Mst. Akhtari Khatoon (Since ... vs Smt. Rajeshwari Devi Through Lrs. ...
2010 Latest Caselaw 3336 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 09.07.2010
                  Judgment Delivered on: 19.07.2010

+                        RSA No.79/1981


1.MST.    AKHTARI KHATOON (SINCE DECEASED)
2.SHRI    ABDUL WAHID KHAN
3.SHRI    SAHID KHAN THROUH LRS.
4.SHRI    ZAHID KHAN
5.SHRI    ZAHIR KHAN                ...........Appellants
                 Through: Mr.R.M.Bagai, Advocate.

                   Versus


1.SMT.    RAJESHWARI DEVI THROUGH LRS.
2.SHRI    AHSOK KUMAR
3.SHRI    PUSHAP KUMAR
4.SHRI    RAVI KANT
5.SMT.    ASHA RANI                  ..........Respondents
                 Through: Mr.D.K.Rustagi and Mr.B.S.Bagga
                          Advocates.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J.

1. This appeal has been preferred against the impugned

judgment and decree dated 19.8.1980 passed by the court of the

Additional District Judge confirming the order of the Sub-Judge 1st

Class dated 4.4.1978 whereby the suit of the plaintiff/respondent

stood decreed.

2. The plaintiff/respondent had filed suit no.456/1973 against

the defendant/appellant for possession of an area measuring

11'. 6"x 4'.9" forming part of a room and another area measuring

11'.0"x 2'.3" of the open space in house no.8135 (part) situated in

Mohalla Chimney Mill, Bara Hindu Rao, Delhi. It was alleged that

the aforenoted area situated on the first floor and the passage to

which is from the stairs of the adjoining house i.e. house no.8136

had illegally and wrongfully been usurped by the defendant by

encroaching upon the aforestated land after removing the

intervening partition wall.

3. The adjoining house i.e. house no.8136 was owned by

Sh.Suraj Prakash and Sh.Kasturi Lal who had sold the same to

Smt.Shanti Devi; after the death of Smt.Shanti Devi her legal heirs

i.e. defendant nos.7 to 10 had sold the same to defendant no.1 vide

sale deed dated 17.1.1972.

4. The first fact finding court i.e. the court of the Sub-Judge had

framed five issues. Four witnesses were examined by the plaintiff;

PW-1 was an attesting witness to the sale deed Ex.P-1. As per

Ex.P-1 the suit premises i.e. property no.8131 (part) (new) 9670

(old) and 8135 (part) (new) 9676 (old) had been sold to the plaintiff

by Lekhraj. PW-3 had also deposed that this disputed room and the

open space in the verandah had been sold by Lekh Raj to the

plaintiff vide Ex.P-1. Trial court had relied upon text of Ex.P-1

where it was depicted that the property bearing municipal no.8135

(part) 9676 (old) is partly tenanted out to Smt.Shanti Devi and is

attached with house no.8136 (new) 9677 (old); further this portion

which was in tenancy of Smt.Shanti Devi had been sold to the

plaintiff; PW-4 had corroborated this version of PW-3. The portion

marked red in the site plan Ex.P2 i.e. the disputed portion had also

been proved by the aforenoted witnesses. The oral testimony of

PW-4 was also considered to the effect that this portion marked in

red in Ex.P-2 was in occupation of Smt.Shanti Devi in her capacity

as a tenant. In these circumstances, the trial court had held that

Shanti Devi herself being a tenant having no legal title of

ownership in the aforenoted disputed portion; she/her legal heirs

(defendant nos.7 to 10) had no corresponding right to transfer the

same to defendant no.1. Version of PW-4 had also been relied upon

by the Court wherein he had stated that he himself was present at

the time when the wall in the disputed portion had been broken;

further, the defendants had nowhere stated that the disputed

property i.e. the portion on the first floor of 8135 (new) 9670 (old)

was owned by Smt.Shanti Devi who in turn could have sold it to

defendant no.1. For all the aforestated reasons, the issues were

decided in favour of the plaintiff and the suit of the plaintiff for

possession was decreed. It is relevant to state that the plaintiff had

filed an application for appointment of a local commissioner on

25.3.1977 but no efforts were made to pursue the said application

thereafter.

