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2018 DIGILAW 2180 (HP)

Mehar Singh v. Subhash Chand

2018-12-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The plaintiff is the appellant, who after having lost before both the courts below, has filed this second appeal. 2. The plaintiff filed a suit for possession on the allegation that he was owner of the land bearing Khewat No.8 min, Khatauni No.10 min, Khasra No.1468/283 measuring 0-02-76 hectare situated in Mohal Pial, Mauza Lodwan, Tehsil Nurpur, District Kangra, H.P. He averred that the defendant was a stranger to the suit land and owns the land falling in Khasra No. 1469/283, which adjoins the land of the plaintiff. The defendant taking advantage of absence of the plaintiff raised shops and had thereby encroached upon the suit land to the extent of 26 meter x 3 meter measuring 0-00-78 HM in Khasra No. 1468/283 situated in Mohal Pial, Mouza Lodwan, Tehsil Nurpur, District Kangra, H.P. Further case of the plaintiff is that he asked the defendant to remove the shops from the suit land but he remained adamant. The plaintiff applied for demarcation wherein it was found that the defendant had encroached upon the land of the plaintiff to the extent of 0-00-78 HM measuring 26 meters x 3 meters, i.e. suit land. The plaintiff sought decree for possession with regard to the suit land, i.e. encroached by the defendant. Decree for permanent prohibitory injunction was also sought restraining the defendant from raising further construction in the suit land. 3. The defendant contested and resisted the suit by filing written statement. The case of the defendant was that the suit was not maintainable as suit land was still joint and had not been partition. The remedy of the plaintiff was to seek partition and not possession. The defendant alleged that he purchased the land vide sale deed dated 3.4.1989 and had constructed the shops and at no stage plaintiff protested the construction of shops. He was carrying on his business. He further averred that the demarcation was wrong and in violation of instructions of Financial Commission. 4. The learned trial Court framed the following issues on 26.6.2004: 1. Whether the plaintiff is entitled for the relief of possession of the suit land, as prayed for? OPP 2. Whether the plaintiff is entitled for relief of permanent injunction restraining the defendant from alienating, selling of suit land or from raising any construction there on, as alleged? OPP 3. The learned trial Court framed the following issues on 26.6.2004: 1. Whether the plaintiff is entitled for the relief of possession of the suit land, as prayed for? OPP 2. Whether the plaintiff is entitled for relief of permanent injunction restraining the defendant from alienating, selling of suit land or from raising any construction there on, as alleged? OPP 3. Whether the suit is not maintainable the present from? OPD 4. Whether plaintiff has no cause of action to file the present suit? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether plaintiff estopped by his act and conduct laches and acquiescence from filing the present suit? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 5. After recording evidence and evaluating the same, the learned trial Court dismissed the suit on 11.11.2014 and the appeal preferred against the judgment and decree passed by the learned trial Court, also came to be dismissed by the learned first appellate Court vide judgment and decree dated 7.7.2017 constraining the appellant to file the present appeal. 6. Aggrieved by the judgments and decrees passed concurrently by the learned Courts below, the plaintiff has filed the instant appeal on the ground that both the learned Courts below have failed to appreciate the statements of the plaintiff and defendant in its true perspective as the statements of PW-1 to PW-4 have categorically proved encroachment on the suit land. 7. On the other hand, Ms. Devyani Sharma, learned counsel for the respondent, would contend that the findings recorded by both the learned Courts below are based upon correct appreciation of law, pleadings as also evidence on record and being pure finding of fact are immune from challenge in the instant second appeal. 8. I have heard the learned counsel for the parties and have also gone through the records of the case. 9. Pw-1 is plaintiff Mehar Singh, who while appearing in witness box, stated that the defendant had raised shops on Khasra No. 1468/283/1 and had encroached upon his land, which was confirmed by the Assistant Collector 1st Grade, Nurpur vide order dated 6.5.2003. In cross-examination, he admitted that Bua Devi and Parkasho Devi had sold their 1/3rd share in favour of the defendant. In cross-examination, he admitted that Bua Devi and Parkasho Devi had sold their 1/3rd share in favour of the defendant. He feigned ignorance about the pendency of the partition proceedings but denied that the suit land had been partitioned. 10. Pw-2 Rajesh Kumar stated that he had prepared the spot map Ex.PW-2/A after visiting the spot. 11. Pw-3 Harnam Singh produced on record the file of demarcation titled as Ajay Kumar vs Subhash Singh. 12. Pw-4 Jagdish Lal is the revenue official, who conducted the demarcation. He stated that he visited the spot and conducted the demarcation and submitted his report Ex.PW-4/A. He further stated that both the parties were present and accepted the demarcation. He lastly stated that the encroachment was found on the land falling in Khasra No. 1468/283/1 to the extent of 0-00-78 HM. 13. To rebut the evidence, the defendant examined DW-1 Jagtar Singh, Ahalmad from the court of Sub Divisional Officer (Civil), Nurpur, who on the basis of the record, stated that the appeal against the order of the Assistant Collector 1st Grade vide Ex.DW-1/A was pending adjudication. 14. Dw-2 Jagtar Singh proved on record certified copy of the appeal titled as Subhash Chand vs Ajay Kumar. 15. Dw-3 is defendant Subhash Chand himself, who tendered in his evidence affidavit Ex.DW-3/A. In his affidavit he stated that he is co-sharer in Khasra Nos. 281, 282, 283 and 284 and claimed himself to be in possession. He further stated that he had raised pucca shops in the land in question. In cross-examination, he stated that demarcation was conducted by the AC- 1st Grade, Nurpur, but the same had been challenged by him before the higher authority. He denied his wrongful possession to the extent of the suit land. 16. It would be noticed that the entire premises on which the plaintiff filed the instant suit for possession was based on demarcation report Ex.PW-4/A wherein the defendant was found to have encroached upon the suit land. He denied his wrongful possession to the extent of the suit land. 16. It would be noticed that the entire premises on which the plaintiff filed the instant suit for possession was based on demarcation report Ex.PW-4/A wherein the defendant was found to have encroached upon the suit land. This demarcation report was though confirmed by the Assistant Collector 1st Grade, Nurpur vide his report dated 6.5.2003, however, the defendant assailed this order before the SDO (Civil), Nurpur and admittedly the appeal was accepted vide order dated 4.6.2007 Ex.DX and the aforesaid order of the Assistant Collector 1st Grade, as relied upon by the plaintiff, was set aside and the matter was remanded to the Assistant Collector 1st Grade to decide the same afresh by affording the parties due opportunity of being heard. Once the very foundation on which the edifice is built collapses, with it falls the entire edifice. Therefore, once the demarcation report is set aside then in absence of any oral or documentary evidence on record to prove the alleged encroachment, the courts will have no choice but to dismiss the suit. 17. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon''ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs , (2001) 3 SCC 179 wherein it was observed as follows: "15....... The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one." 18. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus: "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 & Anr. Vs. T. Ram Ditta , (1928) AIR PC 172, 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. The Century Spinning and Manufacturing Co., Ltd. , (1962) Supp3 SCR 549, 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 , (1952) ILR(Mad) 264:- "When 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. Noony Veeraju , (1952) ILR(Mad) 264:- "When 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." 19. Finally, in paragraph 14, the Hon''ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus: "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 "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." 20. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal. 21. No question of law much less substantial question of law arises for consideration in this appeal. 22. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.