Jhabbar Prasad And Another vs Smt. Munni Devi
2018 Latest Caselaw 2936 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 31
 

 
Case :- SECOND APPEAL No. - 982 of 2018
 
Appellant :- Jhabbar Prasad And Another
 
Respondent :- Smt. Munni Devi
 
Counsel for Appellant :- Rakesh Kumar Yadav
 
Counsel for Respondent :- Ashutosh Pandey
 
		AND
 
Case :- SECOND APPEAL No. - 980 of 2018
 
Appellant :- Jhabbar Prasad And Another
 
Respondent :- Smt. Munni Devi
 
Counsel for Appellant :- Rakesh Kumar Yadav,Satyendra Narayan Singh,Shri H. N. Singh
 
Counsel for Respondent :- Ashutosh Pandey
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

1. As both these second appeals are directed against the same impugned judgment and order dated 6.9.2018 passed by the District Judge, Basti, in Civil Appeals No. 70 of 2017, Jhabbar Prasad and another Vs. Munni Devi and 82 of 2017, Jhabbar Prasad and another Vs. Munni Devi, and the parties are the same, both these appeals are heard on admission together and are being disposed of by this common order.

2. Heard Sri Rakesh Kumar Yadav, learned counsel for the appellant and Sri Ashutosh Pandey, learned counsel for caveator- respondent on the point of admission. Perused the available record.

3. The brief facts giving rise to the dispute between the parties are that the plaintiffs/appellants Jhabbar Prasad and Phagu, who are real brothers, filed Original Suit No. 359 of 1998, Jhabbar Prasad and another Vs. Mst. Munni Devi, in the court of Civil Judge (Senior Division), Basti, seeking relief of permanent injunction against the defendant -respondent Mst. Munni Devi, who is the widow of their elder brother, in respect of the disputed plot of land no. 81 measuring 1 Biswa 18 Dhoors, situated in Village Saraiya Khurd (Kusaura Bazar), Tehsil and District Basti.

4. In the plaint it was averred by the plaintiffs-appellants that plot no. 81 measuring 1 Biswa 18 Dhoors, situated in Village Saraiya Khurd (Kusaura Bazar), Tehsil and district Basti, is a part of Gram Sabha Kusaura. It was given on lease for residential purpose to the plaintiffs by the Land Management Committee, which was duly approved by the Sub Divisional Officer, Basti, on 18.9.1994. Adjacent to plot no. 81 there is plot no. 80 measuring 11 Biswa 23 Dhoors, one-third area of which was purchased by the defendant from one Islam on 21.2.1972. The defendant has no concern with the disputed plot no. 81. According to the plaintiffs plot no. 81 is recorded in the revenue record as 'Banjar' land meaning thereby that it is a property belonging to the Gram Sabha on which names of the plaintiffs were mutated after grant of the residential lease in their favour. However, the lease dated 18.9.1994 granted in their favour was cancelled by the District Magistrate, Basti, vide order dated 27.4.2001.

5. The order of the District Magistrate, Basti, dated 27.4.2001 was set aside by the Board of Revenue by order dated 31.10.2011 and the matter was remanded directing the District Magistrate, Basti, to pass a fresh order. In the meantime due to concellation of the lease by the District Magistrate, Basti, plot no. 81 was again recorded as 'Banjar' in the revenue records and the names of the plaintiff-appellants were expunged. In the meantime a new district Sant Kabir Nagar was carved out from the district Basti, and the remanded case was transferred from district Basti to district Sant Kabir Nagar. The District Magistrate, Sant Kabir Nagar, vide order dated 22.6.2016, again cancelled the lease granted to the plaintiffs-appellants. Against the order dated 22.6.2016 passed by the District Magistrate, Sant Kabir Nagar, the plaintiffs filed a revision before the Board of Revenue, Allahabad, which is still pending at the stage of admission.

6. According to the plaintiffs as the lease was executed in their favour as far as back on 18.9.1994 and it was cancelled for the first time on 27.4.2001 and for the second time on 22.6.2016, the plaintiffs in the meantime have constructed a Pakka house on the disputed land and have also established a Saw mill on it. They are residing on it and are using the saw mill to earn their livelihood.

