Chandra Singh S/o Sh. Hari Singh vs Smt. Shanta Devi W/o Sunder Lal Shuhalka

This Civil Second Appeal has been preferred on behalf of the

plaintiff-appellant to assail the concurrent findings given by the

learned trial Court in Civil Original Suit No. 267/1995 vide

judgment dated 28th August, 2000 as upheld by the first Appellate

Court under the judgment dated 31st January, 2015 passed in Civil

Appeal No. 38/2013.

Succinctly stated the facts giving rise to appeal are that the

plaintiff-appellant Chandra Singh filed a suit for injunction

simplicitor against the defendants including Urban Improvement

Trust, Udaipur (for short ''UIT''), while claiming that Plot No. 12

admeasuring 85 x 45 yards having an area of 885 square yards

existing in Aaraji No. 15 min in village Teeteradi was allotted to

Chhagan Lal by Gram Panchayat Teeteradi vide Patta dated

28th July, 1956. Chhagan Lal remained in possession over the

aforesaid plot uptil 6th February, 1980. Vide agreement to sell

dated 6th February, 1980, he agreed to sale the said plot to

plaintiff and handed over the possession thereof on the same day.

It was alleged that the UIT, Udaipur, without any title and

possession over the land, is threatening to evict the plaintiff and

has allotted the said piece of land in the form of three plots

bearing No. 746, 747 and 748 to other defendants No. 1 to 3.

After hearing both the sides, learned trial Court dismissed

the suit vide judgment and decree dated 28 th August, 2000 while

coming to the conclusion that the plaintiff has not been able to

prove that the patta, which is allegedly issued to the plaintiff is

genuine; plaintiff does not derive any right, title or interest on the

basis of simple agreement to sell, as no sale-deed has been

executed in his favour as yet; the said piece of land was found to

be allotted to UIT, Udaipur by the State Government; settled

possession of the plaintiff was also not found proved and at the

most, he was found to be a trespasser on the disputed piece of

land.

The appeal preferred by the plaintiff against the said

judgment was also dismissed by the learned first Appellate Court,

after arriving at the concurrent findings, as regards the title and

possession of the plaintiff over the disputed piece of land.

Heard learned counsel for the appellant as also for the

respondents on admission of the second appeal and perused both

the judgments impugned as also the ocular as well as

documentary evidence available on record.

Prior to proceeding to decide this issue, it appears

appropriate to decide the application filed by appellant under

Order 41 Rule 27 of the Code of Civil Procedure.

APPLICATION UNDER ORDER 41 RULE 27 CPC:

Learned counsel for the appellant has filed an application

under Order 41 Rule 27 read with Section 151 of the Code of

Civil Procedure for taking two documents on record. One being,

the order issued by the Office of Urban Improvement Trust,

Udaipur wherein, certain schemes are mentioned to have been

handed over to the Municipal Council, Udaipur for their up-keep

and maintenance. Second one is the letter dated 5 th March, 2014

issued by the Office of Nagar Nigam, Udaipur to one Devendra

Kumar Mathur to deposit fees in respect of one plot situated in

Hiran Magri Sector-11. Learned counsel for the appellant

submits that these documents go to show that the respondent -

UIT, Udaipur is not having any control over or interest in various

Sectors of Hiran Magri wherein the disputed property situates.

Learned counsel for the respondents has opposed the

application.

In my considered view, these two documents do not relate

to the matter in dispute existing between the appellant and

defendants. Letter dated 5th March, 2014 has been issued to

one Devendra Kumar Mathur, who is not a party in this

appeal. Another order issued by the Urban Improvement

Trust, Udaipur handing over the maintenance part of some

Sectors of Hiran Magri to Municipal Council, Udaipur indicates

their internal arrangements so far as up-keep and

maintenance is concerned. By way of this order, the title over

the disputed property or various Sectors of Hiran Magri is not

being diverted or transferred to the Municipal Council or to

any other body. So, these documents are not at all required to

be taken on record as additional evidence as they are not

having any bearing upon the matter in issue pending before

this Court. Hence, the application is rejected.

So far as this appeal is concerned, learned counsel for

the appellant has argued that both Courts below have erred in

arriving at the conclusion that the plaintiff-appellant was not in

possession over the disputed piece of land. He has argued that

the findings as regards possession over disputed land on the

date of filing suit are not correct. It has also been argued that

UIT, Udaipur has not been able to prove that the land was

validly vested in it by the State Government. Nor any possession

of UIT, Udaipur over the disputed property has been established as

per the evidence adduced by it. It has also been argued that no

revision has been filed against the said Patta issued in favour of

Chhagan Lal under the provisions of Section 97 of the Rajasthan

Panchayati Raj Act. Hence, it cannot be said that the Patta was

not validly issued to Chhagan Lal. Learned counsel submits that

the appellant-plaintiff has derived his right, title and possession

over the disputed property through Chhagan Lal by an agreement

to sell dated 6th February, 1980. Chhagan Lal or his

representative have not denied the existence of said agreement

and thus, it would not make any difference whether sale-deed has

been executed in favour of the plaintiff or not. It has also been

argued that the learned Courts below have failed to properly

appreciate the evidence available on record and hence their

findings suffer from misreading of evidence. In view of the above

contentions, as many as 7 substantial questions of law have been

proposed by the appellant.

