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2018 DIGILAW 119 (UTT)

Naresh Kumar v. B. H. E. L.

2018-03-20

LOK PAL SINGH

body2018
JUDGMENT : Lok Pal Singh, J. Present second appeal has been preferred against the judgment and decree dated 30.01.2018 passed by IV Additional District Judge, Haridwar in Civil Appeal No.31 of 2012, whereby the first appellate court, while affirming the judgment and decree dated 11.05.2012 passed by Additional Civil Judge (S.D.) Haridwar in O.S. No.297 of 2007, has dismissed the appeal of the plaintiff/appellant. 2. Facts necessary for adjudication of the case are that Gram Panchayat along with present appellant Naresh and three others instituted a suit being Original Suit No.297 of 2007 against the defendant/respondent no.1 herein for a decree of permanent injunction with the averments that the land in dispute belongs to Gaon Sabha and Gaon Sabha is in possession over the same and the respondent is trying to dispossess the Gaon Sabha. It was also contended that the land in dispute is recorded as a public utility land. Suit was contested by the B.H.E.L. defendant/respondent, who filed the written statement, denying the plaint averments and it was contended that the land in question was acquired by the State Government in the year 1962 for the purpose of construction of B.H.E.L. On the basis of pleadings of the parties, learned trial court formulated the following issues:- (i) Whether plaintiff no.1 is the owner and is in possession over the property in question? (ii) Whether the suit is bad due to non joinder of parties? (iii) Whether the suit is barred by Section 15 of Public Premises (Eviction of Unauthorised occupants) Act? (iv) Whether plaintiff is entitled to get any relief? 3. On behalf of plaintiffs, PW1 Smt. Mahendari Devi, PW2 Ram Singh and PW3 Meer Hasan were examined. However, none of the plaintiff appeared as witness. On behalf of the defendant/respondent B.H.E.L.,Shri J.V. Singh was examined. 4. After the evidence of the parties, learned trial court recorded its findings on all the issues and, vide judgment and decree dated 11.5.2012, dismissed the suit of the plaintiffs. On issue no.1, trial court recorded finding that the plaintiffs’ witnesses have admitted that land was acquired in the year 1962 by the B.H.E.L. and they are not aware about particulars of the land in question. On issue no.1, trial court recorded finding that the plaintiffs’ witnesses have admitted that land was acquired in the year 1962 by the B.H.E.L. and they are not aware about particulars of the land in question. The trial court further held that the plaintiffs’ witnesses have not supported the case of the plaintiffs and that plaintiff no.1 neither is owner of the land in dispute nor in possession and decided issue no.1 against the plaintiffs and in favour of B.H.E.L. Feeling aggrieved by the same, plaintiffs preferred the appeal before the first appellate court, which also met the same fate. Hence, present second appeal. 5. I heard Mr. Aditya Singh, learned counsel for the appellant, Mr. V.K. Kohli, learned Senior Counsel assisted by Mr. Gaurav Kandpal, learned counsel for respondent no.1 and Mr. P.S. Bisht, learned Standing Counsel for the State/respondent no.2. 6. Mr. Aditya Singh, learned counsel for the appellant would submit that both the courts below have committed illegality in not considering the fact that the land in dispute is recorded as public utility land in the revenue records as defined u/s 132 of U.P. Zamindari Abolition & Land Reforms Act. He would also submit that since the land in dispute is a public utility land and in khatuni it is recorded as Nala thus it could not be acquired by B.H.E.L. and B.H.E.L. cannot become owner of the property in dispute. 7. Per contra, Mr. V.K. Kohli, learned Senior Counsel appearing for respondent no.1 raises objection regarding maintainability of the present appeal and would submit that the present second appeal is not maintainable at the behest of the appellant. According to learned Senior Counsel, appellant is not an aggrieved party. To this, learned counsel for the appellant would submit that the appellant was one of the plaintiff in the suit, but after dismissal of the suit, when other plaintiffs and Village Panchayat of Gaon Sabha failed to protect the interest of Gaon Sabha, he came forward and preferred the appeal being one of the plaintiff. 8. Learned Sr. Counsel, in the alternative, would also submit that the suggested substantial questions of law are beyond the pleadings of the parties and none of these arises for consideration by this Court. To buttress his arguments, learned Senior Counsel referred a judgment of Hon’ble Apex Court rendered in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) By Lrs. Counsel, in the alternative, would also submit that the suggested substantial questions of law are beyond the pleadings of the parties and none of these arises for consideration by this Court. To buttress his arguments, learned Senior Counsel referred a judgment of Hon’ble Apex Court rendered in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) By Lrs. & Ors., 2008 SAR (Civil) 878 Supreme Court and placed reliance on paragraphs 23, 24, 25 and 27, which are reproduced hereunder: “23. The second question of law formulated by the High Court is a mixed question of fact and law, i.e., whether the factual ingredient necessary to claim the benefit of Section 41 of the Transfer of Property Act were made out by plaintiffs. To attract the benefit of Section 41 of T.P. Act, the plaintiffs had to specifically plead the averments necessary to make out a case under section 41 of the T.P. Act and claim the benefit or protection under that section. The averments to be pleaded were: (a) That Rukminibai was the ostensible owner of the property with the express or implied concerned of Damodar Rao; (b) That the plaintiffs after taking reasonable care to ascertain that the transferor or Rukminibai had the power to make the transfer, had acted in good faith in purchasing the sites for valid consideration; and (c) That therefore, the transfer in favour of plaintiffs by Rukminibai was not voidable at the instance of Damodar Rao or anyone claiming through him. These pleas were not made in the plaint. When these were not pleaded, the question of defendant denying or traversing them did not arise. In the absence of any pleadings and issue; it is ununderstandable how a question of law relating to section 41 of T.P. Act could be formulated by the High Court. 