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2017 DIGILAW 236 (JHR)

Rev. Paikas Xess v. G. E. L. Church

2017-02-03

AMITAV K.GUPTA

body2017
JUDGMENT : Amitav K. Gupta, J. This second appeal is directed against the judgment dated 19.1.2015 passed in Title Appeal No. 14 of 2013, by the Principal District Judge, Gumla, affirming the judgment and decree dated 18.3.2013 and 2.4.2013 passed by the Civil Judge, Senior Division-n, Gumla in Title Suit No. 36 of 2003 decreeing the suit of the plaintiffs for declaration of their title and the ejectment of the defendants from the suit property situated in Khata No. 126, Thana No. 47, plot Nos. 401, 403 and 376 measuring .31 acres comprising of land with building situated in village Chetar, P.S. and Distt. Gumla. 2. The respondents in the present appeal are the plaintiffs who instituted the suit for declaration of their title and ejectment of the defendants from the suit property and for recovery of possession. The plaintiffs pleaded that they are religious and charitable society viz. G.E.L. Church Society. That five dioceses of the society were created for controlling and managing the activities of the society spread over the country. It is stated that the suit property was recorded in the revisional survey record of rights in the name of Board of Trustees, G.E.L. Church. That the defendants society, viz. North West G.E.L. Church is managed and administered by the defendants. It is averred that on the request of the defendant the plaintiffs provided temporary accommodation in the suit property to the functionaries and officials of N.W.G.E.L. Church, but when the plaintiffs asked the defendants to handover the vacant possession of the suit land, the defendants refused to vacate the suit property whereupon the plaintiffs sent notice dated 1.8.2003 for vacating the suit premises but the defendants did not pay any heed, whereafter a pleader's notice dated 21.8.2003 was sent to the defendants but the defendants refused to vacate the suit land. Consequent thereto, the suit was instituted against the defendants / appellants. 3. The defendants/appellants contested the suit and filed the written statement pleading that the society N.W.G.E.L. Church was part and parcel of the plaintiff G.E.L. Church. That due to differences and disputes with respect to the management and control of G.E.L. Church and the property spread over the country, the management and administration of the GEL Church in 1960 was bifurcated into anchals. That due to differences and disputes with respect to the management and control of G.E.L. Church and the property spread over the country, the management and administration of the GEL Church in 1960 was bifurcated into anchals. That the administration of North-West Anchal was handed over to the management committee consisting of the Oraon Tribes and the other anchals were under the administration of Munda Tribes. That in the year 1977, the internecine differences grew to such an extent that the defendant constituted a separate society under the name and style of North Western Evangebial Lutheran Church (NWGEL). That NWGEL Church adopted its own constitution and the defendant-society since 1960 and after 1978, are in possession of the suit property and managing and administering the properties as the owners of the property. The defendants denied that they are in permissive possession of the suit property or they had ever requested the plaintiffs for temporary accommodation rather, in fact, they are in exclusive possession of the suit property which is controlled and administered under their management and in their own right. It is pleaded that they have acquired the title by adverse possession, if at all their title is not found to be justified. 4. On the pleadings of the parties, the trial Court framed 10 issues and on the basis of the evidence adduced by the parties, it held that the possession of the defendant was permissive and decided issue No.9 in favour of the plaintiff. On issue No.4, whether the defendants and acquired title by adverse possession the trial Court found and held that the defendants have failed to establish their claim of title by adverse possession. It held that the plaintiffs have the right and title over the suit property and are entitled for recovery of possession and decreed the suit directing the defendants to vacate the suit property. 5. Being aggrieved by the judgment and decree of the trial Court, the defendants/ appellants preferred the appeal before the Principal District Judge, Gumla, who affirmed the judgment and decree of the trial Court which is impugned in the instant appeal. 6. 5. Being aggrieved by the judgment and decree of the trial Court, the defendants/ appellants preferred the appeal before the Principal District Judge, Gumla, who affirmed the judgment and decree of the trial Court which is impugned in the instant appeal. 