JUDGMENT S.N. Srivastava, J.
1. These two appeals preferred by appellant Jhari Lal stem from a composite judgment dated 21.10.1996, delivered by lower appellate court in Civil Appeal Nos. 358 of 1986 and 359 of 1986 whereby Suit No. 327 of 1983 instituted by Jhari Lal was dismissed while Suit No. 160 of 1984 preferred by Smt. Ram Bala Devi was decreed.
2. The dispute centers round the land No. 59 situated in Mohalla Lallapur within the periphery of city Varanasi. Jhari Lal and Ganga Ram instituted Suit No. 326 of 1983 arraying Mangal Singh as defendant No. 1 and Smt. Ram Bala Devi as defendant No. 2 besides two other persons as defendant Nos. 3 and 4 with the allegations that the land in question admeasuring 120 x 80 was tenanted to them about three years back at the rate of Rs. 80 per month which was utilized by them for carrying on the vocation of keeping their cattle and selling milk. They alleged that though they regularly paid the agreed rent but no receipt was issued against payment of rent. It was further alleged that on 28.4.1983, the defendants attempted forcible eviction of the plaintiff's from the land in question and therefore, suit aforestated was necessitated in which relief claimed was to issue injunction restraining the defendants from illegally evicting them from the land in question. On the other hand, the case set out by the defendant Smt. Ram Bala Devi in written statement was that the land in question was rented out to the plaintiff for six months between the period 2.11.1982 and 30.4.1983 and thereafter on 30.4.1983, he vacated the land in question on their own and delivered vacant possession to defendant No. 1 who had been authorised by her by power of attorney to deal with on her behalf and also executed a note of delivery of possession paper No. 13 Ka. It was further averred that after a week or so, the plaintiffs again approached and solicited the defendant to rent out one biswa land together with tin-shed etc. and agreed to pay rent at the rate of Rs. 96 per day and in this connection, agreement was prepared on which Jhari Lal affixed his thumb impression. It is further averred that subsequently, owing to disinclination of the plaintiff, the agreement aborted ostensibly on the ground that the rate of rent fixed therein was too excessive and thereafter, the plaintiff entered into forcible possession over the land under a design on 15.6.1983. It is also averred that prior to it, the plaintiff had instituted a suit and obtained injunction order behind the back of the defendant. It is further averred that on 8.6.1983, Mangal Singh defendant No. 1 came to know of illegal occupation of the plaintiff after he arrived from Ghazipur to Varanasi and on being questioned, he flourished injunction order to the defendant No. 1.
3. It would further appear from the record that Smt. Ram Bala Devi thereafter instituted Suit No. 160 of 1984 for the relief of evicting Jhari Lal from the land in question and of restoring possession to her in relation to land 59/1 to 59/3 together with tin-shed and incomplete construction thereon from the illegal occupation of Jhari Lal.
4. I have heard learned counsel for the parties and also was taken through the decisions of the courts below. I have also perused the materials on record.
5. Smt. Ram Bala Devi has specifically denied the plaint allegations of the suit instituted by Jhari Lal and stated that the property belonged to her she being widow of Vijai Kumar. It has also been pleaded in para 16 of the written statement that the defendant had initially taken the land in question consisting of .27 acres at the rate of Rs. 85 per month for a period of six months and thereafter, he vacated the property on his own and had also removed his effects from the property and had also executed a note betokening delivery of possession to the defendant. It has also been specifically stated that after vacation of the land, Jhari Lal again forcibly occupied the land on 15.6.1983 taking advantage of her absence from the city and prior thereto, he had instituted the suit and obtained injunction order behind her back. Upon coming to know of forcible possession, Smt. Ram Bala Devi also instituted Suit No. 160 of 84 for the relief of possession and eviction of Jhari Lal from the land on the self same allegations. She also claimed relief for damages at the rate of Rs. 15 per day from the date of illegal possession. Jhari Lal on the other hand filed written statement and denied plaint allegations and pleaded that rate of rent was Rs. 85 per month and on 28.4.1983, Smt. Ram Bala Devi along with her musclemen tried to dispossess him, and thereafter, instituted Suit No. 160 of 1984. He denied plaint allegations that tenancy was terminated and that he removed his effects from the land in question. He also denied having affixed his signatures on paper No. 13 Ka and stated that he is in actual possession of the land as tenant and further that no notice etc. was served to him and ultimately stated that the suit was not maintainable and is liable to be dismissed.
