This second appeal under Section 100 CPC has been filed by the defendant U.P. Power Corporation Ltd. against the judgement and decree dated 22.9.2003 passed by the Additional District Judge, Court No.7, Agra in Civil Appeal No. 229 of 2002 (Natraj Sahkari Avas Samiti Ltd. Vs. U.P. Power Corporation Ltd.) arising out of the judgement and decree dated 27.11.2002 passed by the Additional Civil Judge (SD) Court No. 19, Agra in Original Suit No. 85 of 1993 between the Natraj Sahkari Avas Samiti Ltd. Vs. U.P. State Electricity Board.
Learned counsel for the appellant has made his submissions on two substantial question of law framed by him namely; whether the First Appellate Court ignored the revenue records filed as documents and illegally set aside the judgement of the trial court and whether the provisions of Section 117 (6) of the UPZA & LR Act would apply to the appellant.
The short facts of the case are that the plaintiff-respondent filed the suit for permanent injunction to restrain the defendant-appellant from interfering in possession over the Plot No. 43 carved out of Khasra Nos. 398 and 403. The Trial Court framed several issues the main being whether the plaintiff is owner of the property in question and whether plot no. 43 Surdas Kunj Mauza Gailana, Agra is a part of the Khasra Plot no. 398 and 403.
The parties led oral as well as documentary evidence. The trial court while considering the oral evidence of the parties found that merely on the basis of statements of PW-1, PW-2 and DW-1, the question of title cannot be decided and hence proceed to consider the documentary evidence submitted by the parties. It found that the plaintiff's allegation was that one Bharat Store Ltd. Agra was owner of Plots No. 361, 362, 378 to 405 situate in village -2- Gailana Mustkim Pargana District Agra and had purchased the zamindari rights alongwith tenancy rights. Bharat Store Ltd. carved out 50 plots in the said land and named it as Surdas Kunj. By two registered sale-deeds dated 17.6.1946 it sold plot no. 43 to one Munni Lal and Dwarika Prasad. Munni Lal and Dwarika Prasad sold the plot by registered sale-deed dated 17.10.1967 to Raghubar Dayal and Raghubar Dayal sold the plot in question by registered sale-deed dated 2.5.1989 to Natraj Sahkari Avas Samiti Ltd. (plaintiff). The Trial Court found that in the sale-deeds of 1946 and 1967, there was no mention that plot no. 43 was a part of the Khasra no. 398 or 403. In the sale- deed of 1989 a mention was made that this plot was a part of the Khasra No. 398 and 403. While considering the three sale-deeds, it recorded a finding of fact that the boundaries were not similar.
Considering the documentary evidence it found that the plot in question was recorded as Banjar and Naveen Parti in the name of Gaon Sabha. It also found that the Khevat filed by the plaintiff related to the entries of 1996 to 1999 and neither Khasra nor Khatauni relating to the said period or prior have been filed by the plaintiff, hence it doubted the entry in the Khavat and held that the plaintiff cannot get any advantage out of the said Khavat entry. It also considered the documentary evidence, wherein the other land owned by Bharat Store Ltd. was Non ZA and referred to order dated 22.9.1954 of the Compensation Officer. It also referred to proceeding before the Commissioner Agra arising out of an order passed by the Tehsildar and those proceedings went against the plaintiff.
The Trial Court considered the oral evidence led by the parties and was of the opinion that the plaintiff could not identify the land which is subject matter of the suit and insofar as the land in question is concerned it was not proved to be owned by the plaintiff but was recorded as Banjar and Naveen Parti in the name of the Gaon Sabha. It, therefore, held that the plaintiff has not been able to prove that the plot no. 43 is carved out from Khasra No. 398 and 403.
On the issue of identification of the plot in question, the trial court held against the plaintiff by recording a finding of fact that the land described in the plaint was not subject matter of the sale-deeds of 1946, 1967 and 1989 and -3- hence the land sold by the aforesaid sale-deeds cannot be identified to be the land in suit. It dismissed the suit of the plaintiff.