24. The third question of law formulated by the High Court, is also a mixed question of fact and law firstly whether there was an oral gift and secondly whether the alleged oral gift was valid. Here again, there was no averment in the plaint in respect of any gift, oral or otherwise, by Damodar Rao in favour of Rukminibai or about its validity. Consequently there was no opportunity to the defendant to deny the oral gift in his written statement. There was no issue on this aspect also. Here again, there was no averment in the plaint in respect of any gift, oral or otherwise, by Damodar Rao in favour of Rukminibai or about its validity. Consequently there was no opportunity to the defendant to deny the oral gift in his written statement. There was no issue on this aspect also. Therefore, this question, which could not have been considered in the suit, could not also have been considered in the second appeal. 25. The High Court, in the absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of suit property having purchased the same under – sale deeds dated 09.12.1968, did not enable the Court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under Section 41 of T.P. Act. NO amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled. 27. We are therefore of the view that the High Court exceeded its jurisdiction under section 100 C.P.C., firstly in re-examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration of suit.” 9. After hearing the parties, I am of the considered opinion that the preliminary objection raised on behalf of respondent no.1 with regard to “locus standi” of the appellant to maintain the instant second appeal deserves to be decided at the outset before entering into the merits of the matter, as the said question would go to the root of the matter. 10. From the perusal of plaint, it would reveal that Gaon Sabha was arrayed as plaintiff no.1 and Ram Kishan, Kaliram, Palturam and Naresh (the appellant herein) were impleaded as plaintiff nos.2, 3, 4 and 5, respectively. 10. From the perusal of plaint, it would reveal that Gaon Sabha was arrayed as plaintiff no.1 and Ram Kishan, Kaliram, Palturam and Naresh (the appellant herein) were impleaded as plaintiff nos.2, 3, 4 and 5, respectively. In the plaint, there is no assertion in regard to any right in favour of plaintiff nos.2 to 5. The only allegation made in the plaint is that the Gaon Sabha is the owner of the property in dispute and B.H.E.L is trying to take illegal possession and that B.H.E.L. had never remained in possession over the property in dispute. Furthermore, suit was not filed in the representative capacity. There is no mention as to how and in which capacity plaintiff nos.2 to 5 were impleaded in the suit. There is no reference in the plaint in regard to their capacity. Claim over the land in dispute was raised by Gaon Sabha but after dismissal of the suit and appeal, Gaon Sabha, which can be said to be an affected party, did not challenge the judgment and decree, rather it has been challenged by plaintiff no.5 Naresh Kumar in the present appeal, who has not pleaded anything about his individual right being affected by dismissal of suit. Thus, in my opinion, the appellant has no locus standi to approach this Court by filing the present appeal. 11. Now, coming to next alternative argument advanced by learned Senior Counsel which was that the substantial questions of law formulated by the appellant are beyond the pleadings of the parties and none of them arises for consideration by this Court. This Court finds that in the memorandum of appeal, following substantial questions of law have been formulated: (i) Whether the courts below in denying the relief claimed by the appellant herein the suit erred in law in not appreciating Rule 26 read with the provisions contained under Section 132 of the Zamindari Abolition & Land Reforms Act? (ii) Whether the courts below erred in law in not appreciating that the revenue records duly proved by the appellant before the court below clearly shows the land in question has been mentioned as vacant, rao nadi, nala and johar in revenue records for fasli year 1670 to 1695 and 1408 to 1413 fasli which are under the management of Gaon Sabha in terms of Rule 26 of U.P. Gram Sabha, Gram Panchayat and D.P.S. Manual? (iii) Whether the courts below were in error of law in not appreciating that denial of claim of the appellant in absence of any cogent evidence shown by the respondents to claim title over the property in dispute is in clear error of law or not? 12. After perusal of the above substantial questions of law, it would reveal that in regard to the suggested substantial questions of law, neither there were pleadings nor any issue was framed by the trial court; in fact all the substantial questions of law are beyond the pleadings and evidence available on record. The scope of appeal under Section 100 C.P.C. is very limited and this Court shall enter upon the matter only when there has arisen a substantial question of law and not otherwise. What is "substantial question of law" is no more res integra, having been settled by Apex Court in Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 , wherein a Three Judges Bench has examined the scope of 100 of C.P.C and has held that the substantial question of law means of having substance, essential, real, of sound worth, important and considerable. The relevant paragraphs are reproduced below:- “12. The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The 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 contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta Vs. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta Vs. T. Ram Ditta, the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. Century Spg. & Mfg. Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju: “[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.” and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:- “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” 13. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” 13. In Dy. Commr., Hardoi, Vs. Rama Krishna Narain, also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code. 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 13. This Court finds that in the case at hand, the suit was a simplicitor suit for injunction on the basis of alleged ownership of Gaon Sabha but the Gaon Sabha did not file any documentary or oral evidence to prove its case. As far as possession is concerned, plaintiffs’ witnesses have themselves admitted the fact that Gaon Sabha is not in possession, rather B.H.E.L. is in possession. As far as possession is concerned, plaintiffs’ witnesses have themselves admitted the fact that Gaon Sabha is not in possession, rather B.H.E.L. is in possession. Both the Courts below have considered the issues and recorded concurrent findings of fact that B.H.E.L. is in possession over the land in dispute. Finding of possession is a finding of fact. In exercising jurisdiction under Section 100 of Cr.P.C., concurrent findings of possession which is a finding of fact cannot be interfered with. 14. As an upshot of aforesaid discussion, it is held that the appellant has no locus standi to file the present appeal. Otherwise also, no substantial question of law arises for consideration by this Court in the present appeal. Accordingly, second appeal is dismissed. 15. No order as to costs.