6. Learned counsel for the defendants/appellants while assailing the impugned judgment of the First Appellate Court has contended that both the Courts below have committed manifest error in law as they have failed to appreciate the evidence of the PW 6 (i.e. plaintiff No.4) who has admitted in his deposition at paras 10, 15, 16, 17, 21 and 25 that the appellants/defendants are in possession and control of suit property since 1960 and from 1977 when they separated and constituted NWGEL Church, an independent Church having its own constitution. It is argued that NWGEL is in possession of the entire properties since 1960 and since 19.1.1977 they are having exclusive right, title, interest and possession to the knowledge of the parent Church. It is submitted that this fact is also admitted by PW 3 in his deposition in paras 16, 22, 23 and 24 and PW 4 in para 13. It is contended that both the Courts below have erred in recording the finding that the appellants/defendants were in permissive possession as it has failed to appreciate and consider Exhibits-A series and B series, Le., the rent receipts granted in favour of the defendants / appellant, in its correct perspective. It is submitted that the said document establishes the fact that the defendants were in exclusive possession of the suit property to the knowledge of the plaintiffs/respondents. It is argued that such finding on incorrect appreciation of the evidence amounts to perversity involving a substantial question of law for adjudication in the instant second appeal. 7. To buttress his argument, learned counsel has relied on the decision of the Supreme Court rendered in the case of State Bank of India v. S.N. Goel, AIR 2008 SC 2494 and Ishwar Das Jain (dead) through LR's v. Sohanlal (dead) by LR's), AIR 2000 SC 426 . It is submitted that in the aforesaid cases it has been held that a substantial question of law will arise when a material evidence is not considered and appreciated in its proper perspective. It is submitted that in the aforesaid cases it has been held that a substantial question of law will arise when a material evidence is not considered and appreciated in its proper perspective. It is canvassed that had the Courts below appreciated the admissions of the witnesses of the plaintiffs/ respondents in its correct perspective then the decision/judgment would have been otherwise. Learned counsel has also relied on the decision of the Apex Court rendered in the case of P.T. Munichikkanna Reddy and others v. Revamma and others, AIR 2007 SC 1753 , Y. Nagraj v. Jalajakshi and others, (2012) 2 SCC 161 , Roop Singh v. Ram Singh, (2000) 3 SCC 708 and Md. Mohammad All v. Jagdish Kalita and others, (2004) 1 SCC 271 to substantiate the proposition of law as proposed by him. 8. Heard. For proper appreciation of the proposition as propounded and the arguments advanced by the counsel it is necessary to refer to the decision in the case of State Bank of India v. S.N. Goel, AIR 2008 SC 2594 (supra) wherein the Supreme Court has elaborately discussed a catena of decisions and held that when the substantial question of law is formulated in accordance to the procedure enumerated in Section 100 read with Order XLII, Rules 1 and 2 of the Code of Civil Procedure the second appeal can be admitted on recording a satisfaction that a substantial question of law is involved as proposed in memorandum of appeal and enunciated the settled legal position as to what is a substantial question of law. Likewise, in AIR 2000 SC 426 (supra) it has been held that the interference with concurrent finding of facts is permissible when material or relevant evidence is not considered by the Court below and if it had been considered it would have led to an opposite conclusion. In the said decision it has been observed that the First Appellate Court is under a duty to examine the relevant materials on record and if it refuses to consider the important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law then the High Court is fully authorised to set aside the finding. 9. 9. In view of the well-settled legal position now it has to be considered whether the First Appellate Court has failed to examine the relevant evidence on record. It is contended by the learned counsel for the defendants/appellants that the evidence of PWs 3, 4 and 6 and Exhibits 'A' and 'B' have not been considered and appreciated in its correct perspective by the First Appellate Court while recording the finding that the possession of the defendants/appellants was permissive. Learned counsel for the appellant has strenuously argued that the trial Court' had committed gross error in recording the finding that since notice of eviction was served by the respondents/ plaintiffs on the defendants hence, they were. in permissive possession. 10. On perusal of the judgment of the First Appellate Court. it is abundantly clear that the First Appellate Court has discussed this question and recorded the finding that the trial Court has erred in treating notice of eviction as sufficient proof of permissive possession. in other words the First Appellate Court has applied its judicial mind independently and disagreed with findings and reasons of the trial Court on this aspect as is evident from para 48 of the judgment. Therefore. the question raised and argument advanced by the learned counsel does not have any legs to stand on and is rather misconceived and is hereby rejected. 