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AMAN ULLAH versus SMT. SABIRA

High Court of Judicature at Allahabad

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Aman Ullah v. Smt. Sabira - SECOND APPEAL No. 1877 of 1980 [2005] RD-AH 1715 (22 July 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Second  Appeal No. 1877 of 1980

Aman Ullah Vs. Smt. Sabira

~~~~~

Hon. Dilip Gupta, J.

This Second Appeal has been filed against the judgment and decree dated 15.4.1980 passed by the II Additional District Judge, Allahabad in Civil Appeal No. 517 of 1978. The appellant was the sole defendant in Original Suit No. 12 of 1976, which had been filed for the relief of permanent prohibitory injunction for restraining the defendant from interfering with the bhumidhari land and possession of the plaintiff in plot No. 118-B measuring 9 bighas situated in Kachhar Baski, Darganj, Allahabad. The suit was decreed and the Civil Appeal filed by the defendant was also dismissed.

In the plaint, it was alleged that plot No. 118-B measuring 9 bighas originally belonged to one Abdul Latif who subsequently transferred it in favour of the plaintiff by Registered sale deed dated 3.11.1971 for sale consideration of Rs. 2,000/- and deliver the possession of the said plot to the plaintiff who has ever since then been in cultivatory possession of the land but the defendant without any right, title or interest was interfering in such possession. The suit was contested by the defendant and the right, title and possession of the plaintiff was denied even the validity of the sale deed dated 3.11.1971 was challenged. It was also stated that there was no land measuring 9 bighas in plot No. 118-B on the spot and the entry in the name of Abdul Latif against an area of 9 bighas in plot No. 118-B was fictitious. The trial court, after framing necessary issues, held that the plaintiff was bhumidhar in possession of plot No. 118-B and it was identifiable in the revenue records and so the plaintiff was entitled to the relief of permanent prohibitory injunction. The appellate court framed the following two points for determination:-

"1. Whether the plot no. 118 B really existed or was a fictitious entry in the revenue records?

2. Whether the plaintiff was the Bhumidhar in possession of plot no. 118 B measuring 9 bighas?"

As regards the first point, the appellate court noted that the contention of the plaintiffs was that plot No.118-B measuring belonging to one Abdul Latif was different from another plot No. 118 measuring 9 bighas and 18 biswas while according to the defendant there was only one plot bearing No. 118 having an area of 9 bighas and 18 biswas belonging to Abdul Rashid.  The appellate court examined the various revenue records including Khatauni of 1380-1382 F, which shows that plot No.118-B having an area of 9 bighas was in the name of Abdul Latif while Plot No. 118 having an area of 9 bighas and 18 biswas was in the name of Abdul Rashid. After the transfer of plot No.118-B by Abdul Latif in favour of the plaintiff her name was also mutated against Khata No. 2 of Abdul Latif and in case there was no independent plot No. 118-B measuring 9 bighas, the name of the plaintiff could not have been mutated in place of Abdul Latif by the revenue authorities. The appellate court also noticed the admission by the defendant in the cross-examination that he had no concern whatsoever with the plot which was transferred by sale deed by Abdul Latif in favour of the plaintiff and he also admitted that the name of Abdul Latif was entered along with the name of Muteeb Ahmad against plot No.118. The Lekhpal also stated on oath that plot No.118-B measuring 9 bighas belonged to Abdul Latif and the plaintiff purchased the said plot from Abdul Latif and her name was mutated. Thus the appellate court concluded that in view of the admission made by the defendant, there was no doubt at all that plot No.118-B measuring 9 bighas existed not only in the revenue records but also on the spot and was clearly identifiable.

As regards point No. 2 the appellate court also affirmed the finding of the trial court and held that the plaintiff was the Bhumidhar in cultivatory possession of plot No.118-B measuring 9 bighas. The Appeal was accordingly dismissed.

I have heard the learned counsel for the parties. Learned counsel for the appellant submitted that since there was a serious dispute with regard to the identity of the land, it was obligatory for the trial court to have the identify of the land established and in support of his contention, he placed reliance upon a decision of the Supreme Court in Shreepat Vs. Rajendra Prasad & Ors. reported in JT 2000 (7) SC 379.

Learned counsel for the respondent, however, submitted that the courts below, on the basis of evidence and on the basis of the admission of the defendant, have recorded categorical findings of fact and it was not open for this Court in Second Appeal to reverse these findings since they are not perverse. He further contended that in the written statement there was no pleading that the land could not be identified. According to him, a substantial question of law beyond the pleadings cannot be framed and admission by the defendant was the best piece of evidence. Thus according to him, the substantial question of law as framed by this Court did not arise for consideration in this case at all.

The scope of Section 100 of the Code of Civil Procedure has been explained by the Supreme Court in a number of decisions. In Panchugopal Barua Vs. Umesh Chandra Goswami reported in (1997) 4 SCC 713 the Supreme Court while explaining the scope of Section 100 of the Code of Civil Procedure observed as follows:-

"7. A bare look at Section 100 CPC shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 Amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the section shows that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a ''substantial question of law' is thus the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 C.P.C."

