Ram Piyarey And Ors. vs Udai Raj And Ors.
2021 Latest Caselaw 3645 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 

 
Case :- SECOND APPEAL No. - 59 of 2016
 

 
Appellant :- Ram Piyarey And Ors.
 
Respondent :- Udai Raj And Ors.
 
Counsel for Appellant :- Chhote Lal Yadav,Balram Yadava
 

 
Hon'ble Jaspreet Singh,J.

Supplementary-affidavit filed by the appellants is taken on record.

Heard Shri C.L.Yadav, learned counsel for the appellants and Shri Balram Yadav learned counsel appearing for the respondents.

The instant second appeal has been preferred against the concurrent judgment and decree dated 09.12.2015 passed in Civil Appeal No.156 of 2014 whereby the Additional District Judge, Court No.3, Faizabad has affirmed the judgment and decree dated 30.03.2013 passed in Suit No.62 of 1991 whereby the suit of the plaintiffs-appellant has been dismissed.

The submission of the learned counsel for the appellants is that two courts have failed to notice that the dispute between the parties was in respect of a public rasta over which the plaintiffs had acquired a right of prescription. Further submission is that the aforesaid rasta has been in the use of the plaintiffs and other persons since time immemorial and in the aforesaid backdrop, the defendants who were attempting to encroach upon the said rasta were to be restrained from encroaching over the same or from raising any construction thereon to obstruct the right of way of the appellants. It is further submitted that the reason given by the two courts in disbelieving the case of the appellants is not supported by material; inasmuch as the plaintiffs had disclosed the detail of the land upon which the rasta was situate and by ignoring the material evidence on record, the court has committed an error.

It has also been urged that the plaintiffs had examined the witnesses who had corroborated the statements regarding the use of way and once the aforesaid testimony was available, it was the duty of the court to have considered the same and in the aforesaid circumstances, the plaintiffs-appellant was entitled to have decree of injunction.

The learned counsel for the respondents refuting the aforesaid submissions have submitted that the plaintiffs while filing the suit had taken a contradictory stand. At one place, it has been stated that the said rasta was for private use and in the other place it has been urged that the said rasta was for a public use. Despite leading evidence the plaintiffs could not establish their right of prescription/user over the said land. Both the courts have recorded concurrent finding and have also noticed that the plaintiffs in their own cross-examination had admitted that he has three separate way available for accessing their residential house and his agricultural fields. This clearly indicates that the alleged rasta for which the suit has been filed was not the sole and the only rasta available to the plaintiffs. Accordingly, there is a huge discrepancy in the statement made in the pleading as well as in the evidence. The two courts having considered the same had recorded pure finding of fact which are not amenable for interference under Section 100 CPC.

The Court has considered the rival submissions and also perused the record.

To put the controversy in a perspective, it would be relevant to notice that the plaintiffs instituted a suit seeking a decree of permanent injunction specifically stating that the house which has been shown in the site-plan annexed and forming part of the plaint in suit belonged to the plaintiffs. On the northern side of the said house, the plaintiffs had their Sehan and on the eastern side is the rasta which is subject matter of the suit. It was also stated that the aforesaid rasta was being used by the plaintiffs as well as the other persons of the village from time immemorial and apart from the said rasta, the plaintiffs had no other rasta adjacent his house to and from his agricultural fields. In paragraph-5 of the plaint, it was specifically stated that the aforesaid rasta was the subject matter of the suit and that the plaintiffs had acquired the right of prescription by user. It is in the aforesaid backdrop in paragraph-9, it was pleaded that the defendants were attempting to encroach upon the aforesaid rasta and in order to prevent the same, the suit for injunction was filed.

The defendants filed their written statement disputing the aforesaid fact. On the basis of the pleadings of the parties, the trial court framed 5 issues. Primarily issue no.1 was the important which related to the fact whether the plaintiffs are the owner in possession of the property. As a necessary corollary to the aforesaid issue, another issue no.5 was framed whether the plaintiffs were entitled to any relief.

After the parties led evidence, the trial court while dealing with the issue no.1 had recorded a finding of fact that the plaintiffs neither in his plaint nor in the oral testimony could indicate that since when the plaintiffs were using the said rasta. Even the detail regarding its length and breath was not mentioned. No pleadings or proof was adduced to establish whether the plaintiffs had acquired any right of user by prescription over the said land/rasta.

The trial court also refered to the Amin report and it concluded that in so far as the aforesaid rasta is concerned, the defendant was in its possession. It also found a discrepancy that in case if there was a ditch on the northern side of the house of the plaintiffs and thereafter there was a chak road then under what circumstances, the plaintiffs could have been using this, have also not been explained. The trial court also refered to the cross-examination of the plaintiffs witness no.1 who stated that the plaintiffs had three alternate ways from his house. One of the alternate rasta was also the chak road which was available to the plaintiffs.

Considering the totality of the evidence which was available, the trial court noticed that the averments in the plaint were not duly established; inasmuch as the right of prescription, user, access to the rasta was not established. Even it was not established that the plaintiffs did not have any other alternate rasta. With the aforesaid, the trial court dismissed the suit by means of judgment and decree dated 30.03.2013.

The plaintiffs-appellants preferred a Regular Civil Appeal No.156 of 2014 and the lower appellate court also considering the evidence as well as the oral testimony of the plaintiffs and his witnesses had affirmed the finding.

This Court has perused both the decisions and in light of the averments and submissions made by the learned counsel for the parties, this Court finds that in so far as the right of user as well as having acquired the right by prescription is concerned, both the courts have considered the evidence and have recorded a finding of fact holding that the same has not been established.

This Court in exercise of power under Section 100 CPC is not entitled to reappraise the evidence especially when the learned counsel for the appellants could not point out any perversity in the findings recorded by the two courts. Since concurrent findings of fact have recorded where the plaintiffs could not establish his own case in the aforesaid facts and circumstances, this Court does not find that there is any perversity in the findings recorded by the two courts nor any such perversity could be pointed out by the learned counsel for the appellants.

The Apex Court in catena of judgments has laid down 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.

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."

In another recent case of Narendra and others Vs. Ajabrao S/0 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 even 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."

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.

In view of the aforesaid discussions, the second appeal lacks merit and is accordingly dismissed at the admission stage itself as it does not involve any substantial question of law. The judgment and decree passed by the trial court dated 30.03.2013 passed in Regular Suit No.62 of 1991 and affirmed in Regular Civil Appeal No.156 of 2014 vide judgment and decree dated 09.12.2015 are affirmed.

In the facts and circumstances, there shall be no order as to costs.

Order Date :- 16.3.2021

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