Per contra, learned counsel appearing for the respondents

has contended that in view of the concurrent findings arrived at by

the learned trial Court as also first Appellate Court that settled

possession of plaintiff over disputed land is not proved, no scope

of any interference is left in this second appeal. He has argued

that in the absence of any sale-deed having been executed in

favour of the appellant, he does not derive any title over the

disputed land. It has also been argued that both the Courts below

have very elaborately discussed the oral as well as documentary

evidence while arriving at their conclusions and thus, their findings

cannot be faulted with on the ground of misreading of evidence.

It has also been argued that when the said Patta was not proved

to have been issued to Chhagan Lal genuinely or was under cloud

of suspicion then, the plaintiff should have sought the relief of

declaration of title over the disputed land and in absence of which,

suit for injunction simplicitor is not valid. In view of the above

submissions, he has prayed that no substantial question of law is

required to be framed and the second appeal deserves to be

dismissed.

In light of the arguments advanced by both the learned

counsels at bar, issue-wise findings arrived by the learned trial

Court were gone through by this Court as also the conclusions

arrived at by the learned first Appellate Court. The issue of title

and possession over the disputed land relates to factual aspect of

the matter for which, first Appellate Court is the final Court. In

my considered opinion, learned first Appellate Court has rightly

upheld the findings given by the learned trial Court in respect of

all the issues while elaborately discussing and analyzing the oral

as well as documentary evidence.

During arguments, learned counsel for the respondents has

relied upon the judgment in the case of Kondiba Dagadu Kadam

Vs. Savitribai Sopan Gujar & Ors. reported in AIR 199 SC

2213 wherein, it has been laid down that 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 substantial question of law in second

appeal. The mere appreciation of 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.

While considering the evidence available on record in this

context, it appears that the mere appreciation of facts in respect

of evidence as also the documents do not pose any substantial

question of law in the matter in hand. It is also clear that since

the first Appellate Court is not found to have assumed any

jurisdiction which did not vest in it, hence, no substantial question

of law is required to be framed in light of the judgment referred

above.

Learned counsel for the respondents has also relied upon the

judgment in the case of Mohan Lal Vs. Nihal Singh reported in

JT 2001 (9) SC 58. Factual matrix of this judgment is also akin

to the matter in hand. In case of the judgment relied upon, the

plaintiff filed a suit for injunction claiming to be lessee of the land

in dispute and at the same time, defendant also claimed to have

purchased the said land. Both the Courts below arrived at the

concurrent findings regarding possession over the land. High

Court declined to interfere with those findings in second appeal.

Then, it was held by the Hon''ble Supreme Court that there was

hardly any scope for the High Court to interfere with the findings

of possession concurrently recorded by the lower Courts.

Similarly, in the judgment in the case of Christopher Barla

Vs. Basudev Nair (D) by LRs reported in 2005 (3) SRJ 25 it

was held that Court has limited right in second appeal. In that

case also, both the parties were claiming title and oral evidence

was led by them in this regard. Courts below arrived at the

concurrent findings and no interference was made by the High

Court. The view taken by the High Court was affirmed by the

Hon''ble Supreme Court.

So far as the claim laid by the appellant-plaintiff on the basis

of agreement to sell dated 6 th February, 1980 is concerned,

learned counsel for the respondents has referred the judgment in

the case of Suraj Lamp & Industries Pvt. Ltd. Vs. State of

Haryana & Anr. reported in 2012(1) WLC (SC) Civil 43

weherein, it has been opined that transfer by sale agreement or

general power of attorney cannot convey any title or interest in

immovable property and cannot be a valid substitute of sale-deed.

It was further held that the property can be legally and lawfully

transferred only through sale-deeds. In the matter in hand,

agreement to sell was executed way back on 6 th February, 1980

and the suit for injunction came to be filed on 7 th August, 1995.

During this long gap of more than 15 years, no sale-deed was got

executed by the plaintiff in his favour. In absence of such sale-

deed, in my opinion, he cannot be allowed to lay his claim as

having legal title over the disputed property as against UIT to

whom, the said land has been vested by the State Government to

formulate a residential scheme.

It is also worth mentioning here that in view of the evidence

adduced by both the sides, plaintiff-appellant was not found in

possession of the disputed property on the date of filing of the

suit. PW-2 Chhagan Lal, from whom plaintiff alleges to have

purchased the property has admitted in his cross-examination that

the land in question belongs to UIT being the Government land.