6. The trial court decreed the Suit No. 326 of 1983 instituted by Jhari Lal and restrained Smt. Ram Bala Devi from evicting the plaintiff otherwise than in accordance with law. On the other hand, suit instituted by Ram Bala Devi was dismissed on the ground that Jhari Lal was in actual possession as tenant and therefore, he was not in unauthorized occupation of the land. As stated supra, two appeals were preferred against the judgment and decree of the trial court and both the appeals culminated in being allowed by the lower appellate court and in consequence, suit No. 160 of 1984 instituted by Smt. Ram Bala Devi was decreed and the other suit instituted by Jhari Lal was dismissed holding that Jhari Lal was tenant for six months and he vacated the land in suit on 30.4.1983 and again illegally occupied the land in suit on 15.6.1983. It. was further found by the appellate court that Smt. Ram Bala Devi was not represented in the suit filed by Jhari Lal and interim order was obtained behind her back. It was also found that there was not an iota of evidence betokening payment of rent with effect from 15.6.1982, onwards.
7. Aggrieved by the decision in appeals, Jhari Lal filed two second appeals and at the time of admission, the Court for determination/consideration framed following question.
"Whether the document 13 Ka executed by Jhari Lal which was held to be an outcome of involuntary action of the owner has been rightly ignored by the lower appellate court as not laying sufficient foundation to the defendant's Claim of continued tenancy."
The quintessence of arguments advanced across the bar by the learned counsel for the appellant is that the finding of lower appellate court that Jhari Lal vacated the premises on 30.4.1983 and again illegally occupied it on 15.6.1983, is wholly perverse and cannot be countenanced in law. He further canvassed that paper No. 13 Ka relied upon by the lower appellate court was not executed and signed by Jhari Lal and reliance thereon is misconceived. He further canvassed that the findings and reasons recorded by the trial court were not met by the lower appellate court while reversing the finding. Per contra, Sri Sidheshwari Prasad learned senior advocate assisted by Sri A. S. Dubey appearing for Smt. Ram Bala Devi contended that the finding recorded by the lower appellate court was arrived at upon appraisal of oral as well as documentary evidence let in by both the parties in correct perspective. He further submitted that the lower appellate court also reckoned with the statement of Jhari Lal that paper No. 13 Ka contained his signatures. He further contended that all other oral and documentary evidence as to execution of note of delivery of possession paper No. 13 Ka and other documents were rightly considered and finding recorded by the lower appellate court is a finding of fact arrived at upon appraisal of evidence on record. It was also contended that after amendment made by Amendment Act of 1976, second appeal could be entertained only on substantial question of law and not on mere illegality. He also reiterated his argument about what is substantial question of law and referred to number of decisions including decision in Govindaraju v. Mariamman, ; Commissioner Hindu Religious and Charitable Endowment v. P. Shanmugama and Ors., ; Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors., and Sir Chuni Lal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., . On the other, Sri S.N. Singh relied upon Kashibai v. Parawatibal, .
8. In the light of the above submissions, the issue that surfaces for consideration is whether any substantial question of law at all arises to be considered in this second appeal.
9. Both the parties adduced evidence. On behalf of Smt. Ram Bala Devi, three witnesses were examined namely, Mangala Prasad Singh D.W. 1, Harai Narain Singh D.W. 2 and Mohd. Ishhaq D.W.3. On behalf of Jhari Lal, four witnesses were examined namely, Jhari Lal P.W. 1, Jameer Ahmad P.W.2, Shiv Nath P.W. 3 and Munni P.W. 4. In the facts and circumstances, I have traversed upon the evidence on record and as held by the lower appellate court, it is borne out from the statements of witnesses that the land in question was vacated after execution of memo relating to delivery of possession paper No. 13 Ka and Jhari Lal re-entered into possession on 15.6.1983. The lower appellate court has also discussed the issue of signatures/thumb impression of Jhari Lal on paper No. 13 Ka and rightly converged to the conclusion that Jhari Lal had executed paper No. 13 Ka on 30.4.1983 considering analytically that the aforesaid paper 13 Ka had been executed after institution of suit. Dwelling on the allegation that his thumb impression had been obtained on blank paper on pain of life by Smt. Ram Bala Devi, it was reasoned by the lower appellate court that not a shred of evidence has been adduced in this regard nor any complaint or criminal case was filed and ultimately, disbelieved the case setup by Jhari Lal that his signatures/thumb impression were obtained under coercion or duress by Smt. Ram Bala Devi. It is thus explicit that the first appellate court has considered the evidence adduced by the parties and assigned its own reasons for accepting the evidence of one side and rejecting the evidence of the other side.
10. Before searching the materials on record on substantial question, it would be useful to advert to certain case laws on the point. The first decision on the point is the decision of Apex Court in Sir Chunilal V. Mehta (supra) in which in para 6, the Apex Court expatiated that proper test for determining whether a question of laws raised in the, case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the federal court or is not free from difficulty or calls for discussion of alternative views. It has further been equipped in the said decision that if the question is settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. In Govindaraju (supra), the Apex Court held that the scope of exercise of the jurisdiction by the High Court in second appeal under Section 100 of the C.P.C. is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was further held that to be a substantial question of law, it must be debatable not previously settled by the law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. The Apex Court also held that 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 the Court of fact and it must be necessary to decide that question of law for a just and proper decision between the parties. In Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors., (supra), it was held by the Apex Court that the Amendment Act of 1976 has drastically restricted the scope of second appeals and the jurisdiction of the Court to entertain second appeals is hedged in by limitations.
