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2018 DIGILAW 688 (HP)

Prithvi Raj v. Netar Singh

2018-04-18

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —The appellant is the plaintiff, who having lost before both the learned Courts below in a suit filed by him for recovery of Rs. 40, 000/-, has filed the instant appeal. 1. The parties shall be referred to as the ''plaintiff'' and ''defendants''. 2. The plaintiff filed the suit on the allegations that the land comprised in Khasra No.995 measuring 00-13-17 bighas situated in Mohal Manyana/362 Tehsil Sadar, District Mandi, H.P., was though in the name of the plaintiff and proforma defendants, but it was the plaintiff, who was in exclusive possession thereof as per the family partition. Whereas, khasra No. 990 which was situated on the northern side of this Khasra number was in possession of defendant No.1. A Jamun tree existed on the boundary of these Khasra numbers, but the defendants cut the same in October, 2008 and accordingly the matter was reported to the Police Station, Sadar, who took in possession the timber, but nothing worthwhile was done thereafter. The plaintiff even applied for demarcation and two demarcations had in fact been carried out, but the same were not acceptable to the plaintiff and, therefore, he accordingly filed the present suit. 2. The defendant No.1 contested the suit by filing written statement by raising preliminary objections about maintainability, cause of action, estoppel etc. On merits, it was denied that Khasra No. 995 was in exclusive possession of the plaintiff or that there was a tree existing on the boundary of Khasra Nos. 990 and 995 as alleged. It was asserted that the tree was exclusively over Khasra No. 990 and since it was an old one and had become dangerous, therefore, the same had to be cut down. The defendants had been using the fruits and wood of the same from the very beginning and as such, they had every right to deal with it as they were the owners. It is further alleged that after the matter had been reported to the police, a demarcation was obtained, in which the tree was found to be in the use and occupation of the defendants and they were permitted to use its timber and the report made to the police was accordingly cancelled. 3. From the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled to recover a sum of Rs. 3. From the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled to recover a sum of Rs. 40, 000/- from the defendants by way of damages, as prayed? OPP 2. Whether the suit is not maintainable, as alleged? OPD. 3. Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged? OPD. 4. Whether the plaintiff has no enforceable cause of action to file the present suit, as alleged? OPD. 5. Relief. 4. After recording the evidence and evaluating the same, the suit as filed by the plaintiff was ordered to be dismissed by the learned trial Court. The appeal filed against the said judgment and decree, also met with the same fate, constraining the appellant/plaintiff to file the instant appeal. 5. It is vehemently argued by Mr. Parmod Negi, learned counsel for the appellant that the findings recorded by the learned Courts below are totally perverse and therefore, not sustainable in the eyes of law. I have heard learned counsel for the parties and have gone through the material placed on record. 6. 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(Karnataka) 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 LR1r 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 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. 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. 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. 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." 7. 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..... 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." 8. 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. 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. 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. 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. 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. 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.- 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. 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. 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. 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." 9. Adverting to the facts of the case, it would be noticed that to prove his case, the plaintiff himself appeared in the witness box as PW-1 and placed on record his duly sworn affidavit Ext. PW-1/A, wherein he deposed that a Jamun tree existed over the boundary of Khasra Nos. 990 and 995 and the same was cut down by the defendants in October, 2008 despite the objections raised by his mother. Consequently, his mother reported the matter to the police, who took into possession of logs of Jamun tree, but no action thereafter was taken by the police against the defendants. He further deposed that the said Jamun tree was being looked after by him and his family members and not only this, it was his family that had been lopping the same. They were also emotionally attached to the same. To Similar effect is the statement of PW-2 Raj Kumari, who is none other than the sister of the plaintiff and PW-3 Mahabir Singh, who happens to be a resident of the village. 10. Noticeably, both these witnesses in their cross-examination have demolished the case of the plaintiff. As regards, the plaintiff Prithvi Raj in his cross-examination has admitted that he had also got conducted the demarcation of the land over which the disputed Jamun tree existed from the Patwari and Kanungo and thereafter another demarcation was got conducted from Naib-Tehsildar, but both these demarcations were not accepted to them. However, while being cross-examined, PW-2 Raj Kumari denied that demarcation of the spot where the disputed Jamun tree existed was got conducted by her brother. As regards PW-3, in his cross-examination, he feigned ignorance about the demarcation of the land having been got conducted by the plaintiff. As a matter of fact, both these witnesses are not even sure about the exact place where the Jamun tree was standing. 11. As regards PW-3, in his cross-examination, he feigned ignorance about the demarcation of the land having been got conducted by the plaintiff. As a matter of fact, both these witnesses are not even sure about the exact place where the Jamun tree was standing. 11. To the contrary, defendant Netar Singh himself appeared in the witness box as DW-1 and deposed on oath that the disputed Jamun tree was standing over his land i.e. land comprised in Khasra No. 990 and the same was old and had become hollow from inside. The plaintiff had no concern over the same and it is he who had lopped the same from time to time. Since the tree was likely to fall down, therefore, he cut down the same. He further deposed that in the demarcation, the tree was found to be existed over his land comprised in Khasra No. 990. In his crossexamination, he admitted that after conducting the demarcation of the spot where the disputed Jamun tree was standing, its logs had been released to him by the police. This in entirety is the evidence led by both the parties. 12. It would be noticed that as many as two demarcation reports have been got conducted by the plaintiff wherein it has been established that the Jamun tree in dispute was situated over the land of the defendants and these facts are otherwise admitted by the plaintiff in his cross-examination. 13. Even otherwise, it was for the plaintiff to establish his case by leading clear, cogent and convincing evidence to the effect that the tree was standing on the boundary of Khasra No. 990 owned by defendant No.1 and Khasra No. 995 owned by the plaintiff. Having failed to do so, no fault can be found with the judgments and decrees passed by the learned Courts below. 14. The findings so rendered are otherwise pure findings of fact and remain immune from challenge before this Court in second appeal. 15. No question of law much less substantial question of law arises for consideration in this appeal. Resultantly, there is no merit in this appeal and the same is dismissed, so also the pending application(s) if any.