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2023 DIGILAW 595 (GUJ)

Ismailbhai Kasambhai Mudiya v. State Of Gujarat

2023-04-12

RAJENDRA M.SAREEN

body2023
ORDER : 1. Present Second Appeal has been preferred by the appellants – original plaintiff against the concurrent findings of the learned courts below arising out of the suit for declaration and permanent injunction. 2. Factual matrix of the case is as under: 2.1. It is the case of the plaintiff that he is resident of Mangrol and having his own agricultural land of Survey No.1394/5 known as Basar and surrounding to this land, there are many agricultural lands of different farmers. It is the case of the plaintiff that on the eastern side of his land, there is government land known as Bal land and the said land is in height of 3 to 4 ft. to the level of his land and hence they are using the said land for keeping agricultural equipments, storing cattle, food, etc and they are using the said land since his forefathers without any kind of obstructions from the Government. It is alleged that the said land of the government is approximately 3 Bighas and the plaintiff is going to his field through the way passing from the said land of the government and he has made boundary by making construction and thereby made huge expenses. 2.2. It is further the case of the plaintiff that for regularization of the said land, he had made an application to the defendants, but the defendants have not denied for the same and now a days, people of Kharva community of Porbandar are trying to take possession of the said land from the Government and they have made construction upto the plinth level over the said land for houses and the government is ignoring the said act of the said peoples of Kharva community and the defendants are also trying to snatch away possession of this land from him and willing to give the said to the aforesaid peoples. It is submitted that if the defendants are succeeded to do so, the plaintiff will suffer a great irreparable loss which cannot be compensated in terms of money. Therefore, the plaintiff filed the suit for declaration and permanent injunction. 3. The suit of the plaintiff came to be dismissed vide judgement and decree dated 12/2/2007 and appeal preferred against the said judgement and decree being Regular Civil Appeal No.16 of 2017 also came to be dismissed by the Additional District Judge, Keshod. Therefore, the plaintiff filed the suit for declaration and permanent injunction. 3. The suit of the plaintiff came to be dismissed vide judgement and decree dated 12/2/2007 and appeal preferred against the said judgement and decree being Regular Civil Appeal No.16 of 2017 also came to be dismissed by the Additional District Judge, Keshod. However interim has been vacated, however, the District Court has directed the respondents that in case of taking possession, they should follow due process of law. 4. Heard Mr.S.A. Qureshi, learned advocate for the appellant at length and examined the findings of both the courts below on the issues raised in the suit. Upon examination of the judgement and order of both the courts below, learned advocate for the plaintiff - appellant is unable to point out any infirmity, perversity or impropriety in the concurrent findings of the fact recorded by both the courts below. Not only that the learned advocate for the appellant is unable to show that any finding recorded by the courts below is without any evidence or there is any illegality in the findings, except making request to regularise the possession of the suit land. 5. Having heard the learned advocates for the respective parties and considering the concurrent findings of the courts below, this Court is of the opinion that the Civil Court has no such power or jurisdiction to take care of the grievance of the plaintiff – appellant. It is undisputed fact that the suit land is government waste land and is of the ownership of the government and the plaintiff has kept the said land illegally and without any permission of the government and both the courts below have rightly observed and held that the plaintiff has no cause to remain on the land as the plaintiff is not holding any legal title over the suit land. Under the circumstances, this Court does not find any error to interfere with the concurrent findings of the courts below in exercise of the powers under section 100 of the Code of Civil Procedure as the jurisdiction of this Court is confined only to the substantial question of law. 6. Under the circumstances, this Court does not find any error to interfere with the concurrent findings of the courts below in exercise of the powers under section 100 of the Code of Civil Procedure as the jurisdiction of this Court is confined only to the substantial question of law. 6. If the plea of the plaintiff appellant is believed that the plaintiff has become owner by adverse possession, but such a plea is also not tenable and on such ground the plaintiff cannot seek protection of the land unless and until it is proved that the plaintiff is in long possession of the suit land and that too without any obstruction and the possession is hostile to the government. No evidence has been brought on record by the plaintiff regarding his plea of adverse possession and it has come on record that the possession of the plaintiff was obstructed and interrupted by the government. Nothing sort of pleadings or evidence has been placed on record and therefore, on none of the grounds, the plaintiff has proved the case before the courts below and this court does not find any substance in the present appeal as the same is devoid of merits both on facts and law. No substantial question of law is involved. Hence, present appeal stands dismissed. 