Heard the learned counsel for the appellants and the learned counsel for the respondents.
At the very outset, it may be noted that the above appeal by means of order dated 17.04.1979 was admitted. However, at the time of admission, no substantial question of law was framed. As per the settled law and also noticed in the recent decision of the Apex Court in the case of Nazir Mohamed Vs. J. Kamala reported in 2020 SCC on line SC page 676, the second appeal can only be heard on substantial question of law.
In view of the aforesaid, the Court had required the learned counsel for the parties to address the Court on the substantial question of law involved in the above second appeal. It is also to be noticed that the above second appeal is of the year 1979 and had been dismissed for want of prosecution on more than two occasions. There has been repeated order by the court from time to time that the matter shall not be adjourned and the parties come prepared for hearing.
In the aforesaid backdrop, the learned counsel for the appellants has submitted that the impugned judgment passed by the first appellate court dated 24.01.2019 is bad; inasmuch as it violates the provisions of Order 41 Rule 31 CPC. It has been submitted by the learned counsel for the appellants that since no points for determination have been framed, consequently the judgment passed by the lower appellate court stands vitiated. He has further submitted that the appellants are the owner of the property in question and this fact was also substantiated by bringing on record the sale deed which was duly proved by examining the vendor yet the finding returned by the first appellate court in disbelieving the statement of the witnesses examined on behalf of the appellants is also erroneous and perverse, consequently the aforesaid two issues constitute substantial question of law upon which the instant second appeal deserved to be not only admitted but also allowed.
Per contra the learned counsel appearing for the respondents submits that merely none framing of the point of determination is not going to affect the judgment of the lower appellate court unless and until the appellants indicates what prejudice has been caused. Moreover, he submits that all the aspect including the submissions of the appellants have been considered by the lower appellate court and after appraising the evidence, the findings have been returned.
The learned counsel for the respondents also submits that the suit was filed by the respondents-plaintiff seeking a decree of permanent injunction in so far as the factum of possessions is concerned. Both the trial court as well as the first appellate court has concurrently affirmed the same. The defendant-appellants knowing fully well that the plaintiffs-respondents are in possession never claimed or brought any suit for possession hence the suit for injunction on the basis of possession has rightly been decreed by the lower appellate court and these are findings of fact which are not liable to be assailed in exercise of power under Section 100 CPC and no substantial question of law is involved, consequently the appeal deserves to be dismissed.
The Court has heard the learned counsel for the parties and it also has the benefit of perusing the record of the lower court.
Briefly, the facts giving rise to the above second appeal are that the plaintiff Sukhai, the predecessor in interest of the respondents, had instituted a suit for permanent injunction in the court of Munsif Kaisarganj at Bahraich registered as Regular Suit No.113 of 1971. It was the case of the plaintiff that he after obtaining permission from the estate of Payagpur and after depositing the premium constructed the shop in question in the year 1945 and since then the same has come in his possession as it owner while the defendants/appellants were threatening to interfere and dispossess, in the aforesaid circumstances, the suit came to be filed.
The defendants appellant filed their written statement and took the plea that the plaintiff was not the owner rather he was only a tenant of the aforesaid disputed shop. It was stated that the aforesaid property had been purchased by the defendants appellant and they were in possession. Their case was that the plaintiff on becoming aware of the sale deed had handed over the possession to the appellants defendant but later forcibly dispossessed the defendant-appellants. Apart from this a technical plea regarding the suit being under value was also raised.
On the basis of the pleadings, the trial court framed five issues. Issue no.1 related to the fact whether the plaintiff is the owner in possession of the shop in suit and issue no.2 related to the suit being under value and the other issue nos.3 and 4 also related to the pecuniary jurisdiction of the court and whether the suit was bad for mis rejoinder of the party. Issue no.5 was to what relief the plaintiff was entitled.
Both the parties led their respective evidences and the trial court after considering the statements as well as the documentary evidence recorded a finding that though the possession of the disputed shop was with the plaintiff. However, he could not prove his title, hence the suit was dismissed by means of judgment and decree dated 31.10.1977.
