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2018 DIGILAW 265 (HP)

Vinod Kumar v. Vipin Kumar

2018-03-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The appellant is the plaintiff, who lost before both the learned Courts below, has filed the instant appeal on the ground that the findings recorded by the learned Courts below are totally perverse and, therefore deserves to be set-aside. The parties shall be referred to as the ''plaintiff'' and ''defendants''. 2. Brief facts giving rise to the present appeal are that the plaintiff filed a suit to the effect that he alongwith his family members has got a right of passage to use the ''maind'' of defendant No. 1, being his elder brother and having inherited the land from their father late Sh. Fquir Chand, which was subsequently partitioned. Such land was comprised in Khasra No. 2469/1518. Apart from seeking declaration, relief of permanent prohibitory injunction was also sought for restraining the defendants from blocking the said passage of using their ''maind'' for any other purpose. 3. The suit was contested by the defendants by filing written statement wherein preliminary objections regarding maintainability, cause of action, locus-standi, non-rejoinder of necessary parties and suppression of true and material facts were raised. On merits, it was pleaded that the parties were residing separately since long in their separate houses. However, it was denied that the suit land had been partitioned. It was rather alleged that the father of the parties had executed a sale deed by way of Tatima in favour of the plaintiff and defendant No. 1 and that the suit land had been given to the plaintiff in the manner so that the Government land and open khad situated alongside the suit land, which was a motorable road could be used by the plaintiff to approach the suit land and his fields. It was denied that the plaintiff was using any maind of the defendants to approach his agricultural fields. It was alleged that it was since the time of their father that the Government land being used as a passage by both the parties and no such passage otherwise existed on the land of the defendants. 4. From the pleadings of the parties, the learned trial Court on 02. 06. 2005 framed the following issues: 1. Whether the plaintiff is entitled for path through "Maind" boundaries of fields of defendants for ingress and egress for reaping the benefit of his fields on the basis of "Wajib-Ul-Araz" as alleged? OPP 2. 4. From the pleadings of the parties, the learned trial Court on 02. 06. 2005 framed the following issues: 1. Whether the plaintiff is entitled for path through "Maind" boundaries of fields of defendants for ingress and egress for reaping the benefit of his fields on the basis of "Wajib-Ul-Araz" as alleged? OPP 2. Whether the plaintiff is entitled for relief of mandatory injunction in alternative as alleged? OPP 3. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether suit is bad for non-joinder of necessary parties as alleged? OPD 6. Relief. 5. Xxx XXX XXX 6. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit of the plaintiff and the appeal filed against said judgment and decree, too was dismissed by the learned first Appellate Court vide judgment and decree dated 21. 2. 2017. It is against both these judgments and decrees passed by the learned Courts below that the plaintiff has filed the instant appeal. 7. Xxx XXX XXX 8. It is vehemently argued by Mr. Arush Matlotia, learned counsel for the appellant that the findings recorded by the learned Courts below are totally perverse inasmuch as the learned Courts below have failed to take into consideration the oral as well as documentary evidence more especially Ext. P-6 and Mark ''Y'' and thereby reached a wrong conclusion. I have heard learned counsel for the parties and have gone through the grounds of the appeal and material placed on record. 9. What is ''perverse'' was considered by the Hon''ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another , 2009 10 SCC 206 , wherein it was held as under:- "26. In M. S. Narayanagouda v. Girijamma & Another , 1977 AIR(Kar) 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, 1878 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Moffett v. Gough, 1878 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey, 106 NW 814, the Court defined ''perverse'' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. 27. The expression "perverse" has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner''s Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. New Webster''s Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud''s Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 28. In Shailendra Pratap & Another v. State of U. P. , 2003 1 SCC 761 , the Court observed thus: (SCC p. 766, para 8 "8. . . We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity. " 29. In Kuldeep Singh v. The Commissioner of Police & Others , 1999 2 SCC 10 , the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p. 14, paras 9-10) "9. " 29. In Kuldeep Singh v. The Commissioner of Police & Others , 1999 2 SCC 10 , the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p. 14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. " 30. The meaning of ''perverse'' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others , 1992 Supp2 SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. " 10. What is ''perverse'' has further been considered by this Court in RSA No. 436 of 2000, titled ''Rubi Sood and another vs. Major (Retd. ) Vijay Kumar Sud and others, decided on 28. 05. 2015 in the following manner:- "25. . . . . A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law. 26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. 27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse. 28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated. " 11. 28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated. " 11. What is ''perversity'' recently came up for consideration before the Hon''ble Supreme Court in Damodar Lal vs. Sohan Devi and others , 2016 3 SCC 78 , wherein it was held as under:- "8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. 