5. In appeal the Appellate Court confirmed the finding of the

Trial Court. The appeal was disposed of on 19.8.1980. Para 9 of

the judgment is relevant and is reproduced below:

"9. The only question that requires consideration is as to whether the area forming part of a room measuring 11'.6"x 4'.9" and open space measuring 11'.0"x 2'.3" feet of house no.8135 formed part of the sale deed Ex.P1 which was executed by Shri Lekh Raj in favour of the plaintiff-Smt. Rajeshwari Devi or it was a part of the property sold by defendants no. 7 to 10 in favour of Smt. Akhtri Khatoon vide sale deed Ex.DW6/1. The

sale deed Ex. P1 has been proved on record from the evidence of PW1 Ram Chander Goel, an attesting witness of the sale. Ex.P2 is the site plan attached with the said sale deed. PW3 Kasturi Lal is the previous owner of this very property and had sold the same to Sh. Lekh Raj vide sale deed Ex.PW3/1. PW4 Kanwar Sain is the General Attorney of the plaintiff and corroborated the facts stated in the plaint. The cumulative effect of the plaintiff's evidence is that premises bearing no. 8131(part) and 8135(part) were sold to the plaintiff by Shri Lekh Raj in which the portion now sought to be vacated from defendant no.1 form part of the sale deed Ex.P1. It was specifically mentioned that the portion bearing municipal no.8135(part) which was under the tenancy of Mohd. Khalil and Shanti Rani, a portion in which she is tenant, is attached with house no.8136 (part) on the first floor and the vendor Lekh Raj had delivered the ownership of the possession of the abovesaid portion to the plaintiff. This averments made in Ex. P1 find corroboration from the sale deed Ex.PW3/1 which was executed by Kasturi Lal-PW3 in favour of Lekh Raj who in turn had sold the same to the plaintiff. Kasturi Lal while in the witness box has specifically stated that the room and the open space, which is the disputed portion in the present suit, was not sold to Shanti Rani, the defendant. I would have agreed with the submission of the learned counsel for the appellant but his sale deed Ex. DW6/1 on which a reliance has been place do no, in fact, support his contention. At no place in the said deed, defendants no.7 to 10 had mentioned this very portion forming part of their property which was sold to Smt. Akhtri Khatoon. Furthermore, defendants' witnesses while under cross- examination, admitted the case of the plaintiff. They were frank enough to admit that the portion shown red in the plan Ex.P2, was in occupation of Shanti Rani as tenant of Lekh Raj. If this possession is admitted to be correct, then vide Ex.P1, Lekh Raj had transferred all rights and interest over the property in dispute to the plaintiff as the tenants were duly informed of this. Admittedly defendants no.7 to 10 are the legal heirs of Shanti Rani and tey could not claim a better title than Shanti Rani who had actually no right to make the transfer of the same in favour of defendant no.1. It is true that the plaintiff did not come in the witness box in support of her case but that fact would not make any difference as her husband, who held a power of attorney on behalf of the plaintiff, appeared in the witness box and supported the allegations made in the plaint. In spite of lengthy cross-examination, nothing could be brought on record from him which may help the defendants no.1 to 6. PW 4 not only proved the Power of Attorney Ex. PW 4/1 authorizing him by the plaintiff to act and plead on her behalf in the suit, he also identified the plaintiff's signatures on the plaint and verification. Regarding the allegations of encroachment in the suit premises by the defendants, the statement of PW 4- Kanwar Sain is enough to hold the same in favour of the plaintiff, as for reasons best known to the defendants, no question was put to him in the cross-examination. All these facts taken together leads to the only conclusion that the plaintiff has been successful in establishing her case of possession of the portions mentioned in the plaint against defendants no.1 to 6."

