Dildar Gani And Another vs Smt. Asha Gupta And Others
2023 Latest Caselaw 12825 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 08.12.2022
 
Delivered on 26.04.2023
 

 
Court No. - 18
 

 
Case :- SECOND APPEAL No. - 266 of 2022
 

 
Appellant :- Dildar Gani And Another
 
Respondent :- Smt. Asha Gupta And Others
 
Counsel for Appellant :- Mohammad Aslam Khan
 
Counsel for Respondent :- Ravi Shanker Singh,Girish Chandra Sinha,Kirti Veer Singh
 

 
Hon'ble Saurabh Lavania,J.

Heard Mohammad Arif Khan, learned Senior Advocate assisted by Mohammad Aslam Khan, learned counsel appearing on behalf of the defendants-appellants and Sri Girish Chandra Sinha, learned counsel appearing on behalf of the plaintiffs-respondents.

By means of the present appeal preferred by the defendants-appellants under Section 100 of Civil Procedure Code (hereinafter referred to as "CPC"), the appellants have challenged the judgment and decree dated 31.10.2022, passed by the District Judge, Sultanpur in Civil Appeal No. 06 of 2018 [Dildar Gani And Another v. Ratan Kumar (now deceased) through LRs and others] as also the judgment and decree dated 16.12.2017, passed by the Civil Judge (Junior Division), Musafirkhana, Sultanpur in Regular Suit No. 435 of 1986 (Gaya Prasad and others v. Dildar Gani And Another).

Vide judgment and decree dated 16.12.2017, the suit filed by one Gaya Prasad against the present appellants was decreed and being aggrieved, the Regular Civil Appeal No. 06 of 2018 was filed, which was dismissed vide judgment and order dated 31.10.2022 affirming the judgment of the trial Court.

Admittedly, the Regular Suit No. 435 of 1986 was filed against the defendants-appellants indicating therein that the defendant No. 1-appellant No. 1 (Dildar Gani) is the tenant of the shop Nos. 1 and 2 at Rs. 8/- per month situated in the area indicated in the plaint as "Aa, Ba, Sa, Da, Ya, Ra, La and Va" and defendant No. 2 (Usman Gani) is real brother of appellant No. 1 and he is with appellant No. 1. As per plaint case, the area described in the suit is the property situated at Village Palpur, Pargana, Jagdishpur, Tehsil- Musafirkhana, District- Sultanpur over Plot No. 390 indicated as "Aa, Ba, Sa, Da, Ya, Ra, La and Va".

In regard to ownership, as per averments made in the plaint, the area indicated as "Aa, Ba, Sa, Da, Ya, Ra, La and Va" in the plaint as also in the map appended to the plaint came into possession on account of the permission/Izajatnama provided by one Lala Goverdhan Dass, the then Jamindar, and after coming into force the U.P. Z.A.&L.R. Act, 1950 particularly from the date of its vesting, the predecessor in interest became the owner in possession of the property in issue and on account of family settlement, the plaintiff (Gaya Prasad) became the owner of the same. From the copy of plaint, on record, particularly a conjoint reading of paras 6 to 9 as also the prayer clause, it is apparent that broadly on the ground raising illegal construction and damaging the property, in issue, a registered notice dated 03.06.1986 was sent and thereafter, the suit was filed in the month of July, 1986, seeking prayer(s) for evictition, mandatory injunction and permanent injunction. The prayers sought in the plaint are as under:-

"अ- डिग्री तख्लिया बहक पूर्व वादीगण विरुद्ध प्रतिवादीगण बाबत विवादित दुकान प्रदान की जावे।

ब- डिग्री मेनडेट्री इंजक्शन बहक पूर्व वादी विरुद्ध प्रतिवादीगण इस आशय की प्रदान की जावे की प्रतिवादीगण को आदेश दिया जावे की वे न्यायालय के नियुक्त समय के अन्दर विवादित निर्माण अ, ब, स, द को हटा कर जमीन को पाक व साफ करके तख्ता जमीन को हवाले वादी कर देवें और यदि वे ऐसा न करे तो पूर्व वादी के खर्च से न्यायालय द्वारा करा कर उसका भी खर्चा पूर्व वादी को प्रतिवादीगण से दिलाया जावे।

स- जरिये डिग्री हुकुम इम्तिनाई दवामी बहक पूर्व वादीगण प्रतिवादीगण को हमेशा हमेशा के लिए रोक दिया जावे की वे विवादित जायदाद में कोई हस्तक्षेप न करें न कोई तामीर करें।

द- खर्चा मुकदमा पूर्व वादीगण को प्रतिवादीगण से दिलाया जावे।

य- अन्य याचना जो मिल सकती हो प्रतिवादीगण से दिलाया जावे।"

It would be appropriate to refer here that in the map appended to the plaint as also in parra 1 of the plaint, the property, in issue, has been described.

In the plaint, the number of Plot has been indicated as 390 and in the map, the number of Plot has been indicated as "390 Chak (Pratham)/first consolidation".

After service of summons, the defendants-appellants appeared before the trial Court and filed the written statement. A perusal of para 4 of the written statement shows the fact of tenancy in regard to premises described in the plaint was admitted before the trial Court. However, a dispute was raised with regard to the authority (landlord) over the premises, in issue, as initially the suit was filed by two plaintiffs. Paragraph 4 of the written statement on reproduction reads as under:-

"/kkjk&4& ;g lgh gS fd izfroknhx.k fookfnr dksBjh tks uD'kk utjh esa fxufr;ksa ls fn[kykbZ x;h gS esa 8] 8 :i;s izfrekg dh nj ls fdjk;snkj gSA nksuksa oknhx.k yS.M ykMZ gSa ;g oknhx.k ds dFku ls gh ugha lkfcr gksrk gSA dksBjh ua0&1 dk fdjk;snkj mLeku xuh 8 :i;k ekgokg fdjk;snkj gSa vkSj dksBjh ua0&2 dk fdjk;knkj fnynkj xuh 8 :i;k ekgokj fdjk;snkj gSA nksuksa HkkbZ;ksa dk dkjksckj vyx vyx gS ;g dguk fcYdqy xyr gS fd fnynkj xuh djrk [kkunku oks ?kj dk ekfyd gSA"

A query was put on the aforesaid aspect of the case and in response both the counsels representing the parteis, present before this Court, had stated that during pendency of the suit, the name of plaintiff No. 2 was deleted and the suit thereafter was contested by the plaintiff No. 1 namely Gaya Prasad, who during pendency of the suit, expired and subsequently, his legal heirs were substituted.

A perusal of para 2 of the written statement shows that the Plot No. 390 indicated in the plaint was not in dispute before the trial Court. However, in this para, the defendants-appellants have stated that it has not been indicated in the plaint that the Plot No. 390 belongs to which settlement/consolidation proceeding.

Para 10 of the written statement also indicates that Usman Gani was the tenant of room No. 1 situated within the boundaries indicated in the plaint "Aa, Ba, Sa, Da, Ya, Ra, La and Va".

In para 12 of the written statement, the plea of misjoinder of parties was taken and in para 12 Aa of the same, the jurisdiction of the trial Court was assailed on the ground that the suit for eviction would be maintainable before the Court of Small Causes under the Provincial Small Causes Courts Act of 1887.

In para 13 of the written statement, it has been stated that the plaintiff has no concern with the property, in issue, indicated as "Aa, Ba, Sa, Da, Ya, Ra, La and Va" and the same is situated in Gata No. 312 Soyam (3rd Settlement) i.e. prior to first consolidation, which according to para 3 of the affidavit filed in support of the application for interim relief in first consolidation, was numbered as Plot No. 387 and 390 and subsequently, in second consolidation, this number was changed to 304.

In para 21-A of the written statement also, the defendants-appellants created cloud over the ownership of the original plaintiff.

Further, the additional written statement was also filed on 26.08.1993. From this written statement particularly para 5, it is apparent that the defendants-appellants were the tenant of the original plaintiff-Gaya Prasad, however, in this para, it has also been stated that the rooms/shops of which they were the tenant have been vacated and the said property has already been sold in favour of someone else and plaintiff has no concern with the said property.

Para 3 of the additional written statement indicates that the defendants-appellants disputed the title of original plaintiff over the property in issue/shop Nos. 1 to 8 by stating that one Khudabux s/o Kasim Ali, who was the father of defendants-appellants, became the owner in possession of the property in issue by virtue of Izajatnama dated 13.01.1953 of Gaon Sabha.

It would be apt to refer here that before the trial Court, one of the legal heirs of original plaintiff- Gaya Prasad namely Rakesh Kumar (plaintiff Nos. 1/3) had appeared and his statement was recorded under Order 10 Rule 2 CPC and before the trial Court, he stated that the property in issue is situated over Gata No. 390, which is of 3rd settlement.

It would also be relevant to point out here that the statement under Order 10 Rule 2 CPC cannot take status of an admission, which may be conclusive.

Before the trial Court, the Advocate Commissioner was appointed and he submitted a report, which was confirmed subject to the evidence adduced by the parties before the trial Court and before the trial Court, the parties produced oral as also the documentary evidence, which appears from the following paras of the judgment of the trial Court:-

"8& oknhx.k }kjk okn ds leFkZu esa 3 ekSf[kd lk{; ,oa 20 nLrkosth lk{; izLrqr fd;s x;s gSaA ekSf[kd lk{; ds :i esa oknhx.k dh vksj ls ih0MCyw0&1 jkds'k dqekj us lk{; 'kiFk i=125d&2] ih0MCyw0&2 vatuh dqekj us lk{; 'kiFk i= 131d&2 o ih0MCyw0&3 jkt dqekj us lk{; 'kiFk i= 132 d&2 izLrqr fd;k gS ftudks izfroknhx.k us izfrijhf{kr fd;k gSA