11. On the count whether any substantial question arises in this second appeal, the learned counsel for the appellant canvassed that the trial court has recorded finding disbelieving the case set up by Smt. Ram Bala Devi on the ground that Jhari Lal was in possession as tenant and therefore, Jhari Lal is entitled to get the reliefs sought in his suit and Ram Bala Devi, plaintiff of the other suit is not entitled to get any relief inasmuch as finding to the above effect has not been set aside by the lower appellate court and by this reckoning, proceeds the submission, a substantial question of law impinging on the rights of the parties arises.
12. From a perusal of the judgment rendered by lower appellate court, it would transpire that the lower appellate court has considered each and every shred of evidence on record both oral and documentary including paper No. 13 Ka and upon appraisal of the evidence on record, converged to the conclusion that Jhari Lal had accepted his signatures on the document paper No. 13 Ka though it was pleaded by him in both the suits that document is a manufactured document and therefore an outcome of fraud played by Mangal Singh, power-of-attorney holder. The lower appellate court also found upon consideration of materials on record that it was voluntary act of Jhari Lal who vacated the premises on 30.4.1983 and thereafter executed the document in which is implicite the acknowledgement of vacation of the land in question by him. It has further been found by the lower appellate court upon appraisal of evidence on record that Jhari Lal illegally occupied the land on 15.6.1983 again. The lower appellate court discredited the case of Jhari Lal that signatures were obtained by the defendants on blank paper on pain of life. The court below pinpointed in the finding upon appraisal of evidence on record that injunction order was obtained behind the back inasmuch as notice was issued after the injunction order had been passed and thereafter, Jhari Lal entered into forcible possession armed with injunction order taking advantage of the absence of defendants from the city of Varanasi. From the tenor of finding and also considering that the lower appellate court appreciated each and every evidence in correct perspective, I do not see any perversity in the finding.
13. I have also carefully studied the case law in S.V.R. Mudaliar v. Mrs. Rajabu F. Buhari, , relied upon by the learned counsel for the appellant to prop up the contention that in case of reversal by the lower appellate court, reasons assigned by the trial court must be considered by the lower appellate court. It is worthy of notice that ratio flowing from the aforesaid decision was delved into by the Apex Court in Arumugham v. Sunderambal, , eliciting following observation :
"It is to be noted that in the case S.V.R. Mudaliar v. Rajabu Buhari, the two-Judge Bench of the Court took a contrary view without noticing the three-Judge Bench decision of this Court in Ramachandra Ayyar case where this Court had specifically referred to Rani Hemanta Kumari Debi case and distinguished the same. The two-Judge Bench could not have therefore relied upon the Privy Council case of Rani Hemanta Kumari Debi. We, therefore, prefer to follow the view of the judgment of the three-Judge Bench of this Court in Ramachandra Ayyar case rather than the judgment of the two-Judge Bench by S. V. R. Mudaliar case."
14. On the question of burden of proof, the Apex Court observed as under :
"On the question of burden of proof we are of the view that even assuming that burden of proof is relevant in the context of the amended provision of Section 100, C.P.C the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether.
15. This case was also considered by the Apex Court in a subsequent decision in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, 1999 (2) AWC 1110. I have also considered the decision of the Apex Court in which the crux of what has been held by the Apex Court is that it is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on other side. It is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate court had not come to grips with the reasoning given by the trial court. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujari and Ors., 1999 (2) AWC 1608, the quintessence of what has been held is that it is not within the domain of the High Court to investigate the grounds on which the 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 has 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 lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence.
16. In the light of the above contentions, I have glanced through, with the assistance of the learned counsel for the parties, the finding all over again and am of the view that the findings recorded by the appellate court are finding recorded upon consideration of entire evidence and well knit reasoning was given while arriving at the conclusions. The learned counsel for the appellant has not been able to show that the findings are perverse and not based on any evidence or that the case comes within any of the criteria laid down by the Apex Court. I have also perused the judgment of the trial court. In the judgment of the trial court, conclusion drawn were not supported by well knit reasoning or consideration of entire evidence. It was rightly reversed by the lower appellate court upon consideration of evidence on record including paper No. 13 Ka.
