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2016 DIGILAW 503 (RAJ)

Banshi Lal v. Kalu Ram

2016-04-07

P.K.LOHRA

body2016
JUDGMENT : P.K. Lohra, J. Unsuccessful before both the courts below, appellant-plaintiff has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'CPC'). 2. The facts, in brief giving rise to this appeal, are that appellant instituted a suit for possession, mandatory and prohibitory injunction against the respondents before the Civil Judge (Sr. Div.) Jaitaran (for short, 'learned trial Court'), inter alia, on the ground that suit property was purchased by him from Birdaram Chockidar by registered sale-deed dated 19th June, 1978. At the time of purchase of the suit property, there was kucha construction on it, which collapsed four years back from institution of the suit, i.e., somewhere in 1992. It is also averred that on 15th June, 1985, the appellant collected building materials at the site, which is still lying there. As regards, respondent-defendants, it is averred in the plaint that they are having no share in the suit property, but unauthorisedly they have roped some obstacles to prevent ingress and egress of the appellant on the suit property. Despite objection raised by the appellant-plaintiff, nothing was done by the respondents and that prompted the appellant to file civil suit for the aforementioned reliefs. 3. The suit is contested by the respondents. In their written statements, respondents specifically denied any right, title or interest of the appellant on the land in question and further disputed his possession. While referring to the alleged agreement to sale of 1973 by one Birdaram Chockidar, in favour of appellant, it is stated, in the written statement by the respondents, that the same is illegal and unauthorized having no bearing on the rights of the respondents. It is also averred that the said agreement to sale is null and void. As per version of the respondents, the suit property was owned by Laxman and remained in his possession, therefore, being his legal heirs, all the respondents have every right to enjoy the said property. On the positive assertion of the appellant that he is a bona fide purchaser, it is submitted, in the written statement, that his predecessor-in-title was having no right, title or interest on the suit property to transfer it to him. On the positive assertion of the appellant that he is a bona fide purchaser, it is submitted, in the written statement, that his predecessor-in-title was having no right, title or interest on the suit property to transfer it to him. As regards so-called obstruction created by original defendant Laxman, in the written statement, it was pleaded that it was not an obstruction but rather an attempt made by respondent, Laxman, to protest his possession over the suit property long back, which the appellant is not entitled to remove. 4. With all these pleadings, a prayer was made for dismissal of the suit. The appellant submitted his rejoinder and reiterated the averments contained in the plaint. 5. The learned trial Court, on the strength of pleadings of rival parties, framed seven issues for determination. In support of his case, the appellant examined five witnesses and also produced two documents, which were exhibited. To counter the evidence of the appellant, the respondents examined six witnesses. 6. After discussing the entire evidence and materials available on record, the learned trial Court decided Issues No. 1 & 2 against the appellant and in favour of respondents. In its conclusion, the learned trial Court has recorded a definite finding that appellant has miserably failed to prove right, title or interest of his predecessor-in-title on the land in question. That apart, the learned trial Court also recorded a definite finding of fact that no cogent evidence is tendered by the appellant to prove possession of Birdaram on the land in question much less his own possession. Issues No. 3 to 6 were also decided by the learned trial Court against the appellant on the strength of findings and conclusions on Issue No. 7. Issue No. 7 was framed by the learned trial Court on the basis of pleading of the respondents, and therefore, in order to examine that issue threadbare, the learned trial Court made sincere endeavour to analyse the evidence tendered by the respondents thoroughly. While recording its finding on Issue No.7, in favour of respondents, the learned trial Court also considered the recitals contained in the alleged sale-deed executed by Birdaram in favour of the appellant. While recording its finding on Issue No.7, in favour of respondents, the learned trial Court also considered the recitals contained in the alleged sale-deed executed by Birdaram in favour of the appellant. While construing the said document, the learned trial Court recorded a definite finding that in the document also there is no semblance of proof that how and in what manner Birdaram acquired the ownership of the land in question. In this view of the matter, upon critical analysis of the entire evidence, the learned trial Court decided Issue No. 7 in favour of respondents and against the appellant. 7. Considering the findings on all the issues, the learned trial Court, by its judgment and decree dated 31st of October 2006, proceeded to dismiss the suit. 8. Being aggrieved by the judgment and decree passed by the learned trial Court, the appellant preferred an appeal before the learned Additional District Judge, Jaitaran, District Pali (for short, 'learned lower appellate Court'). The learned lower appellate Court examined the matter afresh and appreciated the entire evidence for testing the findings of the learned trial Court on all the issues. After examining the matter, in its entirety, the learned lower appellate Court also fully concurred with the findings and conclusions of the learned trial Court on all the issues and dismissed the appeal. 9. I have heard learned counsel for the appellant and perused the impugned the judgment of both the learned courts below thoroughly. 