9&nLrkosth lk{; ds :i esa oknhx.k dh vksj ls lwph 51x&1 ls iathd`r Qsfeyh lsVyesaV fnukafdr 31-12-1958 dh lR;izfr ¼izn'kZ&1½] lwph 6x&1 ls ewy jlhn fdjk;k fnukad 11-08-85]¼izn'kZ&2½] ewy jlhn fdjk;k fnukad 06-11-85] ¼izn'kZ&3½] fdjk;snkjh lekfIr] nqdku [kkyh djus o fuekZ.k gVkus dh uksfVl fnukad 03-06-86 dh izfr ¼izn'kZ&4½ lwph 124 x&1 ls [email protected] jru dqekj cuke m0iz0 jkT; ds okn i= o fyf[kr dFku dh lR;kfir izfr ¼izn'kZ&5½] [email protected] jru dqekj cuke m0iz0 jkT; esa ikfjr fu.kZ; fnukad 30-01-76 dh lR;kfir izfr ¼izn'kZ&6½ o fMdzh fnukad 25-02-86 dh lR;kfir izfr ¼izn'kZ&7½ lwph 149x&1 ls udy [ksoV cUnkscLr lks;e xzke ikyiqj ¼izn'kZ&8½] lwph 148x&1 ls lR;kfir izfr ikfjokfjd le>kSrk ¼izn'kZ&9½ tulwpukf/[email protected][k.M fodkl vf/kdkjh dk i= ¼izn'kZ&10½ iapk;r fuokZpd ukekoyh 2009 cU/kqvk dyk] nwcsiqj] lqyrkuiqj ¼izn'kZ&11½] lR;kfir izfr ifjokj jftLVj ¼izn'kZ&12½ lwph 185x&1 ls lk0okn0la0 [email protected] Jherh foeyk nsoh cuke Mk0 ftcks/kjru fo'okl esa ikfjr fu.kZ; fnukad 11-----2001 dh lR;kfir izfr ¼izn'kZ&13½ o fMdzh fnukad 27-09-2001 dh lR;kfir izfr ¼izn'kZ&14½] tksr pdcUnh vkdkj i=&41 ¼izn'kZ&15½] tksr pdcUnh vkdkj i=&45 ¼izn'kZ&16½] tksr pdcUnh vkdkj i=&40 ¼izn'kZ&17½] tksr pdcUnh vkdkj i=&41 ¼izn'kZ&18½ ] tksr pdcUnh vkdkj i=&45 ¼izn'kZ&19½ lR;kfir izfr [kljk cUnkscLr lks;e ¼izn'kZ&20½ o fgUnh vuqokn izLrqr fd;k x;k gSA

10& izfroknhx.k }kjk oknhx.k ds lk{;ksa ds [k.Mu ,oa fyf[kr dFku ds leFkZu esa 5 ekSf[kd lk{; ,oa vusd nLrkosth lk{; izLrqr fd;s x;s gSA ekSf[kd lk{; ds :i esa izfroknhx.k dh vksj ls Mh0MCyw0&1 mLeku xuh us lk{; 'kiFk i= 142d&2] Mh0MCyw0&2 uUn dqekj us lk{; 'kiFk i= 153d&2] Mh0MCyw0&3 eks0 [kyhy us lk{; 'kiFk i= 154d&2] Mh0MCyw0&4 ealwj vyh us lk{; 'kiFk i= 163d&2 o Mh0MCyw0&5 eqLrkd us lk{; 'kiFk i= 168 d&2 izLrqr fd;k gS rFkk Mh0MCyw0&2 uUn dqekj dks NksM+dj lHkh dks oknhx.k us izfrijhf{kr fd;k gSA

11- nLrkosth lk{; esa izfroknh x.k dh vksj ls lwph 145x&1 ls fnukad 13-01-53 dk xzke iz/kku dk btktrukek] izfrfyfi ifjokj jftLVj fnukad 18-08-85 ¼izn'kZ&1,½]izfrfyfi ifjokj jftLVj fnukad 30-11-12 ¼izn'kZ&2,½] izfrfyfi ifjokj jftLVj fnukad 29-11-12 ¼izn'kZ&3,½] udy tksr pdcUnh vkdkj i=&2, xzke ikyiqj ¼izn'kZ&4,½] udy tksr pdcUnh vkdkj i=&41 xzke ikyiqj ¼izn'kZ&5,½] udy tksr pdcUnh vkdj i=&45 xzke ikyiqj ¼izn'kZ&6,½] udy cUnkscLr lks;e xzke ikyiqj ¼izn'kZ&7,½] fgUnh vuqokn udy cUnkscLr lks;e xzke ikyiqj] udy uD'kk cUnkscLr lks;e xzke ikyiqj ¼izn'kZ&8,½] udy tksr pdcUnh vkdkj i=&41 xzke ikyiqj ¼izn'kZ&9,½ lwph 140x&1 ls ikap fodz; i= dh izfr ¼izn'kZ&10,½] ¼izn'kZ&11,½] ¼izn'kZ&12,½] ¼izn'kZ&13,½] ¼izn'kZ&14,½]lwph 182x&1 ls iwoZ es izLrqr nLrkost dh izfr;ka rFkk lwph 193 x&1 ls udy [krkSuh 1360 Qlyh ¼izn'kZ&15,½ izfrfyfi ifjokj jftLVj fnukafdr 15-04-2006 ¼izn'kZ&16,½ o e`R;q izek.k i= ¼izn'kZ&17,½ izLrqr fd;k x;k gSA

12& deh'ku vk[;k 15x&2 o deh'ku ekufp= 16x&2 i=koyh ij miyC/k gS ftls lk{;k/khu lEiq"V fd;k tk pqdk gSA"

After considering the pleadings on record, the trial Court for the purposes of adjudication of the matter, in issue, framed the following issues:-

"1&D;k oknh fookfnr nqdkuksa ds Lokeh gSa ;fn gka rks D;k fookfnr nqdku izfroknhx.k ls [kkyh djk;s tkus ;ksX; gS\

2& D;k fookfnr fuekZ.k gVk;s tkus ;ksX; gS\

3&D;k okn dky ckf/kr gS\

4&D;k okn la/kk;Z ugh gS\

5&D;k oknh fdlh vU; vuqrks"k dks ikus dk vf/kdkjh gS\

6&D;k okn i{kdkjksa ds vla;kstu ;k dqla;kstu ls ckf/kr gS\

7&D;k oknh flfoy U;k;ky; ds {ks=kf/kdkj ls ckgj gS\

8&D;k okn Hkwfe IykV ua0 390 esa fLFkr gS\

9&D;k izfroknhx.k dh iwoZ LohdkjksfDr mu ij ,D;wlsUl o focU/k dk izHkko j[krh gS\

10&D;k okn vYiewY;kafdr gS ,oa iznRRk U;k; 'kqYd vi;kZIr gS\"

The issue No. 3 relates to the point of limitation; issue No. 4, regarding maintainability of suit; issue No. 6, regarding misjoinder of parties and issue No. 10, regarding Court fee were decided in favour of the plaintiffs-respondents and the same are not in issue before this Court. The trial Court while deciding the issue No. 7 in favour of plaintiffs-respondents observed that the Court of Small Causes has not been established in District Sultanpur, as such, the suit for evicting the tenant would be maintainable before the Civil Court. The decision on the issue No. 7 is also not in issue before this Court.

To ascertain that the property in issue is situated over the Plot No. 390, the issue No. 8 was framed. The trial Court after considering the statement(s) of PW-1, DW-1 and the relevant documents on record i.e. registered family settlement, rent receipt, notice, Izajatnama of defendants-appellants and the judgements of the competent Court of jurisdiction passed in Regular Suit No. 615 of 1986 and Regular Suit No. 11 of 1971 and certain admissions made by the defendants-appellants in the written statement, observed that the suit property is situated over the Plot No. 390. The observation of the trial Court in this regard reads as under:-

"ih0MCyw0&1 ds ekSf[kd o nLrkosth lk{; izn'kZ&1]7]13 o 14 ,oa izfroknhx.k ds vfrfjDr fyf[kr dFku 180d&1 dh /kkjk&2 esa LohdkjksfDr&fd oknhx.k us cUnkscLr lks;e ds xkVk la0390 ds fy;s okni= izLrqr fd;k gS rFkk Mh0MCyw&1 ds izfrijh{kk ds ist6 ds bl lk{; dFku ls fd&esjk lEiw.kZ fuekZ.k o dCtk tks LFky futk;h o mlds fudV fLFkr gS mldk {ks=Qy vankt dj Hkh ugh crk ldrkA esjk ;g lkjk fuekZ.k iwjs 390 ua0 ij gS& ds vk/kkj ij U;k;ky; dk ;g Li"V er gS fd okn Hkwfe cUnkscLr lks;e ds IykV ua0 390 esa fLFkr gSa ijUrq U;k;ky; dks Hkzfer djus ds fy;s izfroknhx.k us fdjk;snkjh okyh nqdkuksa ,oa blls laYkXu Hkwfe ds fookn dks vln~Hkkoiw.kZ rjhds ls tfVy cukus ds fy;s oknHkwfe dks igpku;ksX; ugh gksus ,oa euekus rjhds ls igys IykV ua0 390 esa fLFkr ugh gksus dk dFku vkSj fQj IykV ua0 390 esa gksus dk dFku o lk{; fn;k gSA izfroknhx.k dk ,slk ifjorZuh; dFku lkE;k] U;k; o 'kqn~/k vUr%dj.k ds fl}kUr ds foijhr gksus ds lkFk lkFk yksduhfr ds Hkh fo:) gSA"

The issue No. 9 was framed by the trial Court on the principles embodied under Sections 115 and 117 of the Evidence Act i.e. acquiescence and estoppel. The trial Court after considering the oral testimony of the plaintiff(s) and defendant(s) as also the rent receipts placed before it, duly proved by the oral testimony and the pleadings in the original written statement as also the additional written statement held that the defendants-appellants are the tenants of shop Nos. 1 and 2 situated in the property indicated in the plaint and the map appended thereof as "Aa, Ba, Sa, Da, Ya, Ra, La and Va".

After holding aforesaid, the trial Court decided the issue Nos. 1, 2 and 5. The trial Court while deciding these issues in favour of the plaintiffs considered the Commission Report, which was confirmed subject to the evidence adduced by the parties during trial, map and the rent receipts as also the judgment passed in Regular Suit No. 11 of 1971 dated 30.01.1976 and the decree of eviction dated 25.02.1986 as also the statements of the witnesses recorded before the trial Court i.e. PW-1, PW-2, PW-3, PW-4, DW-1, DW-2, DW-3, DW-4 and DW-5 and other evidences observed that the plaintiffs-respondents are the owner in possession of the shop situated in Plot No. 390 and they are entitled for the decree of eviction and possession and thereafter, decreed the suit for the reliefs sought vide judgment and decree dated 16.12.2017. The relevant portion on reproduction reads as under:-

"U;k;ky; dk er gS fd oknhx.k fdjk;snkjh lekfIr dh frfFk 03-06-86 ls fookfnr nqdkuksa ,oa layXu Hkwfe ij dCtk o mi;ksx ls oafpr gS ,oa izfroknhx.k bl ij vuf/kd`r dCtk cuk;s j[ks gSa blfy;s os fookfnr nqdkuksa ,oa layXu Hkwfe ij vuf/kd`r dCtk o mi;ksx ds fy;s oknhx.k dks {kfriwfrZ ds fy;s ftEesnkj gSA ih0,l0csnh cuke izkstsDV bD;wiesUV dkiksZ-vkQ bf.M;k ,0vkbZ0vkj01994 fnYYkh 25 ds fofu'p; fd ;fn fdjk;snkj fuf'pr le; ds i'pkr ifjlj dks fjDr ugh djrk gS ,oa vuf/kd`r dCtk cuk;s j[krk gS rks vuf/kd`r dCtk o mi;ksx ds fy;s cktkj nj ij {kfriwfrZ ds fy;s ck/; gS] izLrqr okn ds rF;ksa ij ykxw gksrk gSA

mijksDr fo'ys"k.k ds vk/kkj ij U;k;ky; dk fu"d"kZ gS fd oknhx.k fookfnr nqdkuksa ds Lokeh gSa ,oa os fookfnr nqdku izfroknhx.k ls fjDr djk dj rFkk fookfnr fuekZ.k v]c]l]n gVok dj izfroknhx.k ls fjDr ,oa 'kkfUriw.kZ dCtk ikus ds vf/kdkjh gSaA oknhx.k izfroknhx.k ls muds }kjk fookfnr nqdku o layXu Hkwfe ij vuf/kd`r dCtk o mi;ksx ds fy;s :0 250 izfrekg dh nj ls okn lafLFkr gksus dh frfFk ls fu.kZ; dh frfFk rd izfrdj Hkh ikus ds vf/kdkjh gSA

