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2017 DIGILAW 388 (JHR)

Munni Devi, W/o Ram Dev Singh v. Suman Kumar Minz, S/o Thomas Minz

2017-02-23

AMITAV K.GUPTA

body2017
ORDER : This second appeal has arisen out of judgment and decree dated 01.09.2015 and 14.09.2015 respectively, passed by the District Judge, Simdega, in Title Appeal No.02 of 2015, affirming the judgment and decree dated 09.03.2015 and 21.03.2015, passed by the Civil Judge, Junior Division Simdega, in Title Suit No.12 of 2015. 2. For the sake of convenience, the parties shall be referred to as they were arrayed in the suit. 3. The plaintiffs (respondents herein) case is that by registered sale deed No.55 dated 19.01.2002 they had purchased 11 decimals of land of Plot no.3479 out of the total areas of 44 decimals of Khata No.120 of Village-Gotra, Deputy Toli, P.S.-Simdega, District-Simdega. It is alleged that the defendants had encroached on 1.5 decimals of the said land. Accordingly, the suit was instituted for declaration of right, title and interest over the suit land and for recovery of possession of 1.5 decimals of the suit land and also for permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiffs. The defendants contested the suit and filed the written statement denying the averments made by the plaintiffs. The defendants asserted that 18 decimals of land of the aforesaid plot was mutated in the name of defendant No.1, i.e., Munni Devi who is in possession of 18 decimals of land which was mutated in her name in 19.12.1973 and she is paying rent for the suit land since then. That no land measuring 1.5 decimals was left by the plaintiff. That there is no description of the boundary of 11 decimals of land purchased by the plaintiffs. That the plaintiffs are falsely claiming the land with an intent to grab the land of the defendants. On the pleadings of the parties, the trial court has framed as many as six issues. On the basis of oral and documentary evidence the trial court decided the issues including issue no.4 “whether the plaintiff has full right, title and interest over the suit land or whether the defendant Nos.1 & 2 have right, title and interest?”, in favour of the plaintiffs and decreed the suit. Being aggrieved with the trial court's judgment the respondents preferred Title Appeal No.2 of 2015. The appellate court on examination and analysis of oral and documentary evidence on record, affirmed the findings of the trial court. 4. Being aggrieved with the trial court's judgment the respondents preferred Title Appeal No.2 of 2015. The appellate court on examination and analysis of oral and documentary evidence on record, affirmed the findings of the trial court. 4. Learned counsel for the defendants has argued that the trial court and the appellate court have failed to appreciate the oral and documentary evidence in its correct perspective and the findings recorded by the first appellate court and trial court that the defendants have encroached 1.5 decimals of land are perverse. It is urged that such perversity in findings gives rise to a substantial question of law. Learned counsel for the defendants has contended that the decree has been put to execution and the appellants/ defendants have appeared in the Execution Case and filed the objection. That on the objection of the appellants/ defendants, the Pleader Commissioner was appointed who has submitted the report giving a finding that the plaintiffs are in possession of 10.60 decimals of land and they have been given possession of the remaining 0.40 decimals of disputed land which shows that the defendants/ appellants had never encroached upon 1.5 decimals of land. 5. Learned senior counsel, appearing for the plaintiffs/ respondents, contended that the disputed question raised by the learned counsel is a subject matter for adjudication by the Executing Court. It is urged that the Executing Court has rejected the Pleader Commissioner's report and the said issue cannot be adjudicated in this second appeal as it is beyond the purview and scope of Section 100 of the Code of Civil Procedure. 6. Heard. At the threshold it is necessary to reiterate the settled proposition of law is that the jurisdiction of the High Court in interfering with concurrent findings of the courts below is permissible only in cases involving substantial question of law. The High Court is required to be satisfied that a substantial question of law is set out in the memorandum of appeal and duty is cast upon the court to formulate the substantial question of law involved in the appeal. The High Court is required to be satisfied that a substantial question of law is set out in the memorandum of appeal and duty is cast upon the court to formulate the substantial question of law involved in the appeal. In a catena of judgments the Supreme Court has emphatically held that there is no justification for the High Court to interfere with the concurrent findings of fact and even if the first appellate court commits an error in recording a finding of fact that itself will not be a ground for the High Court to upset the same. On perusal of the judgment of appellate court it is abundantly clear that the appellate court has meticulously examined and analysed the evidence adduced by the parties and on careful consideration and discussion of the evidence has affirmed the findings of the trial court. The learned counsel has not been able to bring forth any perversity in the findings on facts by the lower appellate court for formulating any substantial question of law. The arguments advanced by the counsel for the defendants regarding the report of the Pleader Commissioner is a question for determination by the court in seisin of the execution proceeding and is beyond the scope of Section 100 of C.P.C. Admittedly the defendant has agitated this fact before the executing court which is the competent court to adjudicate on the points raised by the appellant. The aforesaid issue does not involve any substantial question of law for adjudication or determination in the instant second appeal in terms of Section 100 of C.P.C. 7. It is apparent that there is no illegality or infirmity in the findings of the courts below requiring any interference by this Court. 8. In the result this appeal is sans merit and is, hereby, dismissed.