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2017 DIGILAW 744 (ALL)

ANIL SINGH v. NAUMI YADAV

2017-03-09

P.K.S.BAGHEL

body2017
JUDGMENT : Pradeep Kumar Singh Baghel, J. 1. The defendant has preferred this second appeal under Section 100 C.P.C. aggrieved by the judgment and decree dated 24.1.2017 passed by the Additional District Judge. 2. The respondent-plaintiff instituted an Original Suit No. 225 of 2003 to restrain the defendants from interfering in his possession over the land in dispute and also for removal of the garbage/ mud over the suit property. 3. In brief the plaintiff's case, as mentioned in the plaint, is that the suit property is an ancestral abadi land. He has constructed a house over the suit property and is in possession. In the revenue record the land is recorded as 371 area 22 are. About six years back when the plaintiff's father intended to raise some construction over the suit property, the defendants not only restrained him but they also started interfering in his possession. 4. The plaintiff's father instituted Civil Suit No. 647 of 1996 in the Civil Court. In the said suit the parties arrived at a settlement. Pursuant thereto the plaintiff's father constructed six rooms but due to financial constraint he could not complete the roof of the house. Hence he laid chhappar over the newly raised construction and started living therein. The cause of action arose in 2003 when due to storm chhappar was badly damaged, therefore, it needed repair. The plaintiff caused interference in his possession. 5. The plaintiff further submitted that the defendant has illegally dumped mud and garbage over a part of the suit property. The trial court received the evidence and framed necessary issues. The issue no. 1 was in respect of the ownership and possession of the suit property. The trial court dismissed the suit on the ground that the plaintiff has failed to prove his title over the land; the compromise entered in Suit No. 647 of 1996 was not binding on the defendants as they were not party in the said compromise; the land was not identifiable. The suit property Arazi Plot No. 371 area 22 are (Varg-6(2)] is an abadi land hence the plaintiff cannot be owner of the said land. The various documentary evidences filed by the parties are contradictory. On the grounds, mentioned above, the trial court dismissed the suit. 6. Aggrieved by the order of the trial court the plaintiff filed the appeal before the learned Additional District Judge. The various documentary evidences filed by the parties are contradictory. On the grounds, mentioned above, the trial court dismissed the suit. 6. Aggrieved by the order of the trial court the plaintiff filed the appeal before the learned Additional District Judge. The appellate court framed the points for determination. The appellate court found that it is a common ground between the parties that Plot No. 371 area 0.22 hectare is an abadi land [Varg-6(2)]. It has recorded a finding after appreciating the evidence on the record that the plaintiff has proved his possession over the said property. The appellate court has analyzed the oral and documentary evidence on the question of possession. 7. It has referred the documentary evidence, judgment and decree of Suit No. 647 of 1996 (Santa v. Koola). In respect of the same land viz. Plot No. 371 area 22 are, the court had recorded a finding that the plaintiff's father was the owner of the said property. The appellate court has also referred the admission of one of the defendants D.W.-3 wherein he had admitted that the entrance of his house is towards road and not over the said property. It has also relied on the entry in Khasra No. 116-Ga and the commission report wherein it has been mentioned that no door of the defendant's house is towards south i.e. a suit property. The commission report which has been confirmed also supports the possession of the plaintiff. 8. Learned counsel for the appellant failed to demonstrate and satisfy the Court that the findings recorded by the appellate court on the basis of the oral and documentary evidence mentioned above suffers from any illegality or perversity. The findings recorded by the Civil Court in Suit No. 647 of 1996, wherein the plaintiff's father was found to be in possession of the suit property cannot be lightly brushed aside, coupled with the fact that a criminal case between the parties was also registered on the allegation that the defendants were using force against the plaintiff over the suit property. In the said case the defendants were made accused. Although the defendants were acquitted in that case on the ground of benefit of doubt. 9. In the said case the defendants were made accused. Although the defendants were acquitted in that case on the ground of benefit of doubt. 9. Learned counsel for the appellant submits that the appellate court has erred in law relying on the compromise decree in Case No. 647 of 1996 between Santa (father of the plaintiff) and one Koola, which was not admissible in the evidence. Next, he urged that the findings of the lower appellate court are against the evidence on record. 10. Lastly, he urged that the lower court has decreed the suit without reversing the findings of the trial court regarding the possession. 11. Learned counsel for the respondents Sri J.A. Azmi submitted that the appellate court has recorded a finding of fact regarding the possession of the plaintiff over the suit property. He has taken the Court to the findings recorded by the trial court to demonstrate that the trial court has not appreciated the evidence in proper perspective and its findings regarding the possession was totally perverse. 12. He further submitted that the appellate court has not committed any error of law by referring earlier judgment of civil court and the criminal court for collateral purposes because those judgments have been referred by the appellate court only for collateral purposes and it has recorded independent finding on the basis of documentary and oral evidence which established that the plaintiff is in possession over the suit property. 13. I have heard learned counsel for the parties and considered their submissions and perused the record. 14. Concededly, the suit property is an abadi land. The only dispute was in respect of the possession of the land. The plaintiff was to prove his lawful possession over the suit property. The plaintiff in the present case by the oral as well as documentary evidence has proved his lawful possession. The defendant in his oral evidence has admitted that there is no door of his house opened towards the suit property. He has not filed any documentary evidence to establish his possession over the suit property. The plaintiff in the present case by the oral as well as documentary evidence has proved his lawful possession. The defendant in his oral evidence has admitted that there is no door of his house opened towards the suit property. He has not filed any documentary evidence to establish his possession over the suit property. On the contrary the revenue record filed by the plaintiff and the judgment and decree of the earlier Suit No. 647 of 1996 goes to show that there was a declaration by a competent court regarding the possession of the plaintiff's father over the suit property simply because the defendants were not party in the said suit ,the findings recorded by a competent court cannot be ignored altogether. 15. In my view the appellate court has not committed any error in referring the said findings of the civil court. The finding recorded by the appellate court regarding the possession of the plaintiff is based on evidence on record. The Court has analyzed the other oral and documentary evidences regarding the possession of the plaintiff over the suit property. 16. On the face of the facts of the present case, I am of the view that the appeal does not raise any substantial question of law. The appellate court on the basis of the documentary and oral evidence has recorded a finding about the possession of the plaintiff over the suit property. Learned counsel for the appellant has failed to point out any illegality in those findings. Hence, no substantial question of law arise in this appeal. The Supreme Court in the case of Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 has held that only on the ground of finding of fact a second appeal does not lie unless it raises substantial question of law. Relevant part of the judgment is extracted herein below: "12. 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." 17. 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." 17. In the same judgment the Supreme Court has quashed its earlier judgment with the approval that it is not permissible for the High Court to decide the second appeal by re-appreciating the evidence: "19. In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa (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." 18. As regards the submission of learned counsel for the appellant that the findings recorded by the appellate court are perverse, he failed to point out any such perversity in the judgment of the appellate court. In the second appeal, it is true that the Court can interfere if it is satisfied that the findings are based on misreading of evidence or so perverse that no person of ordinary prudence could take the said view and intervention under Section 100 C.P.C. is permissible provided that the case involved a substantial question of law which is different from the question of law. Reference may be made to the judgment of the Supreme Court in the case of P. Chandra Sekharan and others v. S. Kanakarajan and others, (2007) 5 SCC 669 . 19. Applying those principles, in the present case, I find that no substantial question of law arises in this appeal. The judgment and decree of the appellate court is based on the evidence on record hence no interference is called for. 20. The second appeal is dismissed. 21. No order as to costs.