26&mijksDr okn fcUnqvksa ds fuLrkj.k ds vkyksd esa U;k;ky; dk ;g fu"d"kZ gS fd oknhx.k vius vkKkid O;kns'k }kjk dCtk izkfIr dk okn izfroknhx.k ds fo:) lkfcr djus esa iw.kZr;k lQy jgs gSA

vr% oknhx.k dk okn lO;; vkKIr fd;k tkrk gSA izfroknhx.k dks /kkjk&39 fofufnZ"V vuqrks"k vf/k0 ds vUrZxr vkKkid O;kns'k }kjk vknsf'kr fd;k tkrk gS fd os okn i= ds ekufp= esa iznf'kZr fookfnr [email protected] ua0 1 o 2 dks [kkyh djds ,oa fookfnr fuekZ.k v]c]l]n dks gVkdj Hkwfe dks [kkyh djds oknhx.k dks bldk dCtk rhu ekg ds vUnj vUrfjr dj nsA"

Being aggrieved by the judgment and decree of the trial Court dated 16.12.2017, the defendants-appellants approached the First Appellate Court under Section 96 of CPC by means of Civil Appeal No. 06 of 2018. Before the First Appellate Court, the defendants-appellants stated that the issues were not framed properly by the trial Court and also raised the dispute regarding the Plot No. 390 over which the property is situated. Considering the same, the First Appellate Court framed the issue No. 11, which reads as under, and thereafter, the First Appellate Court sent the matter back to the trial Court for recording the finding on the issue No. 11.

**D;k fookfnr lEifRRk cUnkscLr lks;e dh xkVk la0&390esa fLFkr gS] ;k xkVk la0&312 cUnkscLr lks;e orZeku ua0&304 esa fLFkr gS] tSlk fd vfrfjDr izfrokni= esa dgk x;k gS\**

After remand, before the trial Court, the plaintiffs-respondents preferred an application for amendment seeking amendment in the plaint with regard to the number of property. The amendment sought was to the effect that the plaintiffs-respondents be permitted to mention the number of the property in the plaint as Plot No. 390 first consolidation (Chakbandi Pratham) in place of Plot No. 390. This application seeking amendment was rejected by the trial Court vide order dated 07.12.2018 and this order has not been assailed before any Court of law, as such, this order is final and binding between the parties.

For the purposes of disposal of issue No. 11, the trial Court on an application of defendants-appellants issued a Survey Commission. The Survey Commission submitted its report before the trial Court indicating therein that the survey is not possible as the point could not be ascertained on account of dense population adjacent to the property in issue. Thereafter, the trial Court considered the material available on record and observed that the property in suit is situated over the Plot No. 390 of which the number of Plot was 312 in 3rd settlement and in second consolidation proceedings, the number of Plot was indicated as 304 and the property is not situated over the Plot No. 390 Soyam (3rd Settlement). The relevant observation of the trial Court on reproduction reads as under:-

"mHk;i{kksa dh vksj ls fd;s x;s vfHkcpu] muds }kjk izLrqr lk{; rFkk muds }kjk bl vfrfjDr oknfoUnq la0&11 fojfpr gksus ds okn izLrqr izkFkZuki= 204x2 okLrs djk;s tkus losZ rFkk 208d2 izkFkZuki= okLrs la'kks/ku ls ;g iw.kZr;k lkfcr gS fd fookfnr lEifRRk xkVk la0&390 lks;e esa fLFkr ugha gS cfYd xkVk la0&312 cUnkscLr lks;e] izFke pdcUnh ds le; ifjofrZr [kljk ua0&390 orZeku uEcj 304 esa fLFkr gSA vfrfjDr okn fOkUnq la0&11 rnuqlkj fu.khZr fd;k tkrk gSA mDr fu"d"kZ bl v/khuLFk U;k;ky; ds fu.kZ; fnukafdr 16-12-2017 dk Hkkx gksxkA"

The observation aforesaid of the trial Court while deciding the issue No. 11 framed by the Appellate Court, has not been assailed by the parties to the proceedings.

It would be apt to refer here that the application for Survey Commission i.e. Paper No. 204Ga2 was preferred by the defendants-appellants and after considering the fact that the Survey Commission is not possible, the trial Court also rejected the application vide order dated 07.12.2018.

The First Appellate Court considered the pleadings and evidence on record as also the findings recorded by the trial Court on the issues framed by it as also the subsequent issue framed i.e. issue No. 11 framed by the First Appellate Court on which the findings were recorded by the trial Court and thereafter, the First Appellate Court dismissed the appeal and affirmed the judgment of the trial Court by its judgment dated 31.10.2022.

Assailing both the judgments i.e. judgment(s) dated 16.12.2017 and 31.10.2022 of the trial Court and the First Appellate Court respectively, the present appeal has been filed.

For the purposes of admission of the present appeal filed under Section 100 of CPC, learned counsel for the appellant indicated the following substantial questions of law:-

"(a) Whether it is now well settled in law that the plaintiff has to stand on his own legs by proving his case beyond hilt and could not rely upon the weakness of the defence and the learned courts below were justified in law in decreeing the suit?

(b) Whether the plaintiff/respondents who have filed a suit for mandatory injunction against the appellants on the ground that Gaya Prasad, their predecessor in interest acquired plot no.390 (even without disclosing to which year the said plot belongs) from Lala Goverdhandas, Ex-intermediary through Ijajatnama on 13.1.1953 and the basis of the suit i.e. Ijajatnama having not been filed, the learned courts below were justified in law in decreeing the suit?

(c) Whether the plaintiffs/respondents having failed to establish the identity of the land in dispute which was alleged to be part of plot No.390 by taking steps for issue of Survey Commission, despite their application for issue of Survey Commission having been allowed and the learned courts below were justified in law in ignoring the fact that identity of the land in dispute having not been established, hence the judgments passed are sustainable in law?

(d) Whether after recording a finding on issue no.11 which was remitted by the lower appellate court on the application made by the appellants under Order 41 Rule 25 of the Code of Civil Procedure for a finding as to whether the land in dispute lies on plot no.390 of IIIrd Settlement and in view of the finding recorded by the trial court that the land in suit does not lie in plot no.390 of IIIrd Settlement, rather it lies on plot no.390 carved out during first consolidation operations, the learned courts were justified in law in decreeing the suit?

(e) Whether the statement made by the plaintiff/respondent no.6 under Order 10 Rule 2 of the Code of Civil Procedure which could not substantiate the plaint case, the learned courts below were justified in law in decreeing the suit?

(f) Whether from the ample evidence on record, including the judgment passed in appeal no.3 of 2001, setting aside the judgment and decree dated 11.09.2001 passed in Regular Suit No.615 of 1986 Smt. Vimla Devi vs. Dr.Gibodh Ram Viswas filed before the lower appellate court and the trial court by relying upon the judgment dated 11.09.2001 passed in Regular Suit No. 615 of 1986, illegally decreed the suit and the lower appellate court had omitted to consider the judgment dated 29.05.2007 passed in Civil Appeal No.3 of 2001 whereby the judgment and decree dated 11.09.2001 was set aside, the learned courts below were justified in in law in decreeing the suit?

(g) Whether the area of the plot calculated as per the report of the Commissioner is less than the are as per the amended map and the learned courts below were justified in law in decreeing the suit as per plaint map?

(h) Whether the plaintiff, who had set up his title to the land in suit on the basis of Ijajatnama alleged to have been acquired from Ex-intermediary must prove that his transferer had title to the same which the plaintiff having failed to establish, the learned courts below were justified in in law in decreeing the suit on the weakness of defence?

(i) Whether after recording a finding that interpolations have been made in the courts' records i.e. the map filed by the plaintiff and proceedings under Section 340 Cr.P.C. having been initiated, the learned courts below were justified in law in decreeing the suit, relying upon the said map which tantamounts to awarding a premium to the misdeeds of the plaintiffs/respondents?

(j) Whether it is now well settled in law that mere a suit for injunction does not lie when the defendant raises genuine dispute with regard to the title and further raises a cloud over the title of the plaintiff, the relief of declaration is must and the learned courts below were justified in law in decreeing the suit?

(k) Whether mere a simple suit for mandatory injunction without seeking the relief of declaration was cognizable where the defendant raises serious dispute with regard to the title over the property as also its identity, the learned courts below were justified in law in decreeing the suit without the relief of declaration?"

Assailing both the judgments i.e. judgment(s) dated 16.12.2017 and 31.10.2022 of the trial Court and the First Appellate Court respectively, Senior Advocate Mohd. Arif Khan assisted by Mohd. Aslam Khan, Advocate appearing on behalf of defendants-appellants on the substantial questions of law, indicated above, in brief, submitted that it is a settled principle of law that the plaintiff can stand on his own legs by proving his case and he cannot succeed on the weakness of defence. In this case, a perusal of plaint would show that the original plaintiff- Gaya Prasad, predecessor in interest, was claiming the rights over the property, in issue, by saying that he acquired Plot/Gata No. 390 from Lala Goverdhandas, Ex-intermediary, through his Izajatnama. However, the said Izajatnama was never placed before this Court and despite this, both the Courts below have passed the judgments, under appeal, against the appellants. Thus, the same require interference by this Court.

Further submitted that the plaintiff(s) were required to prove that the Shop Nos. 1 to 8, in issue, are situated over Plot/Gata No. 390, however, they failed to prove it. Thus, also the judgments, under appeal, are liable to be interfered with by this Court.

In continuation, it is stated that the shops, in issue, were not situated over Plot/Gata No.390 of 3rd Settlement rather it lies over Plot No. 390 carved out during first consolidation operations, as such also, the suit was not liable to be decreed. In other words, the identity of shops, in issue, could not be established by the plaintiff(s), which is apparent from the findings returned on issue No. 11, wherefrom, it can be deduced that the suit property lies on Plot No. 312 of 3rd Settlement.