7. On the aforesaid grounds, it was prayed by them that the defendant- respondent be restrained from interfering in the peaceful possession of the plaintiffs-appellants on the property shown by letters Aa, Ba, Sa and Da in the plaint map in plot no. 81 by issuing a permanent prohibitory injunction against her.

8. In reply to the same the defendant -respondent Munni Devi filed her written statement along with a counter claim in which she denied the title and possession of the plaintiffs on plot no. 81. She also denied that any residential lease on plot no. 81 was ever granted to the plaintiffs. In the counter claim it was stated that the plaintiffs were in hands in gloves with the Lekhpal of the area. They in connivance with the Lekhpal and by playing fraud, obtained residential lease in their favour. They are not the residents of Village Saraiya Khurd but are the residents of another village namely Baghaura, which comes under Gram Sabha Baghaura. Therefore, they have no right to have any lease for residential purpose in Village Saraiya Khurd.

9. It was also averred by the defendant that the plaintiffs have their own house in village Baghaura and they have sufficient agriculture land too. Plaintiff no. 1 is area Sales Manager in Sahara India having sufficient income and plaintiff no. 2 owns a Cycle shop, therefore, they are not entitled for residential lease on land of Gram Sabha Kusaura.

10. It was further stated that when the fraud played by the plaintiffs in connivance with the Lekhpal, came to the knowledge of the revenue authorities, they suo-motu initiated proceedings for cancellation of the lease. Moreso, on 18.9.1994 plot no. 81 was not empty because major portion of this plot forms part of the PWD road going from Basti to Kalwari and in the remaining part some shops constructed by the defendant in the year 1972 are situated. As the land was not vacant, the same could not have been given on lease to any person. It was stated by the defendant-respondent that one-third part of the adjacent plot no. 80 was purchased by her from one Islam on 21.2.1972 and thereafter 12 shops and a double storied residential house was constructed on the said land, which are in possession of the defendant. Due to mistake some shops were also constructed by the defendant in adjacent plot no. 81 also. But as those shops, though unauthorisedly constructed on plot no. 81 by the defendant, are in her possession since the year 1972, she has perfected her title by adverse possession on that portion of plot no. 81 too on which some of her shops are existing. On the aforesaid grounds she also prayed for the issuance of a permanent prohibitory injunction in her favour restraining the plaintiffs from illegally transgressing on the disputed land.

11. The learned trial court on the basis of the pleading of the parties framed 23 issues out of which following four issue (nos. 1, 2, 6 and 8) are relevant, which are quoted below:

1. Whether the plaintiffs are valid allottees of plot no. 81 having title and possession of the buildings constructed in that plot?

2. Whether the building situated in disputed land have been constructed by the plaintiffs?

6. Whether the defendant is the owner in possession of the disputed land shown as A, B, C, D in counter claim and the building constructed on it?

8. Whether the plaintiffs have been given possession of the disputed property by the judgments passed in earlier case under section 145 Cr.P.C. between the parties?

12. The learned trial court, after a detailed discussion of the evidence led by both the parties decided issue nos. 1 and 2 together against the plaintiffs-appellants, holding that the plaintiffs have failed to prove either their possession or title over the disputed plot no. 81. The learned trial court while coming to the above conclusion, took into consideration copy of the judgment and order dated 22.6.2016 passed by the District Magistrate, Sant Kabir Nagar, in the same matter after remand (Annexure no. 7 in this second appeal), the survey report and the evidence led by the parties and came to the conclusion that the land in dispute was not vacant at the time when the alleged residential lease was granted to the plaintiffs-appellants by the Land Management Committee because on some part of it, shops were constructed illegally and unauthorisedly by the defendant, who has admitted this fact, and some part of it forms part of pavement of the main road.

13. Learned trial court found that the plaintiffs are residents of village Baghaura and not of Village Saraiya Khurd. Moreso, the plaintiff no. 1 Jhabbar Prasad was working as Area Manager in the Company 'Sahara India' and the plaintiffs had sufficient agricultural land and have house in their village Baghaura, therefore, they were not legally entitled to have residential lease in their favour. In view of the above facts, the learned trial court came to the conclusion that as the lease granted to the plaintiffs by the Land Management Committee, has already been cancelled twice by the revenue authorities (District Magistrates), hence it cannot be said that the lease granted to the plaintiffs was a valid lease.