It is this judgment which is in appeal before this court. Further

before the first Appellate Court also the appellant had made an

application on 7.8.1980 to get a local commissioner appointed; he

thereafter chose to abandon the application; no order was

accordingly passed on the said application.

6. The counsel for the appellant has drawn the attention of this

court to the order dated 17.2.1982 passed by this court on an

application under Order 26 Rule 9 of the Code wherein repelling

the contention of the respondent a local commissioner had been

appointed to visit the property no.8135 (part) and 8136 (part), first

floor, Gali Chimney Mill, Bara Hindu Rao, Delhi to report the age of

the wall between the two houses. While recording the order this

court had held that the entire controversy raised by the parties

could be resolved by the local inspection of the premises.

Accordingly Mr.R.N.Kapoor, Advocate had been appointed. Local

commissioner had filed his report dated 5.4.1982. The relevant

extract of the said report reads as follows:-

"5. That in the presence of the abovenamed, it was found that House No.8136 (Ist Floor), Gali Chimney Mills, Bara Hindu Rao Delhi, had an old wall adjoining to House No.8135, Mohalla Chimney Mills, Bara Hindu Rao, Delhi-6.

The wall adjoining to House No.8135 was similar in structure to the other 3 walls of the House. The said wall appeared made of bricks, mortar plaster and design etc skin and similar to the other 3 walls of the house. It contained in itself two old designed "Jallas" and also there was a "Patchati" made of old wooden logs. There were also electricity fittings quite old and depleted on the said wall."

7. Objections and counter objections to the said report were

filed by the respective parties.

8. On 12.10.1982 after the receipt of this report the following

order was passed which inter alia reads as follows:-

"I have gone through the report of the local commissioner and heard the parties' counsel. I admit the appeal to consider the following question of law, "whether on the facts of this case the cause of action accrued to the plaintiffs?"

9. A co-joint reading of the order dated 17.2.1982 and the order

dated 12.10.1982 show that this additional evidence had been

collected by the Court whereafter the question of law had been

framed by it. It is relevant to point out that it had not been defined

as a substantial question of law, it merely states it to be a question

of law.

10. Counsel for the appellant has submitted that this report has

set the controversy between the parties at rest. The local

commissioner has categorically reported that there was an old wall

adjoining the house no.8135 new (9676 old), and 8136 new (9677

old), Mohalla Chimney, Bara Hindu Rao and this wall is similar in

structure to the other three walls of the house made of brick,

mortar and plaster and the design is also similar to the other three

walls; further the local commissioner had also noted the electricity

fittings affixed on the said wall which were also dilapidated and

old. It is submitted that in these circumstances when the wall was

still standing between aforenoted two properties nos.8135 new

(9676 old), and 8136 new (9677 old) of the disputed portion, the

question of encroachment by the defendant into the property of the

plaintiff by breaking this wall could not and did not arise. It is

submitted that the findings of the Courts below are clearly

perverse. Reliance has been placed upon the following judgments

to support his arguments:

i. (1999) 9 SCC 237 Neelu Narayani (dead) Through LRs and Ors. Vs. Lakshmanan (D) Through LRs and Ors.

ii. AIR 1997 SC 1906 Major Singh Vs. Rattan Singh (Dead) by LRs and Ors.

iii. AIR 1975 Raj 153 Miss Bedlani Vs. A. Hoogewerfe and Ors.

iv.AIR 2001 SC 1273 Kulwant Kaur and Ors. Vs. Gurdian Singh Mann (dead) by LRs and Ors.

v. AIR 1985 SC 111 Lakshmi Narayan Guin and Ors. Vs. Niranjan Modak

vi. AIR 1976 P & H 107 J.G. Kohli Vs. The Financial Commissioner, Haryana, Chandigarh and Anr.

vii. AIR 1973 SC 171 Laxmi & Co. Vs. Dr.Anant R. Desphande & Anr.

viii. AIR 1986 SC 687 Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and Ors.

ix. AIR 1993 Cal 144 Ratanlal Bansilal and Ors. Vs. Kishorilall Goenka and Ors.

x. JT 2001 (5) SC 250 Swarn Kaur and Ors. Vs. Jal Kaur and Ors.