Also stated that the issue of title was questioned before the trial Court, as such, it was incumbent upon the plaintiff(s) to prove their title beyond doubt by placing relevant documents including the Izajatnama of Ex-Intermediary.

He further stated that the suit for mandatory injunction simpliciter without seeking a relief of declaration was not maintainable as the appellants raised serious dispute/doubt with regard to title as also the identity of the property in suit. However, the Courts below ignored this aspect of the case and passed the judgments, under appeal, against the appellants.

In support of his submissions, Mohd. Aslam Khan, learned counsel for the appellants placed reliance on the following judgments:-

(1). In the judgment dated 27.01.1987 passed in the case of Savitri v. Surendra Mohan Mohana reported in 1987 5 LCD 137, this Court has observed as under:-

"Learned counsel for the appellant has placed reliance on a decision of the Lahore High Court reported in AIR 1919 Lahore page 156 (Mst Gulab Devi v. Mouji Ram and another) wherein it has been held that a person who sets up a title to property by purchase must prove that his vendor had a title in the property sold. Their Lordships of the Privy Council in Jagdish Narain v. Nawab Said Ahmad Khan (AIR 1946 PC 59) held:

"The plaintiffs were suing in ejectment, and they could only succeed on the strength of their own title. There was no obligation upon the defendants to plead possible defects in the plaintiffs' title which might manifest themselves when the title was disclosed. It was sufficient that in the written statements the defendants denied the plaintiffs' title, and under this plea they could avail themselves of any defect which such title disclosed. "

It will thus be seen that in the instant case the plaintiff has failed to establish his title and the defendant having denied the title of the plaintiff it was incumbent on the plaintiff to establish his title and for that it was necessary for the plaintiff to disclose the right and title of the Society from which the plaintiff claimed to have derived his title. The same view has been taken by a Division Bench of the Bombay High Court in Tateba Ganu v. Taratai (AIR 1957 Bombay 280) wherein the court has held in paragraph 11 that:

"It is for the plaintiff to prove his title and the Court is not concerned with the weakness of the title of the defendant. The defendant may be a trespasser, but as a defendant in possession, he is entitled to ask the plaintiff to prove strictly his title. As the plaintiff has no title, the plaintiff's suit must fail."

The Supreme Court in Moran Mar Basselior v. Thukalan Paulo Avira and others (AIR 1959 SC page 31) has taken similar view as regards the burden of proof. Similar view has also been taken by their Lordships of the Supreme Court in Brahma Nand Puri v. Neki Puri (AIR 1965 SC page 1506) reiterating the rule of law in the following terms:

"In a suit for ejectment the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property."

and I have no hesitation in holding that the plaintiff having failed to prove his title and the title of the plaintiff's vendor having not been proved, as observed by the Bombay High Court in Tatoba Ganu v. Tarabai (Supra), even if the defendant was a trespasser, the plaintiff could act succeed on the weakness of the defendant's case. The same view has been reiterated by this Court in a case reported in 1982 Allahabad Weekly Cases, page 665. 1, accordingly, hold that the finding recorded by the Court below on issue no. I to the effect that the plaintiff had succeeded in proving his title is erroneous since it is based only on the weakness of the oral evidence of the defendant. There it nothing to indicate in the findings recorded that the plaintiff had any right in the property or the Society had any right in the property. The finding recorded by the court below on issue no I is accordingly set aside and the issue is decided in negative and against the plaintiff. In view of the fact that the plaintiff's title is not proved it is not necessary for this Court to enter into the findings recorded on issue nos. 2 and 3 since no relief can be granted to the plaintiff unless he is held or found to be vested with right and title in the property in suit."

(2). In the judgment passed in the case of Atyam Veerraju v. Pechetti Venkanna reported in 1966 AIR (SC) 629, the Hon'ble Apex Court has observed as under:-

"10. Now, consider the facts of the present case. The defendants proved that Peda Narasimhulu and his successors-in-interest for four generations have been in continuous and uninterrupted possession of the suit lands for over a century since 1851. They supplied to the temple one-fourth seer of gingelly oil every day for the evening lighting of the temple during all these years. In 1851, the lands were dry, fetching very little income, and it is possible that one-fourth seer of gingelly oil daily was then a reasonable rent. Subsequently, the lands were converted into wet lands, and they are now fetching a large income. In spite of the increase in land and the letting value, the temple authorities made no attempt to raise the rent of the lands or to evict the tenants. From time to time, the tenants created mortgages and leases of the suit lands for short periods. Had the origin of the tenancy been not known, we could from the facts fairly draw the inference that the tenancy was permanent. Having regard to the long lapse of time, we might even have presumed that the permanent tenancy was granted for legal necessity. But in this case, the origin of the tenancy is known. The tenancy was granted by the Sanad dated November 10, 1851. Whether or not a permanent tenancy was granted is a question of construction of the Sanad. Only the Sanad could show what interest was granted by it. The most striking feature of this case and the thing which tilts the scales against the defendants is the non-production of this Sanad. The defendants have deliberately withheld this document. We should, therefore, make every presumption against them to their disadvantage consistent with the facts. We hold that the document, if produced, would have shown that the tenancy is not permanent. The proved facts are consistent with a lease rather than a license. The manager of the temple in the ordinary course of management had authority to grant leases of the agricultural lands from year to year. Considering all these facts, we hold that the Sanad granted to Peda Narasimhulu a lease of the suit lands from year to year in consideration of his rendering one-fourth seer of gingelly oil every day to the temple."

(3). In the judgment passed in the case of Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan reported in 2021 SCC OnLine SC 675, the Hon'ble Apex Court has observed as under:-

"10. The short question that falls for consideration before us is: Whether the learned Single Judge of the High Court was right in holding that the suit simpliciter for permanent injunction without claiming declaration of title, as filed by the plaintiff, was not maintainable?

12. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

18. It could thus clearly be seen that this is not a case where the appellant-plaintiff can be said to have a clear title over the suit property or that there is no cloud on appellant-plaintiff's title over the suit property. There is a serious dispute between the appellant-plaintiff and respondent-defendant with regard not only to title over the suit property but also its identification, which cannot be decided unless the entire documentary as well as oral evidence is appreciated in a full-fledged trial."

(4). In the judgment passed in the case of Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179 : 2001 SCC OnLine SC 375, the Hon'ble Apex Court has observed as under:-

"8. What is a substantial question of law involved in the case? Section 100 of the Code of Civil Procedure, 1908 (hereinafter, "the Code" for short) as substituted by the Code of Civil Procedure Amendment Act, 1976 (104 of 1976) w.e.f. 1-2-1977 reads as under:

"100. Second Appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] , Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722] .)

10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction.

12. The phrase "substantial question of law", as occurring in the amended Section 100 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 substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :

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

and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

14. 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, insofar 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."

(5). In the judgment passed in the case of Rengan Ambalam v. Sk. Dawood reported in (2019) 6 SCC 399, the Hon'ble Apex Court has observed as under:-

"7. Now so far as the submission made on behalf of the appellants that in exercise of powers under Section 100 CPC, the High Court ought not to have interfered with the findings of fact recorded by both the courts below and ought not have reappreciated the entire evidence of record is concerned, from the impugned judgment and order [Sk. Dawood v. Rengan Amabalam, 2007 SCC OnLine Mad 1527] passed by the High Court and in the facts and circumstances of the case, we are of the opinion that the High Court has not exceeded in its jurisdiction while deciding the appeal under Section 100 CPC. The High Court has framed and answered the substantial questions of law referred to in para 10 of the impugned judgment and order [Sk. Dawood v. Rengan Amabalam, 2007 SCC OnLine Mad 1527] . The questions of law framed by the High Court are substantial questions of law, more particularly Question 1. While answering the aforesaid question of law, when the High Court has discussed the evidence, it cannot be said that the High Court has reappreciated the entire evidence on record. Many a times, while deciding/answering the substantial question of law, the evidence on record is required to be discussed and/or considered. But, by that itself, it cannot be said that it is a reappreciation of the entire evidence on record, as sought to be contended on behalf of the appellants."

(6). In the judgment passed in the case of Sk. Bhikan v. Mehamoodabee reported in (2017) 5 SCC 127, the Hon'ble Apex Court has observed as under:-

"17. When the Court is called upon to interpret the documents and examine its effect, it involves questions of law. It is, therefore, obligatory upon the High Court to decide such questions on merits. In this case, the High Court could do so after framing substantial questions of law as required under Section 100 of the Code. It was, however, not done."

(7). In the judgment passed in the case of D.R. Rathna Murthy v. Ramappa reported in (2011) 1 SCC 158, the Hon'ble Apex Court has observed as under:-

"9. Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the reappreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa [(2000) 6 SCC 120 : AIR 2000 SC 2108] , Hafazat Hussain v. Abdul Majeed [(2001) 7 SCC 189] and Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] .)"

(8). In the judgment passed in the case of Ramlal and another v. Phagua and others reported in (2006) 1 SCC 168, the Hon'ble Apex Court has observed as under:-

"19. In Mohan Lal v. Nihal Singh [(2001) 8 SCC 584 : AIR 2001 SC 2942] , the trial court dismissed the suit for the reasons recorded therein on the basis of the record and oral evidence. The lower appellate court, as noticed earlier, had not considered oral and documentary evidence properly. The lower appellate court which is the final court of fact mechanically confirmed the findings of the trial court and upheld the judgment of the trial court dismissing the suit. The High Court for the cogent and convincing reasons recorded in the judgment has rightly interfered with the concurrent findings of both the courts. In our view, both the lower courts have concurrently erred in not appreciating the oral and documentary evidence properly and, therefore, the High Court is at liberty to reappreciate the evidence and record its own conclusion for reversing the orders passed by the lower court. The judgment of this Court in the case of Mohan Lal v. Nihal Singh [(2001) 8 SCC 584 : AIR 2001 SC 2942] cited by the learned counsel for the appellant will not be of any assistance to the appellant herein.

22. The case of Indira Kaur v. Sheo Lal Kapoor [(1988) 2 SCC 488] was cited by the learned Senior Counsel appearing for Respondent 1 in regard to the scope of Article 136. In the above judgment, this Court in para 7 held that Article 136 does not expressly forge any fetters on the power of this Court to interfere with the concurrent findings of fact. Though, this power has to be exercised sparingly but if and when the Court is satisfied that grave injustice has been done it is not only the right but also the duty of the Court to reverse the error and the injustice and to upset the finding notwithstanding the fact that it has been affirmed earlier. This Court also held that it is not the number of times that a finding has been reiterated that matters. What really matters is whether the finding is a manifestly unreasonable and unjust one in the context of the evidence on record. This judgment squarely applies to the case on hand. In the instant case, the High Court has rightly exercised its right and discharged its duty to reverse the error and removed the injustice done by the courts below. The High Court is right in exercising its duty, rightly so in interfering with unreasonable and unjust findings by both the courts below.

