a categorical finding of fact that the suit land of C.S. No.49 of 2007 is not the same as of the present suit and thus the subject matter are different. The defendant no. 2 had claimed title in that suit on the strength of the sale deed and that has been disallowed. 1 has given a categorical finding of fact that the suit land of C.S. No.49 of 2007 is not the same as of the present suit and thus the subject matter are different. The defendant no. 2 had claimed title in that suit on the strength of the sale deed and that has been disallowed. So, the trial Court found that the question of the present suit being hit by principle of res judicata does not arise. On an appeal being preferred by the defendant no. 2, the lower appellate Court has concurred with the finding of the trial Court that the defendant No. 2’s purchased land has nothing to do with the suit land and accordingly the suit land has never been purchased. On examination of Ext. A, the certified copy of the judgment of that prior suit, it has said that the title of the defendant no. 2 in respect of the suit land in the said suit has been found in the negative. So, it has concurred with the finding of the Court below on that issue. Thus, above concurrent findings of both the Courts have been challenged in this appeal. 6.It has been held in the case of Santosh Hajari Vrs. Purusottam Tiwari, 2001(3) SCC 179 as under: “10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity, Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on “substantial question of law involved in the case”. An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and it substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction. Xxxxxx 12. The phrase “substantial question of law”, as occurring in the amended Section 100 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. T. Ram Ditta, the phrase “substantial question of law: as it was employed in the last clause of the then existing Section 110 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 as between the parties. In Sir Chunilal V. Mehta @Sons Ltd. V. Century Spg. And Mfg. Co. In Sir Chunilal V. Mehta @Sons Ltd. V. Century Spg. And Mfg. Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subha Rao v. Noony Veeraju: “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 the particular facts of the case it would not be a substantial question of law.” And laid down the following test as proper test, for determining whether a question of law raised in the case is substantial; “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 Fedral 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” Xx xxxx 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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 “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 or 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.” In case of Narendra Gopal Vidyarthi Vrs. Rajat Vidyarthi, 2009 (3) SCC 287 , the Hon’ble Apex Court have held:- “13. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence have not been taken into consideration or inadmissible evidences have been taken into consideration. 14. We fail to understand as to on what basis, the said question of law was formulated. Before an additional question is formulated, the procedure laid down therefore must be complied with. This aspect of the matter stands concluded by this Court in Krishnan case wherein it was held : SCC pp. 192-93, paras 10-11)” “10. Under the amended Section 100 CPC the High Court has to frame substantial question of law and can decide the second appeal only on those questions framed. A perusal of the questions framed shows that no question of law was framed as to whether the finding of fact of the first appellate Court that Lakshmi and Ramayee are one and the same person, it based on no evidence or is perverse. 11. A perusal of the questions framed shows that no question of law was framed as to whether the finding of fact of the first appellate Court that Lakshmi and Ramayee are one and the same person, it based on no evidence or is perverse. 11. It may be mentioned that the first appellate Court under Section 96 CPC is the last Court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate Court under Section 96 CPC. No. doubt the findings of fact of the first appellate Court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the first appellate Court that Ramayee and Lakshmi are one and the some Epson, is a finding based on no evidence or is perverse. Hence the findings of the first appellate Court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court”. “15. Yet again in BoodireddyChandraiah case this Court opined: (SCC pp. 158-60,para-4): “4……21. The phrase “substantial question of law”, as occurring in the amended Sectin 100 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. Hoever, it is clear that the legislature has chosen not to qualify the scope of “substantial questin 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. 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. T. Ram Ditta, the pharse “substantial question of law : as it was employed in the last clause of the then existing Section 110 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 as between the parties. In Sir Chunilal V. Mehta @Sons Ltd.v. Century Spg. And Mfg. Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of ………………………… the Madras High Court in Rimmalapudi Subha v. Noony Veeraju:” “5… when a question of law is fairly arguable, where 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 the particular facts of the case it would not be a substantial question of law.” 24. The principles relating to Section 100 CPC relevant for this case may be summarized 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. 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 merging 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 the High Court will not interfere with the 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 a whole, is not reasonably capable of supporting the finding.*” 7.Keeping the above principles of law in mind, let me now advert to the facts and circumstances of the case in hand. The trial Court as well as the lower appellate Court has arrived at a conclusion on facts that the defendant no. 2 has failed to prove that the suit land was their purchased land. This has been done on careful examination of the description of the land sold and covered under the sale deed, which is projected as the document of title by the defendant no. 2. 2 has failed to prove that the suit land was their purchased land. This has been done on careful examination of the description of the land sold and covered under the sale deed, which is projected as the document of title by the defendant no. 2. It is also the very pleading of the defendant no. 2 that the suit land was not purchased but it was stated by the vendor that the suit land was not purchased that the rest land would also be covered by the said sale. Such a case itself has no legal sanction at all and per se is not acceptable that on the basis of deed of sale, property in respect of which the sale deed has not been executed would also be covered under the said sale over and above the land sold under the deed of sale and title in respect of that other land would pass to the vendee. 8.Next coming to the question of res judicata, it is not understood as to how such a defence has been set up by the defendant no. 2 She has filed the suit claiming title. Accepting that for a moment that it was for the said land, it is seen that the said suit has been dismissed with a specific finding against her, Even though ………………………… the present plaintiff was not a party there and it was against the defendant no.1, but when the finding has gone against said plaintiff i.e. the defendant no. 2 here, I am unable to comprehend as to how it would be of any help to the defendant no. 2 in the present case. This defence has been projected perhaps absolutely with a wrong idea in mind that once the suit is decided either way in respect of the subject matter subsequent suit is barred by res judicata. The defence set up as that appears to be without being alive to the rudimentary principles behind the legal concept of res judicata and for what it is in the statute and just for defence sake. 9.Learned counsel for the appellant submits that the plaintiff’s Will has been illegally accepted as the document of title. Let us examine the matter now from that angle by accepting for a moment that the plaintiff’s Will is of no value in the eye of law. 9.Learned counsel for the appellant submits that the plaintiff’s Will has been illegally accepted as the document of title. Let us examine the matter now from that angle by accepting for a moment that the plaintiff’s Will is of no value in the eye of law. Admittedly the plaintiff is one of the legal representatives of the erstwhile owner, who is her husband and the other legal representatives are their children. These defendants are stranger to the family and as such no interest over the properties of the erstwhile owner. The defendant no. 2’s purchased land is completely different from the suit land. She claims to have purchased the suit land which has been conclusively negative by way of concurrent finding of facts. The plaintiff when claims declaration of title and recovery of possession against the defendant no. 1, admittedly the present defendant No. 2s claim of recovery of possession of the suit land (accepting for the time being) from defendant no. 1 has been negatived in the earlier suit. So , if the Will is not held to be valid then the decree would enure to the benefit of all the legal representatives of the erstwhile owner and under no circumstance this defendant no.2 can claim to have any locus standi to challenge the same. 10. On going through the substantial questions of law as indicated in Page-15 and 16 of the memorandum of appeal, this Court finds that those do not stand as the substantial questions of law in this case for being answered inconsonance with the principles stated in the forgoing paragraph in that regard. In fact, this Court having spent anxious moments and giving thoughtful consideration is not in a position to accept any of those to be such substantial question of law so as to be answered in this appeal. Also, no other substantial question of law could be culled out on examination of the findings in the backdrop of rival pleadings and evidence. In that view of the matter, the appeal does not deserve to be admitted. 11.In the result, the appeal thus stands dismissed. No order as to cost. Appeal dismissed.