It is submitted that subsequent events (in this case the

subsequent event being the report of local commissioner) can be

taken into account by a Court hearing a second appeal; further the

evidence which has been rejected by the Trial court is on flimsy

ground and can be re-appreciated; further if the interpretation of

even a proved document raises a dispute about a question of title,

such a question is a question of law which can be examined by the

second Appellate Court.

11. These arguments have been countered by learned counsel for

the respondent. It is submitted that both the Courts below have

given their finding on facts which cannot now be re-agitated in

second appeal. It is submitted that the report of the local

commissioner if read in evidence would make this Court a third

fact finding court which it is not permitted to go into in view of the

strict parameters as contained in section 100 of the Code of Civil

Procedure (hereinafter referred to as "the Code"). Further the

conditions of Order 41 Rule 27 of the Code which is the only

provision of law under which additional evidence can be permitted

at the appellate stage, have not been fulfilled. The parameters of

this controversy i.e. of the disputed intervening wall between the

two adjoining properties was well within the knowledge of the

appellant; he had on two earlier occasions, both before the Trial

Court as also before the Appellate Court moved an application for

appointment of a local commissioner but thereafter for reasons

best known to him he chose not to pursue the said application. In

such a scenario it cannot be said that the evidence which he now

seeks to bring on record by way of appointment of a local

commissioner was after exercise of "due diligence" not within his

knowledge. This court is seized of jurisdiction only when there is a

substantial question of law involved.

12. Counsel for the respondent has placed reliance upon a

judgment of the Apex Court reported in (1996) 9 SCC 392 Motilal

Daultram Bora & Ors. Vs. Murlidhar Ramchandra Bhutabe & Ors.

to support his submission that where in a second appeal the High

Court had appointed a local commissioner and on the basis of his

report had reversed the concurrent finding of the two Courts

below, the Supreme Court had held that such an approach of

appointing a local commissioner to go into the width and

demarcation of the road was an erroneous approach and the High

Court had erred in interfering with the concurrent findings of the

fact by two Courts below.

13. Section 100 of the Code as amended in 1976 has prescribed

the peripherals limit of the Courts jurisdiction while hearing a

second appeal. In a judgment of the Supreme Court reported in

1978 SC 1062 Balai Chandra Hazra v. Shewdhari Jadav on the

question of the approach of the second Appellate Court in dealing

with the second appeal the following findings of the Supreme Court

are relevant:

"Now, if in second appeal the finding of fact recorded by the first appellate court are taken as binding unless fresh additional evidence is permitted to be led when again appreciation of evidence to record a finding of fact would become necessary, that position is not altered. Even if amendment of pleadings is granted which puts into controversy some new facts alleged in amended pleadings and therefore the Court hearing the second appeal after grating amendment could not take over the function of the trial court or the first appellate court and undertake appreciation of evidence and record findings of facts. That is not the function envisaged by the Code of the Court hearing second appeal Under Section 100. This becomes crystal clear from the provision contained in Section 103 which defines the power of the High Court to determine a question of fact while hearing second appeal. But this power of the Court is limited to evidence on record which again is sufficient to determine an issue of fact necessary for disposal of the appeal and which has not been determined by the lower appellate Court or which has been wrongly determined by such court."

14. The observations of the Judicial Committee of the Privy

Council in Indraj Pratap Sahi Vs. Amar Singh and Ors. Law Reports

50 T.A. 183 were considered as also the ambit of the jurisdiction of

the Appellate Court to admit evidence under Order 41 Rule 27 of

the Code. It was held that the second Appellate Court has

unrestricted power to admit documents where sufficient grounds

have been shown for their having not been produced at the initial

stage of the litigation. It was held that clear distinction between

admitting evidence which is entirely different from appreciating it

and acting upon it must be kept in mind.