23. On a careful perusal of the materials on record, it will be clear that both the courts below did not appreciate the evidence on record both oral and documentary and, therefore, the findings arrived at by the High Court, in our opinion, do not call for any interference under Article 136 of the Constitution and the civil appeal deserves to be dismissed."

Opposing the present appeal, Sri Girish Chandra Sinha, learned counsel for the plaintiffs-respondents submitted that based upon the "landlord-tenant" relationship, the suit was filed. The suit was filed seeking decree of eviction, mandatory injunction regarding removal of illegal constructions raised by the defendants to the suit as also of perpetual injunction restraining the defendants to not to interfere in the property in suit and also for raising illegal construction over the same. In the suit based upon the "landlord-tenant" relationship, the proving of title is not necessary. Moreover, in paragraph 4 of the written statement filed by the defendants to the suit, they have admitted that they are the "tenant" of the shops in issue.

He further submitted that just to avoid the eviction, the defendants to the suit in the written statement(s) have raised the plea related to title of property, in issue, by saying that the tittle of the property, in issue, vests with the defendants. The admission regarding "landlord-tenant" relationship in fact was not specifically refuted. In the written statement(s) just to avoid the eviction, the defendants to the suit stated that the plaintiff(s) have no concern with the land indicated as "Aa, Ba, Sa, Da, Ya, Ra, La and Va" as the land, in issue, i.e. Plot No. 312 is part of Bandobast Soyam and after abolition of Zamindari, the said land became the part of Gaon Sabha- Palpur and thereafter, the Izajatnama was issued by the Gaon Sabha- Palpur on 13.01.1953 to Khudabux s/o Kasim Ali. The name of father of the appellants is "Khudabux".

It is also stated that in para 21-A of the written statement, defendants have stated that the plaintiff(s) have no concern with the Plot/Gata No. 390. Further, in the written statement just to avoid the decree of eviction, the defendants stated that it is not clear from the plaint that the Plot No. 390 belongs to which Bandobast/Consolidation and in the same, it has further been stated that neither Babulal nor Gaya Prasad nor the present plaintiff(s) are the owner of shops, in issue. In para 13 of writtent statement and para 3 of additional written statement, they have claimed ownership regarding shops Nos. 1 to 8 over the property indicated in the plaint.

Based upon the aforesaid, it is also stated that the defendants themselves claimed the title over the property indicated as "Aa, Ba, Sa, Da, Ya, Ra, La and Va" in the plaint as also in the map appended to the plaint, as such, the onus/burden was upon the defendants to prove that the suit property belongs to them because the suit field by the plaintiff(s) was based upon the "landlord-tenant" relationship. This relationship in the written statement was duly admitted by the defendants. However, before the trial Court, the defendants-appellants failed to prove their title regarding the property in issue by adducing appropriate evidence, though, they tried it by placing a document/Izajatnama dated 13.01.1953, which was discarded. On the other hand, "landlord-tenant" relationship was duly proved by the plaintiff(s) and  based upon the evidence on record the, trial Court decreed the suit and thereafter, the First Appellate Court dismissed the appeal. Thus, the findings on "landlord-tenant" relationship are concurrent and being so, do not require interference in this appeal.

Further submitted that in regard to property in issue, the statement of Rakesh Kumar (Plaintiff No.1/3) was recorded on 21.09.1998 under Order 10 Rule 2 CPC on which heavy reliance has been placed as before the trial Court, Rakesh Kumar had stated that the disputed Plot No. 390 is of Bandobast Soyam/3rd Settelment. The statement made under Order 10 Rule 2 CPC cannot take status of admission which may be conclusive as observed by this Court in the judgment passed in the case of Sher Singh vs. Prithivi Singh; 1974 Law Suit All 277 and in the case of Ram Dularey vs. D.D.Jain & Others; 1965 Law Suit Allahabad 257.

Further submission is that the First Appellate Court on the application of the present appellants framed issue No. 11 and remitted the matter back to the trial Court for recording the finding on the same. The trial Court, upon due consideration, recorded the findings and observed that the disputed Plot/Gata No. 390 is not of 3rd Settlement and the disputed property is situated over Gata No. 312 of 3rd Settlement and thereafter, the same was renumbered in first consolidation proceedings as Khasra No. 390 and the present Number of the said Plot is 304. Thus, the identity of the property in suit was duly proved and this finding on issue No. 11 is in consonance with the map appended to the plaint, wherefrom, it can be deduced that the Gata No. 390 was of first consolidation.

Moreover, this finding also is in consonance with the specific pleading in paragraph 2 of the plaint, as per which, the shops, in issue, at the time of filing of suit were situated over Gata No. 390 and a conjoint reading of paragraph 2 of the plaint, map appended to the plaint and the findings on issue No. 2, would reflect that the identity of property was fully established before the Courts below. As such, the findings on this aspect of the case are concurrent and are not liable to be interfered with by this Court under Section 100 CPC.

Sri Sinha further stated that two things were required to be proved before the trial Court, which were landlord-tenant relationship and the "identity" of the property. The "landlord-tenant" relationship was admitted as appears from paragraph 4 of the written statement and subsequently, the defendants took contradictory plea by establishing their title in the property in suit, which they have failed to prove.

Thus, the findings, which are concurrent, are not liable to be interfered with by this Court.

In support of his submissions, Sri Girish Chandra Sinha, learned counsel appearing on behalf of plaintiffs-respondents placed reliance on the following judgments:-

(1). In the judgment passed in the case of Neeta Gajwani v. Hari Ram Achharia reported in 2012 SCC OnLine All 3769, this Court has observed as under:-

"10. The word ''perverse' has been defined as deliberately departing from, what is normal and reasonable. It obviously means unreasonableness and irrational.

11. This perversity has rightly been corrected by the learned First Appellate Court. A Court of law, particulary, a Civil Court of original jurisdiction cannot declare any decree passed by it, in an earlier suit, as void and non est and is not binding upon the Court itself. Unless it is specifically challenged and is under issue. The said decree, if obtained by fraud, could well have been chal-lenged and it could have been declared as void on the ground of the said fraud. In such a suit, the decree can be set aside on the basis of proof or disproof by the parties of that decree or by the true owner or any other affected person, as the case may be. A licensee has no right to claim that any memorandum of under-standing of family settlement among the owners was not registered, and the suit filed on the basis of it earlier, was not maintainable, in which the defendants were not parties nor their right or title has been affected by that decree.

13. Learned Counsel for the appellants vehemently argued that the fam-ily settlement which gives right to some of the owners, introduces new owner or takes away the rights of ownership of some of the co-owners, should necessar-ily be registered. That legal proposition has rightly been settled by the Hon'ble Apex Court by a Full Bench in the case of Kale v. DDC [(1976) 3 SCC 119 : AIR 1976 SC 807.] and Lakshman Das v. Ramdas [(1989) 3 SCC 99 : AIR 1989 SC 1923.] . This legal proposition is not at all relevant and the thrust of the learned Counsel for the appellants on this issue is nothing but a camouflage to delay the disposal of controversy finally, which shall result in nothing less than perpetuity in occupation of the defendants, who are mere licensees and their license has been terminated through written notice, which has been served upon them.

15. In Sir Chunnilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. [AIR 1962 SC 1314.] , the Hon'ble Apex Court for the purposes of determining the issue has held:

"The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties."

17. In Smt. Bibhabati Devi v. Ramendra Narayan Roy [AIR 1947 PC 19.], it has been held:

"the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing.... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word a judicial pro-cedure at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be cor-rected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law."

19. In the case of Union of India v. Ibrahim [2012 (30) LCD 1635.] in Civil Appeal No. 1374 of 2008, decided on July 17, 2012, the Hon'ble Apex Court has held:

"There may be exceptional circumstances where the High Court is com-pelled to interfere, notwithstanding the limitation imposed by the wording of section 100, C.P.C. It may be necessary to do so for the reason that after all the purpose of the establishment of Courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the Court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the Court comes to the conclusion that the question (s) framed could not be the substantial question (s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal."

20. A pragmatic overview of these legal descriptions have reduced the controversy to zero."

(2). In the judgment passed in the case of Shantisaran and Others v. Sadiq Hasan and Others reported in 2022 SCC OnLine All 406, this Court has observed as under:-

"12. The learned court below came to a conclusion that on the basis of the evidence led by both the parties, it appears that the dispute arose because of absence of the plaintiff from the village for a long period of time through which period the plaintiff used to visit the village casually and occasionally while residing at Balrampur City. In such circumstances, the land in dispute would have been used by the defendants casually and occasionally in absence of the plaintiff or his legal representatives/successors after his demise. The First Appellate Court has recorded in the judgment under challenge that D.W. 4, Nanake has stated in his cross examination that he has been told by his father that the disputed land/property was owned and possessed by the plaintiff, Late Amir Hasan during his life time and the cowshed etc. existing on the said land was constructed by him.

13. The learned First Appellate Court has held that the law is well settled that when the both the parties have led evidence, the burden to proof looses its significance, the court has to draw a conclusion on the basis of the entire evidence placed on record by both the parties. The evidence adduced by both the parties is sufficient to prove that the disputed land was in use and possession of the plaintiff till the time he shifted to Balrampur City.

22. The defendants pleaded that the land in question was originally in possession of the plaintiff and when he started living in Balrampur City, the land came into possession of the defendants, but they did not plead as to how this transfer of possession took place. It is not the case of the defendants that the plaintiff had handed over possession of the land to the defendants and it is also not their case that they entered into possession of the land in a hostile manner in the knowledge of the plaintiff. Therefore, the defendants have not set up a case of adverse possession also.

25. The learned first Appellate Court has held that the law is settled that when both the parties have led evidence, the question of burden of proof poses its importance and logical conclusion can be drawn on the basis of the entire evidence. The law in this regard is that the initial burden of proof lies on the plaintiff to prove his claim, but when the plaintiff has discharged his burden by proving that his ownership and possession of the land, the onus shifts on the defendant to prove his possession and how he acquired it. In the present case, the plaintiff's witnesses as well as those of the defendants. had stated that originally the plaintiff was in possession of the land. Although the defendant/appellant had disputed the plaintiff's claim, they failed to plead and prove as to when did they enter into possession of the land and what was the nature of their possession. In these circumstances, the suit was rightly decreed by the learned first Appellate Court and there is no illegality in it.

26. The scope of interference in a Second Appeal is well settled and it has been reiterated by the Hon'ble Supreme Court in S. Subramanian v. S. Ramasamy, (2019) 6 SCC 46 in the following words:--

"7.3. As per a catena of the decisions of this Court, while deciding the second appeal under Section 100 CPC, the High Court is not required to reappreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the courts below when the findings recorded by both the courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.

7.4. Even otherwise, it is required to be noted that as per a catena of the decisions of this Court and even as provided under Section 100 CPC, the second appeal would be maintainable only on substantial question of law. The second appeal does not lie on question of facts or of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam3, in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

OR

(ii) Contrary to the law as pronounced by the Apex Court;

OR

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.

