1. This second appeal has been preferred against the judgment and decree dated 13.4.2018, passed by learned Additional District Judge, Court No.4, Hathras in Civil Appeal No.40/2011 (Ratendra Kumar Vs. Karya Nirikshak, Hathras Junction, Northern Railway & Ors), whereby the appeal filed by the plaintiff-appellant against the judgment and decree dated 23.7.2011, passed by Civil Judge, Junior Division, Hathras in Original Suit No.221/1996 has been dismissed and the judgment of the learned trial court has been affirmed.
2. Heard learned counsel for the appellant and the learned Standing Counsel on the point of admission and perused the available record.
3. The facts in brief giving rise to this second appeal are that a Civil Suit No.221/1996 was filed by the plaintiff-appellant against the respondent Karya Nirikshak, Hathras Junction, Northern Railway & Anr, seeking permanent injunction.
4. According to the plaint averments, the plaintiff is the owner and in possession of the disputed land since he has purchased it from one Smt. Shyama Devi wife of Bhagwan Singh for a consideration of Rs.20,000/-. The sale deed executed between him and Shyama Devi in respect of purchase and sale of disputed land is a registered sale deed. However, now the Railway Department (defendant) is trying to interfere in the possession of the plaintiff claiming the disputed land as the land of Railways. Hence, the defendants be restrained by a permanent injunction from interfering in the peaceful enjoyment of land by the plaintiff.
5. Defendants (Railway department/Union of India) filed written statement in which the right and title of the plaintiff on the disputed land was denied. It was averred that Smt. Shyama Devi was not the owner of the disputed property (Plot No.62) and she had no right to execute the sale deed of the land belonging to the Railways. Smt. Shyama Devi was not even in possession of the disputed land. One Smt. Shanti Devi had unauthorizedly taken possession of the disputed land against which a case was filed by the Railways which was decided in favour of the Railways. Therefore, the disputed land being a government property belonging to the railways, no one had a right to sell it to any one and if the plaintiff without a proper enquiry about its title had purchased it, he will have to face the consequences.
6. The learned court below framed issues and both parties adduced evidence. The plaintiff-appellant examined himself as P.W.1, who admitted the fact that he had no knowledge whether Smt. Shyama Devi had the title of the disputed land or not. He stated that he had not seen any revenue records of the disputed land before purchasing it from Smt. Shyama Devi. He admitted the existence of a railway line near the plot since before his birth but expressed his ignorance about any case decided earlier in respect of the same disputed land between Smt. Shanti Devi and the Railways. The two other witnesses produced by the plaintiff/appellant as P.W.2 and P.W.3 also expressed their ignorance about the fact that whether the vendor namely Smt. Shyama Devi had any valid title of the land in question or not. Neither Smt. Shyama Devi was produced by the plaintiff-appellant as a witness nor the two witnesses of the sale deed were produced. On the other hand, the railway department, in addition to the documentary evidence including khasra khatauni, revenue map and copy of the judgment dated 30.8.1994 passed in favour of Railway department also produced two witnesses in oral evidence in proof of the fact that the plaintiff-appellant Ratendra Kumar has unauthorizedly occupied the land of Railways without any title and the alleged sale deed, on the basis of which he is claiming his right on the disputed property is non-est in the eyes of law as the seller Smt. Shyama Devi had no right or title to sell the land belonging to the Railway department.
7. The learned trial court after appreciating the evidence led by both the parties found that even if assuming that the land was purchased by the plaintiff-appellant for a consideration of Rs.20,000/-, it will not give a valid title to the plaintiff because the vendor Shyama Devi had no title of the land and if the plaintiff was not vigilant enough to inquire whether the person who is selling the land to him, had a right or title to sell that land or not he would have to face the music. On the aforesaid ground the learned trial court came to the conclusion that the plaintiff-appellant has failed to prove his case. Accordingly, it dismissed the suit.
8. Being aggrieved, the plaintiff-appellant filed first appeal which was also dismissed by the learned Additional District Judge on the same grounds. The learned lower appellate court found the findings recorded by the learned trial court proper and justifiable requiring no interference and affirmed the judgment of trial court.
9. Now the plaintiff-appellant is before this Court in the second appeal.
10. The legality and correctness of the judgments passed by both the Courts below has been challenged by the leaned counsel for the appellant on the following grounds:
(i) The claim of the plaintiff-appellant is based on the strength of a registered sale deed, executed by Smt. Shyama Devi in favour of the plaintiff for a consideration of Rs.20,000/-. However, both the court's below have erred in law in denying the title of the plaintiff-appellant being claimed on the basis of said sale deed, despite the fact that undisputedly, the sale deed was executed for a valid consideration and it was a registered document having legal sanctity under law.
(ii) Both the courts below have erred in law while holding that the plaintiff-appellant does not derive any title from the said sale deed in absence of establishing as to how the vendor Smt. Shyama Devi became the owner of the disputed land.
(iii) Both the court's below have erred in law by omitting to frame an issue relating to the adverse possession of the plaintiff-appellant over the suit property, so as to allow him to lead evidence in respect thereof for the purpose of perfecting his title over the disputed land through adverse possession.
(iv) Both the court's below have committed an error in failing to frame a material issue as to whether the disputed land is situated at Plot No.62 which has been claimed by the defendants-respondents as the property of the Railways. Thus, there is a violation of Order XIV Rule 5 C.P.C.