11. The first appellate Court has considered and discussed the evidence of PWs 3 and 6 who have admitted that the properties were permitted to be used by the defendants in February-March. 1977 on the basis of oral agreement. The other plaintiffs' witnesses have also admitted the possession of the defendants over the suit property since 1977 or 1979. The defendants' version is that since 1977-1978 they have been in possession of the suit property which has been deposed by DWs 4 and 6 as mentioned in the judgment of the first appellate Court. The first appellate Court on appreciation of the evidence of this point has recorded its finding that the appellants/ defendants have not been able to establish as to how the defendants/ NWGEL have come to derive the title to the above properties or the legal source of the property. The first appellate Court on appreciation of the evidence of this point has recorded its finding that the appellants/ defendants have not been able to establish as to how the defendants/ NWGEL have come to derive the title to the above properties or the legal source of the property. In fact that the lower appellate Court has meticulously examined the evidence of PWs 3 and 6 and on threadbare discussion has arrived at the finding that the plaintiffs have fairly admitted that the appellants/defendants are not the former unit of GEL Church. 12. The issue regarding claim of title on the basis of adverse possession by the defendants has dealt with by the First Appellate Court. It is well-settled that the claim of adverse possession can be established by proof that a person who in possession of a suit property adverse to the interest of the true owner for 12 years. The period of 12 years starts running when a person display a hostile attitude towards the ownership of the plaintiffs and mere long possession even for more than 12 years cannot be of any "relief to the person claiming adverse possession. 13. The First Appellate Court has elaborately dealt with this question and held that though the defendants have claimed that they are in possession of the property since 1977-78 but they have not been able to bring any document to show that there was severance of relationship of defendants/NWGEL Church from the plaintiffs/GEL Church showing that the administrative control, ownership and absolute possession of the properties were given to them. The defendants have pleaded that a separate constitution was prepared by them showing their severance from plaintiffs-GEL Church but, it has been noticed that no document regarding adoption of a constitution in 1977 by NWGEL was produced. 14. The First Appellate Court has taken note of the fact that DW 4 in his evidence has admitted that NWGEL Church came into existence in 1977 and adopted their own constitution in 1978 but no constitution was ever produced by the defendants/appellants to substantiate the aforesaid plea that NWGEL Church was an independent and separate unit having no concern with plaintiffs-GEL Church. In fact the First Appellate Court has found that DW 4 in his deposition has denied severance of defendants-NWGEL Church from plaintiffs-GEL Church. In fact the First Appellate Court has found that DW 4 in his deposition has denied severance of defendants-NWGEL Church from plaintiffs-GEL Church. That DW 4 has admitted that till 1977 defendants-NWGEL Church has not been registered with the Government and DW 6 admitted that NWGEL Church was registered only in 2000. 15. The First Appellate Court on meticulous examination of the evidence of the parties has recorded its satisfaction that no document evidencing partition between the two units was prepared and NWGEL Church had not adopted any constitution regarding their independence from plaintiffs/GEL Church in 1977. It is necessary to point out that the First Appellate Court has discussed Ext. 5, Le., the order dated 12.10.2001 in S.A. No. 132/1986 wherein the High Court had expunged and set aside the findings of the First Appellate Court in Title Appeal No. 19/1984 allowing defendant/NWGEL to remain in control of the property lying within the anchals of NWGEL Church. The above order of the High Court was never challenged by the appellants/ defendants therefore, the claim of exclusive possession by NWGEL of the suit property was set aside and the said finding attained fmality, therefore, it, cannot be again raised as it is hit by the principles of res judicata. 16. It is also necessary to State that a person cannot claim title in an independent capacity and at the same time, that the plea of having acquired title on the basis of adverse possession. Incidently such contradictory pleas are mutually destructive. It is noticed the defendants/appellants have taken such inconsistent pleas and the First Appellate Court has elaborately discussed and examined the evidence in threadbare details while recording its satisfaction that the appellants/defendants' possession was permissive. In the considered opinion of this Court the finding of the First Appellate Court does not suffer from any perversity or arbitrariness. 