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2016 DIGILAW 1285 (ALL)

Machchhan Khan v. Nagar Palika Parishad

2016-04-07

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. 1. Heard submissions of learned counsel for the appellants on the point of admission of second appeal and perused the records. 2. Original suit no. 361 of 1997 was filed for the relief of permanent injunction. In this case, plaint averment in brief was that Amman Khan, father of the plaintiffs, was owner in possession of disputed plot no. 386/2 and 227/2 which was being used by him as pond. After death of Amman Khan, the plaintiffs came in occupation of said property and doing pisciculture and using its water for drinking of cattle. Since defendant had no right or possession over this property but are trying to interfere in occupation of plaintiffs, therefore, plaintiffs had filed suit for permanent injunction restraining the defendants to interfere in their possession in illegal manner. 3. The defendant Nagar Palika had filed written statement in original suit by which plaint averments were denied and it was pleaded that disputed plots no. 386/2 and 227/2 belongs to defendants, and the plaintiffs have no right or possession over it. These disputed plots are trenching grounds and are being used for drinking of cattle. No line of demarcation is present on spot and disputed property is not identifiable. This disputed property is in possession of defendant and is a land of public utility, therefore the plaintiffs' suit should be dismissed. 4. After affording opportunity of hearing, the Additional Civil Judge (J.D.), Court No.-2 Rampur had dismissed the suit by judgment dated 3.11.2014. In this judgment the trial court had given finding that disputed land is recorded as natural pond and trenching grounds in Government records, over which for some time the name of Amman Khan was recorded, but his name was later on struck off from records. The trial court had given findings that plaintiffs were never recorded as bhumidhar or tenure-holder of this property. The disputed land/pond was never allotted to plaintiffs. The trial court had given specific finding that plaintiffs had failed to prove their case, so they are not entitled for the relief claimed. 5. Against the judgment of trial court, civil appeal no. 3 of 2015 was preferred by plaintiffs which was heard and dismissed by the judgment dated 5.11.2015 of District Judge, Rampur. The trial court had given specific finding that plaintiffs had failed to prove their case, so they are not entitled for the relief claimed. 5. Against the judgment of trial court, civil appeal no. 3 of 2015 was preferred by plaintiffs which was heard and dismissed by the judgment dated 5.11.2015 of District Judge, Rampur. In this judgment, lower appellate court had discussed the status of disputed property which is in form of pond, and after discussing the case of 'Hinch Lal Tiwari v. Kamala Devi and another, AIR, 2001, SC 3215', held that since disputed land is a pond, therefore it cannot be allotted to anybody, nor can anybody get any right over such land on the basis of even adverse possession. Discussing the legal possession, lower appellate court had held that such land/ pond cannot be allotted to any person. First appellate court had considered the findings of trial court and held that findings given by the trial court are correct on the point of law as well as on fact. With these findings, lower appellate court had confirmed the judgment of the trial court and dismissed the appeal. 6. Against the judgment of trial court as well as first appellate court, present second appeal has been preferred by plaintiffs of the original suit. Learned counsel for the appellant contended that plaintiffs did not in possession of disputed property as owner and these facts were not properly considered by lower courts. It was submitted that plaintiffs are entitled for relief of permanent injunction even on the basis of their possession. Therefore, appeal should be admitted for being allowed. 7. The relief sought by the plaintiffs/appellants in plaint is for the pond. The defendant has pleaded that disputed property is trenching ground and pond of defendant. It appears from evidence that for some period of time, for any reason, the name of plaintiffs' father Amman Khan was recorded over this land, but that was struck off later on. The disputed property is recorded as pond. There has been proper discussion of legal position in the judgment of lower courts, and especially in judgment of lower appellate court which discussed the judgments of Apex Court in which it has been held that such type of ponds cannot be allotted to any person and no person can get private title over such land even on the basis of adverse possession. 8. 8. In case of Hinch Lal Tiwari Vs. Kamla Devi, AIR, 2001 (SC) 3215, the Apex Court had already held that such land cannot be allotted to anybody for construction of house, building or any other allied purposes. There has been concurrent finding of fact of the two lower courts that plaintiffs had failed to prove his case of ownership and title or possession. Those findings of the courts below are based on proper appreciation of evidences and are apparently correct and acceptable. Such findings cannot be interfered by re-appreciation of evidence in second appeal. 9. The only irregularity in the impugned judgment pointed out was that lower appellate court had not formally framed points of determination as required under Order 41 Rule 31 CPC. In G. Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224 , the Apex Court has held as under: "The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appeasement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC." 10. In the present matter lower appellate court had taken issues framed by trial court as point for determination and decided every issue. In the light of above legal position, the only dispute in this mater to be determined was as to whether plaintiffs/appellants are owner of disputed pond or not. This point was properly discussed and decided by the first appellate court. On the basis of this guidelines of Hon'ble Apex Court, and considering the aforementioned discussion, it is found that mandate of Order XLI Rule 31 CPC had been fully complied with by the first appellate court in spirit, and therefore, for the reasons discussed above, the judgment of first appellate court cannot be treated to be erroneous. 11. The above mentioned point was not a question of law but was a question of fact that could be decided on the basis of adduced evidence, as has been done by lower courts. The concurrent finding of lower courts in this regard are based on appreciation of evidences and are apparently correct and acceptable. 12. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. 12. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law was involved in the case before the this Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant- plaintiffs can be sustained. 13. In view of the above, and finding that no substantial question of law arises in this appeal, the appeal is dismissed.