7.5. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain4. In the aforesaid decision, this Court has specifically observed and held : (SCC p. 437)

"Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."

27. The findings of the learned First Appellate Court are based upon a thorough and proper examination and scrutiny of the entire evidence available on record and, in any case, the same cannot said to be perverse, so as to warrant interference by this Court in exercise of its powers under Section 100 of the Civil Procedure Code. All the submissions made by the learned Counsel for the defendants/appellants do not give rise to any substantial question of law. I find no good ground for admission of the appeal."

(3). In the judgment passed in the case of Roop Singh v. Ram Singh reported in (2000) 3 SCC 708, the Hon'ble Apex Court has observed as under:-

"7. It is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact-finding courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. (Thakur Kishan Singh v. Arvind Kumar [(1994) 6 SCC 591] ) Hence, the High Court ought not to have interfered with the findings of fact recorded by both the courts below.

8. It also appears that the High Court had ignored the finding of fact to the effect that the defendant had failed to prove the so-called agreement to sale in his favour. He had not produced on record the said sale deed or a letter executed by the plaintiff in favour of the defendant or his brother. The appellate court had further observed that the defendant had not led the evidence of the witnesses in whose presence the said document was executed. In our view, there being no document on record, the alleged contents of the deed could not have been considered by referring to the oral say of the defendant."

(4). In the judgment passed in the case of Shesh Narainpandey And 2 Others v. Smt. Raj Kishori reported in [2013 (31) LCD 718], this Court has observed as under:-

"32. in the case of Gurdev Kaur & Others V. Kaki & Others (supra) it has been held that :

"70. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.

71. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law."

44. From the above it is clear that trial court and first appellate court have very thoroughly examined and discussed the evidence on record and given a finding. In view of this as the findings given by trial court and first appellate court are findings of facts, these findings are not perverse and are based on evidence and no interference is warranted.

45. Lot of emphasis was given by learned counsel for the appellant that courts have relied upon Nagarpalika records for title of the disputed house and receipts to show that Vishwanath Prasad and Gurudin and later on Rajkishori Devi were owenrs of the property. Several rulings have been cited but a perusal of the evidence and judgment reveals that plaintiff has proved her case on the basis of her evidence. No doubt enteries in Nagarpalika or town area register are not evidence for title and is only indicative of the fact as to from whom taxes are to be realized but definitely it draws a presumption, in absence of any other evidence that the person whose name is entered into Nagarpalika or town area register is in possession of the disputed property.

46. In the case of Hero Vinoth (minor) V. Sesha Mall AIR 2006 Supreme Court 2234, it is held that :

"(i) An inference of fact from the recitals or contents of a documents is a question of fact. But the legal effect of the terms of a document is question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therfore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal lprincples emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise ina contrary situation, where the legal position is clear, either either on account of express provisions of law or binding precedents, but the court below had decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on material question, violates the settled position of law -

(iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When Court refers to 'decision based on no evidence', it not only refers to cases where referred there is a total dearth of evidence, taken as a whole, is not reasonably capable of supporting the finding."

47. Judging the above guidelines, it is very clear that substantial question of law and general question of law are two different things. The substantial questions of law framed by the petitioner and the appellant in memo of appeal are only question of fact or question of law. They Cannot be termed as substantial question of law."

(5). In the judgment dated 1.11.2012 passed in the case of Durga Prasad And Others v. Ram Saran reported in [2013 (31) LCD 453], this Court has observed as under:-

"Heard learned counsel for all the parties and gone through the records.

This second appeal has been preferred against the judgment and decree dated 1.11.2011 passed by the Additional District Judge, Court No.8, Faizabad in first appeal no.124 of 2009, by which judgment and decree dated 7.8.2009 passed by learned VIth Additional Civil Judge (Junior Division), Faizabad in civil suit no.194 of 1986 has been confirmed.

This appeal has been preferred with delay of eight months and ten days. Through C.M. Application No.90982 of 2012, the appellants have prayed for condonation of delay under Section 5 of Limitation Act on the ground that the appellant has contacted his counsel Sri A.N. Singh, Advocate on 15.01.2012 and again on 18.01.2012. But, thereafter, on 20.09.2012 he came to know that his counsel Sri A.N. Singh has passed away on 07.09.2012. The settled legal position is that each days' delay has to be explained. The appellants have not explained any reason whatsoever falling between 18.01.2012 and 07.09.2012 to contact his counsel. In the meantime, as deposed in the counter affidavit the appellant appeared in the execution case no.1 of 2012. He moved adjournment application on 29.09.2012 which is contained as Annexure No.1, in which it was alleged that he has received copies of judgment and decree on 28.09.2012 and he has to go to contact his counsel at Lucknow and on this ground he sought adjournment. It was further alleged that in that application that Durga Prasad was doing pairavi of the case who has not filed any appeal before the High Court. This annexure falsifies the averment made by the appellant in his affidavit and, as such the delay has not at all been explained.

In view of this factual position the application under Section 5 of Limitation Act (C.M. Application No.90982 of 2012) deserves to be dismissed.

However, in view of law laid down by the Hon'ble Apex Court in the State of U.P. and others v. Harish Chandra and others, (1996) 3 UPLBEC 1808, I have considered the question of condonation of delay from the perspective that the appeal deserves merit or not. This appeal arisen out of concurrent findings of both the two courts below. The plaintiffs/respondents have filed suit for mandatory and permanent injunction on the ground he is in continuous possession of plot no.786 (old no.431) and defendants are interfering in his possession without any right or title. The suit has been rightly decreed by the learned Trial Court and the appeal has also been rightly dismissed.

A detailed hearing and perusal of the judgment and orders of both the Courts below made it abundantly clear that no substantial question of law is involved in this appeal. Even appreciation of evidence by the two Courts below has not been assailed before this Court.

In Sir Chunnilal V. Mehta & & Sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd., reported in A.I.R. 1962 S.C., 1314, the Hon'ble Apex Court for the purposes of determining the issue has held :

"The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties."

Further in Rajeshwari Vs. Puran Indoria, reported in (2005) 7 S.C.C., 60, it was held :

"The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-quanon for the exercise of jurisdiction under the provisions of Section 100 C.P.C. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence."

In Smt. Bibhabati Devi Vs. Ramendra Narayan Roy & amp; Ors., reported in A.I.R. 1947 PC 19, it has been held :

"the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing .... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word a judicial procedure at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law."

In Vijay Kumar Talwar Vs. Commissioner of Income Tax, New Delhi, reported in (2011) 1 S.C.C. 673, it has been held:

"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 on the decision of the case, if answered either way, insofar 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. It will, therefore, depend on the facts and circumstances of each case, whether a question of law is a substantial one 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."."

In the case of Union of India Vs. Ibrahim & Another in Civil Appeal No.1374 of 2008, decided on July 17, 2012, the Hon'ble Apex Court has held :

"There may be exception circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal."

In view of the law as discussed above, the second appeal is dismissed."

(6). In the judgment passed in the case of Maria Margarida Sequeria Fernandes and Others v. Erasmo Jack de Sequeria(Dead) through L.Rs. reported in 2012 AIR SCW 2162, the Hon'ble Apex Court has observed as under:-

"31. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies. The truth should be the guiding star in the entire judicial process.

32. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty.

33. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271, this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functionswhether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.

52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.

61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.

63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.

64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.

67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.

69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.

71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.

Suit for Mandatory Injunction

80. It is a settled principle of law that no one can take law in his own hands. Even a trespasser in settled possession cannot be dispossessed without recourse of law. It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities in consideration. The Court's primary concern has to be to do substantial justice. Even if the Court in an extraordinary case decides to grant ex-parte ad interim injunction in favour of the plaintiff who does not have a clear title, then at least the plaintiff be directed to give an undertaking that in case the suit is ultimately dismissed, then he would be required to pay market rent of the property from the date when an ad interim injunction was obtained by him. It is the duty and the obligation of the Court to at least dispose off application of grant of injunction as expeditiously as possible. It is the demand of equity and justice.

False claims and false defences

84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount.

This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent.

85. This Court in a recent judgment in Ramrameshwari Devi and Others (supra) aptly observed at page 266 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267-268 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."

(7). In the judgment passed in the case of Kashmir Singh v. Harnam Singh & Anr reported in AIR 2008 SC 1749, the Hon'ble Apex Court has observed as under:-

"9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

10. 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 of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were 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 by ignoring material evidence.

15. 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, insofar 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. (See :Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [(2001) 3 SCC 179].

16. The principles relating to Section 100, relevant for this case, may be summarized thus:- (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

17. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

(8). In the judgment passed in the case of Jamal Ahmad v. Aadil Ahmad Khan and another reported in 2015 SCC OnLine All 8662, this Court has observed as under:-

"10. The trial Court rightly held that though it is permissible in law to seek an amendment in the written statement explaining the admission, but it is not permissible to raise a plea which would displace the plaintiff completely from the admission made by the defendant in the written statement. The Supreme Court, in the case of Heera Lal v. Kalyam Mal, 1998 (1) ARC 1 : ((1998) 1 SCC 278 : AIR 1998 SC 618) has approved an earlier three Judge Bench judgment in Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co., (1977) 1 SCR 728 : ((1976) 4 SCC 320 : AIR 1977 SC 680) in ruling that an amendment which completely displaces the plaintiff's case cannot be allowed. While so holding, there Lord-ships of the Supreme Court disagreed with decision of a Bench of two Judges in the case of Akshaya Restaurant v. R Anjanappa, 1995 Supp (2) SCC 303 : (AIR 1995 SC 1498), taking a contrary view. It is observed as under:--

"Consequently it must be held that when the amendment sought in the written statement was of such nature as to displace the plaintiff's case, it could not be allowed as ruled by a three member Bench of this Court. This aspect was unfortunately not considered by latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three member Bench of this Court taking a diametrically opposite view."

(9). In the judgment passed in the case of Abida Khatoon v. State of U.P. reported in 1962 SCC OnLine All 181, this Court has observed as under:-

"16. I shall consider the last argument first. The trial Court has held that the plaintiffs had not left India with the intention of settling down in Pakistan. The appellate Judge reversed this finding and held that the plaintiffs had migrated from India with the intention of making Pakistan their permanent home. Ordinarily this would be a finding of fact binding on this Court in second appeal. But in reviewing the evidence the learned Judge was influenced by several items of evidence which, he could not have taken into account. The first was a sentence in an application moved by the plaintiff Abdul Shakoor before the District Magistrate, Agra, that at the time of leaving India he had "to cast a lingering look behind my native country and cherished home and to bid adieu to all that was dear to me". The learned Judge treated this as an admission by the plaintiffs that on leaving India they said farewell to their country of origin, "otherwise there would have been no reason for his having a heavy heart at the time of his departure from India to Pakistan". I am afraid the learned Judge ignored two principles according to which the statement of a party may be used against him as his admission. The first is that a statement must be considered as a whole and the Court should not pick out isolated sentences-torn from their context.

