Kali Prasad And Others vs Sheo Murti And Others
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Allahabad High Court

Kali Prasad And Others vs Sheo Murti And Others on 6 May, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:26081
 
Reserved
 
Court No. 8 
 
Case :- SECOND APPEAL No. - 212 of 1983
 
Appellant :- Kali Prasad And Others
 
Respondent :- Sheo Murti And Others
 
Counsel for Appellant :- H.S.Sahai,I.N.Tewari,Suresh Chandra Tiwari
 
Counsel for Respondent :- Sahdeva Singh,Ajai Kumar Shukla,Hari Shanker Tewari,Nisha Devi,Pawan Kumar Singh
 

 
Hon'ble Jaspreet Singh,J. 
 

1. The instant second appeal is preferred under Section 100 C.P.C. and it was admitted by this Court by means of order dated 26.03.2025 on the following substantial question of law:-

"Whether the Trial Court and the First Appellate Court have committed an error in dismissing the suit as well as the appeal of the plaintiff-appellants."

2. Sri Suresh Chandra Tiwari, learned counsel for the appellants submitted that the suit filed by the appellants was incorrectly dismissed and so also the first appeal. The two courts have failed to take notice of the evidence on record and have recorded findings against the material available on record.

3. The evidence indicating the rights of the plaintiff-appellant having rights over the property, and perfected the same as per Section 9 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. & L.R. Act, 1950) has not been taken note of.

4. It was further submitted that the defendant claimed to have purchased the property from Sri Shiv Prasad whereas Sri Shiv Prasad was mentally unwell and his share could not have been sold without taking the permission of the Court and moreover Bhagwati Prasad who is said to have executed the sale deed could not have sold it and that too a share exceeding his own i.e. by including the share of Sri Shiv Prasad.

5. The learned counsel for the appellant further submitted that without considering any evidence on record, the findings have been given on the basis of a judgment passed in proceeding under Section 145 Cr.P.C. which was of summary nature and even otherwise did not have much relevance to the proceedings as the instant suit was for declaration and injunction and the findings under proceedings under Section 145 Cr.P.C. could not be the basis for deciding the declaratory suit. On the contrary, the evidence led in the instant suit proceedings were to be considered and this aspect has not been dealt with by the two courts resulting in sheer miscarriage of justice, accordingly, the appeal deserves to be allowed.

6. Sri Harishankar Tiwari, learned counsel for the respondent no. 10 has contested the above submissions and has urged that the two courts have rightly dismissed the suit and the appeal as there was no worthwhile material or evidence led by the plaintiff. The plea which is sought to be raised before this Court in Second Appeal was not a ground either pleaded in the plaint or even before the First Appellate Court.

7. These grounds which are raised emerged from factual controversy for which there ought to have been proper pleadings. In absence of pleadings and issues, the same cannot be taken note of in Second Appeal as it cannot be permitted by the Second Appellate Court to allow the plaintiff to create a new case which may indirectly lead to a trial denovo. 

8. In the aforesaid circumstances, the judgment passed by the Trial Court and the First Appellate Court stands concluded by the findings of fact and that in itself cannot be shown to be erroneous. Any attempt to create a new case cannot be appreciated, thus, no substantial question of law arises in the instant second appeal and the appeal deserves to be dismissed.

9. Having considered the aforesaid submissions and before dealing with the same, it will be appropriate to take note of certain facts giving rise to the instant second appeal.

10. The predecessors-in-interest of the appellants namely Kali Prasad, Bali Naresh and Lalta Prasad as plaintiffs instituted a suit for declaration and injunction before Munsif, Kunda, District Pratapgarh which was registered as Suit No. 213 of 1976.

11. It was the case of the plaintiffs that the common ancestor namely Badal had got the property in question. It was with him since the time of the second settlement.

12. It was further stated that Badal was survived by his four sons out of which Devi Deen and Kashi Ram had died issue-less. The defendant no. 7 were from the branch of Ram Deen while the other heirs of Badal had taken their respective shares.

13. Primarily, the dispute was amongst the heirs of Jamuna Son of Badal. It is in this context, it was stated that Jamuna had kept his share in the property and had created a new house on Plot No. 1223 and a well was constructed by Sri Devi Deen with the consent of Sri Jamuna.

14. Since all the sons of Badal were living separately, hence, it is the plaintiffs and their predecessors Jamuna who had demolished the old structures and then build a new house and it was the plaintiffs who have got a right therein. Since the aforesaid rights were disputed, hence, the suit for declaration and injunction was filed..

15. The defendants while filing their written statement disputed the averments made in the plaint. One set of written statement was filed by the defendants nos. 3 to 7 and the other was filed by the defendant no. 8.

16. Upon the exchange of pleadings, the Trial Court framed six issues, however, for the controversy involved in the appeal, issues nos. (i), (ii), (iii) and (iv) as framed by the Trial Court were relevant:-

(i) Whether the plaintiff is the owner of the property in question;

(ii) Whether the plaintiff no. 1 is the owner on the basis of the sale deed;

(iii) Whether the property in question is the joint property of the plaintiff and the defendant no. 8;

(iv) Whether the defendant no. 8 has 1/4th share therein.

17. The parties led their respective evidence and the Trial Court by means of its judgment and decree dated 24.03.1979 dismissed the suit of the plaintiff holding that the plaintiff could not establish his right nor the possession.

18. The plaintiffs assailed the judgment and decree passed by the Trial Court by filing an appeal before the First Appellate Court which also came to be dismissed by means of judgment and decree dated 08.11.1982.