14. The learned trial court, while coming to the above conclusion relied upon relevant legal provisions and several judgments of various courts. Issue no. 6 was decided partly against the defendant and issue no. 8 was decided against the plaintiffs-appellants by the trial court, holding that they have not been given possession of the land in dispute in the proceedings u/s 145 Cr.P.C.

15. Based on the aforesaid findings, the learned trial court dismissed the suit of the plaintiffs-appellants with costs and decreed the counter claim of the defendant. The Sub Divisional Magistrate, Sadar, who had been appointed as receiver of the shops during pendency of the suit, was directed to hand over the possession of the shops to the defendant within two months.

16. Being aggrieved, the plaintiffs-appellants filed two Civil Appeals. Civil Appeal No. 70 of 2017 was filed by them against the order dismissing their suit and Civil Appeal No. 82 of 2017 was filed against the order decreeing counter claim of the defendant.

17. The lower appellate court consolidated both the appeals and decided those together. It framed 9 points for determination and after a detailed discussion of the evidence led by both the parties, came to the conclusion that the plaintiffs-appellants have failed to prove either their possession or any right or title on the disputed property. Accordingly, both the appeals filed by the plaintiffs-appellants were dismissed by the lower appellate court by the impugned judgment and order dated 6.9.2018.

18. Now the plaintiffs-appellants are before this court by way of Second Appeal.

19. Learned counsel for the plaintiffs-appellants has contended that the learned courts below have not considered the evidence led by the plaintiffs-appellants in proper perspective and have illegally dismissed the suit as well as the appeals filed by the plaintiffs. It has been further contended that possession of the plaintiffs on the disputed land has been admitted by the defendant as she herself has stated in the counter claim that she constructed 12 shops and established a saw mill. Those shops were rented out and authority of collecting the rent was given to the plaintiffs and the saw mill was also given on rent to the plaintiffs at the rate of Rs.200/- per month.

20. Learned counsel for the appellants has next contended that in view of the own case of the defendant, it is clearly evident that the shops and saw mill were in possession and in effective control of the plaintiffs- appellants. Moreso, the defendant in her counter claim has herself prayed that if she is not found to be in possession, she may be delivered possession, which also shows that it is admitted to her that she is not in actual physical possession of the shops and the saw mill.

21. It is further contended that the amin commissioner's report also shows that at the time of survey commission on 14.9.2014, the possession of the plaintiffs-appellants was found on the shop but both the courts below have omitted to consider the amin's report. It is next contended that the Gram Sabha being the owner of plot no. 81, the plaintiffs could have been evicted only by the Gram Sabha in accordance with law. No injunction could have been granted in favour of the defendant and no direction could have been issued to the receiver to hand over the possession of the property in question to the defendant-respondent. It is lastly contended that a revision filed by the plaintiffs-appellants against the order of the District Magistrate cancelling the lease, is still pending before the Board of Revenue, hence, the findings recorded by the courts below to the effect that the lease in favour of the plaintiffs is not a valid lease, are unwarranted because the scope of revision and the jurisdiction of the Board of Revenue has now stood closed for all practical purposes.

22. Per contra, learned counsel for the caveator-respondent has vehemently opposed the admission of both these second appeals by contending that the plaintiffs-appellants by playing fraud have obtained the residential lease of disputed plot no. 81 in their favour in connivance with the Land Management Committee against the legal provisions. Admittedly, the land in question is recorded as 'Banjar' in the revenue records, therefore, it was a Gram Sabha land, the plaintiffs-appellants being not a resident of village Saraiya Khurd, were not entitled to have a residential lease in the said village.