In an appeal filed by the plaintiff, the First Appellate Court has decreed the suit of the plaintiff and held that the plot no. 43 as described in the plaint map by the letters A, B, C and D is the land which is subject matter of the sale-deed and the defendant Corporation was restrained from dispossessing the plaintiff otherwise than in accordance with due procedure in law. The First Appellate Court held that the Corporation has not been able to prove on the record as to how it came in possession of the land in question and assuming that it is land of the Gaon Sabha, the Corporation has not filed any evidence, even in the form of a resolution of the Gaon Sabha putting the Corporation in possession of the land. The First Appellate Court found that there was no evidence of any acquisition or requisition and it held that the Corporation has failed to prove how it came in possession in the year 1981 through the Tehsildar. On the basis of aforesaid weakness in the case of the defendant Corporation and on a discussion of the boundaries of the plot given in the sale-deeds it found that with the passage of time, identification of the boundaries of the plot in question had changed and it was clearly identifiable to be the land which was subject matter of the sale-deeds of 1946, 1967 and 1989. It also referred to the proceedings before the Commissioner Agra Division Agra and held that the restoration application filed by the plaintiff has been rejected on the ground of bar of limitation and not on merits and hence the Trial Court had erred in drawing an adverse inference against the plaintiff. The First Appellate Court also considered the fact that no declaration by publication was made by the State Government in favour of the Corporation and therefore, if the land in question had vested in the Gaon Sabha under Section 117 of the UPZA & LR Act the Corporation could have come in possession only upon a declaration by general or special order of the State Government. Since there was no evidence of such declaration, the Court disbelieved the entries in favour of the Gaon Sabha and possession of the Corporation.
Sri R.C.Singh, learned counsel for the appellant has cited a decision of the Hon'ble Supreme Court in the case of S.V.R.Mudaliar & others Vs. -4- Rajabu F.Buhari & others reported in AIR 1995 SC 1607 and has referred to paragraph 15 to state that Appellate Court before reversing a finding of fact has to bear in mind the reasons ascribed by the Trial Court. He has also referred to a judgement of the Supreme Curt in the case of Smt. Sawarni Vs. Inder Kaur and others reported in AIR 1996 SC 2823 for the same proposition and submits that when the finding of fact given by the Trial Court are based on material on record and substantiated by weighty reasons the Appellate Court would not reverse the same, merely on the ground of mutation entry in favour of the defendant. While referring to the decision of the Hon'ble Supreme Court in the case of Major Singh Vs. Rattan Singh (dead) by L.Rs. & others reported in JT 1997 (1) SCC 404 he submits that in a second appeal it was necessary for the Court to consider whether the reasons given by the Courts below are flimsy and hence a substantial question of law would arise for consideration. He has referred to the decision of the Hon'ble Supreme Court in the case of Smt. Mehrunnisa & others Vs. Smt. Visham Kumari & another reported in JT 1997 (9) SC 616 and states that if the Courts below have ignored to consider vital documents and evidence, the High Court has power to interfere with the findings of the Lower Courts while exercising its jurisdiction under Section 100 CPC.
On the other hand Sri P.C. Jain, learned counsel for the plaintiff- respondent has placed reliance on a judgement of the Hon'ble Supreme Court in the case of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi reported in (2009) 3 SCC 287 and contended that the finding of fact arrived at by the First Appellate Court is ordinarily final. Its correctness can be questioned if it is based upon no evidence or is otherwise perverse or that the correct legal principles was not applied.
In the present appeal learned counsel for the appellant has assailed the findings recorded by the First Appellate Court on the ground that it has ignored the revenue records, which were available on record and further that the provisions of Section 117 (6) of the UPZA & LR Act would have no relevance in this case. The Trial Court recorded a finding that there was no cogent documentary evidence filed by the plaintiff in the form of revenue entries to establish his title over the land in question. The only document filed -5- by the plaintiff was the Khewat which was not of the relevant years i.e. 1946, 1967 and 1989 but it related to Khewat entry of 1996 to 1999. Neither any Khasra to show possession nor Khatauni to show entry of ownership was produced before the Trial Court relating to the land in question. The land in question was described in the plaint by giving the boundaries but they did not coincide or matched the boundaries of the land in question given in the sale- deeds of 1946, 1967 and 1989. The Trial Court referred to the proceedings before the Compensation Officer and the revenue proceedings up to the stage of Commissioner and found that the plaintiff had not succeeded in establishing that they related to the land in question. The Trial Court recorded a finding of fact that the land in question was recorded as Banjar and Naveen Parti in the name of Gaon Sabha and there was no evidence to prove that it has been carved out from Khasra Nos. 398 and 403. In short the Trial Court found that the land in suit was not identifiable and was not subject matter of the three sale-deeds.