17. The First Appellate Court has extensively discussed the evidence of PWs 3 and 6 and DW 6, while recording its satisfaction that the plaintiff-institution/ GEL Church has the right, title and interest over the property and the defendants have no remote connection with the schedule land. In this context it has taken note of the rent receipts, Le., Exts. A to A/10 and Exts. In this context it has taken note of the rent receipts, Le., Exts. A to A/10 and Exts. B to B/14 which have been adduced by the defendantsj appellants to show that they have been paying rent for the suit property in support of the pleading that they are in possession of the suit property as a separate union since 1977 and also since 1966. While answering the said question the First Appellate Court has examined the Khatian (Ext. 2) wherein the suit property has been recorded as 'gairmqjarua aam' and recorded in the name of Gossenor Lutheran Mission Church which is a unit of the plaintiff-GEL Church. The First Appellate Court has taken note of Exts. 1 and 1 jE whereby the rent of the land was also paid by the plaintiffs. 18. On perusal of the impugned judgment it is evident that the question raised and argument advanced by the leamed counsel for the appellants-jdefenc dants has been considered and elaborately discussed by the First Appellate Court. It is abundantly clear that the appellant’s defendants have not been able to bring on record any perversity or arbitrariness 'in the findings recorded by the First Appellate Court. 19. In this context it will also be pertinent to reiterate that the settled legal position in a plethora of decisions has been reiterated by the Supreme Court in the case of Ranbir Singh (Dr.) v. Asharfi Lat, (1995) 6 SCC 480 wherein at para 14 it has been observed as under :- "14. Sub-section (1) of Section 100 of the Code of Civil Procedure contemplates that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Subsection (4) of Section 100 further provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. But it may be pointed out the High Court formulated no such question of law on basis of which it proposed to interfere with the findings of facts. It has been consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based upon an appreciation of the relevant evidence. It has been consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based upon an appreciation of the relevant evidence. There is a plethora of case law in support this view. To quote a few, references may be made to the decision in V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302 wherein this Court took the view that even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure and the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court. This view has been reiterated by this Court in Bhagwan Dass v. Jiley Kaur, 1991 Supp (2) SCC 300. This being the position, the High Court was not justified in re-appreciating the evidence and substituting its own conclusions for the well-reasoned findings recorded by the Courts of fact." 20. In the case of Gurvachan Kaur v. Salikram, (2010) 15 SCC 530 it has been observed as follows : "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the First Appellate Court which is the final Court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the First Appellate Court on the issues of existence of landlord tenant relationship between the plaintiff and the defendants and default committed by the letter in payment of rent." 21. The above proposition has also been propounded, in paras 12, 13 and 16, in the case of Laxmidevamma v. Ranganath, (20015) 4 SCC 264, the extract of which are re-produced hereunder :- “12...........Based upon the above documentary evidence and other evidence, the First Appellate Court has recorded concurrent findings that the plaintiffs are successful in showing that they are the owners of A schedule property and that the same is coupled with oral evidence which substantiates the documentary evidence. 13. 13. Based upon oral and documentary evidence, the Courts below have recorded concurrent findings that the plaintiffs are the owners of A schedule property. While holding so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact................ . 16. Based on oral and documentary evidence, both the Courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have fullfledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100, CPC. concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the Courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." 22. The decisions relied on by the learned counsel for the appellants/defendants are of no help and discussion of the same will only burden the judgment since the ratio is not applicable to the facts as obtaining in the present case. 23. In the backdrop of the settled proposition and the discussion made hereinabove this Court is of the considered opinion that no substantial question of law is involved in the present appeal warranting any interference with the impugned judgment. 23. In the result, the appeal stands dismissed without cost Appeal dismissed. Appeal dismissed.