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2016 DIGILAW 2650 (ALL)

Kanta Kapoor v. Sardar Kuldeep Singh

2016-08-01

VINOD KUMAR MISRA

body2016
JUDGMENT Vinod Kumar Misra, J. – Second Appeal No. 754 of 2016 has been filed by Smt. Kanta Kapoor against Sardar Kuldeep Singh, Smt. Paramjeet Kaur, Sardar Gurmeet, Sardar Manjeet, Mrs. Dwarika Prasad Trust, Dr. Yogesh and Sri Shashi Narayan Sharma defendants/respondents against the judgment and decree dated 26.4.2016 passed by Additional District Judge, Court No. 6, Bareilly in Civil Appeal No. 57 of 2015 (Smt. Kanta Kapoor v. Sardar Kuldeep Singh and others) and another clubbed Civil Appeal No. 58 of 2015 (Dwarika Prasad Trust v. Sardar Kuldeep Singh and others) whereby the appeal no. 57 of 2015 was dismissed and judgment and decreed dated 23.3.2015 passed in Original Suit No. 200 of 2009 (Sardar Kuldeep Singh and others v. Shashi Narain Sharma and others) by the Additional Civil Judge (Senior Division), Court No. 1, Bareilly has been confirmed. 2. Second Appeal No. 755 of 2016 has been filed by Mrs. Dwarika Prasad Trust and Dr. Yogesh against Sardar Kuldeep Singh, Smt. Paramjeet Kaur, Sardar Gurmeet, Sardar Manjeet, Smt. Kanta Kapoor and Sri Shashi Narayan Sharma defendants/respondents against the judgment and decree dated 26.4.2016 passed by Additional District Judge, Court No. 6, Bareilly in Civil Appeal No. 57 of 2015 (Smt. Kanta Kapoor v. Sardar Kuldeep Singh and others) and another clubbed Civil Appeal No. 58 of 2015 (Dwarika Prasad Trust v. Sardar Kuldeep Singh and others) whereby the appeal no. 57 of 2015 was dismissed and judgment and decreed dated 23.3.2015 passed in Original Suit No. 200 of 2009 (Sardar Kuldeep Singh and others v. Shashi Narain Sharma and others) by the Additional Civil Judge (Senior Division), Court No. 1, Bareilly has been confirmed. 3. Heard learned counsel for the appellants and respondents. 4. Since both the appeal are against the common judgment dated 26.4.2016 of the learned First Appellate Court, hence they are being heard and decided by a common order. 5. Original Suit No. 200 of 2009 (Sardar Kuldeep Singh and others v. Shashi Narain Sharma and others) was filed for perpetual injunction and for mandatory injunction. 4. Since both the appeal are against the common judgment dated 26.4.2016 of the learned First Appellate Court, hence they are being heard and decided by a common order. 5. Original Suit No. 200 of 2009 (Sardar Kuldeep Singh and others v. Shashi Narain Sharma and others) was filed for perpetual injunction and for mandatory injunction. Learned Additional Civil Judge (Senior Division), Court No. 1, Bareilly has decreed the suit and has directed the defendants to hand over the possession of disputed property situated at first storey southern hall which has been shown in Map as 4 Ka/11 by letter "A B C I J A” within 30 days of the judgment and further restrained the defendants from interfering in the possession of the plaintiffs in the property shown by letters " A B C D E F G H I J A” in the plaint map. Against the judgment, defendants preferred a Civil Appeal bearing no. 57 of 2015 (Smt. Kanta Kapoor v. Sardar Kuldeep Singh and others) and Dwarika Prasad Trust has preferred a Civil Appeal No. 58 of 2015 (Dwarika Prasad Trust v. Sardar Kuldeep Singh and others). Learned Additional District Judge, Court No. 6, Bareilly vide judgment dated 26.4.2016 has dismissed both the appeals and confirmed the finding of the learned trial court. 6. Learned counsel for the appellant submitted that both the courts below have wrongly decided the appeals in favour of plaintiff/respondents. Learned counsel for the appellant submitted that disputed hall, which has been properly described in the report/challan under Section 145 of the Cr.P.C. in the supplementary affidavit of Shayam Kapoor at page 19 whose areas is about two thousands square ft. and the boundaries of disputed lobby/varanda/hall has been given in the report of the concerned police station at page 18 of the supplementary affidavit and there is also 'Jina' which goes upwards. This property was never let out to plaintiffs and they have unauthorisedly tried to occupied it so proceeding under Section 145 of the Cr.P.C. were launched which culminated in favour of defendant no. 1 but both the courts below wrongly interpreted the rent deed and evidence of the parties. 7. This property was never let out to plaintiffs and they have unauthorisedly tried to occupied it so proceeding under Section 145 of the Cr.P.C. were launched which culminated in favour of defendant no. 1 but both the courts below wrongly interpreted the rent deed and evidence of the parties. 7. In support of his submissions learned counsel for the appellant has relied upon a judgment of Hon'ble Apex Court passed in Damodar Lal v. Sohan Devi and others (2016) 3 SCC 78 in which Hon'ble Apex Court has held that interference with concurrent find of the courts below in second appeal is not permissible unless such find are based on no evidence or are perverse. Determination should be based on a reasonable man's inference on facts. To the reasonable man, if conclusion on facts in evidence made by court below is a possible one, there is no perversity, and if not, the find is perverse. Inadequacy of evidence or a different reading of evidence is not perversity, nor will a wrong finding of fact by itself constitute a question of law. In order to constitute a question of law the wrong finding should stem out of a complete misreading of evidence or it should be based only on conjunctures and surmises. 8. Learned counsel for the respondents submitted that in the present case there is concurrent finding of fact by the courts below that the disputed hall was given in the tenancy of the plaintiff. Learned trial court as well as learned appellate court have given cogent reasons for arriving at that conclusion. So this court in second appeal cannot interfere until and unless find is totally perverse or based upon no evidence. 9. After going through the both the judgments of the court below, this Court is of the view that both the courts have reached to common find that the disputed hall whose description has been in this order as above, was given in the tenancy of the plaintiff. The said finding of fact cannot be said to be perverse, as proper reasoning for reaching above mentioned conclusion has been given by both the courts below. So in these circumstances this Court does not find that the conclusion of both the courts is without any evidence or is perverse. 10. The said finding of fact cannot be said to be perverse, as proper reasoning for reaching above mentioned conclusion has been given by both the courts below. So in these circumstances this Court does not find that the conclusion of both the courts is without any evidence or is perverse. 10. Consequently, no substantial question of law is arising in the present appeals and therefore, both the appeals are liable to be dismissed. 11. Second Appeal No. 754 of 2016 and Second Appeal No. 755 of 2016 are, accordingly, dismissed. Appeal dismissed.