Hari Singh (Since Deceased) And 6 ... vs Amar Singh (Since Deceased) And 5 ...
2014 Latest Caselaw 4979 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 944 of 2014
 

 
Appellant :- Hari Singh (Since Deceased) And 6 Others
 
Respondent :- Amar Singh (Since Deceased) And 5 Others
 
Counsel for Appellant :- Santosh Kumar Srivastava,Smt. Alka Srivastava
 

 
Hon'ble Anil Kumar,J.

Heard Sri Santosh Kumar Srivastava, learned counsel for appellants and perused the record.

Facts in brief of the present appeal are that the plaintiff-respondent filed a suit for possession and damages, registered as Original Suit No. 26 of 1997 by means of the judgement dated 14.09.2012 and decree dated 19.09.2012, the trial court has decreed the suit.

Aggrieved by the same, the defendant filed an appeal (Civil Appeal No. 40 of 2012), dismissed by judgement and decree dated 08.07.2014. Thereafter, present appeal has been filed.

Learned counsel for appellants has pressed the present appeal on the following substantial question of law:-

"I. Whether, the learned courts below have erred in accepting the documentary evidence adduced on behlaf of the defendants/appellants by means of list of evidence Paper No. 126C2 and decreed the suit on surmises and conjectures relying upon the oral evidence?

II. Whether, the learned Ist Appellate Court also have committed an error of law in not determining the points provided under Order 41 Rule 31 C.P.C.for deciding the actual controversy ?

III. Whether, the learned courts below have committed an illegality in identifying the suit property by misreading and misconstruing the boundaries of the earlier suit No. 627 of 1971 ?"

After hearing learned counsel for appellant and going through the record, the position which emerged out that both the courts below have given a concurrent finding of fact that the land which is the bone of contention between the parties, initially belongs to Sri Amar Singh, the father of the plaintiff and thereafter by way of succession, the said property comes to the plaintiff and who is the owner of the said property.

Further, from the material on record, it also transpires that on the land in dispute at spit there is one Jhopri, the same was initially belongs to one Ghasita from whom it comes to Sri Amar Singh, thereafter the plaintiff was the owner and possession of the same, on the land in dipuste/Jhopri, Sri Hari Singh (now deceased) husband of Smt. Behati was a tenant and he has been evicted from the said land/jhopri by Amin Adalat on 21.02.1986 in pursuance to the judgment and decree passed in Regular Suit No. 627 of 1971.

Again on 03.09.1986 Sri Hari Singh without any authority rather unauthorizedly taken the possession of the land in dispute in regard to which a criminal litigation has been taken between the parties and it was found that the possession of Sri Hari Singh (deceased) was unauthorized and the plaintiff are the owner of the land in dispute.

In addition to the said facts, the appellate court while dismissing the appeal has recorded a finding on the basis of material on record/statement given by D.W.2/Shyam Singh, quoted herienbelow:-

"इस झगङे वाली जगह के बावत पहले भी घसीटा बनाम हरीसिंह के नाम से मुकदमा चला था । यह मुकदमा गाजियाबाद में दायर हुआ था । उसके बाद मेरठ भी गया । हाई कोर्ट भी गया । इस मुक़दमे में पारित कोई भी अदालती फैसला मैंने नहीं देखा था । इस मुक़दमे में जो विवादित माकन था, उसका दखल दिलवाने के लिए अमीन साहब पुलिस की मदद से मौके पर गए थे । उसी माकन की बावत यह मुकदमा चल रहा है |"

Moreover, following finding has also been given by appellate court while dismissing the appeal:-

