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2018 DIGILAW 951 (HP)

Shashi Bala v. Keshav Dutt

2018-05-21

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —Since common question of law and facts arise in both these appeals, therefore, the same were taken up together for consideration and are being disposed of by a common judgment. 2. The plaintiff/respondent filed a suit being Civil Suit No. 23 of 2011 for permanent injunction on 28.1.2011 and thereafter exactly after one year on 27.1.2012 he filed another suit being Civil Suit No. 14 of 2012 wherein again he sought decree for permanent injunction and both the suits were decreed by the learned trial Court vide judgment and decree dated 1.4.2015 and the appeal filed against the same, was dismissed by the learned first Appellate Court, constraining the defendant/appellant to file the instant appeals. The parties shall be referred to as the plaintiff and defendant. 3. Brief facts of the case are that the plaintiff was owner in possession as co-sharer in Abadi Deh suit land and had constructed residential house thereupon. The plaintiff also purchased Abadi Deh land from Mela Ram to be used as personal path (hereinafter referred to as the ''path in dispute'') . The plaintiff had installed a gate at point ''A B'' as shown in the site plan. It was contended that the defendant had no right, concern or connection with the suit land as the path in dispute was owned and possessed by the plaintiff. It was averred that the old house of the defendant was facing towards the main suit gali and only back wall of the house of the defendant''s house was adjoining to the path in dispute. The water of the house of the defendant used to flow towards the front side of the main gali and there was no outlet hole towards the path in dispute. However, recently the defendant had demolished her old house and constructed a new one and extended the lintel towards his house. The defendant had tried to open the window towards the path and residential house of the plaintiff and was trying to construct the back wall on the projection and also open the window towards the house of the plaintiff. She was forcibly threatening to divert the flow of the water towards his house. The defendant refused to admit the claim of the plaintiff, hence the suit. 4. She was forcibly threatening to divert the flow of the water towards his house. The defendant refused to admit the claim of the plaintiff, hence the suit. 4. The defendant contested the suit by filing written statement wherein preliminary objections qua maintainability, locus-standi and cause of action were raised. On merits, it was contended that the plaintiff was not owner of the path in dispute situated on the back side of the old house. She was constructing her 250 years old house having old ventilators at the top of the wall. She further contended that she had every right to access through the path in dispute in order to repair back portion of her house. The defendant had demolished first floor of the old house and constructed the same on the old design upto lintel level. She denied that she extended the lintel level towards the house of the plaintiff. 5. On the pleadings of the parties, the learned trial Court in Civil Suit No. 23 of 2011 on 22.9.2011 framed the following issues: 1. Whether plaintiff is owner in possession as co-sharer in the suit land, as alleged? OPP. 2. Whether the defendant extended lintel, erected ventilator and put out outlet hole for throwing filthy water towards the path leading to the house of plaintiff, as alleged? OPP 3. Whether the plaintiff is entitled to decree for permanent prohibitory injunction as prayed for? OPP 4. Whether in the alternative the plaintiff is entitled to mandatory injunction as prayed for? OPP 5. Whether suit is not maintainable? OPD 6. Whether the plaintiff has no locus-standi? OPD 7. Whether the plaintiff has no cause of action? OPD 8. Relief. 6. On the pleadings of the parties, the learned trial Court in Civil Suit No. 14 of 2012 on 31.8.2012, framed the following issues: 1. Whether plaintiff is owner in possession of the suit land as co-sharer, as alleged? OPP. 2. Whether plaintiff has purchased abadi deh land from his cosharer namely Mela Ram and using portion as ABCD shown in the site plan as his personal path, as alleged? OPP 3. Whether plaintiff is having cause of action to file the present suit, as alleged? OPP 4. Whether plaintiff is entitled to decree for permanent prohibitory injunction, as prayed for? OPP 5. Whether plaintiff is entitled for decree of mandatory injunction in the alternative as prayed for? OPP 6. OPP 3. Whether plaintiff is having cause of action to file the present suit, as alleged? OPP 4. Whether plaintiff is entitled to decree for permanent prohibitory injunction, as prayed for? OPP 5. Whether plaintiff is entitled for decree of mandatory injunction in the alternative as prayed for? OPP 6. Whether suit is not maintainable? OPD 7. Whether plaintiff is having no locus-standi to file the present suit? OPD 8. Relief. 