11. The following substantial questions of law have been proposed to be framed in the memo of appeal by the learned counsel for the appellant:
(A) Whether the learned Courts below have committed an error in law in omitting to frame a material issue as to whether the suit property is situated at Plot No.62 as being claimed by the defendants-respondents in their written statement?
(B) Whether the learned Courts below have fallen in error in omitting to frame an issue as to whether the plaintiff- appellant is in adverse possession of the suit property, particularly when, it is the contention of the plaintiff- appellant that he is in possession of the suit property pursuant to the registered sale deed dated 23.12.1983 ?
(C) Whether the learned Courts below have erred in law in denying the title of the plaintiff-appellant over the suit property by ignoring a registered sale deed dated 23.12.1983 executed in his favour by Shyama Devi, particularly when, Shyamveer Singh (PW-2) was examined to prove the said sale deed?
(D)Whether the learned Courts below have misread the evidence having been led from the side of the plaintiff- appellant while holding him to be not the owner of the suit property?
12. Per contra, learned Standing counsel has contended that both the court's below have rightly dismissed the suit and appeal filed by the plaintiff-appellant. Concurrent findings on all the issues have been recorded by both the courts below and in wake of the well settled legal position, there is no need to interfere in the second appeal on those concurrent findings recorded by the learned trial court and the learned lower appellate court. It is further contended that the copy of the plaint, annexed as Annexure No.1 in the second appeal, shows that there is no pleading of adverse possession in the plaint. Therefore, no issue was framed by the learned trial court with regard to the adverse possession of the plaintiff-appellant. Now the plaintiff-appellant cannot travel beyond the pleadings. Moreover, there is no adverse possession against a government land.
13. Considered the rival submissions advanced by learned counsel for both the parties.
14. In the present case, the plaintiff-appellant is claiming his right over the disputed land on the basis of a registered sale deed executed by one Smt. Shyama Devi in his favour for a consideration of Rs.20,000/-. However, the plaintiff-appellant has failed to prove the title of Smt. Shyama Devi on the said land. He has admitted the fact that he never inquired about the details of title of vendor Smt. Shyama Devi by inspecting the revenue records before purchasing the disputed land from her. Smt. Shyama Devi and the two witnesses of the sale deed have not been produced by the plaintiff as witness. The burden was on the plaintiff-appellant to prove his case, but he has miserably failed in doing so.
15. The famous legal maxim 'Caveat Emptor' must be kept in mind which means "Buyer beware". The plaintiff-appellant was required to be vigilant and to properly inquire as to whether Smt. Shyama Devi, from whom he was purchasing the land, was the legal owner having the right to sell the land, but he failed to do so. Even the witnesses produced by the plaintiff-appellant have failed to lead any evidence to show that the disputed land belonged to Smt. Shyama Devi.
16. A suit in respect of the same land was earlier decided in favour of the Railways, which fact is not disputed by the plaintiff-appellant. Thus in absence of a legally valid title, Shyama Devi was not authorised to transfer the disputed land in favour of the appellant.
17. The famous legal maxim "nemo dat quod non habet" meaning thereby that no one can transfer a better title than he himself has, should also be kept in mind, which is fully applicable to the facts of the present case.
18. So far as the right of adverse possession of the plaintiff-appellant is concerned, a perusal of the pleadings i.e. plaint and written statement copies whereof are annexed as Annexure Nos. 1 and 2 clearly shows that no plea of adverse possession on the disputed land was taken by the plaintiff. Therefore, no issue with regard to adverse possession was framed by the learned trial court. No evidence was produced by the plaintiff to support his claim for adverse possession which he was not even entitled to, the disputed land being a government land.
19. Hon'ble Apex Court in the case of M.S. Jagdambal Vs. Southern Indian Education Trust, 1988 Supp SCC 144 has held as under:
"12.We are not persuaded by the alternative contention urged by learned counsel for the respondents. The trial court did not frame an issue as to the defendants perfecting title to the suit property by adverse possession. The defendants did not produce any evidence in support of the plea of adverse possession. It is not the case of the defendants that they were misled in their approach to the case. It is also not their case that they were denied opportunity to put forward their evidence. It is therefore, not proper for us at this stage to remand the case to enable the defendants to make good their lapse."
20. In view of the above discussion, this Court is of the considered view that both the courts below on the basis of concurrent findings, have rightly rejected the claim of the plaintiff-appellant and there is no need to interfere in the concurrent findings of the court's below.
21. 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 the findings are apparently perverse.
22. 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."
23. 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."
24. 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.
25. In so far as the question of involvement of "substantial questions of law" in this appeal is concerned, the phrase "substantial questions of law" has been defined by Hon'ble Apex Court in a number of cases decided by a Constitution Bench of the Hon'ble Apex Court (Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314).
26. According to the Hon'ble Apex Court, when a question of law is fairly arguable, where there is a room for difference of opinion, or where the Court thought it necessary to deal with that question at some length and discussed an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by the decision of the highest court, or if general principles to be applied in determining the question are well settled, it could not be a substantial question of law. The Apex Court in the above cited case has observed as under:
" 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."
27. In view of the above cited legal position and in absence of any arguable question of law, this Second Appeal is liable to be dismissed at the admission stage itself and is accordingly dismissed.
Order Date:-30.7.2018 SB