Brij Mohan Yadav vs Nagar Palika Parishad Mathur ...
2014 Latest Caselaw 6443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 19
 

 
Case :- SECOND APPEAL No. - 1031 of 2014
 

 
Appellant :- Brij Mohan Yadav
 
Respondent :- Nagar Palika Parishad Mathur Thru. Chairman
 
Counsel for Appellant :- I.N. Singh,Ajay Yadav
 

 
Hon'ble Anil Kumar,J.

Heard learned counsel for the appellant and perused the record.

Facts in brief of the present case as taken by the plaintiff-appellant in his plaint are that the land recorded as plot no.3348 of Khewat No.1/5 belongs to Ramesh Chand Gautam who has been granted a patta to the appellant on 16.4.1991 at a monthly rent of Rs.10 per year to the appellant and he is in possession of the same on which constructed a boundary wall and doing the business of selling milk for which he has kept his cows and buffaloes. However, the defendant/respondent forcefully tried to dispossess the plaintiff/appellant from the land in dispute. So for redressal of his grievances, filed a suit for permanent injunction registered as Original Suit No.612 of 1991. Defendants/respondents in their written statement taken a defence that the land does not belong to the plaintiff, but without any authority of law, he has taken a possession of the same, constructed boundary wall, using the same for his business purpose.

The trial court on the basis of the material on record/oral and documentary evidence, dismissed the suit, challenged by the plaintiff/appellant by filing Civil Appeal No.56 of 2005, dismissed by judgment and decree dated 26.8.2014 passed by Additional District Judge, Court No.8, Mathura.

In view of the above said factual background, the present appeal has been filed by the appellant before this Court, the same has been pressed on the following substantial questions of law :-

"Whether the learned lower courts have misunderstood and misconstrued the oral and documentary evidence as adduced on behalf of the appellant while recording finding to the effect that the land in dispute is not identifiable on the spot ?

Whether for the purposes of fixing the identifiability of land in dispute the learned lower Courts have to get the survey map prepared and produced from the subordinate revenue authorities or in any case parties may be directed to produce the same or not ?"

Learned counsel for the appellant while pressing the above said substantial questions of law submits that no issue about identifiability of the land in dispute was ever framed either by learned trial court or by learned lower appellate court but even then the learned lower courts ignoring the oral and documentary evidence of the appellant have illegally held that the land in dispute is not identifiable on the spot hence the suit of permanent injunction deserves to be allowed.

He further submits that neither ownership of the erstwhile owner Ramesh Chand Gautam of Khasra No.3348 of Khewat No.1/5 nor execution of Patta dated 16.04.1991 by him in favour of appellant and possession of appellant over the land in dispute have ever been denied by defendant/respondent but even then the learned lower courts have illegally refused to grant relief of permanent injunction to the appellant.

I have heard learned counsel for parties and perused the record.

From the perusal of the judgment passed by the trial court, the position which emerges out is that in order to decide the controversy before it, the trial court has framed seven issues. Sofaras the issue no.1, the same is "क्या वादी विवादित संपत्ति का पट्टेदार का काबिज है ?"

On the basis of the material and evidence on record, the trial court had decided the said issue, the relevant finding is quoted herein below :-

"उक्त विवेचन से न्यायालय का मत है कि विवादित आराजी चिन्हित नहीं है । वादपत्र के साथ नक्शा पटटा डीड के साथ नक्शा एवं अमीन द्वारा मौके के बावत नक़्शे में विवादित आराजी के दक्षिण तरफ का हिस्सा निश्चित एवं चिन्हित नहीं है । विवादित भूमि आइडेंटीफाईड नहीं है । वादी द्वारा वादपत्र के साथ नक़्शे में दर्शित भूमि की बावत निषेधाज्ञा की मांग की गयी है । विवादित भूमि कहाँ स्थित है । पत्रावली में उपलब्ध साक्ष्य से स्पष्ट नहीं है । अतः निषेधाज्ञा का आधार नहीं है |"

Further, the trial court has also given a finding that the land in dispute is not identifiable as per patta and it also does not tally with the map filed by the plaintiff along with his plaint as well as does not identifiable as per the map prepared by Amin after visiting the spot in question. Accordingly, the trial court held that the situation/position of the land in question does not clear on the basis of the material on record, so injunction as prayed cannot be granted, dismissed the suit..

The appellate court while dismissing the appeal has confirmed the said finding given by the trial court and in addition to the same, the appellate court also given a categorical finding that the position of the land in dispute is not identifiable, relevant finding given by the appellate court in this regard quoted herein below :-

"प्रस्तुत मामले में अपीलार्थी ने अपने पक्ष में पटटा निष्पादित होने के पूर्व विवादित भूमि पर १५/- रुपए प्रतिमाह रमेशचंद गौतम की किरायेदारी पर रहना कहा है अर्थात वह प्रतिवर्ष १८०/- रूपया किरायेदारी की एवज़ में रमेशचंद गौतम को देता था परन्तु रमेशचंद गौतम ने वादी के पक्ष में जो पटटा निष्पादित किया है, वह १०/- रुपए प्रतिवर्ष का है, जो स्वाभाविक प्रतीत नहीं होता है । वादी को प्रत्येक परिस्थति में विवादित भूमि की स्थिति एवं उस पर अपना विधिपूर्ण कब्ज़ा साबित करना ही होगा । प्रतिवादी द्वारा अभिकथित नंबर में भूमि के साबित न होने का अभिप्राय वादी द्वारा अभिकथित नंबर में भूमि का होना साबित नहीं होता है ।"

Thus, in view the facts stated herein above as well as the finding given by two courts below while refusing the grant of injunction, as prayed by the plaintiff/appellant the question which immediately arises is that what principle should be followed by the Courts in the matter of grant of injunction. The answer is contained in the decision of the Hon'ble Apex Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, (1993) 3SCC 161, a Bench of three Judges of Apex Court has held that:-

"It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course, grant of injunction is within the discretion of the court and such discretion is not to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court.

In the case of Dalpat Kumar V. Prahlad Singh (1992) 1 SCC 719 a Bench of two Judge of the Apex Court held that the phrases "Prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice.

In Woodroffe's Law Relating to Injunctions, 2nd revised and enlarged Edn., 1992, at page 56 in para 30.01, it is stated that :-

"An injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by law ) existing in favour of the applicant who must have personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he asserts."

Accordingly, the findings recorded by the Courts below while rejecting the case of the plaintiff/appellant cannot be set aside on flimsy arguments advanced on behalf of the appellants and without there being any question of law. In the instant case, arguments of the counsel for the appellants are factual in nature and by no stretch of imagination can constitute substantial questions of law. Re-appraisal of evidence is not permissible. Interference of the facts from recital or content of the document or after shifting oral evidence does not leave any scope of re-appraisal in exercise of jurisdiction under section 100 C.P.C.

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 judgements and decrees under challenged in the present case are perfectly valid and needs no interference.

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

Order Date :- 15.9.2014

Mahesh