HIGH COURT OF JUDICATURE AT ALLAHABAD In Chamber AFR Case :- SECOND APPEAL No. - 1216 of 2014 Appellant :- Rameshwar Prasad Tiwari Respondent :- Om Prakash Srivastava Counsel for Appellant :- A.K. Trivedi, Ratan Lal Singh Counsel for Respondent :- V.K. Srivastava, S.C.Verma Hon'ble Pramod Kumar Srivastava,J.
1. In original Suit No. 4/1999, Om Prakash Srivastava v. Rameshwar Prasad Tiwary, plaint averment was that the original owner of the property detailed in plaint by letters ''Ka, Kha, Ga, Gha, Da, Dha, Ya, Ra, La' was Brij Jeevan Lal Rastori, after whose death said property was inherited by Narendra Mal, and thereafter his heirs Ram Lal and Satya Narain became its owners. Plaintiff's mother Smt. Krishna Devi had purchased a portion of said property from Ram Lal and Satya Narain by registered sale-deed dated 5.5.1953. Said property is detailed in plaint map by letters ''Aa, Ba, Sa, Da'. This portion is disputed, and other portion of said property is not disputed. After purchase by sale-deed dated 5.5.1953, plaintiff's mother had raised certain constructions over it and admitted defendant in one room of said property as licencee. Thereafter, defendant had purchased other portion of same building from Mahesh Prasad and started construction. In year 1980 one Mool Chandra Jain had instituted an Original Suit No. 45/1980 against defendant. In said suit possession of plaintiff was found over property ''Aa, Ba, Sa Da'. After the death of his mother Smt. Krishna Devi, the plaintiff had revoked license of defendant and asked him to vacate the said disputed premises, but defendant had refused to vacate it. Therefore, plaintiffs had filed suit for eviction of defendant from the portion of his property detailed by letters ''Aa, Ba, Sa, Da' in plaint map and also prayed for damages for unauthorized use and occupation of said property.
2. Defendant had filed written statement, by which he had denied the plaint averments and told that he had purchased property in disputed and other property relating to it and is in its possession. He had admitted the plaint averment regarding proceedings of Original Suit No. 45 of 1980 but pleaded his possession over disputed portion of property. He further pleaded that plaintiff has no right to raise construction over property of defendant and his suit is liable to be dismissed.
3. After framing of issues, and accepting the adduced evidences, Civil Judge (Senior Division), Chitrakoot had passed judgment dated 27.5.2010, by which original suit was decreed for eviction of defendant (present appellant) from disputed portion of property in question and also for recovery of damages at the rate of Rs. 5/- per day from defendant for unauthorized use and occupation of said portion of disputed property.
4. Aggrieved by the judgment of trial court, Civil Appeal No. 41/2010, Rameshwar Prasad Tiwari v. Om Prakash Srivastava, was filed, which was heard and dismissed by the judgment dated 13.8.2014 of Additional District Judge, Court No.-1, Chitrakoot. In this judgment, first appellate court had confirmed the findings of trial court. Aggrieved by the judgment of trial court as well as first appellate court, present second appeal has been preferred by the defendant of original suit.
5. Learned counsel for the appellant contended that finding of both the lower courts are perverse as they have not properly appreciated the evidences as well as Commissioner's Report. His main contention was that judgments of the lower courts were passed on fact that defendant-appellant was licensee whose license was revoked but no issue was framed on point of defendant being licensee. He contended that without framing the issues regarding license to defendant and its revocation, the rights of defendant-appellant were prejudiced, therefore, judgment of lower courts are erroneous and liable to be set aside. Therefore appeal should be admitted for being allowed.
6. A perusal of record reveals that this contention of appellant side is incorrect that the trial court or first appellate court had not properly appreciated the evidences. Their judgments reveal that not only Commissioner's Report was properly read and appreciated but other evidences were also properly appreciated. Trial court had meticulously considered the oral and documentary evidences, mentioned in its judgment and thereafter gave finding of fact before reaching to the conclusion. In memo of appeal filed by defendant-appellant before the court of District Judge the point of non-consideration of evidences or Commissioner's Report was not mentioned. When he had not pleaded such points in his memorandum of appeal under Order-41, Rule-2 CPC, then he has no right to raise this point.
