This is the defendant's second appeal which calls in question the judgment and decree passed by the Munsif, Sadar, Pratapgarh (now known as Civil Judge, Junior Division), Sadar, Pratapgarh passed in R.S. No. 154 of 1973 whereby by means of judgment and decree dated 18.04.1978, the suit of the plaintiff-respondents for possession and injunction was decreed. The regular civil appeal preferred by the defendant-appellant bearing RCA No. 47/1978 was also dismissed by the lower Appellate Court by means of judgment and decree dated 18.01.1980. Thereafter, the appellant escalated the matter and preferred the instant second appeal.
The aforesaid second appeal was admitted on 18.03.1980 with the simplicitor order ''admit, issue notice'.
The Court has heard Sri Anshuman Singh, learned counsel for the appellant and Sri U.S. Sahai, learned counsel for the respondents.
Since at the time when the order of admission was passed, no substantial question of law was formulated, hence, this Court had required the learned counsel for the appellant to first urge on the substantial questions which he proposes to press before the Court on which the respondents shall give his answer. Since the record is also available with the Court and that the second appeal is of the year 1980 arising out of a suit which was instituted in the year 1973, hence, it was made known to the parties that if the substantial question as proposed by the appellant has some substance, the same shall be formulated or else the appeal shall be decided finally either way.
It is in this backdrop that the Court has heard the learned counsel for the parties and also perused the records.
Sri Anshuman Singh, learned counsel for the defendant-appellant has primarily urged two questions as substantial questions of law arising in the aforesaid second appeal.
(i) It has been submitted that the two Courts have committed a grave error of law in merely returning findings based on the spot inspection made by the Presiding Officer in terms of Order 26 Rule 18 C.P.C. It is submitted that the spot inspection made by the Presiding Officer could not have been made the sole ground upon which the findings could have been returned rather the same ought to have been corroborated with other evidence on record. Since this has not been done thus the findings are absolutely perverse based on no evidence which gives rise to the substantial question of law involved in the above appeal.
(ii) The second question pressed by the learned counsel for the appellant is that the two courts below have failed to notice that in between the parties another suit had been contested and the judgment of the aforesaid earlier suit would operate as resjudicata and this aspect of the matter has also not been properly appreciated and considered, consequently, the suit itself was barred which has wrongly been decreed by the Trial Court and the appeal dismissed by the lower Appellate Court.
Sri U.S. Sahai, learned counsel for the respondents submits that the submission of the learned counsel for the appellant is erroneous for the reason that apart from the spot inspection made by the Presiding Officer, the Trial Court as well as the Lower Appellate Court have both considered the oral evidence led by the parties including their witnesses as well as has also noticed the documentary evidence. From an overview of the aforesaid, including taking note of the spot inspections made by an Advocate Commissioner, the finding was returned that the title of the plaintiff is proved, the disputed land in question was in the exclusive share of the plaintiff. It was also found that the defence as raised by the defendant was quite incorrect and he even could not prove and substantiate his own defence as the defendant who had appeared in the witness box along with his two other witnesses also corroborated the statements given by the plaintiff and also accepted the spot position as brought on record by the Commissioner's report which was found to be correct when the Presiding Officer inspected the premises. These were pure findings of fact which have also found favour with the lower Appellate Court who has affirmed the same by referring to then in addition, hence, the same are not liable to be interfered with in exercise of the powers under Section 100 C.P.C. as there is no perversity.
Sri Sahai further submits that the issue of resjudicata is also not relevant, inasmuch as, the earlier suit which is referred to by the defendant was a suit for injunction which was initially dismissed by the Trial Court but in first appeal the same was decreed against the defendant and the matter was not challenged in a second appeal. The property in question was different and so were the parties as they did not claim under the same title as is being submitted by the defendant-herein. Moreover, even this issue has been dealt with by the two courts and noticing the same, the objection regarding resjudicata also did not find favour and the inference drawn that the issue of resjudicata was not applicable at all does not give rise to substantial question of law, consequently, the second appeal deserves to be dismissed.
In order to appreciate the rival contentions, brief facts giving rise to the above second appeal are being noticed hereinafter:-
Sri Rampal (original plaintiff) predecessor-in-interest of the plaintiff-respondents instituted Regular Suit No. 154 of 1973 against Sri Jagannath, the present appellant with the pleadings that the plaintiff is the owner of Gata No. 118 situated in Gram Vasuapur, Tehsil Sadar District Pratapgarh which has been part of his Abadi since the time of his fore-fathers. It was further pleaded that the total area of the plaintiff's Abadi including the Sehan Darwaja and its other adjoining area was about 4 Biswa. The plaintiff has been utilizing the same land for the purpose of his residence as well as keeping his domestic animals, keeping his fodder, grains etc. It was also pleaded that the aforesaid land of the plaintiff vested in him in terms of Section 9 of the U.P.Z.A. & L.R. Act. With a view to create disturbance and to harm the plaintiff-defendant in the month of June, 1973 the defendant made inroads in the land of the petitioner and forcibly occupied the same by digging the earth and with half baked bricks raised a temporary wall over which he put his thatched shed. In the aforesaid backdrop, the suit was filed for the removal of the aforesaid illegal structure and for possession of the land which belonged to the plaintiff.
