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2017 DIGILAW 559 (ALL)

DEEPCHAND v. PHOOLCHAND MANJHI

2017-02-16

P.K.S.BAGHEL

body2017
JUDGMENT Hon’ble P.K.S. Baghel, J.—This is defendant’s second appeal under Section 100 C.P.C. 2. Feeling aggrieved by the judgment and decree of the first appellate Court decreeing the suit of the plaintiff-respondent for permanent injunction, the defendant has filed the present second appeal. 3. The plaintiff filed a suit for permanent injunction to restrain the defendant from interfering in his suit property shown in the plaint map as letters Ka, Kha, Ga, Gha. The further relief sought that during the pendency of the suit, the construction raised by the defendant be removed and the possession of the plaintiff be restored. 4. The plaintiff’s case was that the suit property was a Deeh. Its original owner was Gulab and Laxmi both sons of late Musai Manjhi, resident of Mauja Tedhabeer, Tappa Panchwara Pargana Havali, Tehsil Campiarganj, District Gorakhpur. It was their ancestral property. They have shifted to another district. On 31.5.1996 and 3.5.1999, they have executed an unregistered deed in presence of some respectable persons of the village and issued a receipt and also executed a Yaadastnama on 5.6.2012. Since, the plaintiff was in employment, outside of the village, about 15 years back, he had raised a boundary wall and has constructed a residential house in the suit property. During the vacations, he lives in the house constructed over the suit property. After his retirement, he has now permanently settled in the village and is living in his house. The defendant has no concerned with this land. 5. It is submitted that in the month of July, 2012, they demolished the boundary wall of the southern part of the house and they are threatening to dispossess the plaintiff from a portion of the land shown in the map Ka, Kha, Cha, Chha. Later, the plaint was amended. It was stated that during the pendency of the suit, the defendant has raised construction over the southern part of the plaintiff’s house. It was an open land. 6. Despite the service upon the defendant, he did not appear in the suit and did not contest the suit, hence, the trial Court proceeded ex parte against him. 7. The plaintiff has filed a copy of the receipt of Yaadastnama and has also filed an affidavit of erstwhile owners Gulab and Laxmi, PW-2 and 3. The plaintiff has also filed his affidavit as PW-1. 8. 7. The plaintiff has filed a copy of the receipt of Yaadastnama and has also filed an affidavit of erstwhile owners Gulab and Laxmi, PW-2 and 3. The plaintiff has also filed his affidavit as PW-1. 8. The trial Court has dismissed the suit of the plaintiff only on the ground of that allegedYaadastnama, transferring the property by Gulab and Laxmi through unregistered sale-deed which is inadmissible document, hence,it is said that no title was transferred to the plaintiff by the said document. 9. Aggrieved by the judgment and decree of the trial Court, the plaintiff has preferred a regular first appeal before the learned Additional District Judge who has set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff. 10. The defendant has been directed to removed his construction which he had raised during the pendency of the suit. He has also been restrained from interfering in the possession of the plaintiff. 11. Learned counsel for the appellant submits that the appellate Court has committed grave error in decreeing the suit as it was an ex parte. It was urged that the defendant-appellant did not appear in the suit or he has filed his written statement. The trial Court dismissed the suit of plaintiff on merit, hence, the appellate Court erred in setting aside the said judgment and decree of the trial Court. It was further submitted that the appellant could not contest the suit as no notice was ever served upon him. Next, it was submitted that the documents filed by the plaintiff respondent are forged documents. Gulab and Laxmi have never executed any deed in favour of the plaintiff nor they have appear before the Court below. It was urged that Gulab has executed a sale-deed in favour of defendant-appellant on 2.4.2012. 12. Learned counsel for the caveator submits that the plaintiff has proved his possessiory title. The trial Court did not advert to the issue of the long possession of the plaintiff and dismissed the suit by a cryptic order. He further submits that the appellate Court has after analyzing the documentary evidence and affidavits filed by the ex-owner of the property, Gulab and Laxmi as well as the Amin report has recorded the finding of fact regarding possession of the plaintiff. 13. I have heard the learned counsel for the parties and perused the material available on record. He further submits that the appellate Court has after analyzing the documentary evidence and affidavits filed by the ex-owner of the property, Gulab and Laxmi as well as the Amin report has recorded the finding of fact regarding possession of the plaintiff. 13. I have heard the learned counsel for the parties and perused the material available on record. 14. It is a common ground that Laxmi Manjhi and Gulab Manjhi were the owner of the suit property. Both the plaintiff and the defendant have claimed that Laxmi Manjhi and Gulab Manjhi had transferred the suit property in their favour. The plaintiff claims that he has paid a consideration of Rs 5000/- to them and they have issued the receipt which bears the signature of Laxmi and Gulab Manjhi. The original receipt have been filed as evidence. Both the documents have been unregistered and have been executed on non judicial stamp. The plaintiff has filed affidavit of erstwhile owner and has also given his oral evidence which is unrebutted in their affidavit in which Laxmi Manjhi and Gulab Manjhi have stated that about 20 years back, they have transferred the suit property in favour of the plaintiff and has also handed over the possession of the suit property in favour of the plaintiff. 