Rajasthan High Court

Ram Karan And Others vs Prabhu Dayal on 6 January, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 519/2011

1.Ram Karan son of Laxman
2. Ramgopal son of Laxman
3. Hansraj son of Laxman
4. Radheyshyam son of laxman
5. Kalla son of Parsuram,
6. Bhawani Shankar son of Kalla
All R/o Village Bassi Mohalla Khandar District Sawaimadhopur.
                                                       ----Appellant-Defendants
                                      Versus
Prabhudayal      son    of    Shri     Ramniwas,          R/o      Khandar   District
Swaimadhopur
                                                         ----Respondent-Plaintiff

For Appellant(s) : Mr. Harendra Singh, through V.C.

Mr. Dhurv Atri, through V.C.

For Respondent(s) :

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

06/01/2021

1. Instant second appeal has been filed by the appellants

(hereinafter referred to as "defendants") against the order dated

06.03.2010 passed by the learned Additional District and Sessions

Judge (Fast Track), Sawaimadhopur, whereby the appeal filed on

behalf the respondent (hereinafter referred to as "Plaintiff")

against the judgment and decree dated 02.08.2001 passed by the

learned Civil Judge (Jr. Division) and Judicial Magistrate, Khandar

was dismissed.

2. Brief facts of the case are that the plaintiff filed a suit on

08.04.1999 for permanent injunction and declaration against the

(2 of 8) [CSA-519/2011]

defendants before the learned Trial Court stating therein that the

plaintiff is having possession over a piece of land in dispute

measuring 16fts x 26fts, which was purchased by him from the

defendant No.5- Radheshyam on 07.07.1993 by registered sale

deed, after paying consideration of Rs.12,000/-. Since, then he is

having the peaceful possession over the plot in dispute of which,

he is the sole owner. The plaintiff has also obtained the "Patta"

from the Gram Panchayat Khandar on 23.03.1998 after paying

consideration of Rs.1,007/- and the Gram Panchayat Khandar has

granted permission for construction over the plot in dispute and

when he started the construction over the plot in dispute on

25.03.1999, then the defendants obstructed, therefore a suit was

filed by the plaintiff and prayed that the defendants be restrained

not to obstruct the construction over the plot in dispute.

3. The defendants filed reply before the learned Trial Court

stating therein that the defendant No.5-Radheshayam has never

sold the plot in dispute to the plaintiff and defendants are having

possession over the plot in dispute.

4. On the basis of the pleadings of the parties, the learned Trial

Court framed the following issues:-

"1 vk;k fd oknh ds LokfeRo o vkf/kiR; dk okf.kT;d Hkw&[k.M 16x26 fQV okn ds pj.k 2 dh prqlhZek dk fLFkr gS tks fnukad 7&7&93 dks izfroknh&5 jk/ks";ke ls [email protected]& :i;s esa dz; fd;k Fkk o ftl ij fuekZ.k gsrq oknh us iRFkj Hkh Mky j[ks gSaA oknh&& 2 vk;k fd oknh us fnukad 30&3&98 dks xzke iapk;r [k.Mkj esa [email protected]& :i;s tek djok;s o fuekZ.k rFkk njoktk gsrq iV~Vk iapk;r us tkjh fd;kA oknh&& 3 vk;k fd oknh dks izfroknhx.k mDr Hkw&[k.M ls csn[ky djus ij vkeknk gSA bl gsrq LFkkbZ fu'ks/kkKk ls ikcUn djokus dk vf/kdkjh gSA oknh&& 4 vk;k fd izfroknh y{e.k us lu~ 1965 esa xzke iapk;r [k.Mkj ls 15x15 oxZ xt dCts "kqnk Hkwfe ij pkj fnokjh cukus dh Lohd`fr yh rHkh ls dkfct pys vk jgs gSaA oknh&&

(3 of 8) [CSA-519/2011]

5 vk;k fd izfroknh 5 us mDr IykV izfroknh 2 ls izkIr gqvk o mlus oknh ds i{k esa dHkh Hkh cspku ukek ugha fd;k o c&gSfl;r ekfyd IykV ij dkfct gSA izfroknh&&&&"

5. In support of his contention, plaintiff-Prabhu Lal submitted

his own evidence as PW-1 and also adduced the evidence of PW-2

Ram Narayan. In documentary evidence, he submitted Ex.P-1 to

P-3 and on behalf of defendants evidence of DW-1 Ram Karan,

DW-2 Ram Phal, DW-3 Gopal & DW-4 Radheshyam was recorded.

