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2018 DIGILAW 2238 (HP)

Vipan Kumar v. Surjeet Singh

2018-12-17

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - Courts are not meant to pander to the inflated egos of litigants. 2. The appellant is the plaintiff, who after having lost before both the Courts below has filed the instant regular second appeal. (Parties hereinafter referred to as the Plaintiff and Defendants.) 3. Brief facts of the case are that the plaintiff claimed damages of Rs.5000/- and permanent prohibitory injunction with respect to the land comprised in Khata No. 780, Khatauni No. 838, Khasra No. 1118, measuring 3K-11 Marlas situated in Tika Bijhari, Mauza and sub Tehsil Dhatwal, District Hamirpur. It was averred that the plaintiff alongwith other co-sharers were owner in possession of the suit land, whereas the defendants were strangers. The land was got demarcated in the presence of the defendants on 10.06.2008, but the defendants started interfering and uprooting the boundary marks, constraining the plaintiff to file an application before the Tehsildar (Settlement), Circle Office Barsar, who thereafter deputed Field Kanungo to visit the spot. The Field Kanungo visited the spot on 17.03.2009 and found that boundary marks have been removed and, therefore, again fixed these boundary marks in presence of both the parties by fixing iron angle. It was averred that there were six buel trees over the suit land, which was in possession of the plaintiff, however, in the first week of November, 2009, the defendants cut the grass and branches of six buel trees thereby causing loss of Rs.5000/- to the plaintiff. On 09.12.2009, the plaintiff asked the defendants to make good the damages but in vain. Hence, the suit. 4. The defendants contested the suit by filing written statement and raised preliminary objections regarding maintainability, cause of action, non-joinder and mis-joinder of necessary parties and valuation etc. On merits, it was averred that the defendants were owners of the adjoining land and as per custom in the Wazib-Ul-Urje 1/3rd share in the Beed possessed by the owner of upper-holding and 2/3rd share lies with the owner of lower holding and the defendants as such have every right to utilize produce of their possession. In the year, 2007, the plaintiff had moved an application on the allegations that buel trees had been cut by the defendants, however on inspection, it was found that the trees were falling to the 1/3rd share of the defendants. In the year, 2007, the plaintiff had moved an application on the allegations that buel trees had been cut by the defendants, however on inspection, it was found that the trees were falling to the 1/3rd share of the defendants. It was denied that the defendants had cut grass or branches of the buel trees on the first week of November, 2009, as alleged. It was further denied that the defendants have uprooted boundary marks as alleged and prayed for dismissal of the suit. 5. On the basis of the pleadings of the parties, the learned trial Court on 06.12.2011, framed the following issues: 1. Whether the defendants had cut grass and the branches of buel trees from the suit land as alleged? OPP 2. Whether the defendants had caused loss of Rs.5000/- to the plaintiff as alleged? OPP 3. Whether the plaintiff is entitled for permanent prohibitory injunction as prayed for? OPP 4. Whether the defendant No. 1 has lawfully retrenched his own trees situated over the boundary of the land of the party as alleged? OPD 5. Whether the suit of the plaintiff is not maintainable? OPD 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. Whether the plaintiff has no locus standi to file the present suit? OPD 8. Whether the suit of the plaintiff is bad for nonjoinder/mis-joinder of parties? OPD 9. Whether the suit of the plaintiff is not properly valued for the purpose of Court fees and jurisdiction? OPD 10. Whether the plaintiff has suppressed the material facts from the Court as alleged? OPD 11. Whether the defendants are entitled to special costs? OPD 12. Relief. 6. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit of the plaintiff and the appeal filed against the same met with the same fate, constraining the plaintiff to file the instant appeal. 7. It is strongly urged by Mr. K. D. Sood, learned Senior Advocate, duly assisted by Mr. Shubham Sood, Advocate that the findings recorded by learned Courts below are perverse and being based on misreading of oral and documentary evidence, deserve to be set aside. 8. On the other hand, Shri R. K. Bawa, learned Senior Advocate, duly assisted by Mr. Prashant Sharma, Advocate, would argue that the findings recorded by learned Courts below are pure findings of fact. 8. On the other hand, Shri R. K. Bawa, learned Senior Advocate, duly assisted by Mr. Prashant Sharma, Advocate, would argue that the findings recorded by learned Courts below are pure findings of fact. The judgments and decrees passed by the learned Courts below warrant no interference and immune from interference in the second appeal. 