Court No. - 42
Case :- SECOND APPEAL No. - 178 of 2003 Appellant :- Basir Respondent :- Smt. Asgari Begum & Another Counsel for Appellant :- Sah O.P. Agarwal,Rohit Agarwal
Hon'ble Ved Prakash Vaish,J.
1. Sri Rohit Ranjan Agarwal, learned counsel for the appellant is present.
2. This is plaintiff's Second Appeal under section 100 of Code of Civil Procedure (in short, 'C.P.C.). The appellant herein instituted an original suit bearing no. 689 of 1989 against the respondents for possession of the property in question. The suit was contested by the respondents (defendants) by filing written statement. The suit was dismissed by VIth Additional Civil Judge (S.D.) Meerut. Against the said judgment, the plaintiff preferred Civil Appeal No. 56 of 1998 which was dismissed by learned Additional District Judge, Court No. 6, Meerut vide judgment dated 26.10.2002.
3. Feeling aggrieved by the said judgment dated 26.10.2002, the appellant has preferred present second appeal.
4. The brief facts of the present case are that appellant (plaintiff) herein instituted an Original Suit No. 689 of 1989 against the respondents for recovery of possession. The case of the appellant is that he was a tenant in a portion of the property no. 1/16, which is shown in the site-plan by letters A,B,C and D, situate at Fatehullahpur Road, Kanch Ka Pul, District Meerut on monthly rent of Rs. 15/-for the last 15 years. The said property was previously owned by one Mallu and thereafter, respondents/defendants have purchased the same. The appellant/plaintiff is using the tenanted portion as 'Baithak' instead of Khedi and family members of the plaintiff were residing in the inner room and plaintiff had installed powerloom in the Chowk. The defendant had broken the locks of the plaintiff and took possession about 14 months before filing the suit. The plaintiff lodged an oral police report regarding forcible dispossession and later on, sent a registered notice and requested the defendants to handover the possession of the said property. Hence, the appellant/plaintiff has filed the suit.
5. The suit was contested by the defendants by filing the written statement. The case of defendants was that the plaintiff was not in possession of he suit premises. On the pleading of the parties, the learned trial court framed the following ten issues :-
1& D;k oknh edku la0&1@16 fLFkr QrsgmYykiqj jksM esjB 'kgj esa ,d dksBk] cjkenk] lgu] 'kkSpky;] xqly[kkuk rFkk ckgj nqdku dk fiNys 15 o"kksZa ls fdjk;snkj dkfct Fkk tSlk fd oknh dk dFku gS\ 2& D;k izfroknuh us oknh dh fdjk;snkjh ds Hkkx of.kZr iSjk&5 okn i= ij yxHkx 14 eghus igys vukf/kd`r dCtk dj fy;k ;fn gkaW rks izHkko\ 3& D;k oknh edku la0& 1@16 dh dsoy ,d dksBjh esa fdjk;snkj Fkk] vkSj D;k mlus Lo;a 1986 ds fookfnr dksBjh dk dCtk izfroknuh dks nsdj vius o izfroknuh ds chp fdjk;snkjh o yS.M yksMZ ds laca/k dks lEkkIr dj fn;kA tSlk fd izfrokn i= dh /kkjk 11] 12] o 17 esa dFku gS\ 4& D;k izfroknuh /kkjk 35&, lh-ih-lh- ds vUrZxr fo'ks"k gtkZ eqcfyx 2000@& :i;s oknh ls ikus dh vf/kdkjh gS\ 5& D;k okn dk ewY;kadu de fd;k x;k gS\ 6& D;k U;k; 'kqYd vi;kZIr gS\ 7& oknh fdl vuqrks"k ;fn dksbZ gks rks ikus dk vf/kdkjh gS\ 8& D;k izfroknh la0&2 iz'uxr lEifRr ij ln~HkkoukiwoZd :i ls dkfct gS\ 9& D;k okn fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\ 10& vuqrks"k ftls oknh izkIr djus dk vf/kdkjh\
6. After considering the pleading of the parties and evidence adduced by both the parties, the suit of the plaintiff was dismissed by learned VIth Additional Civil Judge,(S.D.), Meerut vide judgment and decree dated 15.12.1997. The learned trial court recorded finding that the appellant was not a tenant in the suit property. It was also observed that there was no relationship of land-lord and tenant between the parties.
7. I have given my thorough consideration to the submissions made by learned counsel for the appellants and also carefully perused the material available on record.
8. Learned counsel for the appellant contends that the judgments of the courts below are against the facts and law. He also submits that learned trial court should have observed that appellant was in possession of the suit property and was forcibly dispossessed. Learned counsel for the appellant further submits that the trial court has committed an error by relying upon the photocopy of the agreement filed by respondent no. 2 which was not proved by the respondents.
9. As regards the photocopy of the agreement filed by respondent no. 2 is concerned, it may be mentioned that the suit was filed by the appellant/plaintiff and onus was on the plaintiff to prove that he was a tenant and in possession of the suit premises. Hence, non proving of photocopy of the agreement is of no use of the appellant.
10. On being specifically queried, learned counsel for the appellant has failed to show any evidence adduced by the appellant to prove that he was tenant in the suit premises as the case of the appellant was that he was a tenant for the last 15 years. The onus to prove that he was forcibly dispossessed from the same was also on the appellant.
11. The submissions made by learned counsel for the appellant do not give rise to substantial questions of law. This Court will not sit as if it is considering a regular first appeal so as to examine the entire matter on facts and law both. The scope of second appeal under section 100 C.P.C. is very limited and this Court shall enter upon only when there is a substantial question of law and not otherwise.
12. What is 'Substantial Question of Law' is no more res integra in view of law laid down by the Hon'ble Supreme Court in the case of 'Santosh Hazari versus Purushottam Tiwari' (2001) 3 S.C.C. 179, the same has been followed in the case of 'Thiagarajan and others versus Venugopalswamy B. Koli and others', AIR 2004 S.C. 1913, and in the case of 'Govindaraju versus Mariamman' (2005) 2 S.C.C.
500.
13. A similar view was taken by the Hon'ble Supreme Court in another case titled as 'Vijay Kumar Talwar versus Commissioner of Income Tax, Delhi' (2011) 1 S.C.C. 673 and Union of India versus Ibrahim Uddin and another (2012) 8 S.C.C. 148 and 'State of U.P. Versus Shanti Devi and another' 2013 (120) RD 494.
14. The Supreme Court in the case of 'State Bank of India and others Vs. S.N. Goyal', AIR 2008 SC 2594 has laid down the law with respect to 'Substantial Questions of Law'. The relevant part of the judgment of the Supreme Court is extracted herein below:
"9.1) Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance "
15. The Supreme Court in the case of Union of India vs. Ibrahim Uddin and another, (Supra) has reiterated the same principles.
16. In the instant case, both the courts below after considering the pleadings of the parties and evidence adduced by both the parties recorded concurrent finding of fact. Learned counsel for the appellants could not point out any manifest error or illegality in the impugned judgments which may give rise to any substantial question of law warranting adjudication by this Court. Since no substantial question of law is shown to have arisen, the appeal deserves to be dismissed at this stage itself.
17. Accordingly, the second appeal is dismissed.
(Ved Prakash Vaish, J.) Order Date :- 26.2.2018 SU.