6. After hearing of the parties, the learned Trial Court decreed

the suit filed by the plaintiff vide its judgment and decree dated

02.08.2001. Being aggrieved by the judgment and decree dated

02.08.2001, the defendants filed a regular first appeal before the

learned Additional District and Sessions Judge (Fast Track),

Sawaimadhopur,, who dismissed the appeal and confirmed the

judgment and decree dated 02.08.2001 passed by the learned

Trial Court vide its judgment and decree dated 06.03.2010.

Hence, the present second appeal has been filed by the

defendants.

7. Counsel for the defendants submits that the judgment and

decree passed by the learned Courts below is against the facts

and law and the finding recorded by the learned Trial Court on

issues No.1 & 2 are perverse. Counsel further submits that the

learned Courts below failed to consider the evidence submitted on

behalf of the defendants and prayed for quashing of the

judgments and decrees passed by the learned Courts below.

8. Heard learned counsel for the defendants.

9. The learned Trial Court has recorded the finding of fact on

issues No.1 & 2 in favour of the plaintiff and while deciding the

issues No.1 & 2, the learned Trial Court has considered the sale

deed Ex.3, which was duly registered on 07.07.1993 and Ex.2

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"Patta", which was issued on 30.03.1998 by the Gram Panchayat

in favour of the plaintiff for construction of shop. The learned Trial

Court further held that the plaintiff has purchased the plot in

dispute from the defendant No.5-Radheshyam after paying

consideration of Rs.12,000/- by a registered sale deed and

possession of the plot in dispute was also handed over to the

plaintiff. The learned Trial Court further considered the evidence of

the PW-5-Radheshaym, who has admitted that he sold the plot in

dispute to the plaintiff, therefore, in my considered view, the

learned Trial Court has not committed any error in recording the

finding on issues No.1 & 2 in favour of the plaintiff on the basis of

oral as well as documentary evidence available on record. On

other issues, the learned Trial Court has rightly given its finding on

the basis of evidence available on record.

10. The Hon'ble Supreme Court recently in the matter of C.

Doddanarayana Reddy Vs. C. Jayarama Reddy reported in

(2020) 4 Supreme Court Cases 659 has held that the High

Court should be conscious in deciding the appeals where the

concurrent finding of fact has been recorded by the trial Court as

well as the First Appellate Court and held in paras 25-28 as

under:-

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: (SCC pp.347-48, paras 12-15) "12. This Court had repeatedly held that the power of the High Court to interfere in second appeal Under Section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case. It

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has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record."

13. In Ramanuja Naidu v. V. Kanniah Naidu, this Court held: (SCC p.393)

'It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal Under Section 100 of the Code in the way he did.'

14. In Navaneethammal v. Arjuna Chetty, this Court held: (SCC p.166)

'Interference with the concurrent findings of the courts below by the High Court Under Section 100 Code of Civil Procedure must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.

     15. And again in Secy.,              Taliparamba
     Education Society v.                 Moothedath
     Mallisseri Illath M.N., this         Court held:
     (SCC       p.      486,              para     5)

'5.....The High Court was grossly in error in trenching upon the appreciation of evidence Under Section 100 Code of Civil Procedure and recording reverse finding of fact which is impermissible.

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion

(6 of 8) [CSA-519/2011]

drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under: (SCC p.725, para 5)

"5. It is not within the domain of the High Court to investigate the grounds on which 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 had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, this Court held as under:

"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, in so far 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

(7 of 8) [CSA-519/2011]

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."

28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"16. When any concurrent finding of fact is assailed in second appeal, the Appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar and Ors. v.

Dashrath Narayan Chilwelkar AIR 1943 Nagpur 117 Para 43)".

11. Considering the judgments passed by the learned Trial Court

as well as learned Appellate Court, in my considered view, no

illegality has been committed by the trial Court in decreeing the

suit filed by the plaintiff, which has rightly been affirmed by the

Appellate Court while dismissing the appeal filed by the

defendants. I do not find any justifiable reason to interfere in the

concurrent findings recorded by both the Courts below in view of

the judgment passed by the Hon'ble Supreme Court in the matter

(8 of 8) [CSA-519/2011]

of C. Doddanarayana Reddy (supra). No other argument has been

advanced by counsel for the defendants.