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2022 DIGILAW 321 (JK)

Gh. Mohammad Mir v. Mohd. Akbar Thoker

2022-07-07

VINOD CHATTERJI KOUL

body2022
JUDGMENT : 1. This is a Civil Second Appeal against judgement dated 11th December 2012, passed by Principal District Judge, Anantnag (for brevity "1st Appellate Court") in an Appeal titled Ghulam Mohammad Mir v. Mohammad Akbar Thoker as also judgement and decree dated 17 September 2012, passed by Sub Judge, Anantnag (for short "Trial Court") and for setting aside the same. 2. It is the case of appellant that respondent is a resourceful person having huge property in Anantnag, including a building having five shops in its ground floor at Achabal Adda, Anantnag. The said building is said to have been constructed by respondent after forcible demolition of old building in 1998, depriving tenants, including appellant from tenanted premises. It is stated that unlawful demolition of old tenanted premises was carried out during intervening night of 11th/12th July 1998 and that in this regard FIR no. 168/1998 at police station Anantnag was registered. Contention of appellant is that in order to escape from prosecution which might have led to conviction of appellant and his brothers, he arranged negotiations and settled their dispute through the offices of Byopar Mandal and its Chairman and that in this regard a document was also executed. It is claimed in the instant appeal by appellant that as against two shops, he was given one shop on lease basis at a rent of Rs. 6600/- per annum. It is also contention of appellant that contents of the deed specifically mention that tenanted premises was handed over to appellant along with possession through the said document and that respondent's brother, Ghulam Ahmad Thoker, is a practicing advocate at Anantnag and he is an associate of draftsman of the so-called licence deed and are sharing the same chambers in the premises of District Court, Anantnag. After execution of settlement, appellant, who seems to be a most innocent person, has been called to Sadder Court, Anantnag, for reducing into writing the rent deed in respect of the shop which was given to him along with possession during settlement arrived at by the parties in the meeting held on 17th July 1997. 3. After execution of settlement, appellant, who seems to be a most innocent person, has been called to Sadder Court, Anantnag, for reducing into writing the rent deed in respect of the shop which was given to him along with possession during settlement arrived at by the parties in the meeting held on 17th July 1997. 3. It is also stated by the appellant in the instant appeal that he believed the story and being anxious to have a legal document reduced into writing on the basis of settlement came to the chambers of Mohammad Amin, Advocate, who drafted the document wrongly styled as Licence Deed and signed it. According to appellant the document was cleverly drafted with a view to show that it is a licence deed. It is also averred that on the basis of the said document, respondent filed a suit for mandatory injunction against appellant/defendant directing vacation of premises and recovery of Rs. 3791/- as arrears of fee for occupation of shop along with damages and there is no claim made by respondent/plaintiff for handing over the possession to him. Written statement was filed by appellant/defendant. 4. As can be seen from the perusal of the file, the Trial Court framed following issues for adjudication of the suit: (1) Whether the defendant came to be in possession of the suit property in pursuance of licence deed executed on 30.07.1998? OPP (2) Whether the said deed has expired on 30th of July 1999, and the defendant has failed to pay the rent since 1st January 1999 and is running in arrears to the tune of Rs. 3791.70? OPP (3) Whether the defendant is illegally occupying the said premises since he has defaulted and the terms of licence deed has also expired and as such, he is liable to vacate the premises? OPP (4) Whether the defendant has established tea stall in the suit premises fraudulently? OPP (5) Whether the defendant was in occupation and use of shop as tenant almost six years prior to July1998 that is execution of licence deed? OPD (6) Whether the plaintiff with the help of his relatives dismantled the suit premises and after intervention of Trade Association the defendant put in possession of the suit shop as tenant @ Rs. 6600/- per annum? OPD (7) Whether the licence deed referred herein above was intended to be executed as rent deed? OPD (6) Whether the plaintiff with the help of his relatives dismantled the suit premises and after intervention of Trade Association the defendant put in possession of the suit shop as tenant @ Rs. 6600/- per annum? OPD (7) Whether the licence deed referred herein above was intended to be executed as rent deed? OPD (8) Whether the defendant is not a defaulter since it was agreed by the parties that the defendant shall pay rent annually from January 1997? OPD (9) Whether the plaintiff has failed to demand rent from the defendant nor he accepted it? OPD (10) Relief. 5. In terms of impugned judgement and decree dated 17th September 2009, passed by the Trial Court, defendant/appellant was commanded to vacate the suit premises and hand over possession thereof to plaintiff/respondent, with a further direction to pay arrears of licence fee/damages @ Rs. 541.66/- per month from 1st January 1999 till the vacant possession was handed over to plaintiff/respondent along with interest @3% per annum to be charged after expiry of one month from the date of judgement. Against the judgement and decree, an appeal was preferred by defendant/appellant, which has been dismissed by the 1st Appellate Court vide impugned judgement dated 11th December 2012. So, both the judgements of Trial Court judgement and 1stAppellate Court are challenged in this Civil Second Appeal. 6. I have heard learned counsel for parties and considered the matter. 