17. In the above perspective, and considering the arguments of the learned counsel for the appellant, I am of the view that the question of law framed at the time of admission of appeal cannot be said to be a substantial question of law. In my considered view the lower appellate court has given cogent and convincing reasons for his conclusions and the reasons assigned by the Court have their genesis in evidence and materials on record. The finding of the lower appellate court that document paper No. 13 Ka was executed by Jhari Lal is based on proper appraisal of evidence besides being finding of fact. And in my view this cannot be assailed in second appeal. Therefore, the argument of the learned counsel for the appellant that substantial question of law impinging on the rights of the parties has arisen, does not commend to me for acceptance.
18. In view of the above, no substantial question of law arises and therefore the appeal is liable to be dismissed.
19. I have also heard learned counsel for the parties on the question of damages as claimed by the learned counsel for the respondents. Learned counsel for the appellant strenuously urged that no cross-objection has been filed and therefore, it would not be feasible to award damages. It would appear from the record that it has been held that Jhari Lal has defaulted in payment of rent after 30.4,1983. It has also been concluded that possession of Jhari Lal after 30.4.1983 is unauthorized. Smt. Ram Bala Devi has claimed damages at the rate of Rs. 15 per day in her Suit No. 160 of 1984 with effect from 15.6.1983. It is also borne out from the finding that Jhari Lal had vacated the land on 30.4.1983 and thereafter he entered into forcible possession quite unauthorisedly on 15.6.1983 taking advantage of absence of Smt. Ram Bala Devi. It has also come on record that Ram Bala Devi is a widowed and hapless lady, which circumstance has been fully exploited by Jhari Lal and he and his associates barged into possession on 15.6.1983 forcibly, unauthorisedly and under a design. It is also noticeworthy that Jhari Lal on the other hand, is a man of sufficient means earning handsome amount by carrying on the business of keeping cattle and selling milk on the premises. In the circumstances, considering the fact that Jhari Lal has been occupying the land unauthorisedly without paying a single penny to the helpless widowed lady, I am inclined that the interest of justice would be best attained if damages at the rate of Rs. 15 per day as claimed in the plaint are imposed on Jhari Lal payable with effect from 15.6.1983 upto the date on which he vacates the land in question and delivers vacant possession. The contention that in the absence of cross-objection or appeal, no damages can be awarded inspite of pleading by the parties, does not commend to me for acceptance. Order XLI, Rule 33 of the C.P.C, which are the provisions germane to the point, may be quoted below :
"33. Power of Court of Appeal.--The appellate court shall have power to pass any decree and make any order which ought to have passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.
Provided that the appellate court shall not make any order under Section 35A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
20. It would crystallise that Rule 33 of Order XLI, does contemplate power to pass any decree and make any order although such respondents or parties may not have filed any appeal or cross-objection.
21. The decisions on this aspect are dime a dozen in which it has been held that when no appeal or cross-objection has been filed by successful party against order disallowing cost, still then appellate court has power to grant costs. (See Sattar Lohar v. Jabar Hajam, AIR 1977 NOC 137 (J and K). In Municipal Board v. Harilal, , learned single Judge of Rajasthan High Court while dealing with the matter of compensation, observed to the effect that inspite of the fact that the claimant has not filed an appeal for such an increase, the. Court suo motu should grant the decree in favour of the claimant. It was further observed that it is expected in the sphere of social welfare legislation and an era in judicial activism for providing benefit to the bereaved family, I am firmly of the opinion that the Courts should not only suo motu act in such matters but provide relief in a particular case of injustice if justice requires. The present case is also one in which the Court considering the facts and circumstances and claims made in the plaint, is inclined to repair the harassment of a widow by the appellant who had forcibly taken over possession of her land on the basis of physical might against the widow and helpless lady by awarding damages/costs suffered by the widowed lady.
22. As a result of foregoing discussion, it is directed that Jhari Lal shall pay damages to Smt. Ram Bala Devi at the rate of Rs. 15 per day with effect from 16.6.1983 till such time he delivers vacant possession to opposite party Ram Bala Devi besides a sum of Rs. 10,000 as a cost which will be payable by Jhari Lal to Ram Bala Devi with further direction that any amount already paid under the interim orders dated 16.5.1988, 19.5.1988 and 20.9.1988, passed in the second appeal shall be given credit and adjusted accordingly. In this connection, learned counsel for the appellant drew attention of the Court to the interim order of this Court dated 20.9.2004 and claimed that in compliance of order of this Court, certain payments have been made. On the other hand, it has been stated across the bar by the learned counsel for the respondent that, interim order passed in the second appeal has not, been complied with. In the circumstances, I feel called to direct that while computing the amount towards damages at the rate of Rs. 15 per day with effect from 16.6.1983, credit shall be given to the respondent for the amount already deposited by him.
23. In the light, of the above observation, the decree of the lower appellate court is accordingly modified and second appeals are dismissed with a cost which I quantify at Rs. 10,000 in the facts and circumstances of the case. It may be clarified that the cost aforesaid shall be in addition to the cost already directed to be paid in the case.