23. It is next contended that the categories of the persons, who are eligible for a residential lease, are specified in the U.P.Z.A.L.R. Rules and the plaintiffs- appellants do not fall within any of such categories. According to the legal provisions, a residential lease may be granted to a person, who is either a member of Scheduled Caste, Scheduled Tribe or of Other Backward Class or is living below poverty line if he is a person of general category, or if he is an agricultural labourer or an artisan, whereas the plaintiff no. 1 is the Area Sales Manager in Company 'Sahara India' and the plaintiff no. 2 is owner of a Cycle shop. Admittedly, both of them have sufficient agricultural land and they also own a house in village Baghaura. Therefore, they do not come under any of the categories of eligible persons, for the grant of residential lease.

24. It is contended that the Land Management Committee, while allotting them the land in question for residential purpose did not follow the procedure prescribed under Rule 115M of the U.P.Z.A.L.R. Rules. In such a situation the Collector/ District Magistrate was competent to cancel the allotment of lease granted in favour of ineligible persons.

25. Learned counsel has further contended that the plaintiffs-appellants cannot derive any benefit from the arguments advanced by their learned counsel because once it appears that there is a fraud or any document has been obtained by fraud, it vitiates everything. In this regard reliance has been placed on a judgment rendered by the Lucknow Bench of this court in the case Jagat Narain Singh Vs. District Magistrate, Lucknow, 2012(8) ADJ 80.

26. It is next contended that the property involved has already undergone litigation before several forums, in mutation proceedings and before the civil court and there is no end to the litigation. Under these circumstances the High Court is not powerless to do away that injustice even if a revision is pending before Board of Revenue, which has to be abide by the order of High Court.

27. It is further contended that concurrent findings of facts have been recorded by the two courts below against the plaintiffs-appellants and as per settled legal position the High Court should not interfere in second appeal in the concurrent findings of fact recorded by two courts below.

28. Having considered the rival contentions advanced by learned counsel for the parties in the back drop of facts and circumstances of this case, the arguments advanced by learned counsel for cateator/ respondent appears to have substance and this court is of the considered view that both these Second Appeals are liable to be dismissed at the admission stage itself.

29. The scope of Second Appeal according to section 100 C.P.C. is very limited and it can be admitted only on a substantial question of law.

30. None of the proposed substantial questions of law framed by learned counsel in both the above mentioned Second Appeals, can be said to be a debatable substantial question of law because some of these questions relate to those questions of facts, on which there are concurrent findings by both the courts below and some are related to those questions of law, which are already well settled. No arguable question of law is found involved in any of these appeals.

31. The term "substantial question of law" has been interpreted by Hon'ble Supreme Court in a catena of judgments.

32. In State Bank of India and others Vs. S.N. Goyal; (2008) 8 SCC 92 the Hon'ble Supreme Court has held as under :-

"Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law."

33. In Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 the Supreme Court considered what the phrase "substantial question of law" means as under:-

"The phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely."

34. A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969 considered this term and observed:

"when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law."

35. The above observations were affirmed and concurred by a Constitution Bench of Hon'ble Supreme Court in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:

"A point of law which admits of no two opinions may be a proposition 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. 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."

36. In Dharmabiri Rana Vs. Mramod Kumar Sharma (dead) through Legal Representatives and others, (2018)11 SCC 554 the Hon'ble Apex Court has observed as under:-

"12.In view of the above findings recorded by the First Appellate Court, the suit was rightly dismissed. The High Court has also rightly dismissed the Regular Second Appeal holding that it does not contain any substantial question of law. We do not find any substance in the submissions of the learned counsel for the appellant. With the result, the Civil Appeal is dismissed."

37. Now reverting to the facts of the present case, it is clearly evident that both the courts below have recorded concurrent findings of fact after a detailed and well discussed appreciation of evidence with regard to the issues involved in the case. There does not appear any perversity or illegality in the findings recorded by both the courts below on the facts of the case. This court is not inclined to interfere in the same in the Second Appeal.

38. 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 and until the findings are perverse.

39. In a recent case of 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."

40. In another 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."

41. In one more recent case Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible.

42. In view of the above cited legal position and in absence of any arguable substantial questions of law, both these Second Appeals are liable to be dismissed at the admission stage itself and are accordingly dismissed.

43. A copy of this order be placed in the file of Second Appeal No. 980 of 2018.

Order Date :- 28.9.2018

Pcl