15. The Supreme Court in Balai Chandra case (supra) had

further reaffirmed the principle laid down in Meenakshi Naidoo v.

Subramaniya Sastri Law Reports 14 L.A. 160 following the decision

of the Ledgard Vs. Bull Law Reports 131 A 134 wherein it had

been held that when the Judge has no inherent power over the

subject matter of a suit, the parties cannot by their mutual consent

convert it into a proper judicial process; they could not clothe the

Bench with jurisdiction to record fresh oral evidence and proceed

to appreciate the same and record the findings of facts.

        In   AIR     1969     Mad     144    T.R.Rajagopala       Iyer     Vs.

T.R.Ramachndra Iyer          while dealing with an application           under

Order 41 Rule 27 of the Code            seeking appointment of a local

commissioner at the appellate stage, the High Court of Madras had

observed as follows:-

"I may observe that appointment of a Commissioner in the appeal is a rarity and is seldom resorted to in my view, such an appointment is not authorized by Rule 27 of Order XLI. That rule relates to additional evidence and the language of Rule 27(1)(b) does not lend itself to a construction that the report of a commissioner to be appointed and submitted in the appellate stage is regarded as additional evidence for purposes of that rule."

The provisions of Section 107(2) of the Code had also been

considered; Court had reiterated that this power should be very

sparingly used.

16. On an appreciation of the facts and the legal position what

emerges thus is as follows:-

A. Factual Position:

i. Both the fact finding Courts i.e. the Trial Court as also the

first Appellate Court had in detail after the examination of

the oral and documentary evidence held that the plaintiff had

a clear cause of action in his favour. This finding was given

by the first Trial Court while deciding issue no.3.

ii. Trial Court had relied upon the explicit details as

contained in the sale deed Ex.P-1 and the site plan Ex.P-2

annexed with the sale deed evidencing the ownership of the

disputed portion of the property in favour of the plaintiff.

This had been reinforced by the oral version of the witnesses

of the plaintiff. The defence of the defendant that he was in

possession of the property in his own right had been

disbelieved; the sale deed Ex. DW-6/1 relied upon by the

defendant nowhere spoke of the disputed property; it was a

sale deed executed between the defendant Akhtari Khatoon

and defendant nos. 7 to 10 (legal representatives of the

deceased Shanti Devi) and related to property no. 8136.

Apart from the oral and documentary evidence proved by the

plaintiff the Trial Court had also rejected the defence as set

up by the defendant in view of the version of the witnesses of

the defendant and rightly so. There were six DWs examined

by the defendant. Ex.DW-6/1 already stood discarded as

noted supra. DW-1 in her cross-examination had admitted

that the erstwhile owner Lekh Raj had purchased the first

floor of 8135 including a room which he had sold to plaintiff.

DW-4 has also corroborated the version of DW-1 and in his

cross-examination had stated that the plaintiff had purchased

the property in question from Lekh Raj. DW-5 had stated

that the plaintiff is the owner of portion 8135 whereas 8136

had been purchased by Shanti Rani from Lekh Raj.

iii. This evidence adduced had led both the Courts below to

given findings in favour of the plaintiff. The witnesses of the

defendant had also admitted that the disputed portion which

falls in portion no.8135 was owned by the plaintiff. Defendant

nos. 7 to 10 (legal representatives of deceased Shanti Rani)

had sold portion 8136 to defendant no.1; they not being the

owners of 8135 could not have sold any such portion to

defendant no.1. Defendant no.1 was rightly held to be an

encroacher on the said portion.

iv. The question of law was framed by this Court only after

receipt of the report of the local commissioner under Order

26 Rule 9 of the Code under which the order appointing the

local commissioner was passed, such a report is only a

evidence and if need be the commissioner may also be

examined in court . As such a third fact finding inquiry could

not be embarked upon by this Court by reading the report of

the local commissioner to which objections had also been

filed by the non-applicant and would at best again become a

questionable piece of evidence before this Court. The

question of law framed by this Court relating to the cause of

action accruing to the plaintiff already stood considered by

the Trial Court while deciding issue no.3 wherein findings of

facts qua the disputed wall had been recorded.