9. In Krishnan v. Backiam , 2007 12 SCC 190 , it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. " 10. In Gurvachan Kaur v. Salikram , 2010 15 SCC 530 , at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent. " 11. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent. " 11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes. 12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man''s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. 13. In Kulwant Kaur v. Gurdial Singh Mann , 2001 4 SCC 262 , this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp. 278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis--vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: ''103. Power of High Court to determine issues of fact. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: ''103. Power of High Court to determine issues of fact. - In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100. " The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with. " 14. In S. R. Tiwari v. Union of India , 2013 6 SCC 602 , after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration , 1984 4 SCC 635 , it was held at para 30: (S. R. Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. , 1984 4 SCC 635 , Kuldeep Singh v. Commr. of Police , 1999 2 SCC 10 , Gamini Bala Koteswara Rao v. State of A. P. , 2009 10 SCC 636 and Babu v. State of Kerala , 2010 9 SCC 189 . )" This Court has also dealt with other aspects of perversity. 15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court. " 12. Adverting to the facts of the case, it would be noticed that the plaintiff in order to prove his case, stepped into the witness box as PW-1 and also examined Swar Deen as PW-2. Besides this, he placed on record copies of Jamabandi (Ex. P-1 to Ex. P-3), copy of Aks Momi Bandobast (Ex. P-4), site plan (Ex. P-5), copy of Wazib-Ul-Arj (Ex. P-6), copy of application (Mark-X) and copy of report of Tehsildar (Mark-Y). 13. On the other hand, defendant No. 2 stepped into the witness box as DW-1 and placed on record copy of site plan (Ex. DW-1/A), copies of Jamabandi (Ex. D-1 to Ex. D-3), Copy of Aks Shajra (Ex. D-4), copy of order dated 2. 12. 1994 (Ex. D-5), copy of Jamabandi (Ex. D-6) and copy of Aks Shajra (Ex. D-7). 14. On the other hand, defendant No. 2 stepped into the witness box as DW-1 and placed on record copy of site plan (Ex. DW-1/A), copies of Jamabandi (Ex. D-1 to Ex. D-3), Copy of Aks Shajra (Ex. D-4), copy of order dated 2. 12. 1994 (Ex. D-5), copy of Jamabandi (Ex. D-6) and copy of Aks Shajra (Ex. D-7). 14. It would be noticed that the suit of the plaintiff is based upon easementary right by way of necessity and custom over disputed passage. The learned first Appellate Court has minutely gone into the question and analyzed as to what is easement, kinds of easements, essential of an easement, characteristics of an easement and how an easement by necessity and custom is acquired. The said findings have not been disputed or challenged by the plaintiff herein. 15. As observed earlier, it was the pleaded case of the plaintiff that he had a right of passage through the Beed/Maind (edge/boundary) situated over the defendants'' land comprised in Khasra No. 2469/1518 and had also attached a site plan (Ex. P-5) showing the disputed passage on this land within points ''A'' and ''B''. There is no dispute that the entire land of the parties was previously owned by late Sh. Faquir Chand and there was severance of these two tenements. But such severance was more than 20 years old and, therefore, there was no question of the plaintiff having acquired an easementary right of passage. Further the plaintiff failed to connect point ''B'' of his site plan (Ex. P-5) with his house and cowshed situated over the land comprised in Khasra Nos. 1510 and 1512 and in absence of anything on record to prove how the plaintiff would approach point ''B'' from his house and cowshed in order to use the disputed passage. No fault can be found with the findings recorded by the learned Courts below. 16. The findings recorded by the learned Courts below are pure findings of fact which cannot be interfered with by this Court in exercise of its jurisdiction under Section 100 CPC. 17. At this stage, Mr. Arush Matlotia, learned counsel for the appellant has vehemently argued that both the learned Courts below have failed to take into consideration the document (Ex. P-6) and Mark ''Y''. Ex. 17. At this stage, Mr. Arush Matlotia, learned counsel for the appellant has vehemently argued that both the learned Courts below have failed to take into consideration the document (Ex. P-6) and Mark ''Y''. Ex. P-6 is the copy of Wazib-Ul-Arj, but how the same would assist the plaintiff is anybody''s guess as it only states that maind/edge of a field can be used as a passage, but that by itself would not show much less prove that the plaintiff was enjoying the right of easement over the maind existing over the land of the defendants. 18. As regards the document Mark ''Y'', the same is a report made by the Tehsildar, Fatehpur, but has not been duly proved on record. It is more than settled that the documents produced by a party do not themselves constitute evidence unless the same are either admitted by the opposite party or properly proved and accepted at the trial, except where such documents happened to be the public documents and are admissible by themselves under any provision of law. The report submitted by the Tehsildar does not qualify for such admission and the same had, therefore, to be formally proved unless the opposite party admitted the correctness thereof in which event no further proof may have been necessary for what is admitted, need not be proved. 19. The findings recorded by the learned Courts below are concurrent findings of fact which are binding on this Court while hearing the second appeal. It is more so, when these findings are neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings have been found against the evidence nor against the pleadings and lastly, nor against any provision of law (Refer: Parminder Singh vs. Gurpreet Singh , 2017 AIR(SC) 3601). 20. No question of law much less substantial question of law arises for consideration in this appeal and the same is accordingly dismissed in limine, leaving the parties to bear their own costs. Pending application(s) if any, also stands dismissed.