"पत्रावली के अवलोकन से स्पष्ट है कि मृतक प्रतिवादी हरी सिंह ने विवादित सम्पत्ति पर अवैध रूप से कब्ज़ा कर लिया था और प्रतिवादिगण अनधिकृत कब्जाधारी होने के कारण बेदखल किये जाने योग्य है । चूंकि प्रतिवादिगण विवादित सम्पत्ति के अनधिकृत कब्जाधारी है । ऐसी स्थिति ने वादिगण वांछित प्रयोग धन दौरान वाद एवं बेदखल होने तक प्राप्त करने के अधिकारी भी है । जँहा तक वाद के आदेश ७ नियम ११ सी. पी. सी. सी के प्रावधान के बाधित होने का प्रश्न है, प्रश्नगत वाद आदेश ७ नियम ११ सी. पी. सी. के प्रावधान से बाधित नहीं है, क्योंकि वादिगण विवादित मकान के स्वामी है, जिस पर प्रतिवादिगण ने अवैध रूप से कब्ज़ा कर लिया है । ऐसी स्थिति में वादिगण को प्रश्नगत वाद को दायर करने का एक उचित कारन प्राप्त है । अतः ऐसी स्थिति में विद्वान अधीनस्थ न्यायालय ने वाद बिंदु संख्या -१,२,३ व ४ पर जो अपना अभिमत व्यक्त किया है | वह पूर्णतः पत्रावली पर उपलब्ध साक्ष्य एवं विधि अनुरूप होने के कारण पुष्टि किये जाने योग्य है और उसमे अपील के स्टार पर कोई हस्तक्षेप करने की आवश्यकता नहीं है |"

In view of the abovesadi facts, the substantial question of law, namely, I, II and III as quoted above are not substantial question of law, rather question of facts.

So far as the argument advanced by learned cousnel for appellant that the appellate court has not passed the judgement in question as per the provisions as provided under Order XLI Rule 31 CPC, the said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration.

And it must be evident from the judgement of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgement is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgement rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. As held by Apex Court in the case of M/s Nopany Investment ( P) Ltd. Vs. Santokh Singh ( HUF) , AIR, 2008 SC 673 , as under:-

"This takes us to the next issue namely, whether the High Court was right in concluding that the first appellate court had duly dealt with all the issues involved and re-appreciated the evidence as provided under O.41 R.31 of the CPC. The learned senior counsel for the appellant Mr. Gupta sought to argue that the High Court had erred in holding that the first appellate court had acted in due compliance with O.41 of the CPC. It may be noted that the High Court, while concluding as aforesaid, came to the following findings: -

1) The first appellate court has passed a speaking order and it is apparent that it has applied its mind.

2) The First appellate court had to deal with the arguments which were advanced before it. It had rightly given the short shrift to all

those arguments which did not inject some coherence.

3) The learned counsel for the appellant had failed to point out the issues regarding which the First Appellate court had not given its own conclusion.

4) The learned counsel for the appellant had also failed to show as to how the authority cited viz., Santosh Hazari Vs. Purushottam Tiwari (dead) by LRs. [AIR 2001 SC 965] was applicable to the facts of the case.