The defendant-appellants contested the suit by filing his written statement and specifically pleaded that the land in question vested with the defendant as part of his Abadi. He further indicated that the house of the ancestors of the plaintiffs has been present since more than 25 years and that the land in North thereof was used by the predecessors of the defendant-appellant for the purposes of pegging their domestic animals and also for storing grains and fodder.
Primarily, the defendant had raised an issue that the land in question was part of the defendants' Abadi and it did not belong to the plaintiff. The defendant-appellant also raised a plea that in the year 1955 a dispute arose in respect of the land in question wherein in R.S. No. 252 of 1955, the said land was found to be Abadi of the defendant and for the aforesaid reasons, the suit of the plaintiff was liable to fail as the land in question vested with the defendant and he had a right to use the same including by using the thatched shelter over which the plaintiff had no right.
On the basis of the pleadings, the Trial Court framed four issues. The first issue related to the fact that whether the disputed land in question was a part of the Abadi of the plaintiff or the defendant. The second issue was regarding the valuation and payment of Court fee. The third issue related to the fact of the limitation whether the suit was filed within time and the fourth issue was relating to the relief which may be available to the plaintiff.
Primarily, for the instant dispute the issue no. 1 was of prime importance. The Trial Court noticing that the plaintiff in order to establish his right apart from filing the certified copies of the suit relating to R.S. No. 252 of 1953, the decision of the Lower Appellate Court passed in Regular Civil Appeal No. 155 of 1955, a copy of the Commissioner's report in the aforesaid suit as well as the plaintiff Rampal examined himself as plaintiff-witness no. 1, Ramchandra was examined as P.W. 2, Sri Wazir Ahmad, Advocate was examined as P.W. 3 who was the Advocate Commissioner whereas the defendant examined himself as D.W. 1 and one Sri Janglu as D.W. 2.
The Trial Court thereafter went on to consider the respective cases, took notice of the Commissioner's report along with its site plan and thereafter noticed the evidence led by the respective witnesses. The Presiding Officer of the Trial Court also went and made a spot inspection of the premise in question in order to ascertain and appreciate the facts clearly. It is in this backdrop that the Trial Court noticed that the disputed land in question was the Abadi of the plaintiff and in order to arrive at the aforesaid conclusion, it took note of the spot position as well as compared to Commissioner's report with another report which was available and was made at the time when the R.S. No. 252 of 1953 was instituted. The admission of the witness indicating that from the disputed land in question, the house of the plaintiff was on the northern side. The defendant and his witnesses also admitted that their house was on the Southern side of the disputed land. A well was also situate on the land in question and as admitted by the defendant and his witnesses that they did not use the well for their needs rather they were using a hand pump which was near their house.
The Trial Court also noticed that as per the version of the defendant the entire thatched shelter and his earlier constructions were about 25 years old, however, upon inspection it revealed that the same were newly constructed. This also was considered along with other discrepancies in the statement of the defendant-witnesses which was duly corroborated by the spot inspection and it was found that the well which was situate was demarcating factor between the Abadi of the plaintiff and the defendant. It further found that since the thatched shelter was towards the side of the plaintiff's Abadi and was newly constructed, hence, it returned the finding that the defendant had unlawfully invaded the land of the plaintiff and had unlawfully raised the thatched shelter, hence, the suit for possession was decreed and the defendant was directed to remove the aforesaid illegal structure by means of judgment and decree dated 18.04.1978.
The First Appellate Court also while considering the evidences and noticing the submissions of the learned counsel for the defendant-appellant, the Lower Appellate Court considered meticulously the evidence of the defendant and his witness and has specifically recorded that the defendant admitted that there was no actual physical boundary wall separating the Abadi of the plaintiff and the defendant. He admitted that there was a well which was newly constructed and was near the Saria of the plaintiff. The Saria was admitted by the defendant to be very old and thereafter he further admitted that the defendant did not use the aforesaid well and that the well was on the far norther side of his Abadi. Thus, the Lower Appellate Court also confirmed the finding that the well was taken to be the demarcation of the Abadi between the plaintiff and the defendant. The Lower Appellate Court also took note of the statement of the defendant-wtiness no. 2 who admitted the disputed land in question was on the Eastern side and the land falling on the Western side of the Ghoor was that of the plaintiff. He also admitted that the land of the plaintiff's Abadi was about 5 Biswa and that the instant land in question which is disputed also fell towards the side of the plaintiff. Noticing the aforesaid also comparing the spot inspection report prepared by the Advocate Commissioner who was also examined as a witness by the plaintiff who confirmed the factual position, thereafter the finding of the Trial Court was confirmed and consequently the appeal was dismissed by means of judgment and decree dated 18.01.1980.