9. In order to appreciate whether the findings are perverse, as contended by learned counsel for the plaintiff, it would be necessary to have cursory look to the oral and documentary evidence that has come on record. Ext.P1 is the copy of jamabandi for the year 2002-03, which indicates that the suit land is owned and possessed by the plaintiff alongwith other co-sharers. The plaintiff while appearing as PW3 stated that the land of the defendants is on the higher elevation to his land and there is a Beed of 10-11 feet height between two lands. Similar statements with regard to Beed is given by PW4 Shri Bihari Lal and PW5 Shri Raj Kumar. 10. Now, the dispute between the parties is with respect to the trees standing over the land which is called Beed. The plaintiff stated that there were 4-5 buel trees standing over this land whereas PW4 stated the numbers as 5-6 trees while PW5 claimed these to be 7 in numbers. The plaintiff alleged that these buel trees were over his land as was found in the demarcation conducted on 10.06.2008. As per the plaintiff, despite demarcation report having been confirmed, the defendants started interfering and in this process removed the boundary marks constraining him to report the matter to the Settlement Tehsildar who directed the Field Kanungo to submit the report. Field Kanungo, in turn, visited the spot on 17.03.2009 and in presence of the parties found boundary marks to have been removed. He thereafter fixed iron angle on the same marks. Yet the defendants in the first week of November, 2009 cut grass branches of buel trees standing over his land thereby causing loss of Rs. 5000/-. 11. The learned Courts below have found that there is no dispute with regard to demarcation conducted on 10.06.2008 as admitted by the defendants himself while appearing as DW1 wherein he admitted that no appeal has been filed against the report of demarcation. 5000/-. 11. The learned Courts below have found that there is no dispute with regard to demarcation conducted on 10.06.2008 as admitted by the defendants himself while appearing as DW1 wherein he admitted that no appeal has been filed against the report of demarcation. Ext.P1/B indicates that the boundary marks in the shape of stones were fixed, however, no encroachment was found in the land of the plaintiff by the defendants. As per the report, these trees were standing on Khasra No. 1118. Local Commissioner appeared as PW2 and during cross-examination, he has specifically stated that there is no Beed in between land of the parties. Once that be so, then obviously the Beed cannot be held to be standing on the land belonging to the plaintiff. 12. Apart from above, the defendants have placed on record certified copy of the Wazib-Ul-Urj Ext.D1 alongwith its English translation Mark-D2, which was prepared during the settlement in the year, 2010-11. The learned appellate Court after perusing the Hindi version Ext. D1 has found that there is a custom in Tika Bijhari, that the owner of the field falling between Beed on upper and lower side will have 1/3rd share in the Beed of upper side and 2/3rd share in the Beed falling on the lower side. 13. It is on this basis that the learned first appellate Court concluded that the defendants have a share of 1/3rd share in the Beed falling in between the land of the parties over which some trees of buel were standing. Thus, the plaintiff as well as the defendants have right on the trees falling to their respective shares. 14. Once the defendants have a right over 1/3rd share of the Beed in between the land then obviously the findings rendered by learned courts below which otherwise based upon the correct appreciation of the pleadings as well as oral and documentary evidence of the parties are immune from interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 15. 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. 15. 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." 16. 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. 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 Manufacuring 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. 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." 17. 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 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." 18. 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. 19. No question of law much less substantial question of law arises for consideration in this appeal. 20. Accordingly, there is no merit in this appeal and consequently the same is dismissed with the warning to the plaintiff/appellant not to indulge in such mindless and otherwise avoidable litigation. Pending application, if any, also stands disposed of.