7. Under the circumstances, this court does not find any error or law in the concurrent findings of the learned courts below. In exercise of powers under section 100 of the Code of Civil Procedure, jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised so as to enable this Court to admit the present appeal. 8. The scope of Second Appeal under section 100 is limited. Second Appeal is competent only if it involves, at the stage of admission, substantial question of law. High Court can interfere with the concurrent findings of fact, if the findings are perverse but the perversity should be apparent on the face of record. 9. Here in this appeal, the question of law raised cannot be said to be substantial question of law and there are question of law but not the substantial question of law. 10. In the case of Easwari Versus Parvathi and others,. 9. Here in this appeal, the question of law raised cannot be said to be substantial question of law and there are question of law but not the substantial question of law. 10. In the case of Easwari Versus Parvathi and others,. reported in (2014) 15 SCC 255 , it is held that High Court can entertain a Second Appeal on a substantial question of law and it has absolutely no jurisdiction to entertain the Second Appeal on the ground of erroneous findings of fact, however, gross error seems to be looked into. High Court can interfere in the concurrent findings of facts in the Second Appeal if the appellate court has not properly appreciated the evidence on record. 11. In the case of Samina Khatun, AIR 1995 Gauhati 104, also it is held that High Court can only entertain Second Appeal only on substantial question of law. High Court has absolutely no jurisdiction to entertain Second Appeal on the ground of erroneous findings of fact. 12. As laid down in the case of State of Haryana Versus Khalsa Motors Limited, reported in (1990) 4 SCC 659 , on the basis of evidence on record it is held that the trial court and first appellate court has given concurrent findings of facts and the High Court cannot reverse the said findings under ordinary circumstances. 13. In the case of C.Doddanarayana Reddy & Ors. Vs. C. Jayarama Reddy & Ors., reported in (2020) 4 SCC 659 , the Hon’ble Apex Court has observed and held as under :- “25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan (1999) 6 SCC 343 , it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: “12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. This Court held as under: “12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. In Ramanuja Naidu v. V. Kanniah Naidu ( 1996 3 SCC 392 ), this Court held: "It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did." 14. In Navaneethammal v. Arjuna Chetty ( 1996 6 SCC 166 ), this Court held : "Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … 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." 15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. ( 1997 4 SCC 484 ), this Court held: (SCC p. 486, para 5) "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible." 26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., (1999) 3 SCC 722 , this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under: “5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.” 27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, (2001) 3SCC 179, this Court held as under: “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. 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, in so far as the rights of the parties before it are concerned. 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, in so far 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.” 28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637 , it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under: “When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).” 29. The learned High Court has not satisfied the tests laid down in the aforesaid judgements. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).” 29. The learned High Court has not satisfied the tests laid down in the aforesaid judgements. Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court. 14. In the recent decision in the Case of Kapil Kumar Vs. Raj Kumar reported in (2022) 10 SCC 281 , the Hon’ble Apex Court has observed and held as under :- “10. At the outset, it is required to be noted that as such there were concurrent findings of facts recorded by the learned trial court as well as the learned first appellate court on execution of pronote by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the findings recorded by the courts below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under section 100 CPC. 11. Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law. From the impugned judgement and order passed by the High Court, it appears that as such no specific substantial question of law seems to have been framed by the High Court. However, it appears that what was considered by the High Court was whether the plaintiff proves the execution of pronote and the receipt by leading cogent evidence.” 15. This appeal, as stated above, is devoid of any substantial question of law. However, it appears that what was considered by the High Court was whether the plaintiff proves the execution of pronote and the receipt by leading cogent evidence.” 15. This appeal, as stated above, is devoid of any substantial question of law. Both the courts have rightly decided the issue between the parties in the right perspective. No cogent and convincing evidence has been brought on record to justify the claim of the plaintiffs – appellants. The plaintiff has failed to prove his case before the trial court as well as the appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merits both on facts and law and hence the same is dismissed at admission stage. On dismissal of the main Second Appeal, the Civil Application No.1 of 2023 stands rejected.