In Kshitish Chandra Purkait Vs. Santosh Kumar Purkait reported in (1997) 5 SCC 438 the Supreme Court observed as follows:-

"10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100 CPC in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline."

In Sheel Chand Vs. Prakash Chand reported in (1998) 56 SCC 683 the Supreme Court observed as follows:-

"The question of law formulated by the learned Single Judge, noticed above, strictly speaking is not even a question of law, let alone a substantial question of law. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction by the High Court under the amended provisions of Section 100 CPC. It appears that the learned Single Judge overlooked the change brought about to Section 100 CPC by the amendment made in 1976. The High Court unjustifiably interfered with pure questions of fact while exercising jurisdiction under Section 100 CPC."

In Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others reported in (1999) 3 SCC 722 the Supreme Court observed as follows:-

"4. ......... It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds.

5. It is not within the domain of the High Court to investigate the grounds on which the 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 has 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 or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either or law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India V. Ramkrishna Govind Morey reported in (1976) 1 SCC 803 held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference."

In Santosh Hazari Vs. Purushottam Tiwari (Deceased) by L.Rs. reported in AIR 2001 SC 965 the Supreme Court while pointing out what would constitute is substantial question of law, observed as follows:-

"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, insofar 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 unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances 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."

This judgment has been followed in a number of decisions including Thiagarajan & others Vs. Sri Venugopalaswamy B.Koil & others (2004) 5 SCC 762 and Govindaraju Vs. Mariamman reported in 2005 AIR SCW 916.

In the case of Thiagarajan and others (supra) the supreme Court also held as follows:-

"23. In our opinion, the High Court has erred in holding that the appellants have failed to establish inter alia to the suit property evidently without appreciating the evidence on record in its proper perspective by making any reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under S. 100, C.P.C. In our view, the learned single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under S. 100, C.P.C.

24. In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants suit was to be decreed and that the appellants are entitled to the relief as prayed for. 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.

25. To say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that 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."

In Kashibai w/o Lachiram and another Vs. Parwatibai w/o Lachiram and others reported in 1995 6 SCC 213 the Supreme Court observed as follows:-

"12. .......... It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of this view."

In Ram Prasad Rajak Vs. Nand Kumar and Bros. and another reported in AIR 1998 SC 2730 the Supreme Court observed as follows:-

"7............... Unless there was a substantial question of law, the High Court had no jurisdiction to entertain the second appeal and consider the merits.

8. That apart, on merits, the only other question relates to the bona fide requirement of the appellant that does not give rise to any substantial question of law. It is entirely a matter to be decided on an appreciation of the evidence. On a perusal of the judgment of the High Court it is evident that it had interfered with a finding of fact arrived at by the Second Additional District Judge, Giridih in the first appeal on an appreciation of the evidence. The High Court made an attempt to re-appreciate the evidence and come to the conclusion that the appellant failed to prove his bona fide requirement. In fact after a scanty discussion of the evidence, the High Court observed: "in this view of the matter I find and hold that the plaintiff miserably failed on factual aspect also to prove his bona fide necessity." The High Court has acted beyond its jurisdiction in appreciating the evidence on record."

In Govindaraju (supra) the Supreme Court observed as follows:-

"19. Even if the High Court was of the view that the findings of fact recorded by the courts below were wrong, in our opinion, these findings of fact could not be disturbed without coming to the conclusion that the findings recorded were perverse i.e. based on misreading of evidence or based on no evidence. The High Court did not come to such a conclusion."

In Sir Chunilal Vs. Mehta and Sons Ltd. Vs. Century Spg. & Mfg. Co. Ltd. reported in AIR 1962 SC 1314 the Supreme Court pointed out that the substantial question of law has to be distinguished from a substantial question of fact and it observed as follows:-

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

Examining the matter in the light of the principles enunciated by the Supreme Court in the aforesaid cases, it would be seen that the findings recorded by both the courts below are findings of fact, which cannot be said to be perverse. Both the courts below shave carefully examined the documents and the admission made by the defendant in his cross-examination to the effect that he had no concern whatsoever with Plot No. 118-B which had been transferred by means of the sale deed by Abdul Latif in favour of the plaintiff and clearly of the opinion that no substantial question .of law arises for consideration in this Second Appeal.

Thus there is, therefore, no merit in this Second Appeal. It is, accordingly, dismissed. There shall be no order as to costs. The interim order, if any, stands vacated.

Dt/- 22.7.2005

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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