Allahabad High Court
Ravi Kant vs Ranjan Kumar And 20 Others on 10 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:6182
Court No. - 36
Case :- SECOND APPEAL No. - 961 of 2024
Appellant :- Ravi Kant
Respondent :- Ranjan Kumar And 20 Others
Counsel for Appellant :- Sanjeev Kumar Khare,Vijay Kumar Ojha
Counsel for Respondent :- Chandra Prakash Kushwaha,Dinesh Rai
Hon'ble Kshitij Shailendra,J.
1. Heard Sri Vijay Kumar Ojha, learned counsel for the appellant and Sri Dinesh Rai along with Sri Chandra Prakash Kushwaha, learned counsel for some of the contesting respondents.
2. This is plaintiff's appeal arising out of concurrent judgments by which the claim for permanent prohibitory injunction in relation to property covered by Gata No. 1600/1 and 1601/2 or part thereof has been discarded.
3. Learned counsel for the appellant submits that the trial court recorded prima facie satisfaction regarding ownership of the plaintiffs-appellant over the aforesaid Gata but non-suited him on the ground that reliance was placed upon a family settlement dated 20.08.1979 written on a stamp paper of Rs. 1.50/- and the same being unregistered and disputed by other side, the same cannot be read. It is further contended that the findings recorded by the trial court are contradictory in the sense that, at once place, ownership of the plaintiffs has been accepted but at another place of the judgment, on account of sale of some property by the plaintiffs, a contrary finding has been recorded that the plaintiffs are not owner in possession over the property in question. It is further contended that the first appellate court has discarded the document of 1979 on the ground that it was filed for the first time before the Court on 22.05.2017 and was not included in the list of documents though the suit was filed in the year 1983, although the D.W.-1, in his cross-examination, has admitted execution of the said document and such admission would operate as estoppel in favour of the appellant and against the respondents. Further submission is that in one of the sale deeds of 1987, the disputed passage having 15 feet width has been accepted by other side and discrepancy was noted by the first appellate court as regards boundaries and even then appeal has been dismissed.
4. Per contra, learned counsel for the respondents submits that both the courts below have recorded concurrent findings of fact to the effect that the property has been sold by plaintiffs and only one of the plaintiffs has filed the instant appeal. Further submission is that apart from discarding the family settlement, the courts below have found that property was not identifiable and held that the plaintiff has no case.
5. Having heard learned counsel for the parties, I find that as far as the family settlement dated 20.08.1979 is concerned, it was filed on 22.05.2017, prior whereto oral evidence of plaintiffs side was over, which is apparent from the finding recorded on internal page no. 16 of the appellate court's judgment where it has taken note of statement of P.W.-1 to the effect that family settlement has not been fled by him and would be filed later on. Therefore, on the date when P.W.-1 appeared as a witness, the said document was not on record and, hence, it cannot be said to be proved in accordance with law. As far as the submission that cross-examination of D.W.-1 contains reference of the said document, a careful perusal of the oral testimony of D.W.-1 reveals that he had disputed due execution of document and apart from that both the courts below have recorded clear denial from the respondent side as regards execution of the family settlement.
6. In this view of the matter, this Court cannot place reliance upon said document which remains "not proved" as per law.
7. In so far as the findings recorded on loss of title in the disputed property, it has come on record that both parties executed various sale deeds, at least more than 50 in number. The trial court has taken note of the statement of P.W.-1 to the effect that he had sold certain plots and was not aware as to which side of which property whose house existed. As a matter of fact, both the courts below have analyzed the oral and documentary evidence as regards the Gata and have found that after selling the property the plaintiff's case is not clear.
8. In view of the above discussions and records of the proceedings, this Court is of the view that in order to succeed in a claim for permanent prohibitory injunction, the plaintiff must have established a strong case as regards title and possession over the property as has already been sold and purchased. The plaintiff's vendees not being party nor the extent of sale having been clearly described by the plaintiffs, this Court is not in position to interfere with the findings of fact recorded by the two courts.
9. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311, the Supreme Court came to the conclusion that the finding reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. In Thiagarajan v. Sri Venugopalaswamy B. Koil, (2004) 5 SCC 762, the Supreme Court has held that the High Court in its jurisdiction under Section 100 C.P.C. is not justified in interfering with the findings of fact and that it is the obligation of the courts of law to further clear intendment of the legislature and not frustrate it by excluding the same and where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.
10. Similar view has been taken in Kondiba Dagadu Kadam vs Savitribai Sopan Gujar and others, (1999) 3 SCC 722 by observing that disturbance in findings of fact would be contrary to limitations imposed by section 100 C.P.C. The Supreme Court again reminded in Commissioner, Hindu Religious & Charitable Endowments vs. P. Shanmugama (2005) 9 SCC 232 that the High Court has no jurisdiction in second appeal to interfere with the findings of fact. The Apex Court, in State of Kerala v. Mohd. Kunhi (2005) 10 SCC 139 reiterated the same principle by observing that by such interference, the High Court would go beyond the scope of Section 100 of the Code of Civil Procedure.
11. In Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Supreme Court observed that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. In Harjeet Singh v. Amrik Singh (2005) 12 SCC 270, the Apex Court, with anguish, observed that the High Court had no jurisdiction to interfere with the findings of fact arrived at by the trial Court and the lower appellate Court regarding readiness and willingness to perform part of contract in its jurisdiction under Section 100 C.P.C.
12. The view taken in the aforesaid decisions has been reiterated by the Apex Court in Gurdev Kaur and others vs. Kaki and others, 2007 (1) SCC 546.
13. Consequently, no substantial question of law arises for consideration in this appeal.
14. The appeal is, accordingly, dismissed under Order 41 Rule 11 C.P.C.
Order Date :- 10.1.2025
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