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2019 DIGILAW 216 (JHR)

Sawna Munda v. Lagnu Munda

2019-01-22

S.N.PATHAK

body2019
ORDER : This Second Appeal has been preferred against the Judgement dated 31st March, 2015 (decree sealed and signed on 13.04.2015), passed by Learned Addl. Judicial Commissioner-I, Ranchi in Title Appeal No. 46 of 2010, whereby Judgment dated 26th February, 2010 (decree sealed and signed on 12.03.2010), passed by learned Sub-ordinate Judge-I, Ranchi in Title Suit No. 209 of 2007 has been upheld and the appeal stood dismissed. 2. Plaintiff is appellant and suit was brought by him for declaration of right, title and interest over the suit land. In nutshell case of the plaintiff-appellant is that the plaintiff and defendant No.1 are related to each other to this effect genealogical table is given by the plaintiff in which Jagarnath Munda and Baijnath Munda are shown to be real brothers and both are sons of Bodh Ram Munda and plaintiff and defendant No. 1 are descendants of Bodh Ram Munda. It is further contended by the plaintiffs that RS Khata No. 154 of Village Morhabadi has been recorded in the name of Vijay Ram Munda, Hari Ram Munda, Bhanju Munda all sons of Jaganath Munda and Baijnath Munda sons of Bodh Ram Munda and as such RS Khatian is in the joint name of the aforesaid persons and partition has already been effected amongst the recorded Raiyatas such separate possession of the plots have been recorded in the remark column of the above said Khatiyan. It is further contended that Plot No. 909 and 911 have been shown in the possession of the Baijnath Munda and Plot No. 912 has been shown in the RS Khatian in the possession of the Vijay Ram Munda, Hari Munda and Madhu Munda @ Bhanju Munda. Similarly, the plot No. 914 has been shown in the possession of the Baijnath Munda. It is further contended that Baijnath Munda died leaving behind three sons namely Rupu Munda, Jatru Munda and Chhotan Munda and Rupu Munda died leaving behind Bhikha Munda, Ramdeo Munda, Jagdeo Munda respectively as his legal heirs, Jatru Munda died leaving behind two sons namely, Sawna Munda-appellant and Jitetan Munda. Sawna Munda is plaintiff-appellant and Jitetan Munda died leaving behind two sons being the Munna Munda @ Binai Munda and Chhutan Munda @ Sanjay Munda as respondent No. 6 & 7 respectively. Sawna Munda is plaintiff-appellant and Jitetan Munda died leaving behind two sons being the Munna Munda @ Binai Munda and Chhutan Munda @ Sanjay Munda as respondent No. 6 & 7 respectively. It is further contended that Hari Munda died leaving behind four sons namely Tulsi Munda, Barku Munda, Anand Munda and Assisan Munda whereas Tulsi Munda died leaving behind his one son namely Muku Munda-respondent No.11. 3. Plaintiff further contended that Lagnu Munda has occupied the land area 43 decimal out of 1.30 acres from Hari Munda, recorded Raiyat. It is further contended that Vijay Ram Munda died leaving behind his three sons-Bali Munda, Lalit Munda and Darshan Munda and the defendant/respondent No.1 is the son of Bali Munda and other descendants of two sons of Vijay Ram Munda are not creating any trouble or are not interfering with the plaintiff’s possession over the land as such they have not been impleaded by the plaintiff as the parties in the present proceeding. It is further contended that Lagnu Munda is in association of bad company and is under influence of land Mafia who are creating havoc in the entire area by forging papers, documents and by illegally occupying land particularly which belongs to schedule tribes. It is also contended that one Abdul Aziz and Abdul Sattar fraudulently manage to get the compromise decree with regard to 42 decimals of Plot No. 912, 73 decimals of plot No. 911, 59 decimals of Plot No. 914 in the year, 1963. It is further contended by the plaintiff that above said compromise decree was out come of the fraud and collusiveness as such Lalit Munda, Jatru Munda, Chhotun Munda and Rupnath Munda filed application u/S 71 A of the Schedule Areas Regulation for restoration of the land and the same has been registered as SAR Case No. 140 of 1983 and the special Officer, Ranchi by his order dated 31.01.1985 was pleased to allow the said application and restored the land of the plaintiffs. It is also contended that similarly one another case was filed by the Rupu Munda and others against Avdhesh Thakur under Section 71 A of the Schedule Area Regulation and the said case was registered as SAR Case No. 26 of 1974 and the Special Officer by his order dated 28.07.1975 restored the Plot No. 911 area 73 decimals, Plot No. 912 area 42 decimals and Plot No. 914 area 59 decimals. It is further contended by the plaintiff that respondent No. 1 never claimed his title over the property and whoever have tried or attempted to occupy the land, plaintiff’s predecessor took legal