This second appeal has been preferred against the judgment and order dated 19.7.2018 passed by Additional District Judge, Mirzapur in Civil Appeal No. 07 of 2018 Lavkush Malviya v. Smt. Suman Devi and another whereby the learned lower Appellate Court has dismissed the appeal filed by the plaintiff/appellant and has confirmed the judgment dated 27.1.2018 passed by Civil Judge Senior Division , Mirzapur in Original Suit No. 55 of 2005 Luvkush Malviya v. Smt. Suman Devi and another, dismissing the suit of the plaintiff/appellant.
Heard learned counsel for the appellant and learned counsel for the caveator/respondent on the point of admission and perused the record. Some brief facts giving rise to the dispute between the parties are that the plaintiff/appellant filed a suit for declaration of title and permanent injunction against the defendant/respondents with plaint averments that he is the owner in possession of the disputed house, which he has built from his own resources and in which he is residing since long. The defendants have no concern with the aforesaid house. The defendant no. 1 is the real aunt of the plaintiff who is trying to interfere in his peaceful possession without any right and title, therefore, it was prayed that the defendants be restrained from interfering in the peaceful living of the plaintiff in the disputed house. According to the plaint, the property in dispute originally belonged to the real uncle of plaintiff namely, Late Tribhuwan Nath Malviya, who was issue less. The plaintiff-appellant was living with his uncle (Bade pita or Tau) who used to treat him as a son. After the death of Tribhuwan Nath Malviya, in the year 1989 the plaintiff constructed three rooms over the said land in the year 2001 and is residing on the said property since then. At the time of construction, no one raised any objection and as the plaintiff is residing in the disputed house since after the death of Late Tribhuwan Nath Malviya openly and in the knowledge of defendants, thus, he has perfected his title by adverse possession too.
The defendants filed written statement denying the truthfulness of plaint averments. It was stated in written statement that husband of defendant no.1 were five brothers. They all including the plaintiff's father, were the sons of Late Dudhnath and after the death of Dudhnath, they jointly inherited the property belonging to Dudhnath. After sometime, partition among themselves took place by mutual consent and all the brothers became owner in possession of their own shares. The disputed land belongs to the defendant who is a widow lady and the plaintiff is trying to usurp it by concocting a false story. It was also stated that the disputed house was constructed by the Late husband of defendant no. 1 and the defendants are in possession of the said house since 16 or 17 years.
The learned trial court on the basis of pleadings of both the parties framed 7 issues, out of which the relevant issue no.1 was as follows:-
(i) Whether the plaintiff is owner and in possession of the disputed house?
The plaintiff produced himself as P.W. 1., his father Triloki as P.W. 2, Heeramani as P.W. 3 and Punvasi as P.W. 4 in oral evidence. The defendants produced three witnesses in support of their case. Both parties also led documentary evidence. The trial court, after a detailed discussion of evidence, dismissed the suit. The plaintiff filed appeal against the judgment of trial court. The Lower Appellate Court considered the aforesaid issue no. 1 as the point for determination in the appeal and taking into account the evidence led by both the parties, held that the appellant has failed to prove either his title or his adverse possession over the disputed house. The learned lower appellate court also observed that as the appellant has not come to the Court with clean hands, the equitable and discretionary relief of permanent injunction can not be granted in his favour. Accordingly, the lower Appellate Court dismissed the appeal and confirmed the judgment of the trial court.
Now, the plaintiff/appellant is before this Court in second appeal.
Challenging the legality and correctness of the impugned judgments, learned counsel for the appellant has contended that both the courts below have not considered the evidence properly and have ignored the documentary evidence filed by the plaintiff. The findings recorded by the courts below are perverse and the courts below have not given any reason for denial of the claim of the plaintiff-appellant.
Learned counsel has contended that the elder brother of his father namely Tribhuwan Nath Malviya who was his Tau or Bade Pita was issueless who died on 1.9.1989 and thereafter the plaintiff became the owner of his property because he was living with Tribhuwan Nath Malviya as his son and he was in possession of his property since his life time, therefore both the courts' below have erred in law in denying his claim and dismissing the suit and appeal.