19. A finding of fact can be reviewed in second appeal if the appellate Court relied on an ambiguous statement torn from its context as an admission by a party without giving that party an opportunity to explain the ambiguity and without considering the effect of the statement read as a whole (Jwala Das v. Pir Sant Das, AIR 1930 PC 245 (247); Mahadeo v. Baleshwar Prasad, AIR 1939 All 626); or if it imported into the evidence its own opinion of controversial situations under the guise of taking judicial notice of "notorious facts". Therefore the finding of the lower appellate Court that the plaintiffs left India for Pakistan with the intention of settling there permanently cannot stand."

(10). In the judgment passed in the case of M/s Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co., reported in (1976) 4 SCC 320, the Hon'ble Apex Court has observed as under:-

"8. The High Court on revision affirmed the judgment of the trial court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.

9. The decision of the trial court is correct. The defendants cannot be allowed to change completely the case made in paras 25 and 26 of the written statement and substitute an entirely different and new case."

Considered the submissions advanced by the learned counsel for the parties and perused the record as also taken note of the judgments placed before this Court, referred above.

Upon due consideration of the aforesaid including the substantial questions of law, referred above, this Court finds that two issues are required to be considered in this appeal for the purposes of admission, as all the substantial questions of law framed in the memo of apeal except the question numbered as 'e' are covered in these two issues, which are:

(i) Whether it was obligatory on the part of the plaintiff(s) to establish the title over the property in suit for eviction, mandatory injunction and permanent injunction, which was based upon the "landlord-tenant" relationship.

(ii) Whether the disputed property i.e. shops in issue were situated over the plot of which the plaintiff(s) were claiming their right i.e. Plot/Gata No. 390.

In regard to issue No. (i), this Court considered the contents of plaint, map appended to the plaint, written statement, additional written statement as also the findings recorded by the trial Court as also by the First Appellate Court while dealing with the appeal filed under Section 96 CPC.

From the aforesaid, what emerges out is that the landlord-tenant relationship was duly admitted in paragraph 4 of the written statement filed by the defendants, though, in the written statement as also in the additional written statement, some contradictory pleas have been taken. For ready reference, paragraph-4 of the written statement on reproduction reads as under:-

"/kkjk&4& ;g lgh gS fd izfroknhx.k fookfnr dksBjh tks uD'kk utjh esa fxufr;ksa ls fn[kykbZ x;h gS esa 8] 8 :i;s izfrekg dh nj ls fdjk;snkj gSA nksuksa oknhx.k yS.M ykMZ gSa ;g oknhx.k ds dFku ls gh ugha lkfcr gksrk gSA dksBjh ua0&1 dk fdjk;snkj mLeku xuh 8 :i;k ekgokg fdjk;snkj gSa vkSj dksBjh ua0&2 dk fdjk;knkj fnynkj xuh 8 :i;k ekgokj fdjk;snkj gSA nksuksa HkkbZ;ksa dk dkjksckj vyx vyx gS ;g dguk fcYdqy xyr gS fd fnynkj xuh djrk [kkunku oks ?kj dk ekfyd gSA"

After considering the material evidence on record particularly the statement of DW-1, the trial Court recorded the observations/findings on issue Nos. 1, 2 and 5 in favour of the plaintiff(s). The issue No. 1 was that as to whether the plaintiff(s) are the owner of shops, in issue, and if yes, then whether they are entitled to get the decree of eviction.

At this stage, this Court is of the view that the observation of the trial Court after considering the statement of DW-1 be reproduced hereunder:-

"Mh0MCyw0 1 izfrijh{kk ds it 8 dk dFku fd& ;g dguk lgh gS fd fookfnr LFky ij nksuksa dksBfj;ksa dk vkB&vkB :i;s izfr dksBh fdjk;snkj Fkk og fdjk;snkjh vc NwV pqdh gS] U;k;ky; ds er esa bl rF; dk lqlaxr lk{; gS fd izfroknh ua0 1 fookfnr nqdku ua0 1 o 2 dk uksfVl izn'kZ&4 ds iwoZ oknhx.k dk fdjk;snkj Fkk ,oa oknhx.k fookfnr nqdkuksa ds Lokeh gSaA ikfjokfjd le>kSrk izn'kZ&1] fdjk;k j'khn izn'kZ&2] 3 o uksfVl izn'kZ&4 /kkjk 91 Hkkjrh; lk{; vf/kfu;e ds vUrxZr loksZRre lk{; gSA blds [k.Mu esa izfroknhx.k }kjk dksbZ Hkh nLrkosth lk{; izLrqr ugh fd;k x;k gSA blls ;g lkfcr gS fd ewyoknh x;k izlkn Lokeh ds :i esa fookfnr nqdkuksa dk fdjk;k izfroknh fdjk;snkj fnynkj xuh ls nqdku [kkyh djus dh uksfVl izn'kZ&4 nsus ds iwoZ rd izkIr djrk FkkA jktsUnz dqekj cuke ftyk tt tkSuiqj] ,0vkbZ0vkj0 1996 bykgkckn 178 esa ekuuh; bykgkckn mPp U;k;ky; dk vfHker fd fdjk;snkj ftls fdjk;k vnk dj jgk gS mlds LokfeRo ls badkj ugha ldrk izLrqr okn ds rF;ksa ij ykxw gksrk gSA"

From the perusal of aforesaid portion of the judgment of the trial Court dated 16.12.2017, it is apparent that DW-1 in his cross-examination specifically admitted the "landlord-tenant" relationship regarding the shops, in issue. The First Appellate Court while considering the point of determination Nos. 3 and 4, which relate to "landlord-tenant" relationship, held that there exits "landlord-tenant" relationship between the plaintiff(s) and defendant(s). The observations made by the First Appellate Court while dealing with the point of determination Nos. 3 and 4 being relevant on reproduction reads as under:-

"fopkj.kh; fcUnq la[;k 3 o 4 %&

fopkj.kh; fcUnq la[;k 3 bl izdkj l`ftr fd;k x;k gS fd **D;k fookfnr Hkwfe esa fLFkr nqdku ftls okni= ds uD'kk utjh esa ua0 1 o 2 ls n'kkZ;k x;k gS esa izfroknhx.k crkSj fdjk;snkj jgrs Fks rFkk viuk O;olk; djrs Fks \** rFkk fopkj.kh; fcUnq la[;k 4 bl izdkj l`ftr fd;k x;k gS fd ** D;k izfroknhx.k dh fdjk;snkjh oknhx.k }kjk uksfVl nsdj lekIr dj nh x;h gS \**

mDr nksuksa fopkj.kh; fcUnq ,d nwljs ls lEcfU/kr gSa blfy, budk fuLrkj.k ,d lkFk fd;k tk jgk gSA

okni= esa oknhx.k }kjk iSjk 4 o 5 esa ;g dFku fd;k x;k gS fd izfroknh la[;k 1 fookfnr dksBjh esa cgSfl;r [email protected]& :i;s ekfld dh nj ls fdjk;s ij fdjk;snkjh ds rkSj ij jgrk gS vkSj iwoZ oknhx.k o izfroknh ds chp yS.MykMZ o VhusUV dk lEcU/k gS rFkk mLeku xuh] fnynkj xuh dk NksVk HkkbZ gS vkSj mlh ds lkFk jgrk gS vkSj dkjksckj djrk gSA ;g Hkh dFku fd;k x;k gS fd izfroknh fdlh izdkj dk rksM+QksM+ ;k jn~nkscny fookfnr Hkwfe esa fcuk jtkeUnh oknhx.k ds ugha djsxkA ;g Hkh dFku fd;k x;k gS fd izfroknhx.k us fcuk jtkeUnh f[kYkkQ ethZ iwoZ oknh ds nkos nkf[kys dh frfFk ls 7 ekg iwoZ ,d dPph rkehj v c l n dj fy;k ,oa rRi'pkr fookfnr dksBjh esa ,d eksgkjk tkfuc mRrj Hkh fcuk jtkeUnh rS;kj dj fy;kA ;g Hkh dFku fd;k x;k gS fd ekg ebZ lu~ 1986 esa izfroknhx.k us rkehj gVkus o nqdku esa mRRkjh eksgkjs dks cUn djus ls bUdkj dj fn;k rFkk iwoZ oknh us ,d fdrk uksfVl tfj;s jftLVMZ Mkd ls izfroknh la[;k 1 dks fnukad 3&6&86 bZ0 dks fn;k vkSj mDr uksfVl ds tfj;s fookfnr fuekZ.k dks gVkus o nqdku [kkyh djus dk vkxzg fd;k ijUrq izfroknhx.k us u rks dksBjh [kkyh fd;k vkSj u gh fookfnr fuekZ.k dks gh gVk;kA

izfroknhx.k vius ewy izfrokn i= dkxt la[;k 30 d ds iSjk&4 esa ;g dFku fd;s gSa fd **;g lgh gS fd izfroknhx.k fookfnr dksBjh tks uD'kk utjh esa 1 o 2 fxufr;ksa ls fn[kk;h x;h gS esa 8&8 :i;s izfrekg dh nj ls fdjk;s nj gSa ysfdu nksuksa oknhx.k yS.MykMZ gSa ;g muds dFkuksa ls lkfcr ugha gksrk gSA dksBjh ua0 1 dk fdjk;snkj mLeku xuh 8 :0 ekgokj dk fdjk;snkj gS vkSj dksBjh ua0 2 dk fdjk;snkj fnynkj xuh 8 :0 ekgokj fdjk;snkj gSA nksuksa Hkkb;ksa dk dkjksckj vyx vyx gSA** izfrokn i= esa ;g Hkh dFku fd;k x;k gS fd dksBjh ua0 1 dk fdjk;snkj mLeku xuh gS ftldks uksfVl ugha fn;k x;k gS fygktk mlds f[kykQ nkok ugha py ldrk gS rFkk izfroknh la[;k 1 dks tks uksfVl nh x;h gS og ukdkfcy gS fygktk mlds f[kykQ Hkh nkok ugha py ldrk gSA bl izdkj izfroknh }kjk vius ewy izfrokn i= esa tks dFku fd;k x;k gS mlls Li"V gS fd izfroknh us fookfnr nqdkukr esa Lo;a dks fdjk;snkj ds :i esa gksus dk dFku fd;k gS rFkk izfrokn i= esa fd;s x;s leLr dFkuksa ls ;g Li"V gks tkrk gS fd izfroknh us ;g Lohdkj fd;k gS fd og fookfnr dksBfj;ksa esa crkSj fdjk;snkj viuk O;olk; vius HkkbZ ds lkFk djrk FkkA ;|fi fd izfroknhx.k }kjk vfrfjDr tokcnkok dkxt la[;k 75 d esa ewy tokcnkos esa fd;s x;s mijksDr dFkuksa ds ?kksj fojks/kkHkk"kh dFku fd;k x;k gS vkSj fookfnr Hkwfe o nqdkuksa dk ekfyd mlds firk [kqnkcD'k ds gksus ds dk dFku fd;k x;k gS tks fdlh izdkj xzkg~; ;ksX; ugha gS D;ksafd loZizFke izfrokn i= esa tks LohdkjksfDr izfroknhx.k }kjk fd;k x;k gS ogh Lohd`fr ges'kk ds fy, oS/k ekuk tk;sxkA