steps for restoration of the land and the same was restored by the Court and as respondent No. 1 never took any interest in taking legal steps for restoration of land showing thereby that respondent No. 1 admitted that he did not have title over the land and respondent No.1 has been illegally trying to occupy the Plot No. 912 area 43 decimals, 909 area 25 dec. and 911 area 40 decimals and despite persuasion by plaintiff, respondent No. 1 is adamant to come over the property and thereafter to give the property to the land brokers and builders. It is further contended that when plaintiff constructed mud house over the portion of plot No. 911 Holding No. 170/H1, respondent No. 1 along with his associates illegally demolished the house. It is further contended that the respondent No. 1 is now trying to occupy all the plots as described in the schedule given in the plaint and if the respondent No.1 succeeds in occupying other plots of the plaintiff, plaintiff shall be put to irreparable loss and injury. 4. Defendants appeared and filed their written statement before the learned trial court, stating therein that no cause of action arose in favour of the plaintiff. It is contended by the defendant-respondents that genealogical table as provided by the plaintiff is incorrect and plaintiff and defendants are not related to each other. It is further contended that correct genealogical table has been provided by the defendant in the W.S. Defendant-respondent also denied the earlier partition amongst recorded Raiyats and therefore, separate possession of the plots were recorded in the remarks column of the Khata. It is further contended that correct genealogical table has been provided by the defendant in the W.S. Defendant-respondent also denied the earlier partition amongst recorded Raiyats and therefore, separate possession of the plots were recorded in the remarks column of the Khata. It is contended by the defendant-respondent that lands i.e. suit property recorded in the record of right as ‘Gairhi’ and not the Raiyati Land and the same has been settled with the ancestors of the defendant-respondent No.1 for worshiping of ghost and is being inherited by the male line of defendant. It is further contended by the defendant No.1/respondent No.1 that plaintiff never used the land for the purpose of worshiping and never been in possession at any point of time. It is also contended by the defendant-respondent No.1 that he is not in bad company rather it is contended that he is peace loving citizen having good reputation and doing worship inherited from ancestors and still in possession of the land i.e. suit property along with other lands. Defendant-respondent No.1 further contended that he is having no knowledge about the decree or any order passed in SAR. It is further contended by the defendant-respondent No.1 that no such attempt was ever made by any persons calling for taking any legal steps and defendant-respondent No.1 never admitted disclaiming his title and is in physical possession and the land is not Raiyati, hence, case under Section 71 of CNT Act could not be filed and no cognizance can be taken as the land does not come within the four corners of Section 71 A of CNT Act. It is also contended that defendant-respondent No.1 is already in possession of the suit land to the knowledge of all concerned including the plaintiff, having legal, valid title and if any defect the same has been perfected by adverse possession. It is further contended that the plaintiff has not raised any construction over the land and even no construction can be raised hence question of demolishing construction does not arise and plaintiff have even no prima facie case in their favour. 5. After appearance of parties, issues were framed by learned trial court and thereafter witnesses adduced their evidences. After hearing both sides, suit stood dismissed against which plaintiff preferred appeal vide Title Appeal No. 46/2010. 5. After appearance of parties, issues were framed by learned trial court and thereafter witnesses adduced their evidences. After hearing both sides, suit stood dismissed against which plaintiff preferred appeal vide Title Appeal No. 46/2010. The first appellate court discussed in details grounds taken by the plaintiff/appellant and also discussed in details different provisions of Act and rules as well as judicial pronouncements and affirmed the Judgment and Decree passed by trial court holding that there is no irregularity in the impugned Judgment. Being aggrieved, plaintiff/appellant/appellant has preferred this Second Appeal for assailing impugned Judgments of both the courts below. 6. Mr. Anil Kumar, learned counsel appearing on behalf of the appellant, referring to the grounds mentioned in the memo of appeal submits that there is good ground and as such this appeal may be admitted after formulating substantial question of law as mentioned in memo of appeal. 