In our view, it is difficult for us to set aside the findings of the High Court on the question whether the first appellate court, while deciding the questions of fact and law, had complied with the requirements under O.41 of the CPC. We are in agreement with the findings of the High Court as on a perusal of the judgment of the first appellate court, it does not appear to us that the findings arrived at by the first appellate court affirming the judgment of the trial court on any issue were either very cryptic or based on non-consideration of the arguments advanced by the parties before it. In support of this contention, before the High Court, the appellant had relied on a decision of this court in the case of Santosh Hazari [supra], but in this appeal, the learned senior counsel for the appellant Mr. Gupta has strongly relied on a decision of this court in the case of Madhukar & Ors. Vs. Sangram & Ors. [(2001) 4 SCC 756] and contended that since the judgment of the first appellate court was cryptic in nature and the first appellate court had not dealt with the issues involved in the appeal, the same was liable to be set aside and the matter was liable to be sent back to the first appellate court for rehearing. We are unable to accept this contention of the learned senior counsel for the appellant. Before we consider the findings of the first appellate court as well as the High Court on this issue, we must keep on record that in Madhukar & Ors. Vs. Sangram & Ors. [supra], this court had to reverse the findings of the High Court because the High Court erred in allowing the plaintiff/respondents first appeal without even considering the grounds on which the trial court had dismissed the suit and without discussing the evidence on record. On the same lines, the decision of this court in Santosh Hazari's case [supra] was based. In our view, the aforesaid two decisions of this court are distinguishable on facts with the present case. A perusal of the judgment of the first appellate court after remand would clearly indicate that the same was neither cryptic nor based on non-consideration of the issues involved in the appeal. Apart from that, it has to be kept in mind that the decisions of this court in Madhukar & Ors. Vs. Sangram & Ors. [supra] and Santosh Hazari Vs. Purushottam Tiwari (dead) by L.Rs. AIR 2001 SC 965, were considering the reversal of the findings of fact of the trial court. In the present case, the first appellate court had affirmed the findings of the trial court, which were based on total consideration of the material evidence documentary and oral on record. " It is well settled that in the case of reversal, the first appellate court ought to give some reason for reversing the findings of the trial court whereas in the case of affirmation, the first appellate court accepts the reasons and findings of the trial court. In any view of the matter, from a perusal of the judgement of the first appellate court, it is clear that it reflects conscious application of mind and has recorded the findings supported by reason on all the issues arising along with the contentions put forward by the parties. In Santosh Hazari (supra) this Court observed:-

" The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with the reasons given by the court, decision of which is under appeal, would ordinarily suffice."

Accordingly, in view of the above said facts and the finding of facts given by the Courts below in the present case as well as taking into consideration that the Apex Court depreciated the liberal construction and generous application of provisions of Section 100 C.P.C. Hon'ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference under Section 100 C.P.C.

In Satya Gupta (Smt.) alias Madhu Gupta Vs. Brijesh Kumar , 1998 (6) SCC 423 by the Supreme Court as under :-

" At the outset , we would like to point out that the findings on facts by the lower appellate court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as a perverse or based on no evidence. That being the position , we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of Lower Appellate Court on facts merely on the ground that on the fact found by the Lower Appellate Court another view was possible."

Similar view was given by the Supreme Court in Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others, 1999 (36) ALR 218 (SC) and Hamida and other V. Md. Khalil, 2001 (45) AlR 23 (SC) wherein it is held :-

" It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first Appellate Court. It is true that the lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in Second Appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the Lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible . The High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the Lower Appellate Court where erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court , or was based upon inadmissible evidence or arrived at without evidence."

In the instant matter, the appellate court while allowing the appeal has considered the entire evidence on record and after taking into consideration the same has reversed the finding given by the trial court, so from the argument in question, the appellant cannot derive any benefit in view of the facts and circumstances of the case and the same cannot said to be substantial question of law as per the facts of the present case.

It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, in second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be, the learned counsel for the appellant did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact. (See Mustafa Vs. Vakil @ Iqbal and another 2008 (105) RD 392).

The Apex Court depreciated the liberal construction and generous application of provisions of section 100 C.P.C. Hon'ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that can not be sufficient for interference under section 100 C.P.C. For ready reference, extract of paragraph No.7, of the vase of Veerayee Ammal V. Seeni Ammal reported in 2002 (1) SCC 134=2001(45) ALR 691 (SC) is quoted below:

"7......We have noticed with distress that despite amendment, the provisions of section 100 of the Code have been liberally construed and generously applied by some judges of the High Courts with the result that objective intended to be achieved by the amendment of section 100 appears to have been frustrated. Even before the amendment of section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal."

In the case of Santosh Hazari V. Purshottam Tiwari reported in 2001 (92) RD 336 (SC) had held that a point of law which admits of no two opinions may be preposition 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. If will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case or not. The same view has been expressed again by the Apex Court in the case of Govinda Raju Vs. Marriamman 2005 (98) RD 731.

For the fore-going reasons, no substantial question of law involved in this appeal. The judgement and decree under challenged in the present case is perfectly valid and needs no interference.

In the result, the second appeal lacks merit and is dismissed.

Order Date :- 26.8.2014

Ravi/-