Per contra, learned counsel for the caveator/respondent has vehemently opposed the contentions of the learned counsel for the appellant on the ground that concurrent findings of facts have been recorded by both the courts below and as per settled legal possession the concurrent findings recorded by the trial court and lower Appellate Court should not be disturbed in second appeal by the High Court in absence of any perversity in the findings arrived at by the courts below. Learned counsel for caveator/respondent has contended that the learned counsel for the appellant has failed to point out any perversity in the judgments impugned, therefore, the appeal is liable to be dismissed at the admission stage itself.
Considered the rival submissions advanced by the learned counsel for the parties.
A perusal of the impugned judgments show that it is not disputed that the appellant and respondents belong to the same family. The property belonging to one Dudhnath was inherited by his five sons. The plaintiff-appellant is the son one of the brothers namely Trilokinath Malviya who has also inherited his share. The plaintiff has claimed that Tribhuwan Nath Malviya who was the elder brother of his father and who being issueless, used to treat him as his son, the share of Tribhuwan Nath Malviya was inherited by him. He has also claimed that he was residing with Tribhuwan Nath Malviya since his life time and thus, he was in possession of Tribhuwan Nath's share of property on which he constructed the house in question and started living in that house openly in the knowledge of all the co-sharers. Therefore, he has now perfected his title by adverse possession too.
Thus, it is apparent that the plaintiff has claimed his title and possession over the disputed land on two grounds i.e by inheritance and alternatively by adverse possession.
In so far as the claim of plaintiff over the disputed land by inheritance is concerned, admittedly the plaintiff is neither the real nor the adopted son of Late Tribhuwan Nath Malviya, who was eldest among the five brothers. After the death of Tribhuwan Nath Malviya, his share would go to his widow Shaila Devi, who admittedly was alive at that time. The plaintiff has claimed that Tribhuwan Nath Malviya used to treat him as his son however, he has not produce any document to show that Tribhuwan Nath Malviya or his legal heir i.e his widow ever adopted him as son or executed any Will deed in his favour. The father of plaintiff Triloki Nath Malviya (P.W.2) has admitted the fact that the share of Tribhuwan Nath Malviya was jointly inherited by all brothers because Tribhuwan Nath Malviya was issue less.
In view of the aforesaid facts both the courts below have rightly recorded a concurrent finding that the plaintiff has failed to prove that he inherited the title of disputed property from Late Tribhuwan Nath Malviya.
In so far as the title of plaintiff through 'adverse possession' is concerned, the evidence on record shows that the plaintiff is one of the co-heirs of Tribhuwan Nath's property. The legal position in this regard is well settled that a co-heir has no right to claim his title against other co-heir, on the basis of long possession over the disputed property.
The Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, has observed as under:-
"The possession of one co-heirs is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be one the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
The court further observed thus:
"The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
Moreso, the plaintiff/appellant has not been able to prove as to who was the real owner of disputed property after the death of Tribhuwan Malviya and his widow Shaila Devi and against whom he is claiming adverse possession?
It is also worth mentioning that two inconsistent alternative pleas have been taken by the plaintiff-appellant, which are mutually destructive.
In Gautam Sarup v. Leela Jetly and Ors. [(2008) 7 SCC 85], the Apex Court held that a party is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.
In view of the above, I am of the considered view that both the Court's below have rightly dismissed the suit and appeal of the plaintiff/appellant on the basis of concurrent findings of facts.
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 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 a 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 held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible.
Both the courts below have recorded concurrent findings of fact with regard to the issues involved in the present case. There does not appear any perversity or illegality in the findings recorded by both the courts below on the facts of the case.
The issue involved in this case is purely factual in nature. No substantial question of law is involved in the present case. Although the appellant in the memo of Second Appeal has framed 3 questions depicting those as substantial questions of law but none of these questions can be termed as 'substantial questions of law', as all the proposed substantial questions are related only to the facts of the case.
The legal issues involved in the present case are already well settled and no arguable substantial question of law is present in this case.
In State Bank of India and others Vs. S.N. Goyal; (2008) 8 SCC 92 the Hon'ble Supreme Court has held as under :-
"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."
In Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 the Supreme Court considered what the phrase "substantial question of law" means as under:-
"The phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely."
A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969, considered this term and observed:
"when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law."
The above observations were affirmed and concurred by a Constitution Bench of Hon'ble Supreme Court in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:
"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 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."
In view of the above cited legal position and in absence of any arguable substantial question of law, this Second Appeal is liable to be dismissed at the admission stage itself and is accordingly dismissed.
Order Date :-18.9.2018-Harshita