This Court having considered the submissions and from the perusal of the record first and foremost finds that the first issue raised by the learned counsel for the appellant does not give rise to any substantial question of law, inasmuch as, the issue whether the disputed land is part of the plaintiff or the defendant's Abadi has on fair assessment by the two courts considering and analyzing the evidence and statements of the witnesses has been recorded. The submission that the finding has solely been recorded on the basis of the spot inspection made by the Presiding Officer is also incorrect, inasmuch as, the statements of the witnesses have also been taken into account and has been referred to along with the Commissioner's report including the Advocate Commissioner's statement who was examined as a witness. The valiant attempt of the Presiding Officer to clarify and to ensure that no injustice is done went and inspected the premises and thereafter it has taken note of the circumstances and the evidence on recorded and thereafter has recorded his finding which do not appear to suffer from any perversity.
The learned counsel for the appellant has failed to point out any perversity in the finding, inasmuch as, he could not point out any evidence which has not been considered nor he could point out any evidence which has been made the basis of a finding which was inadmissible. In effect what the appellant wants is that the Court should re-appreciate the evidence, which in the estimation of this Court is not within the domain while exercising powers under Section 100 C.P.C.
In view of the aforesaid, this Court is not convinced with the submissions made by the learned counsel for the appellant.
As far as he issue regarding res-judicata as raised by the learned counsel for the appellant is concerned, the same has also been dealt with by the two courts and it was found that the land in question was different and even the parties to the earlier suit was different. They did not claim under the same title. Though, the aforesaid plea has been raised by the learned counsel for the appellant but he has miserably failed to establish as to how the findings regarding the earlier Suit bearing R.S. No. 252 of 1953 would operate as a res-judicata in the instant suit.
The learned counsel for the appellant has also failed to notice that in the suit of the year 1953 initially the same was dismissed, however, subsequently, in Appeal No. 155 of 1955, the same was allowed and a decree of injunction was passed.
The Court has had the benefit of considering the record available and from the perusal of the same and upon an appeal preferred by the defendant, the same was allowed and the suit bearing R.S. No. 252 of 1953 was decreed.
The Court has had the benefit of perusing the record of the Trial Court wherein the copy of the appeal and the judgment passed in Regular Suit No. 252 of 1953 is on record. From the perusal of the same, It would indicate that neither the plaintiff i.e. Rampal or his predecessors were were parties in the said suit. The Suit of the year 1953 was instituted by one Sri Shankar and Ramlal who were sons of Nankau against Jagannath and Sabhai who were the sons of Wadul and Sabhau.
From the perusal of the pedigree as mentioned by the defendant in his written statement, it would indicate that Shankar and Ramlal who were the plaintiffs of the suit of 1953 were sons of Nankau whereas the plaintiff Rampal was the son of Baburam. Thus, the issue of res-judicata also could not be established since neither the property was found to be the same nor it was indicated that the plaintiff of the instant suit or their predecessor were party to the earlier suit, hence, the plea of res-judicata also fails.
The Court having considered the submissions find that the second appeal is concluded by the concurrent findings of fact. The same have been recorded by the appropriately appreciating evidence. This Court is not entitled to re-appreciate the evidence nor it can set aside the concurrent findings, merely because another view may be possible.
In this case, there are concurrent findings on facts by both the courts below. The Hon'ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse.
In a recent case of Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:-
"...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law."
In another recent case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:-
"...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal."
In one more recent case Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible.
This Court is of the firm view that the findings returned by the two courts are well discussed based on admissible evidence, hence, does not suffer from any legal error, consequently, no substantial questions of law is involved in the aforesaid second appeal. As a result, the second appeal is dismissed, the judgment and decree dated 18.04.1978 passed by Munsif Sadar, Pratapgarh in R.S. No. 154 of 1973 and judgment and decree dated 18.01.1980 passed in Regular Civil Appeal No. 47 of 1978 are affirmed, however, in the facts and circumstances, there shall be no order as to costs. The office is directed to remit the lower court record of the case to the Court concerned within a period of next two weeks.
[Jaspreet Singh, J.] Order Date: 12.02.2021 Asheesh