Rakesh Kumar And 2 Others vs Satya Prakash
2023 Latest Caselaw 12951 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- SECOND APPEAL No. - 146 of 2023
 

 
Appellant :- Rakesh Kumar And 2 Others
 
Respondent :- Satya Prakash
 
Counsel for Appellant :- Dur Vijay Singh,Suresh Chandra Verma
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the defendants-appellants and learned counsel for the plaintiff-respondent on admission of the instant second appeal.

2. Suit for possession and damages filed on behalf of the plaintiff-respondent has been decreed by the trial court and the same was affirmed by the first appellate court on appeal being filed on behalf of the defendants. The plaintiff is claiming his right and title over the property in question on the basis of sale deed dated 09.12.1981, registered on 27.02.1982, said to have been executed by original owner Sri Munshi Lal Rastogi s/o Asharfi Lal. As per plaint case, defendant Baburam (now substituted by his legal representatives) was the tenant in the portion of the house in question (subject matter of the sale deed). It is further alleged by the plaintiff that the defendant has filed a suit for injunction, being O.S. No. 72 of 1981, and throughout kept that suit pending by getting the same dismissed in default and by moving restoration applications. Defendant is trying to challenge the ownership of the plaintiff and his tenancy is terminated, therefore, he is liable to be evicted. The defendant-appellant has filed written statement denying the right and title of the plaintiff-respondent over the house in question alleging therein that he is in the possession of property in question since the time of his ancestors and he is owner thereof. It is further averred in the written statement that Munshi Lal Rastogi has no concern with the house in question and he has no alienable interest over there. In alternative, defendant has claimed his right and title on the basis of adverse possession.

3. Learned trial court has framed as many as six issues for deciding the matter, wherein issue no. 1 has been framed with respect to the ownership of the plaintiff over the house in question and issue no. 2 has been framed with respect to the tenancy of the defendant. In deciding issue nos. 1 and 2 together, learned trial court has returned finding that the sale deed dated 09.12.1981, registered on 27.02.1982, is a genuine document which has been proved by the plaintiff. Relying upon recital made in the sale deed dated 09.12.1981, learned trial court has come to conclusion that the defendant Babulal was the tenant of the house in question. Paper No. 75A1 proves that other tenants, namely, Rammurti and Rameshwar have vacated the house in question and given possession of their respective accommodation to the plaintiff. Learned trial court has made emphasis on the fact that the sale deed is of the year 1981, however, till date defendant has not filed any suit for cancellation challenging its genuineness. In deciding issue no. 4 qua suit being barred by limitation, learned trial court has returned a categorical finding that the defendant has failed to prove that the suit is barred by limitation. It is further observed that he himself has failed to prove his ownership over the property in question on the basis of adverse possession. The first appellate court, on appeal being filed on behalf of the defendants, has formulated point of determination no. 1 with respect to the ownership of the appellant (defendant) over the property in question. In deciding the point for determination no. 1, learned appellate court has given a categorical finding that perusal of the sale deed dated 24.12.1981 (Paper No. 74A) clearly reveals that Sri Baburam s/o Shriram Bharose Lal, Sri Lalaram s/o Sri Chokhe Lal and Sri Rammurti s/o Ajit were the tenants of the premises in question, which is subject matter of sale deed. The plaintiff has also filed the receipt of house tax and water tax to prove his possession being the owner of the house in question. Copy of the notice (Paper No. 75A) has also been considered to demonstrate that, except Baburam, other tenants have vacated the house in question.

4. In assailing the orders passed by the courts below, appellant has formulated the following substantial question of law:-

"I. Whether in absence of any proof of tenancy the relationship of landlord/ tenant between the parties is acceptable under law ?

II. Whether un-objection of possession for more than 80 years is sufficient to nature the right of adverse possession ?

III. Whether the court below was justified to pass the decree of damages and dispossession without there being any evidence of tenancy ?

IV. Whether the judgment and decree passed by both the courts below are against the settled principle of law ?

V. Whether the suit filed by appellant being suit no. 172 of 1981 was liable to be adjudicated alongwith present suit ?

5. Having considered the aforesaid substantial question of law in the given circumstances of the present case, I am of the view that all of the substantial questions of law, as mentioned above, are misconceived and cannot be treated to be substantial question of law for the purposes of deciding the instant second appeal. Right and title of the parties is concluded by concurrent findings of fact returned by the courts below. The defendant-appellant has failed to prove his right and title over the house in question. He has not adduced any documentary evidence to prove his ownership over there. In paragraph o. 21 of the written statement he has tried to make out a case of adverse possession in his favour. However, in deciding the issue no. 4, learned trial court has given a categorical finding that the defendant has filed to prove his case of adverse possession over the property in question. In the eventuality of existence of the registered sale deed in favour of the plaintiff-respondent, his right and title over the property in question cannot be denied by any stretch of imagination. Mere pleading of ownership over the property in question on behalf of the defendant, that too without any corroborative evidence on record, cannot sustain his defence.

6. After careful consideration of the judgments passed by the courts below, I am of the view that no substantial question of law is made out in the instant matter to be interfered in the concurrent finding of fact returned by the courts below, in exercise of power of second appellate jurisdiction under Section 100 C.P.C. It is settled position that the first appellate court is the last court with respect to the pleadings of facts of the case and second appeal cannot be entertained unless substantial question of law is made out for consideration. I did not find any illegality, perversity or ambiguity in the judgments impugned to exercise the second appellate jurisdiction of this Court.

7. Resultantly, instant appeal, being misconceived and devoid of merits, is dismissed with no order as to cost.

Order Date :- 26.4.2023

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