7. A civil suit titled Mohammad Akbar Thakroo v. Ghulam Mohammad Mir was filed by respondent/plaintiff before the Trial Court, in which he prayed for grant of decree for mandatory injunction directing defendant/appellant to vacate the suit shop and hand over the same to plaintiff/respondent. He has also sought decree for recovery of arrears of licence fee amounting to Rs.3791.70 w.e.f. 1st January 1999 to 30thJuly 1999. Plaintiff prayed for payment of damages as also compensation. The case of plaintiff/respondent before the Trial Court was that plaintiff was owner of suit shop and licence was granted by him to defendant/appellant in terms of licence deed dated 30th July 1998, which was duly registered by Sub Registrar, Anantnag, on 23rd October 1998. Written statement was filed by defendant/appellant before the Trial Court, in which he maintained that he executed the rent deed which was registered by Sub Registrar, Anantnag. While passing the judgement, the Trial Court discussed the document, viz. Written statement was filed by defendant/appellant before the Trial Court, in which he maintained that he executed the rent deed which was registered by Sub Registrar, Anantnag. While passing the judgement, the Trial Court discussed the document, viz. licence deed, which plaintiff/respondent relied in his pleadings but defendant declined, and thereafter discussed provisions of law, including Section 105of Transfer of Property Act, Section 52 of Indian Easement Act, Section 92 of Evidence Act, and law laid down inthis behalf, including the relevant portion of "Ratanlal and Dhirajlal THE LAW OF EVIDENCE 19th Edition 1997 by Justice Y V. Chandrechud, Former Chief Justice, Supreme Court of India and V.R. Manohar, Former Advocate General of Maharashtra" that when a transaction is reduced into writing either by requirement of law, or agreement of parties, the writing become the exclusive memorial thereof and no extrinsic evidence is admissible either to prove independently the transaction or to contradict, add to, or subtract from the terms of the document. The Trial Court analysed and examined in detail the document in question and decided Issue no. 7 infavour of plaintiff/respondent and against defendant/appellant. 8. In view of what is urged in the appeal and contended by counsel for appellant, let me first go through the impugned judgement of the Trial Court. Upon framing of issues, as quoted herein before, witnesses were adduced by parties and documentary evidence was placed on record. The Trial Court first discussed the plaintiffs evidence and thereafter defendant's evidence. The Trial discussed in detail issues and decided the same. While discussing Issue no. 7, the Trial Court mentioned that defendant did not choose to appear himself as his own witnesses for the reasons best known to him, albeit copy of his statement was placed on record by plaintiff. The Trial Court has comprehensively discussed Issue no. 7 and has given full account of statements of witnesses, provisions of law and facts of the case as well to arrive at best conclusion. The Trial Court has given right and correct conclusion qua Issue no. 7. Thereafter, the Trial Court took up other issues and in a right manner decided all those issues. 9. The judgement of 1st Appellate Court, when looked from all angles, it gives comprehensive discussion as was required of 1st Appellate Court. 10. Now let me take up the instant memo. 7. Thereafter, the Trial Court took up other issues and in a right manner decided all those issues. 9. The judgement of 1st Appellate Court, when looked from all angles, it gives comprehensive discussion as was required of 1st Appellate Court. 10. Now let me take up the instant memo. While entertaining a Civil Second Appeal, substantial questions of law are required to be framed. When I went through this file, I found that substantial questions of law had not been framed till date. Thus, I thought it apt to have a look on and decide the issues proposed by appellant as being substantial questions of law hereinafter. 11. The first question that according to counsel for appellant is a substantial question of law is: "a) Whether the appellate Court was bound by law to appreciate the evidence led by the parties and then record a finding on all the issues raised in the case?" I have gone through the 1st Appellate Court's judgement. The 1st Appellate Court has discussed in detail all imperative facts of the case and appreciated the evidence on record. The Appellate Court has discussed pleadings of both the parties, discussed Trial Court judgement and rightly and correctly found Trial Court judgement well-reasoned and comprehensive. There is no gainsaying that Trial Court judgement is lucid and eloquent and discusses all issues of the matter as throughout pleaded and exhorted by appellant either before Trial Court, 1st Appellate Court or this Court. 12. The second question raised by counsel for appellant is: "b) Whether the first appellate court is the final court of facts and the court is bound to appreciate the evidence led by the parties and record its own findings on each material issue?" As is evident from perusal of the 1st Appellate Court's judgement, it has discussed and appreciated the evidence led by parties. The 1st Appellate Court has rightly found that the Trial Court judgement and decree does not warrant any interference inasmuch as it has been passed after appreciation of all facts of the case and evidence of both the parties. 13. The 1st Appellate Court has rightly found that the Trial Court judgement and decree does not warrant any interference inasmuch as it has been passed after appreciation of all facts of the case and evidence of both the parties. 13. The third question raised by counsel for appellant is: "c) Whether the failure on part of the appellate court to refer to the evidence led by the defendant and to appreciate it vitiates the judgment under appeal?" As said above, the 1st Appellate Court has given lucid judgement and there is no failure on the part of 1stAppellate Court in appreciating the evidence. 14. The fourth question taken by counsel for appellant as being substantial question of law is: "d) Whether the failure of the courts below to decide the issue No.5&6 on the strength of the evidence led by parties amounts to serious legal error, vitiating the judgement?" The fourth question proposed by counsel for appellant is not a substantial question of law. Nonetheless, it would be apt to mention here that the Trial Court has given a comprehensive and all-inclusive judgement and so has been given by the 1st Appellate Court. 