10. Learned counsel for the appellant in support of his contentions placed reliance on the following legal precedents: Vijay Kumar v. Sukhde, [AIR 2008 SC (Supp) 1957] Vimal Chand Ghevarchand Jain & Ors. v. Ramakant Eknath Jajoo, [AIR 2009 SC (Supp) 1550] Thiruvanchan Sankaran v. Kunjipillai Amma Gouri Amma & Ors., [AIR 1970 Kerala 310] Ramlal & Anr. v. Phagua & Ors., [ AIR 2006 SC 623 ] 11. The crucial question, which has cropped up in this appeal, is whether re-appreciation of evidence is permissible under Section 100 CPC. 12. It is trite that this Court, while exercising its appellate jurisdiction, is not obliged to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. The crucial question, which has cropped up in this appeal, is whether re-appreciation of evidence is permissible under Section 100 CPC. 12. It is trite that this Court, while exercising its appellate jurisdiction, is not obliged to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. Moreover, jurisdiction conferred under Section 100 CPC is required to be exercised sparingly inasmuch as where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court cannot be interfered by a court in second appeal. Interference in such matters is very much limited and the interference is permissible only when it is found that the conclusions drawn by the lower appellate court are erroneous being contrary to the mandatory provisions of law applicable or settled position of law. That apart, the interference can be made if the findings are arrived at by ignoring material or based upon inadmissible evidence. 13. After examining the impugned judgment of the learned lower appellate Court as well as judgment of learned trial Court, I am afraid, no such infirmity is noticeable in the instant appeal. 14. The legal precedents on which learned counsel for the appellant has placed reliance are clearly distinguishable and cannot render any assistance to cause of the appellant. In Vijay Kumar (supra), in a suit for possession, the question involved was whether transaction in question was out and out sale or a loan in substance. Therefore, ratio of this judgment cannot be applied in facts of the instant case. 15. In Vimal Chand Ghevarchand Jain (supra), the issue before the Court was to examine plea of the defendant that the alleged sale transaction was a sham. Despite plea being raised, defendant did not appear in the witness box to discharge its burden, and therefore, in that background, Supreme Court held that suit is liable to be decreed. Here, in the instant case, no such situation is available. The plea sought to be raised by the respondents are not only substantiated, but also proved by the respondents, and therefore, there was no question of drawing any adverse inference against the respondents by both the Courts below. In this view of the matter, the said verdict is also distinguishable. 16. The plea sought to be raised by the respondents are not only substantiated, but also proved by the respondents, and therefore, there was no question of drawing any adverse inference against the respondents by both the Courts below. In this view of the matter, the said verdict is also distinguishable. 16. In Thiruvanchan Sankaran (supra), the Kerala High Court has recorded a definite finding that by virtue of Section 114 of Evidence Act, that presumption about possession goes with the title, I am at loss to understand how this judgment can render any assistance to the cause of the appellant, more particularly, when both the Courts below have recorded a definite finding that appellant has failed to prove his possession over the land in question. That apart, both the Courts below have concurrently recorded a finding of fact that there is no semblance of proof about possession of his alleged predecessor-in-title on the land in dispute and so also his title. 17. Any person can be said to own a property when he is enjoying exclusive right of possessing, enjoying and disposing of the same. In legal parameters such rights are prerequisite for ownership and exclusive right to the thing. It is trite that right to transfer presupposes subsisting legal right of the transferor and therefore transferor cannot transfer to a transferee any better title than his own. That being the position, all these legal precedents wherein transferor's subsisting legal right to transfer the property was not at stake cannot render any assistance to the appellant in the peculiar facts of the instant case. 18. Supreme Court in the judgment of Ramlal (supra) has dilated on the powers of this Court that interference is permissible even if there is concurrent finding of fact recorded by both the courts below. 19. There remains no quarrel on this legal proposition but interference under Section 100 CPC is warranted only under certain special circumstances. Concurrent finding of fact can be upset and disturbed by the second appellate court if the learned lower appellate court has committed manifest error in appreciation of evidence by eschewing material evidence or when it is a case of complete misreading of evidence. Normally, the second appellate court is not expected to re-appreciate the evidence if it is satisfied that construction and appreciation of evidence by both the courts below is just and reasonable. Normally, the second appellate court is not expected to re-appreciate the evidence if it is satisfied that construction and appreciation of evidence by both the courts below is just and reasonable. I am constrained to observe that, in the instant case, I am unable to notice any perversity by both the learned Courts below in appreciation of evidence so as to persuade this Court to re-appreciate the evidence afresh. 20. Jurisdiction under Section 100 CPC is to be exercised by the court only when there is a substantial question of law involved in the matter inasmuch as existence of substantial question of law is sine-qua-non for maintainability of second appeal. There remains no quarrel that 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 contradiction with-technical, of no substance or consequence, or academic merely. 21. In totality, I am unable to find any substantial question of law involved in this appeal and the so-called substantial questions of law proposed by the appellant are also not satisfying the requirements highlighted here in above. 22. In that above view of the matter, I am not inclined to interfere with the impugned judgment of the learned lower appellate Court. 23. Resultantly, appeal fails and same is, hereby, dismissed summarily.