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LACHHAN versus DEEP NARAIN

High Court of Judicature at Allahabad

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Lachhan v. Deep Narain - SECOND APPEAL No. 1056 of 1987 [2005] RD-AH 4793 (25 October 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 10

Second Appeal No. 1056 of 1987

Lachhan (since deceased)

Vs.

Deep Narain & ors.

********

Hon'ble Dilip Gupta, J.

This Second Appeal has been filed against the judgment and decree dated 31st January, 1987 passed by the learned II Additional District Judge, Deoria dismissing Civil Appeal No. 286 of 1980. This Civil Appeal arose out of Original Suit No. 327 of 1977 which had been filed for prohibitory injunction but subsequently amended to mandatory injunction. The suit was decreed by the learned Munsif, Deoria by the judgment and decree dated 20th September, 1980.

The plaintiff's father Ramanand was the owner of the property in dispute which is a house and sehan. The house had fallen down but the plaintiff had erected a ''Palani'. However, defendant no. 3 who is the uncle of the plaintiff with the help of the defendant nos. 1 and 2 dispossessed the plaintiff in respect of which proceedings were initiated under Section 145 of the Code of Criminal Procedure. Defendant nos. 1 and 2 did not file any written statement and suit proceeded ex parte against them but defendant no. 3 filed his written statement contending therein that the father of the plaintiff Ramanand had executed a sale deed on 22nd October, 1963 in respect of the property in dispute in favour of defendant no. 3 for the sale consideration of Rs. 87/-. In the alternative, it was also pleaded that the defendant was in possession of the land in dispute for 12 years and as such he perfected his right, title and interest in the property in dispute.

The basic questions that arose for consideration before both the courts below were whether the suit was barred by limitation; whether the defendant no. 3 had perfected his right, title and interest in property by adverse possession and whether defendant no. 3 came in possession of the property in dispute on the basis of the sale deed dated 22nd October, 1963.    

The courts below on a consideration of the documentary and oral evidence recorded a categorical finding that the valuation of the immovable property in dispute was over Rs. 100/- and, therefore, the sale deed was necessarily required to be registered but since it had not been registered it could not confer any rights on defendant no. 3. Both the courts below also recorded a categorical finding that the sale deed could not be proved by the defendant no. 3 inasmuch as the marginal witnesses were not examined and the deed writer who had been examined could not prove the execution of the sale deed. The courts below have also recorded a categorical finding that the suit had been filed within 12 years from the date of dispossession of the plaintiff by defendant no. 3. Thus in such eventuality, the plea of adverse possession and limitation set up by defendant no. 3 was repelled.

The findings recorded by the courts below are the findings of fact and learned counsel for the appellant has not been able to demonstrate that the said findings are perverse.

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 Vs. Mariamman reported in 2005 AIR SCW 916 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."

In view of the aforesaid proposition of law and in view of the categorical findings recorded by the courts below, no substantial question of law arises for consideration in this Second Appeal.

It is, accordingly, dismissed. There shall be no order as to costs.

Date: 25.10.2005

NSC


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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