15. The firth question raised by counsel for appellant is: "e) Whether the so called licence relied upon by the plaintiff in the circumstances in which it has been executed is shrouded with suspicion and has been brought into existence de hors the settlement arrived at by the parties about the nature of the possession to be held by the defendant over the disputed shop?" Again, this issue is not a substantial question of law as envisaged under the provisions of Section 100 of the Code of Civil Procedure. This factual issue has been in detail discussed by both Trial Court and Appellate Court while rendering impugned judgements. 16. The sixth question raised by counsel for appellant that according to him is a substantial question of Law is: “f) Whether the so called license deed relied upon by the plaintiff or seeking mandatory injunction has been brought into existence through an unholy alliance of the plaintiff, his advocate brother Sh. Ghulam Ahmad Thoker and the draftsman of the deed?" This issue is purely a factual issue which has already been set at rest by the Trial Court and thereafter by the 1st Appellate Court. Ghulam Ahmad Thoker and the draftsman of the deed?" This issue is purely a factual issue which has already been set at rest by the Trial Court and thereafter by the 1st Appellate Court. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. Second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It is not open to the appellant to re-agitate the facts or to call upon the Court to reanalyze or re-appreciate evidence in a Second Appeal. 17. The seventh question taken by counsel for appellant is: "g) Whether the so called license deed was brought into existence without explaining its contents to the defendant and without consulting the defendant before its execution? If so, what is its effect? This question is purely based on facts. The facts vis-a-vis licence deed have been elaborately discussed by both the courts below. As mentioned above, appellant urges re-appreciation of facts that too in Second Appeal. It is made clear here that Section 100 CPC restricts right of second appeal to only those cases where a substantial question of law is involved. The existence of "substantial question of law" is sine qua non for exercise of jurisdiction under Section 100 CPC. 18. The eighth question taken up by counsel for appellant is: "h) Whether the defendant is entitled to production of additional evidence to prove the contents of the settlement arrived at by the parties through the good offices of Byopar Mandal, Achabal Adda, Anantnag, reflected through the document executed on 17.07.1998?" This issue again is not a question that can be called as "substantial question of law" in true sense of Section100 CPC. 19. The nineth question raised by counsel for appellant is: "i) Whether the suit in the absence of claim for recovery of possession is maintainable?" This issue is factual in nature and character and has been discussed and decided by both the Trial Court and 1st Appellate Court in detail and is not in any manner a substantial question of law, which requires discussion here. Such an issue cannot be said a substantial question of law. Such an issue cannot be said a substantial question of law. The Trial Court has dealt with this aspect of the matter extensively while having regard to the relief(s) prayed for by plaintiff, witnesses adduced by both the parties as also while going through the documents produced by the parties before it. 20. The tenth question raised by counsel for appellant is: "Whether in the event of decree passed in favour of plaintiff for mandatory injunction, the same is inexcusable because no relief for handing over the disputed shop to the plaintiff is claimed in the suit?" Again, this issue in any sense is not a substantial question of law. The Trial Court has allowed the suit of plaintiff/respondent after discussing all facets of the matter including the relief sought for by him against defendant/appellant. So is also evident from the 1st Appellate Court judgement. 21. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v.Purushottam Tiwari, 2001 (3) SCC 179 . In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam, AIR 1963 SC 302 . An entirely new point, raised for the first time, before the High Court, is not a question involved inthe case, unless it goes to the root of the matter. The Supreme Court in Nazir Mohamed v. J. Kamala and others, AIR 2020 SC 4321 , summarized the following principles concerning to Section 100 CPC: "(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. (iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where(i) the courts below have ignored material evidence or acted on no evidence;(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or(iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 22. It is worthwhile to mention here that condition precedent for entertaining and deciding a Second Appeal being existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. 23. 23. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 1999 (3) SCC 722 , the Supreme Court held: "After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence" "It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of fact show so ever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact." "If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal." 24. From the above it emerges that mere appreciation of facts, documentary evidence or meaning of entries and contents of document cannot be held to be raising a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. In the present case, the 1st Appellate Court has exercised its discretion in a judicial manner and therefore, impugned judgement need not be interfered with and as a corollary thereof appeal on hand is liable to be dismissed. 25. For the reasons discussed above, the appeal is dismissed with connected CM(s), and as a consequence thereof, judgements and decree passed by 1st Appellate Court and Trial Court are upheld. Interim direction, if any, shall stand vacated. 26. Decree sheet be drawn, accordingly. 27. Copy be sent down along with the record.