15. The defendant has also taken the plea that Gulab Manjhi has executed an unregistered sale-deed in his favour on 2.4.2012. This fact has also taken in the grounds of second appeal. Although from the judgment of the appellate Court, it does not indicate that any such plea has been taken by the defendant appellant before the Court below. In any view of the matter, the said ground taken in the second appeal indicate that it is an admitted case of the parties that the suit property was owned by Gulab and Laxmi. The defendant did not contest the suit. If the summon was not served upon him, as claimed by him, he could have filed application under Order IX Rule 13 of C.P.C. to set aside the ex parte decree. He preferred the regular first appeal. Thus, the fact remains that the affidavit of the earlier owner remained uncontroverted. 16. From perusal of the Amin Report, it is evidence that a fresh construction is found over the land Ka, Kha, Cha, Chha which is open land appurtenant to the house of the plaintiff towards south. He preferred the regular first appeal. Thus, the fact remains that the affidavit of the earlier owner remained uncontroverted. 16. From perusal of the Amin Report, it is evidence that a fresh construction is found over the land Ka, Kha, Cha, Chha which is open land appurtenant to the house of the plaintiff towards south. It is also mentioned that by raising fresh wall, the door of the plaintiff’s house in the south wall Cha, Chha has been closed by the fresh wall which has been raised by the defendant. 17. In my view, the aforesaid documents and the evidence clearly established the possession of the plaintiff over the suit property Ka, Kha, Ga, Gha. The appellate Court has recorded its finding that the plaintiff is in possession of the suit property and the defendant has no right to cause interference by raising a construction and closing his door in the southern wall of his house. 18. It is trite law that a person who is continuously in possession over the the property for a long period of time has right to defend his possession. When the plaintiff is in peaceful possession and if his possession is interfered or threatened by defendant, the injunction simplicitor will lie. The plaintiff has right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. In the present case, the defendant has failed to demonstrate a better title than the plaintiff. For the first time in the second appeal a ground has been taken with the erstwhile owner has executed an unregistered sale-deed on 2.4.2012 i.e. at the time of the filing of the suit. As noticed above from the judgment of the appellate Court it is evident that no such plea was taken before the appellate Court and for the first time in the grounds of appeal in this Court the defendant has disclosed the fact about the unregistered will in his favour. 19. A perusal of the appellate Court’s judgment indicate that the fact about aforesaid sale-deed has not been disclosed before the appellate Court, hence, the said plea cannot be considered at the stage of the second appeal. 20. The supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRS. and others, 2008 (4) SCC 594 , had occasion to deal with effect of long possession. 20. The supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRS. and others, 2008 (4) SCC 594 , had occasion to deal with effect of long possession. The Court has ruled thus : “15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff’s possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.” 21. This Court while exercising its jurisdiction under Section 100 C.P.C. will not undertake appraisal of evidence or interfere with the finding of fact even on the ground of erroneous finding of fact unless a substantial question of law is raised. 22. The Supreme Court in the case of Dinesh Kumar v. Usuf Ali, 2010 (12) SCC 740 , held thus : “13. A second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is the obligation on the Court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same. 19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa and others, (2000) 6 SCC 120 , this Court held that it is not permissible for the High Court to decide the Second Appeal by re-appreciating the evidence as if it was deciding the First Appeal unless it comes to the conclusion that the findings recorded by the Court below were perverse. 20. In Jai Singh v. Shakuntala, AIR 2002 SC 1428 , this Court held that it is permissible to interfere even on question of fact but it has to be done only in exceptional circumstances. 20. In Jai Singh v. Shakuntala, AIR 2002 SC 1428 , this Court held that it is permissible to interfere even on question of fact but it has to be done only in exceptional circumstances. The Court observed as under: (SCC pp. 637-38, para 6) “6. ...While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would, in our view, be too broad a proposition and too rigid an interpretation of law not worth acceptance but that does not also clothe the superior Courts within jurisdiction to intervene and interfere in any and every matter- it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extensor stands permissible- it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection.” 21. In P. Chandrasekharan and others v. S. Kanakarajan and others, (2007) 5 SCC 669 , this Court reiterated the principle that interference in second appeal is permissible only when the findings are based on misreading of evidence or are so perverse that no person of ordinary prudence could take the said view. More so, the Court must be conscious that intervention is permissible provided the case involves a substantial question of law which is altogether different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to substantial question of law.” 23. After careful consideration of the matter, I am of the view that in the present second appeal, no substantial question of law arises. The finding recorded by the appellate Court are based on the evidence on record and the learned counsel for the appellant has failed to point out any illegality in the findings, hence, I do not find any merit in the appeal which is dismissed accordingly.