mijksDr ds vykok ih0MCyw0 1 us vius lk{; ls fdjk;snkjh dh jlhn o fdjk;kukek dks izekf.kr fd;k gS ftlls Li"V gS fd izfroknhx.k fookfnr nqdkuksa esa crkSj fdjk;snkj jgrs Fks rFkk oknhx.k o izfroknhx.k ds e/; fookfnr nqdkukr dks ysdj edku ekfyd o fdjk;snkj dk lEcU/k FkA ,sls esa izfroknh dks ;g fdlh izdkj dk gd izkIr ugha gksrk gS fd og fookfnr lEifRr ij edku ekfyd ds LokfeRo ds lEcU/k esa fdlh izdkj dk dksbZ iz'ufpUg [kM+k djs rFkk fookfnr Hkwfe dk ekfyd ;k dkfct Lo;a dk gksus dk dFku djsA fof/k dk ;g lqLFkkfir fl)kUr gS fd fdjk;snkj fdjk;'kqnk lEifRr ds edku ekfyd ds LoRo ij dksbZ iz'u fpUg [kM+k ugha dj ldrk gSA

oknhx.k }kjk vius okni= esa ;g Hkh dFku fd;k x;k gS fd fnukad 03&06&1986 dks tfj;s jftLVMZ Mkd oknhx.k us izfroknhx.k dks uksfVl Hkstk vkSj mlesa ;g dFku fd;k fd fookfnr fuekZ.k dks gVk ysa o nqdku dks [kkyh dj nsa ftl ij izfroknhx.k us u gh mDr uksfVl dk dksbZ tokc fn;k vkSj u gh nqdkukr bR;kfn dks [kkyh fd;kA mDr rF; dks ih0MCyw0 1 }kjk vius lk{; ls izekf.kr djrs gq, dFku fd;k x;k gS fd ebZ lu~ 1986 esa tc izfroknh us uo&fuekZ.k gVkus o nqdku dks mRrjh eksgkjs dsk cUn djkus rFk nqdku dks [kkyh djus ls bUdkj dj fn;k rks iwoZ oknh us ,d uksfVl izfroknh dks tfj;s jftLVMZ Mkd 03&06&1986 dks fn;k vkSj nqdku [kkyh djus dks dgk rFkk rkehj gVkus dks dgk ysfdu izfroknh us rkehj ugha gVk;kA izfroknhx.k }kjk ijhf{kr djk;s x;s xokgku Lo;a Mh0MCyw01 us vius iwjs lk{; esa mijksDr dFkuksa dk fdlh izdkj ls dksbZ [k.Mu ugha fd;k gS vkSj mijksDr nLrkosth lk{; fdjk;sukek o fdjk;snkjh dh jlhn o fookfnr Hkwfe [kkyh djus bR;kfn lEcU/kh uksfVl ds [k.Mu esa fdlh izdkj dk dksbZ lk{; i=koyh ij izLrqr ugha fd;k gSA oknhx.k ds }kjk ijhf{kr djk;s x;s vU; xokgku us Hkh vius&vius ekSf[kd lk{;ksa ls bl rF; dks izekf.kr fd;k x;k gS fd oknhx.k fookfnr Hkwfe o nqdkukr ds ekfyd gSa rFkk izfroknhx.k fookfnr nqdku la[;k 1 o 2 ds fdjk;snkj gSaA

bl izdkj mijksDr fo'ys"k.k ds vk/kkj ij ;g Li"V :i ls izekf.kr ik;k tkrk gS fd fookfnr nqdkukr 1 o 2 esa izfroknhx.k crkSj fdjk;snkj 8&8 :i;s ekgokj fdjk;s ij jgrs Fks ftls [kkyh djus ds fy, oknhx.k }kjk uksfVl fn;k x;k ftlds i'pkr Hkh izfroknhx.k us fookfnr nqdku o Hkwfe dks [kkyh ugha fd;kA voj U;k;ky; }kjk mijksDr fcUnqvksa ij fn;s x;s fu"d"kZ dk voyksdu fd;k x;kA voj U;k;ky; us i=koyh ij miyC/k ekSf[kd ,oa nLrkosth lk{; ,oa izfroknhx.k }kjk fd;s x;s Lo;a ds LohdkjksfDr ds vk/kkj ij ;g fu"df"kZr fd;k gS fd izfroknhx.k fookfnr nqdkukr esa crkSj fdjk;snkj jgrs FksA esjs er esa voj U;k;ky; dk mijksDr fu"d"kZ i=koyh ij miyC/k lk{;ksa ij vk/kkfjr gS ftlesa fdlh izdkj dh dksbZ dkuwuh =qfV;ka o folaxfr;ka ugha gSA

izfroknhx.k }kjk fd;s x;s Lo;a dh LohdkjksfDr rFkk oknhx.k ds ekSf[kd ,oa nLrkosth lk{; ds vk/kkj ij ;g izekf.kr ik;k tkrk gS fd fookfnr nqdkukr la[;k 1 o 2 esa izfroknhx.k crkSj fdjk;snkj 8&8 :i;s ekgokj fdjk;s ij jgrs Fks rFkk fookfnr nqdkukr o Hkwfe ds lEcU/k esa oknhx.k o izfroknhx.k ds e/; yS.MykMZ o VsusUV dk fj'rk Fkk] ftls oknh }kjk uksfVl nsdj nqdku [kkyh djus dks dgk x;k] ysfdu izfroknhx.k us nqdku [kkyh ugha fd;kA

fopkj.kh; fcUnq la[;k 3 o 4 rn~uqlkj fuLrkfjr fd;s tkrs gSaA"

In addition to above, this Court also took note of the fact that to prove "landlord-tenant" relationship, the rent receipt(s) dated 11.08.1985 and 06.11.1985 were filed before the trial Court and to prove the ownership regarding the property, in suit, the registered family settlement dated 31.12.1958 was filed by the respondents and these documents were duly proved, as observed in the judgments under appeal and this aspect has not been refuted by the appellants. The payment of rent by a tenant is itself an admission regarding "landlord-tenant" relationship, which by placing rent receipt(s) was proved and being so, the issue raised regarding the title is not relevant. Thus, to the view of this Court, the fact that the appellants were occupying the shops in issue as tenant and the original plaintiff (Gaya Prasad) was the landlord of the same, was duly proved.

It is trite that the payment of rent deprives the tenant to challenge the title of landlord and landlord is not expected to prove his title like what he is required to prove in a title suit.

Thus, for the reasons aforesaid, the plaintiff(s), in the nature of suit, were not under obligation to prove their title beyond doubt by adducing evidence as "landlord-tenant" relationship was duly established and proved by the plaintiffs. The findings regarding "landlord-tenant" relationship recorded by the trial Court and the First Appellate Court are concurrent and justified and being so, the same are not liable to be interfered with by this Court in exercise of power conferred under Section 100 CPC on the ground that the plaintiffs failed to prove their title over the property in suit.

In regard to issue No. (ii), indicated above, this Court considered the relevant material available on record, which includes plaint, wherein, Plot/Gata No. 390 has been indicated and map appended to the plaint, wherein, the plot number mentioned as Gata No. 390 (First Consolidation) as also the boundaries indicated in the said map and the findings recorded by the trial Court on issue No. 11. A conjoint reading of the same shows that the shops, in issue, at the time of filing of suit were situated over Plot/Gata No. 390 and presently the number of the same is 304, which was numbered as 312 in 3rd Settlement. Thus, in this view of the matter, the property, in suit, was duly identified. The observation of the trial Court while deciding issue No. 11 being relevant on reproduction reads as under:-

"mHk;i{kksa dh vksj ls fd;s x;s vfHkcpu] muds }kjk izLrqr lk{; rFkk muds }kjk bl vfrfjDr oknfoUnq la0&11 fojfpr gksus ds okn izLrqr izkFkZuki= 204x2 okLrs djk;s tkus losZ rFkk 208d2 izkFkZuki= okLrs la'kks/ku ls ;g iw.kZr;k lkfcr gS fd fookfnr lEifRRk xkVk la0&390 lks;e esa fLFkr ugha gS cfYd xkVk la0&312 cUnkscLr lks;e] izFke pdcUnh ds le; ifjofrZr [kljk ua0&390 orZeku uEcj 304 esa fLFkr gSA vfrfjDr okn fOkUnq la0&11 rnuqlkj fu.khZr fd;k tkrk gSA mDr fu"d"kZ bl v/khuLFk U;k;ky; ds fu.kZ; fnukafdr 16-12-2017 dk Hkkx gksxkA"

For the reasons aforesaid, the findings regarding identity of property i.e. Gata No. 390 do not require any interference in exercise of power under Section 100 CPC.

Substantial question of law 'e' is based upon the statement made by plaintiff No. 1/3 under Order 10 Rule 2 CPC. It is settled principle that the statement made under Order 10 Rule 2 CPC cannot take status of admission, which may be conclusive. Thus, placing reliance on the same for interference in the judgments, under appeal, to the view of this Court, is unjustified.

Further, this Court is of the view that the appellants are not the bonafide litigants. It is for the reason that to prove the plea taken in the written statement(s) claiming ownership over the property, in issue, i.e. Gata No. 390, the appellants placed before the trial Court a document alleged to be Izajatnama dated 13.01.1953 executed by the Gaon Sabha in favour of the predecessor in interest of the appellants namely Khudabux (father of the appellants), which was not found to be a valid document and thus, the claim of ownership raised by the defendants-appellants was nothing but an exercise to avoid eviction and harass the landlord and moreover, in the present appeal, it has not been stated that the Izajatnama dated 13.01.1953 is a valid document and the concerned Courts have wrongly ignored the same.

For the foregoing reasons, this Court is of the view that the findings recorded by the trial Court while decreeing the suit for eviction, mandatory injunction and permanent injunction, which was based upon the "landlord-tenant" relationship, vide judgment dated 16.12.2017 and the findings recorded by the First Appellate Court in the judgment dated 31.10.2022, whereby, affirmed the judgment of the trial Court, are justified and no substantial question of law is involved in the instant appeal. Thus, no interference in the judgments, under appeal, is required by this Court in exercise of power under Section 100 CPC. The appeal is accordingly dismissed at the admission stage.

No order as to costs.

Order Date :- 26.04.2023

Arun/-