Ramanand Maurya vs Ram Prasad And 8 Others
2022 Latest Caselaw 3869 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 10
 

 
Case :- SECOND APPEAL No. - 460 of 2022
 

 
Appellant :- Ramanand Maurya
 
Respondent :- Ram Prasad And 8 Others
 
Counsel for Appellant :- Sharad Kumar Srivastava
 
Counsel for Respondent :- S.K. Mishra
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Sharad Kumar Srivastava, learned counsel for the appellant and Sri S.K.Mishra, learned counsel for the respondents.

2. This is plaintiff's appeal under Section 100 of the Code of Civil Procedure against judgment and decree dated 10.12.2021 passed by Additional District Judge, Court No.2, Fatehpur in Civil Appeal No.22 of 2014 and judgment and decree dated 31.01.2014 passed by Civil Judge (Senior Division), Court No.11, Fatehpur in Original Suit No.68 of 2003.

3. The plaintiff filed suit for permanent injunction against defendants-respondents claiming that he may not be dispossessed from the house in dispute, which is recorded as House No. 334-A in the records of Nagar Palika Parishad.

4. The case set up by the plaintiff was that a license was executed on 11.06.1974 by the father of defendants-respondents No.3 to 5 late Nanku. The said suit was contested by the defendants-respondents by filing written statement in which it has been stated that no such license was executed by the father of defendants No.3 to 5 in favour of plaintiff as the plaintiff, at the time of alleged execution of license, was a minor and their ages were more than the age of plaintiff and there was no need for executing such licence. The Trial Court framed following issues :

"1. क्या विवादित मकान आरज़ी संख्या 1946 /2 पर स्थित है और वादी मालिक, काबिज़ व दख़ील है ?

2. क्या वाद का मूल्यांकन कम किया गया है ?

3. क्या अदा न्यायशुल्क अपर्याप्त है ?

4. क्या प्रतिवादीगण वादी से मुo 50 हज़ार रुपये विशेष हर्ज़ा प्राप्त करने के अधिकारी है?

5. वादी किस अनुतोष को पाने का अधिकारी है ?"

5. Issue No.1 was in regard to the fact whether plaintiff-appellant was the owner in possession of House No.1946/2. The Trial Court found that the license being paper no.9A-1 be not relied upon as, at the time of filing of the suit, the age of the plaintiff was 48 years while the age of the defendant No.3 was 55 years, the age of defendant No.4 was 52 years and the age of defendant No.5 was 47 years and it creates doubt as to why late Nanku had executed license in favour of plaintiff while he had three sons who were older than the plaintiff and the case set up by the plaintiff as to his loneliness is not made out. The Trial Court found that the plaintiff was not the owner of house in dispute, but found him to be in possession over the said house. The suit was dismissed vide judgment dated 31.01.2014. Against the said judgment, Civil Appeal No.22 of 2014 was filed wherein the Court framed following point of determination :

"1. क्या अपीलार्थी वादी के पक्ष में कोई इजाजतनामा स्वo ननकू द्वारा निष्पादित किया गया है और अपीलार्थी द्वारा उक्त इज़ाज़तनमे के आधार पर वादग्रस्त स्थान पर निर्माण कराया है एवं वादी इजाजतनामें की शर्तो के अनुसार वादग्रस्त संपत्ति का मालिक काबिज है ?

2. क्या अपीलार्थी किसी अनुतोष पाने का अधिकारी है ?"

6. The lower Appellate Court also recorded categorical finding against the appellant and disbelieved the license, paper No.9A-1, and dismissed the appeal vide judgment dated 10.12.2021, hence the present appeal.

7. Sri Sharad Kumar Srivastava, learned counsel appearing for the appellant submitted that both the Courts below while recording finding as to the possession of plaintiff-appellant dismissed the suit as far as ownership is concerned. He further contended that both the Courts below had misread the provisions of Sections 52 and 60 of Indian Easement Act, 1882 (hereinafter referred to "Act, 1882").

8. Refuting the arguments of the appellant's counsel, Sri S.K.Mishra, learned counsel for the respondents submitted that both the Courts below had rightly refused to grant permanent injunction and found the plaintiff-appellant not to be the owner of house in dispute. He further contended that the plaintiff had failed to prove the license alleged to be granted by Nanku in the year 1974.

9. Having heard counsel for the parties and from perusal of records I find that entire case of the plaintiff-appellant hovered around the claim that a licence was granted by late Nanku, father of defendant-respondents No.3 to 5. Both the Courts below had recorded a categorical finding against plaintiff-appellant as to the licence. The Courts below have disbelieved the execution of license on the ground that the plaintiff is younger in age to the defendants No.3 to 5 and there arose no occasion for late Nanku to have executed such license in favour of plaintiff on the ground alleged in the plaint that he was lonely and needed someone so the license was granted.

10. Once both the Courts below had recorded categorical finding to the effect that defendant No.3, 4 and 5 who were aged about 55, 52 and 47 years respectively at the time of institution of the suit and the plaintiff was only 48 years, meaning thereby in the year 1974, late Nanku was not lonely but was having three sons and thus there was no need for execution of license in favour of the plaintiff.

11. Moreover, Section 52 of Act, 1882 provides for the license and Section 60 of Act, 1882 provides the condition in which a license can be revoked by a granter. It is not a case where the plaintiff has come up with the allegation that the license, which was granted by late Nanku, was being revoked and thus benefit provided under Section 60(a) and (b) of Act, 1882 cannot be given to the plaintiff. The sole case of the plaintiff is that a permanent injunction be granted against the defendants.

12. The plaintiff-appellant has failed to demonstrate that any eviction proceedings has been launched at the behest of the defendants and that benefit of Section 60 of the Act, 1882 is being claimed by him. Once a categorical finding of fact has been recorded by both the Courts below, disbelieving the licence being paper No.9A-1, no occasion arise for interfering in the finding of fact.

13. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :

"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:

"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."

26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."

14. Having considered the case of the appellant, I find that no substantial question of law arises and both the Courts below had recorded categorical finding against the plaintiff-appellant. No interference is required. The appeal stands dismissed.

Order Date :- 24.5.2022

Kushal