7. It is vehemently argued by Mr. Ajay Sharma, learned counsel for the appellant/defendant that the findings recorded by the learned Courts below are perverse inasmuch as both the learned Courts below have ignored the fact that the land in question was abadi deh land and as per the law the same belongs to the proprietor of the village. Even otherwise, there is nothing on record to suggest that Mela Ram was in possession of the suit path. That apart, the learned Courts below have unnecessarily relied upon the order passed by the Panchayat Ex.P-5 which had not been passed under the provisions of the Panchayati Raj Act. Moreover, the oral and documentary evidence as available on the record had been completely mis-read and ignored thereby reaching the wrong conclusion. 8. On the other hand, Mr. Sanjay Jaswal, learned counsel for the respondent/plaintiff would contend that the findings recorded by the learned Courts below are pure findings of fact which are immune from challenge before this Court while exercising power under Section 100 of the Code of Civil Procedure. I have heard learned counsel for the parties and have gone through the material available on records. 9. At the outset, it needs to be observed that concurrent findings of fact by the trial Court and the first appellate Court cannot be reopened in second appeal in absence of perversity. What would be substantial question of law has been lucidly dealt with by the Hon''ble Supreme Court in Syeda Rahimunnisa vs. Malan Bi (dead) by Legal Representatives and another , (2016) 10 SCC 315 , wherein it was held as under: "24. The scope of Section 100 of CPC while deciding the second appeal by the High Court has been the subject matter of several decisions of this Court and thus remains no more res integra. A reference to the two cases on this question would suffice. 25. The scope of Section 100 of CPC while deciding the second appeal by the High Court has been the subject matter of several decisions of this Court and thus remains no more res integra. A reference to the two cases on this question would suffice. 25. A three-judge Bench of this Court in Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs. , (2001) 3 SCC 179 speaking through R.C. Lahoti J (as His Lordship then was) examined the scope of Section 100 of CPC in detail and laid down the following propositions in paras 9, 10, 12 and 14 as under: (SCC p. 185-88) "9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait , (1997) 5 SCC 438 , Panchugopal Barua v. Umesh Chandra Goswami , (1997) 4 SCC 713 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar , (1999) 3 SCC 722 ) . 10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction. * * * 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 v. T. Ram Ditta , (1928) AIR(Privy Council) 172, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (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. v. Century Spg. and Mfg. Co. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. , (1962) AIR(Supreme Court) 1314 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju , (1951) AIR(Madras) 969) : (Chunilal V. Mehta case, AIR p.1318, para 5) ''5 .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 views, 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 facts 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: (AIR p. 1318, para 6) ''6 ..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.'' * * * 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. 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, insofar 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". 26. Again in the case of Thiagarajan And Others vs. Sri Venugopalaswamy B. Koil And Others , (2004) 5 SCC 762 , a two Judge Bench of this Court in paras 17, 24, 25 and 26 observed as under: (SCC pp. 768 & 771 -72) "17. Sub-section (5) of Section 100 CPC says that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such a question. The proviso states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it if it is satisfied that the case involves such question. The proviso states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it if it is satisfied that the case involves such question. In the instant case, the High Court at the time of final hearing formulated five more questions of law as extracted above after hearing the counsel for both sides having miserably failed to record the reasons for formulating the other substantial questions of law. * * * 24. In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 CPC. 25. In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants'' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material. 26. To say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. 26. To say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible". 