Badhka Lodhu And Ors vs Vrinda Ram And Ors

Sanjay K. Agrawal, J

Heard on admission for formulation of substantial question of law in the second appeal preferred by the plaintiffs.

The plaintiffs' suit for declaration of title only and permanent injunction was dismissed by the trial Court finding no title and also the plaintiffs are not in possession which was upheld by the first appellate Court against which this second appeal has been preferred by the plaintiffs.

Mr. Awadh Tripathi, learned counsel appearing for the appellants / plaintiffs, submits that concurrent finding recorded by the two Courts below that the plaintiffs are not title holders and possession holders is perverse and gives rise to substantial question of law for determination of this appeal.

The suit filed by the plaintiffs that they are title holders of the suit land was dismissed by the trial Court holding that the plaintiffs have failed to establish their title and further held that the plaintiffs are not in possession of the suit land and defendant No.1 is in possession of the suit land on the date of institution of suit which was principally agreed by the first appellate Court and the two Courts below have also recorded a finding that since the plaintiffs are not in possession and admittedly, defendant No.1 is in possession of the suit land on the date of institution of suit, therefore, the suit is barred by the proviso to Section 34 of the Specific Relief Act, 1963, as the plaintiffs ought to have sought the relief of possession while seeking declaration. The concurrent finding recorded by the two Courts below that the plaintiffs have failed to prove their title over the suit land and they are not in possession of the suit land, therefore, the suit is barred by the proviso to Section 34 of the Specific Relief Act, 1963, is a finding of fact based on evidence available on record and I do not find any perversity or illegality much less the substantial question of law for determination of this appeal.

Their Lordships of the Supreme Court have held that it is not permissible for the High Court to interfere with the concurrent finding of fact recorded by two courts below unless findings are perverse. (See: Aftaruddin (Dead) represented through legal representatives v. Ramkrishna Datta alias Babul Datta and others (2018) 11 SCC 77 and Rajkumari and another v. Ravinder Kumar (deceased) through legal representatives and others (2018) 12 SCC 681.)

Accordingly, the second appeal is dismissed in limine, without notice to the other side. No order as to cost(s).