7. A perusal of pleadings of trial court reveal that there has been specific plaint averment as to how the plaintiff-respondent had purchased the property from its real owners and how he became in its possession but the plaint averments were not specifically denied. The pleadings of written-statement filed by the defendant-appellant are evasive, vague and non-specific. There was no specific denial of any plaint averment. Therefore, under provision of Rules 3, 4 and 5 of Rule-VIII of C.P.C. plaint averment on material issues are found admitted and uncontroverted. Therefore, even in absence of any evidence, facts of plaint of original suit of plaintiff are found acceptable.
8. There has been specific plaint averment that in Original Suit No. 45/1980 between Mool Chandra Jain and the defendant-appellant, the possession of plaintiff-respondent was found over disputed property. This fact was not admitted by evasive and vague words. He admitted the proceedings of Original Suit No. 45/1980 but had not admitted other facts and had not specifically stated as to whether in that suit possession of plaintiff-respondent was not found over disputed property. This amounts to admission of plaintiff about earlier possession of plaintiff over disputed property, before the alleged purchase of property by defendant-appellant. This fact negates the averment of written-statement of appellant.
9. There has been specific pleading in plaint that plaintiff's mother had admitted defendant-appellant in disputed portion of house as licensee. This fact was also not specifically denied. Plaintiff had no where pleaded in his written-statement that he was not licensee of the disputed portion of the property. Admittedly, firstly the plaintiff's mother had become owner of some portion of one building and thereafter defendant-appellant had purchased other portion of same building. But the room in dispute was earlier in possession of plaintiff's mother, and later on it came in possession of defendant. Defendant had never pleaded as to specifically when he came in possession of this disputed portion.
10. There has been specific plaint averment that plaintiff is owner of the disputed property, in which defendant was admitted as licensee. This fact was contested by written-statement, then issues were framed. Issue No. 1 was as to whether plaintiff is owner of disputed property and has right to recover its possession from defendant, and Issue No. 2 was whether the plaintiff is entitled for compensation from defendant. The two issues were framed by trial court on the basis of pleading of parties. There was no confusion or misunderstanding between the parties as to what plaint averment was, what was the real disputed point and what are the pleading of the parties. Plaintiff has adduced evidences regarding his ownership and on the fact that defendant was his licensee. On these points the cross-examination was made by defendant's side, Then defendant had also led evidences for proving his ownership and had attempted to prove that he was not licensee. After this, the judgment was passed, and no prejudice was caused to any party in understanding these points. The trial court's judgment was based on the finding that plaintiff side had given license of disputed property to defendant, and later on his license was revoked, so plaintiff is entitled to recover its possession and damages. After this judgment, the defendant had preferred first Civil Appeal before the lower appellate court. The memorandum of appeal does not contain averment that issue on relevant point of defendant being licensee was not framed. Since this point of non-framing of aforesaid issue was not raised under Order-41, Rule-2 C.P.C. by the defendant-appellant; therefore he was estopped from raising this plea before lower appellate court. Likewise, he cannot raise such issue directly in second appeal to the prejudice of plaintiff-respondent.
11. Apart from it, as held earlier, there was no confusion or misunderstanding between the parties at the time of trial of original suit or in first appellate court, as to on what points they are contesting. The plaintiff had claimed himself to be the owner of property, which the defendant-appellant was denying. From evidences the ownership of plaintiff was proved. Therefore impugned judgment was passed. In fact no prejudice was caused to defendant-appellant because of non-framing of issues on point of alleged license. In Swamy Atma Nanda Vs. Sri Rama Krishna Tapovanam, (2005) 10 SCC 51, the Apex Court had held as under:-
"39. If the parties went to the trial knowing fully well the real issues involved and adduced evidence in such a case, without establishing prejudice, it would not be open to a party to raise a question of non-framing of particular issue."
12. Since no prejudice has actually been caused to defendant-appellant from non-framing of alleged issue of license, as held above, therefore the argument of alleged prejudice is unacceptable and is hereby rejected.
13. The trial court had also appreciated evidences adduced by the parties and framed points of determination regarding ownership of plaintiff and decided it in his favour, and against defendant-appellant. When it has been proved that plaintiff is owner of disputed property, then the judgment of eviction of defendant from such property was bound to be passed, because defendant was neither owner nor tenant and his license was proved to be revoked.
14. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned and based upon proper appreciation of the entire evidence on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. No question of law, much less a substantial question of law, was involved in this case before the High Court. None of the contentions of the learned counsel for the appellant-defendant can be sustained.
15. In view of the above, this Court finds that no substantial question of law arises in this appeal. Therefore this Second Appeal is dismissed.
Order Date :- 23.12.2015 SR