27. Reverting to the facts of the case at hand and keeping in view the aforesaid principles of law in mind, we find that the High Court while admitting the second appeal had formulated the following questions: "1) Whether the finding of the Court below, that the suit site on O.S.No.53/93 in S.No.35/5, Ex.C.I AI and the leased site, surrendered by P.W.6 in S.No.35/5 CI A 19 arc one and the same, is vitiated by its failure to consider the admissions of D.W.I and the relevant documentary evidence, which establish that there was a sub-division of S.No.35/5, the suit site is S.No.35/5, CI Ex.A.I being a Government poramboke land and the site of the defendant classified as a "Darga Burial Ground Mosque", each distinct and different from the other? Admissions of D.W.I: 2. Whether the Court below have failed to see that Ex.A.2 (Gift deed being a thirty year old document, the presumption under Section 90 of Evidence Act applies, both with regard to execution and attestation, and as such the opinion of the trial Court that it is suspicious document, is untenable and unsustainable in law? 3. Whether the lower appellate Court erred in law in not framing proper points for consideration, on the validity of Ex.A.2 gift deed and the sub- division of suit property S.No.35/5 C1A1, as required under Order 41 Rule 31 C.P.C. and as such the Judgment of the lower appellate Court as a final Court of fact is vitiated by errors of law? 4. Whether the lower appellate Court has erred in law, in holding that Ex.A2 gift deed is invalid, because the property gifted is poramboke, when the Government itself (second defendant) has not disputed either the long possession or possessory title of the plaintiff of the suit property? 5. 4. Whether the lower appellate Court has erred in law, in holding that Ex.A2 gift deed is invalid, because the property gifted is poramboke, when the Government itself (second defendant) has not disputed either the long possession or possessory title of the plaintiff of the suit property? 5. Whether the lower appellate Court has erred in law on the question of title, merely by adverting to Ex.A.3, Ex.A.4, Ex.A.5 - tax receipts, and the entire reasoning is based on mere guess work ignoring the relevant and clinching documentary evidence? 6. Whether the finding of the lower appellate Court that P.W.6 (plaintiff''s son) did not vacate the site even after the lease period of the site S.No.35/5 C1A19 of D.I is not based on any evidence except the word of D.W.2 (no witnesses was examined) and the conclusion reached by it that the suit site in O.S.No.53/93 and the leased site are the same, is contrary to the evidence on record? 7. Whether the lower appellate Court has erred in law in its failure to consider the admission of D.W.2 himself that his father encroached into the plaintiff''s site and was issued B-Memos and paid the penalty, which conclusively establishes that the two sites are different and not one and the same? 8. Whether the very approach of the lower appellate Court is essentially erroneous and its findings are liable to be set aside ( Jagdish Singh vs. Natthu Singh , (1992) AIR(Supreme Court) 1604) ? 28. In our considered opinion, the aforementioned questions cannot be regarded as satisfying the test of being a "substantial questions of law" within the meaning of Section 100 of CPC. These questions, in our view, are essentially questions of fact. In any event, the second appeal did not involve any substantial questions of law as contemplated under Section 100 of CPC and lastly no case was made out by the respondents before the High Court for remanding of the case to the trial court for de novo trial in all the civil suits. This we say for following reasons. 29. In any event, the second appeal did not involve any substantial questions of law as contemplated under Section 100 of CPC and lastly no case was made out by the respondents before the High Court for remanding of the case to the trial court for de novo trial in all the civil suits. This we say for following reasons. 29. Firstly, when the trial court and the first appellate court on appreciation of evidence concurrently held in three civil suits filed by the respondents that they failed to prove their title over the suit-land and further in two civil suits filed by the appellants that they were able to establish their relationship of landlord and tenant in relation to the suit-land, such findings, in our opinion, were binding on the High Court being concurrent in nature. 30. Secondly, none of the findings of the two courts below were perverse to the extent that no judicial person could ever come to such conclusion and that these findings were not in conflict with any provision of law governing the issue and that the findings were also not against the pleadings or evidence. In this view of the matter, in our view, these findings were not capable of being set aside by the High Court in exercise of its second appellate jurisdiction under Section 100 CPC, rather they were binding on the High Court. 