The plaintiff preferred a Regular Civil Suit under Section 96 CPC bearing No.193 of 1977 and the first appellate court considering the rival submissions affirming the finding that the plaintiff is in possession also considered the fact that the manager of the estate had examined himself and had stated that the estate was under the control of the administrator i as per the Court of Wards. Permission was granted to the plaintiff and further it held that since the plaintiff continued to be in possession and with the advent of the U.P. Z. A. & L. R. Act the right of the plaintiff (appellants before the lower appellate court) got perfected and he acquired ownership rights. Thus, considering the aforesaid, the first appellate court reversed the finding of the trial court and decreed the suit of the plaintiff.
Being aggrieved the defendants have preferred the instant second appeal and the learned counsel has urged that on the two above noted proposed substantial questions of law the appeal be admitted Having heard the learned counsel for the parties and from the perusal of the record, the trial court in the first instance noticing the evidence of the defendant witness, namely, Ram Bihari and finding that in the cross-examination, he admitted that the possession in respect of the disputed shop was with the plaintiff and his sons. The trial court also noticing the evidence of the other defendant witnesses as well as the witnesses on behalf of the plaintiff, namely Ram Chandra and Ram Milan concluded that in so far as the possession is concerned, the same was with the plaintiff. However, the trial court examining the Ext. No.1 which was the permission which was granted to the plaintiff from the estate of Payagpur was doubted. Though the custodian of the estate under the court of ward was examined as P.W.2 who deposed that he was Incharge of the estate of Payagpur and from time to time he had auctioned various property of the estate. However, he had seen permission in favour of the plaintiff and for the aforesaid reason, the aforesaid area which was covered under the said permission was excluded from the auction. This evidence did not find favour with the trial court and it held that the plaintiff could not establish his title though he had the possession of the disputed property.
Even while the plaintiff preferred the first appeal significantly it will be relevant to note that the defendant did not assail the finding of the trial court regarding the possession being with the plaintiff by filing any cross appeal/cross objectiion. Thus, in so far as finding of the possession is concerned, the same has been upheld by the two courts and this being a finding of fact based on material evidence available on record is not liable to be interfered by this Court in exercise of power under Section 100 CPC.
Considering the aforesaid in a suit for injunction where prima facie it is the lawful possession which governs the right of the plaintiff to seek injunction and the plaintiff having successfully establish his lawful possession, was entitled to the decree of permanent injunction. Moreso when the defendant failed to establish when the plaintiff surrendered his possession to the defendant and when and how the plaintiff later dispossessed the defendant. However, another aspect of the matter is that the right of the plaintiff over the property is since 1945 and with the advent of U. P. Z. A. & L. R. Act, 1950 the rights matured and the aforesaid land and the shop vested with the plaintiff hence in case if the defendant had raised a plea regarding having purchased the property from the erstwhile zamindar subsequent to the advent U.P. Z. A. & L. R. Act it was incumbent upon the defendant to have established the said right. Significantly, no plea regarding the date of the execution of the sale deed was even mentioned in the written statement. The witnesses which were produced also merely stated that they were the witnesses of the execution of the sale deed but at no point of time the could ever give any credible evidence regarding the possession or the boundary and the status of the property.
In view of the aforesaid where appreciation of the evidence has been done by the first appellate court and both finding of fact and law are open to be considered a fresh by the lower appellate court. The learned counsel for the appellant could not bring to the notice of this Court any infirmity or perversity regarding the finding returned by the lower appellate court on the question of title of the plaintiff. In so far as the plea regarding non framing of point of determination is concerned, this Court is not impressed with the aforesaid submission; inasmuch as despite repeated queries put to the learned counsel for the appellants to point out that how the defendant appellant has been prejudiced on account of non framing of the point of determination, simplicitor when the evidence, submissions and reasons have been duly recorded by the lower appellate court. The learned counsel for the appellants could not dispute the same and moreover this Court is fortified in its view in light of the decision of this Court in the case of Dalla Vs. Nanhu reported in 2019 (1) ADJ 246.
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.
In view of the above, this Court is satisfied that no substantial question of law arises and the submissions made by the learned counsel for the appellants are on finding of fact and no perversity could be shown in respect thereto. Consequently, this Court is of the considered view that the judgment and decree dated 24.01.1979 passed in Civil Appeal No.193 of 1977 does not require any interference and the same is affirmed.
The second appeal is devoid of merit. Consequently it is dismissed. However, in the facts and circumstances, there shall be no order as to cost.
The record of the court below shall be remitted to the court concerned within a period of three weeks.
Order Date :- January 21, 2021 ank/-