19. In the aforesaid factual backdrop, if the submissions of the learned counsel for the appellant is now noted, it would be found that since the suit was for declaration and injunction, it was necessary for the plaintiff to have established his own case as it is for the plaintiff to stand on its own legs and cannot derive any benefit from the weakness of the defence.

20. Since the plaintiff claimed exclusive rights to the property in question on the premise that the property belonged to Badal and since the other heirs of Badal had pre-deceased Jamuna, hence, the property belonged to him alone.

21. This basic premise was not supported by the plaintiff-witnesses. P.W. 2 who in his statement stated that the property was ancestral of Kali Prasad and Jamuna. In this regard, it would reveal that where the plaintiff-witness did not support the case and in the plaint, the case set up by the plaintiff stated that it was in the name of the ancestors since the time of the second settlement and that there was a division in the family, then the aforesaid pleadings ought to have been proved by evidence, however, on this point no worthwhile evidence was led.

22. The Trial Court took note of the aforesaid discrepancy in the statement of the plaintiff-witnesses including the contrary averments made by the witness and moreover the evidence did not corroborate the facts which came up before the Court through the Court Commissioner's report, hence, the Trial Court did not find favour with the case set up by the plaintiff.

23. Even before this Court, the learned counsel for the appellant could not demonstrate, that in case if the pleadings as set up by the plaintiffs is taken note of, how the case was established, hence, no error could be pointed out either from the judgment passed by the Trial Court or from the statement of the plaintiff-witnesses which could indicate that the Trial Court had returned any finding which was against the material on record.

24. A feeble attempt has been made by learned counsel for the appellants that the Trial Court has placed heavy reliance on the decision which was rendered in proceedings under Section 145 Cr.P.C. and the said judgment could not be made the basis of the judgment passed by the Trial Court.

25. This submission also does not find favour with this Court for the reason that this is not the sole reason upon which the Trial Court has returned its finding. The Court has first taken note of the discrepancies in the statements of the plaintiff and his witnesses and then additionally, it has also noticed the decision rendered in proceedings under Section 145 Cr.P.C. to corroborate its own findings. Thus, it cannot be said that the Trial Court has based its findings only on the decisions rendered in proceedings under Section 145 Cr.P.C.

26. There is another reason to eschew this submission of the learned counsel for the appellant as this was not taken as a ground before the First Appellate Court. Once, this ground was not taken before the First Appellate Court, this cannot be a ground or a substantial question of law which may persuade this Court to upturn a finding of fact merely on this premise. As already indicated above, the findings returned by the Trial Court is based on the evidence of the plaintiff and his witnesses and also on the basis of the decisions rendered under Section 145 Cr.P.c. but to say that was the sole ground for the Trial Court, may not be correct.

27. It was also sought to be urged that the said judgment was not placed on record but that again is an afterthought as there was no ground taken to the aforesaid effect before the First Appellate Court. Had the Trial Court considered a judgment which was not there on record, this should have been a ground, naturally, but it has not been done and it also could not be established that the said document was not available on record.

28. The other submission regarding the share of Shiv Prasad being sold without the permission as he was mentally unwell is also not material for the reason that first and foremost the plaintiff had to stand on its own legs. It was first the duty of the plaintiff to establish his plea by his own evidence and having failed to do so, it cannot attack the judgment merely because there may have been certain deficiencies in the case of the defendant.

29. Moreover, at no point of time, this plea was seriously pressed by the plaintiff, as had it been so, the plaintiff ought to have got an issue framed and led evidence in this regard. The record would show that neither an issue to the aforesaid effect was prayed nor any evidence was led by either the plaintiff or the defendants.

30. Even before the First Appellate Court, there was never any attempt to take this as a ground or either to amend the pleadings or an application to get an additional issued framed. 

31. Having failed in their endevour both before the Trial Court and the First Appellate Court, a futile attempt has been made by the plaintiffs to introduce such plea during the course of hearing of this second appeal which is engaging the attention of this Court since the year 1983.

32. The Court has also taken note of the decision rendered by the First Appellate Court which has independently considered the material on record and returned its own findings which are in consonance with the findings of the Trial Court and dismissed the appeal.

33. The First Appellate Court has also taken note of the evidence and being the Court of First Appeal has made its own appraisal and found that the findings returned by the Trial Court being based on material on record, hence, dismissed the appeal. Needless to say that these are pure findings of fact.

34. This Court in exercise of the powers under Section 100 C.P.C. does not enter into the arena of re-appraisal of evidence especially in absence of any palpable error pointed out. This Court in given circumstances may enter into questions of fact or the issue of evidence, provided, perversity on the face of record is pointed out that is to say that the findings have been recorded on the basis of material which was not available before the Court or it has been recorded by ignoring the material documents or evidence which was present on the record or the conclusion drawn by the Court are such which no prudent person can arrive at.

35. No such perversity has been pointed out, accordingly, this Court does not find that there is any error committed by the Trial Court or the First Appellate Court, accordingly, the second appeal is sans merit and is dismissed. The judgment passed by the Trial Court dated 24.03.1979 in Regular Suit No. 213 of 1976 and the judgment of the First Appellate Court dated 08.11.1982 passed in Civil Appeal No. 121 of 1979 are affirmed. Costs are made easy.

36. Office is directed to remit the record to the Trial Court forthwith.

Order Date:- 06th May, 2025

Asheesh/-

(Jaspreet Singh, J.)