31. Thirdly, apart from what is held above, the questions formulated were neither debatable nor arguable and nor did they involve any question of law which could be said to arise in the case. In other words, sine qua non for admitting the second appeal was existence of "substantial question of law in the case" and therefore unless the questions framed were debatable, or/and arguable or/and involving any legal question, the High Court had no jurisdiction to formulate such questions treating them to be substantial question of law. Indeed the High Court had the jurisdiction under sub- Section (5) of Section 100 of CPC to examine at the time of hearing as to whether the questions framed were substantial questions of law or not and whether they arose out of the case, but the High Court failed to do so. 32. Indeed the High Court had the jurisdiction under sub- Section (5) of Section 100 of CPC to examine at the time of hearing as to whether the questions framed were substantial questions of law or not and whether they arose out of the case, but the High Court failed to do so. 32. Fourthly, having formulated the questions (though wrongly) , the High Court went on to discuss all the issues in 59 pages as if it was hearing first appeals and instead of answering the questions, set aside the judgment/decree of the two courts below and proceeded to remand the cases to the trial court for de novo trial in all civil suits. In our opinion, the High Court had no jurisdiction to remand the case to the trial court inasmuch as no party to the appeal had even raised this ground before the first appellate court or/and the High Court as to why the remand of the case to the trial Court is called for and nor there was any finding recorded on this question by the first appellate court. 33. We also find that no party to the appeals complained at any stage of the proceedings that the trial in the suits was unsatisfactory which caused prejudice to them requiring remand of the cases to the trial court to enable them to lead additional evidence. In any event, we find that the High Court also did not frame any substantial question of law on the question as to whether any case for remand of the case to the trial court has been made out and if so on what grounds? 34. Section 100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer in respondent''s favour. 35. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer in respondent''s favour. 35. The High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to that effect. 36. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals." 10. . Bearing in mind the aforesaid exposition of law, it would be noticed that the findings rendered by the learned Courts below are pure findings of fact. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals." 10. . Bearing in mind the aforesaid exposition of law, it would be noticed that the findings rendered by the learned Courts below are pure findings of fact. The Courts below after examining the entire pleadings and oral and documentary evidence has come to the conclusion that the house of the plaintiff is situated behind the house of the defendant and in order to have access to that house there is an exclusive path shown as ''ABCD'' in the site plan. This path was purchased from Mela Ram by the plaintiff. 11. As regards the contention that Mela Ram was not owner of the path, the learned Courts below have taken into consideration the testimony of the defendant, more particularly, the cross-examination, wherein she herself categorically admitted that the plaintiff had purchased the vacant land from Mela Ram. Though, the only contention putforth by the plaintiff was that such land purchased from Mela Ram had not to be used as a path to the house, but she again admitted that the said path on the vacant land was being used by the plaintiff. She further admitted that the path leads only to the house of the plaintiff. That apart, it had come on record that the plaintiff had installed a gate at point ''A B'' over this path. The defendant did try to ascertain her right over the path in dispute by contending that she had every right to access through the path, but failed to prove the same. 12. The learned Courts below further have taken note of the fact that the defendant has failed to establish her easementary right to use the path. Once the house of the plaintiff is situated behind the house of the defendant, then obviously the defendant cannot be permitted to open the windows or divert the flow of water of her house towards the path. Being stranger to the path, the defendant has no right to do so. Even otherwise, the defendant cannot be permitted to indulge in nuisance much less permanent nuisance. 13. Being stranger to the path, the defendant has no right to do so. Even otherwise, the defendant cannot be permitted to indulge in nuisance much less permanent nuisance. 13. The findings recorded by the learned Courts below are pure findings of fact and are immune from interference by this Court in exercise of power under Section 100 of the Code of Civil Procedure. 14. Consequently, there is no merit in these appeals and the same are accordingly dismissed, leaving the parties to bear their own costs. Pending application(s) , if any, stands disposed of.