7. Nobody appears on behalf of the respondents. 8. I have heard counsel for the appellant on the point of admission and formulating substantial question of law. After hearing learned counsel for the appellant upto a length and on perusal of findings of fact recorded concurrently by the courts below, I find that findings of fact as recorded by both courts below do not suffer from any illegality or perversity warranting any interference in this appeal. In Krishnan v. Backiam and another reported in 2007 (12) SCC 190 it has been held at para-11 that “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. 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.” It is settled principle of 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, as has been reiterated by the Hon’ble Supreme Court of India in paragraph-10 of the case of Gurvachan Kaur and Others Vs. Salikram (dead) through Lrs. reported in (2010) 15 SCC 530 as under:- “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.” (emphasis supplied) Learned counsel for the appellant could not point out any specific instance of any particular evidence being not considered. Learned counsel for the appellant also could not point out any illegality or error in the impugned judgment and decree of the lower appellate court giving rise to any substantial question of law to be framed and decided by this Court. When trial court and the first appellate court concurrently dismissed the suit by recording all the findings of fact against the plaintiffs, then such findings of facts are binding on the High Court. When trial court and the first appellate court concurrently dismissed the suit by recording all the findings of fact against the plaintiffs, then such findings of facts are binding on the High Court. This second appeal does not involve any question of law much less substantial question of law within the meaning of Section 100 of Code to enable High Court to admit the appeal on any such question much less answer it in favour of the plaintiffs. 9. In the case of Kulwant Kaur V. Gurdial Singh Mann reported in (2001) 4 SCC 262 the Hon’ble Supreme Court has dealt with the limited leeway available to the High Court in second appeal. Para-34 of the said Judgment reads as under: “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-à-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.” Though there are plethora of case laws on this issue, the law is well settled that where there is concurrent finding of the Courts below, the High Court should not interfere with the findings of the trial court and the first appellate court on pure question of fact. 10. Hon’ble Supreme Court, in a catena of decisions has specifically held that 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 is settled principle of law that second appeal under Section 100 of the Code of Civil Procedure, 1908, cannot be admitted unless there is substantial question of law involved in it. The findings of fact recorded by the two courts below are based on proper appreciation of evidence and the materials on record. There is no perversity, illegality or irregularity in those findings. None has been brought to our notice by learned counsel for the appellant. The findings of fact recorded by the two courts below are based on proper appreciation of evidence and the materials on record. There is no perversity, illegality or irregularity in those findings. None has been brought to our notice by learned counsel for the appellant. The findings, therefore, does not require to be upset in a second appeal under Section 100 CPC. After considering all the issues involved, the trial court has rightly rejected plea of the plaintiff and the same has been affirmed by the first appellate court. The trial court as well as the first appellate court concurrently decreed the suit in favour of the defendants by recording all the findings of facts against the plaintiffs enumerated above, then in my opinion such findings of facts are binding on the High Court. The findings were neither against the pleadings nor evidence nor against any of the provisions of law. They were also not perverse of facts to the extent that no average judicial person could ever record. The substantial question of law as formulated by the plaintiffs/ appellants/ appellants are not substantial questions of law for consideration in the instant appeal and as such, the appeal fails. In this view of the matter, this Court is of the considered opinion that this second appeal does not involve any question of law, much less substantial questions of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question. 11. In view of the foregoing discussions, no substantial question of law arises for determination in this appeal. Hence it is dismissed at admission stage itself.