Court No. - 9
Case :- SECOND APPEAL No. - 287 of 2005 Appellant :- Puttu Singh & Another Respondent :- Naresh Pal Singh & Others Counsel for Appellant :- R.B. Gaur Hon'ble Suneet Kumar,J.
Heard learned counsel for the appellant.
The second appeal has been filed by the defendant/appellants against the judgment/order/decree dated 10 December 2004 passed by the Additional District Judge, Court No. 6, Shahjahanpur, in Misc. No. 159 of 2002 (Civil Appeal) Puttoo Singh and another Versus Naresh Pal Singh and others arising out of Original Suit No 104 of 1999.
The respondent/plaintiffs instituted a suit for permanent injunction in respect of khasra No. 203/1 measuring 0.252 hectare against the defendants no. 1 and 2 who are son and father, respectively. In the plaint, it was pleaded that the defendants are co-owners of the suit property and are raising permanent construction without effecting partition, therefore, be restrained from raising permanent construction. The suit was contested by filing written statement, wherein, it was admitted that the plaintiffs have 1/4th share in the suit property, but it was denied that any permanent construction was being raised by the defendants.
On perusal of the pleadings the trial court framed five issues: issues no. 1 and 2 is relevant for the purpose of this appeal which reads thus:
1. Whether plaintiffs are owners of the suit property?
2. Whether defendants are raising construction on the suit property, if so, its effect?
The trial court decided both the issues separately. Upon appreciating the pleadings, documentary and oral evidence led by the parties a categorical finding was returned that the plaintiffs are co- owner having 1/4th share in the suit property. It was held that the defendants are also co-owners of the said property. The name of the contesting parties are duly recorded in the revenue record, consequently, issue no. 1 was decided in favour of the plaintiffs and against the defendants.
Insofar as issue no. 2 is concerned, the trial court upon considering the material available on record, documentary and oral evidence was of the opinion that the plaintiffs failed to prove that any construction was being raised by the defendants on the suit property, rather, it was the specific case of the defendants that they are not raising any construction on the disputed property.
In the circumstances, the second issue was decided against the plaintiffs and in favour of the defendants, consequently, the suit was decreed restraining the defendant from raising any permanent construction on the suit property without effecting partition thereof. The judgment and decree came to be challenged in a time barred appeal. Application for delay condonation filed under Section 5 of the Limitation Act, 1963 came to be dismissed. Consequently, the appeal was dismissed.
Learned counsel for the appellant submits that the courts below misread the documentary evidence; delay condonation application could not have been rejected, rather a liberal view should have been taken while deciding the application and finally, the suit property was in possession of the appellant-defendant and constructions thereupon had already been raised prior to filing of the suit.
There is no doubt that under section 100 the power of the court while exercising the jurisdiction under second appeal is limited and court will not disturb the concurrent finding of the facts as a general principle of law, but there are exceptions of that principle, namely where both the courts below failed to appreciate the oral and documentary evidence properly to reach their findings, which goes to the root of the matter. There is no scope for interference in second appeal when there is no perversity in approach of lower courts.
On specific query, learned counsel for the petitioner failed to point out any perversity in the approach of the lower courts.
The learned counsel for the appellant has failed to point out that any substantial question of law arises in the present appeal which merits consideration.
It is clarified that no other ground was pressed.
In the circumstances, the appeal is dismissed in limine.
Order Date :- 23.2.2018 K.K. Maurya