B. Legal propositions which accordingly emerges are as follows:

i. The second Appellate Court has powers to admit additional

evidence. This power is, however, circumscribed under

Order 41 Rule 27 of the Code.

ii. Oral evidence is permitted where evidence by the two fact

findings Courts has either been rejected or the Courts below

have failed to go into any such evidence or that such a

judgment is based on conjectures or surmises or on no

evidence and from which no reasonable man can draw any

reasonable inference.

iii. The ambit of the jurisdiction of the second Appellate Court

being that it has unrestricted power to admit documents

where sufficient grounds have been shown for their not

having been produced at the initial stage of litigation.

iv. This necessarily follows from a harmonious construction

of the principle of law as contained in Section 100 to be read

with Section 103 of the Code; the latter provision which

clearly postulates that evidence only on record before the

Court can be re-appreciated and re-assessed.

v. Distinction between admitting evidence, appreciating it

and acting upon it has thus to be clearly understood and

acted upon.

vi. Section 100 of the Code (as amended in 1976) imposes an

almost blanket restriction against the re-appreciation of

evidence even when the findings of fact by the first Appellate

Court are perverse, inadequate and violative of the principles

of natural justice.

vii. Where a Court has no inherent jurisdiction over the

subject matter, the parties cannot by mutual consent convert

it into a proper judicial process. Second Appellate Court

cannot be clothed with the jurisdiction to record fresh oral

evidence and proceed to appreciate the same to record

findings on facts.

viii. In exceptional case where additional evidence has been

permitted by the second Appellate Court it could not

nevertheless take over the function of the Trial Court or the

first Appellate Court and undertake an appreciation of this

new evidence and record new findings of fact. This is not a

function envisaged in Section 100 of the Code. In such

exceptional circumstances it would be appropriate that the

case be remanded back to the Trial Court.

17. The judgments relied upon by the learned counsel for the

respondents show that none of them can apply to the facts of the

instant case which are all distinct. The subsequent events as noted

in the judgment of Miss Bedlani (supra) related to the sale of

property during the pendency of the appeal which was an admitted

factual position between the parties. In the other judgment relied

upon by the learned counsel for the appellant reported as J.G. Kohli

(supra) the subsequent event in a suit for eviction was the event of

the retirement of the landlord which was again an admitted fact

between the parties. The judgment reported in Laxmi & Co.case

(supra) detailing in para 27 as to what could be "subsequent

events" lists out examples which are only illustrative. Perusal of

para 27 shows that such subsequent events are again those in

which the court finds that the judgment of the Court cannot be

carried into effect because of the subsequent change of

circumstances and as such the Court can take notice of the same.

None of these propositions apply to the facts of the instant case.

Report of the local commissioner dated 5.4.1982 against which

objections are pending is only one piece of questionable evidence.

It does not fall in the category of Legal Proposition No.(ii) under

which category alone oral evidence can be permitted at the second

appellate stage. Submission of the counsel for the appellant that

the judgment of the fact finding Courts is perverse is not

substantiated by any of his aforenoted submissions. This Court had

also framed a question of law and not a substantial question of law

which is the mandate under Section 100 of the Code. The Courts

below had on a comprehensible conspectus of the case after

considering the entire gamut of the evidence both oral and

documentary adduced before it, given its concurrent findings.

18. The concurrent finding of both the Courts below calls for no

interference.

19. The question of law is answered against the appellant.

Appeal is dismissed.

INDERMEET KAUR, J.

JULY 19, 2010 rb/nandan