The evidence considered by the Trial Court was in the form of Kevat entries and findings were recorded against the plaintiff. The revenue entries were of the Gaon Sabha. The First Appellate Court proceeded on the assumption that the defendant had not been able to prove as to how it came in possession of the land in question and although it was of the view that the boundaries of the plots which was subject matter of the sale-deed of 1946 had changed by the time it was transferred in 1967 and 1989 it was still clearly identifiable to be the same land. This finding of the First Appellate Court is not based upon any cogent evidence but is based upon presumption and surmises and had not been proved by the plaintiff. The First Appellate Court found that the claim made by the plaintiff in the revenue proceedings before the Commissioner were not decided on merits and illegally held that the plaintiff had not failed on merits before the Commissioner but his claim was rejected due to the bar of limitation hence no adverse inference can be drawn. Admittedly the plaintiff was unsuccessful in the revenue proceedings due to bar of limitation but the First Appellate Court has erroneously held that failure due to bar of limitation cannot be a reason to disbelieve the plaintiff's claim over the land in suit. This view of the First Appellate Court affirming the -6- plaintiff's claim is clearly not based upon any evidence, more particularly because the revenue entries were not in favour of the plaintiff and his objection was rejected hence the inference could only be made in accordance with the revenue entry. The First Appellate Court has also erred in decreeing the suit of the plaintiff by considering the weaknesses in the defence set up by the defendant. Its view was that because the defendant Corporation has not been able to bring any evidence to show that it came in possession of the land in suit in accordance with law and that under Section 117 (6) of the UPZA & LR Act it could come in possession of the land only upon a declaration made by the State Government and in the absence of any such declaration of the State Government, the defendant's possession was not in accordance with law. The First Appellate Court has drawn an adverse inference against the defendant Corporation by holding that it has not filed any evidence to show that its possession over the land in suit was in accordance with law. The First Appellate Court on the aforesaid reasoning disbelieved the revenue entries in favour of the Gaon Sabha and decreed the suit of the plaintiff on presumption and of weakness in the defendant's case. Clearly the First Appellate Court did not consider that the reasons given by the Trial Court were based on the material on record and the First Appellate Court has illegally reversed the said finding merely on the basis of weakness of the defendant's case and not on the basis that the plaintiff has proved his case. The First Appellate Court has in effect ignored the evidence in the form of revenue entries in favour of the Gaon Sabha while interfering in the findings of the Trial Court.
In view of the aforesaid circumstances, the correctness of the finding given by the First Appellate Court being, based upon no evidence, can be interfered in second appeal since it would be a substantial question of law where the First Appellate Court has ignored the revenue records and has illegally based its finding on the weakness of the defendant's case by holding that there was no declaration made by the State Government under Section 117 (6) of the UPZA & LR Act. It was not a suit filed by the Corporation and therefore, it could be decreed even for possession only upon the plaintiff establishing his rights, title or interest. On the failure of the plaintiff establishing his case on the basis of evidence the reasons given by the trial -7- court for disbelieving the plaintiff's case could not be set aside unless the First Appellate Court found that there was evidence which the Trial Curt had either ignored or that the finding of the Trial Court was perverse and not in accordance with evidence available on record.
Consequently, the judgement of the First Appellate Court being not based on a perusal of documentary evidence, and by ignoring the vital revenue entries made in favour of Gaon Sabha (Banjar and Naveen Parti) has committed an illegality and such reversal by the First Appellate Court is clearly illegal and erroneous.
For the aforesaid reasons, both the substantial question of law that have arisen in this second appeal are answered against the plaintiff- respondent and in favour of the defendant-appellant. The second appeal is allowed. The decree of the First Appellate Court is set aside and that of the Trial Court is affirmed. The suit filed by the plaintiff-respondent is dismissed.
The parties shall bear their own costs.
Dated: 3rd February, 2010.
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Second Appeal No. 1299 of 2003 Hon'ble Sanjay Misra,J.
Allowed.
For orders, see order of date passed on the separate sheets.
Dated: 3rd February, 2010.
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