He has not disclosed the measurements of the disputed land in his

statements. Learned first Appellate Court has come to the

conclusion that looking to the statements of PW-2, his possession

over the land is not proved.

In view of these factual aspects, learned counsel for the

respondents has relied upon the judgment in the case of Delhi

Development Authority Vs. Birender Singh & Anr. (RSA No.

293/2015) decided by the Delhi High Court on 21 st October, 2016

wherein, it has been held as under:-

"15. Therefore, even assuming that the respondent no.1/plaintiff is in possession of the suit property (though respondent no.1/plaintiff was not in possession of the suit property as on the date of the filing of the suit), even then, the discretionary relief of injunction could not be granted to respondent no.1/plaintiff who was a trespasser on government land and which was an acquired land acquired by means of a specific reference to the plot no. E-64, and of which ownership and continuous possession has been wrongly claimed by the respondent no.1/plaintiff in the subject suit."

In view of above observation also, no substance is found in

the case advanced by the appellant-plaintiff over the disputed

land in the matter in hand.

Learned counsel for the respondents has also relief upon

the judgment in the case of Bhurji & Anr. Vs. Urban

Improvement Trust, Alwar & Anr. reported in 1996(3) WLC

(Raj.) 155. In this case also, suit was filed for injunction

simplicitor to restrain defendant from interfering with the

physical enjoyment of land in possession of plaintiff whereas,

defendants - UIT and Municipal Council were pleading that the

land belong to them and was the Government land on which

plaintiff had been in unlawful possession. The said suit filed for

injunction and without seeking declaration was rejected by both

the Courts below. This Court upheld the judgments of lower

Courts stating that the findings of fact are not open to challenge

in the second appeal unless there is some substantial question of

law. The facts of the matter in hand are also similar to the case

relied upon by the learned counsel for the respondents and thus,

supports his contentions. In this regard, learned counsel for the

respondents has also relied upon the judgment rendered in the

case of Premji Ratansey Shah & Ors. Vs. Union of India &

Ors. reported in JT 1994 (6) S.C. 585.

Another case relied upon by the learned counsel for the

respondents is Tola Ram Vs. Mohan Lal reported in 2012(3)

DNJ (Raj.) 1271. While relying upon the judgment in the case

of Anthula Sudhakar Vs. P. Buchi Reddy (Dead) by LR''s & Ors.

reported in (2009) 4 SCC 594, this Court came to the conclusion

that no substantial question of law arises as the plaintiff-

appellant has utterly failed to claim the relief of declaration in

respect of his title which was seriously disputed by the

defendants, who also claimed his title over the property. Further,

it was also observed that the appellant has failed in establishing

his possession also. Taking into consideration the concurrent

findings of the Courts below, while rejecting the suit for

injunction, the second appeal was also dismissed by a co-

ordinate Bench of this Court. Facts of the case in hand are also

quite similar with the above referred case.

Learned counsel for the respondents has also argued that

though the suit was filed for injunction only but during trial, both

the sides led their evidence in respect of title also over the

disputed land and both the Courts below while giving their

definite findings in respect of issues No. 1 to 4 have concluded

that the appellant-plaintiff was not having any title, right or

interest over the disputed property. So, on this ground also, no

case is proved in favour of the appellant to obtain relief of

injunction.

He has referred to the judgment in the case of Anthula

Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs. & Ors.

reported in AIR 2008 SC 2033 wherein, it has been observed

that where there are necessary pleadings regarding title and

appropriate issue relating to title are framed on which parties

lead evidence, if the matter involved is simple and straight

forward, the Court may decide upon the issue regarding title,

even in a suit for injunction. Learned counsel for respondents

thus attempts to submit that the issue of title over the disputed

land also stands finally decided as per the findings given by the

Courts below. But, I am not inclined to accept this view, as it has

further been observed in the referred judgment that such cases

are exception to the normal rule that question of title will not be

decided in suits for injunction. So, it is apparently clear that the

issue of title can be decided, as a general rule, in the suit for

declaration only.

My view also gets fortified by the judgment referred by the

learned counsel for the appellant rendered in the case of Rama

Gowda (Dead) by LRs Vs. M. Varadappa Naidu (Dead) by

LRs & Anr. reported in (2004) 1 SCC 769. In this matter of

similar factual matrix, the Hon''ble Supreme Court upheld the

view of High Court keeping the question of title open. It was

further clarified that the contending parties, in such situation,

will be at liberty to establish their titles in the duly constituted

legal proceedings. It is worth mentioning here that though this

aspect is not directly in issue in regard to this second appeal but

as the learned counsel for the respondents has made endeavour

to crystallize the findings regarding title over the disputed

property, it appears necessary to make the observation in this

regard.

In view of the discussions made above and in light of the

principles enunciated in above referred judgments, this Court is

of the firm opinion that no substantial question of law as

proposed by appellant in this second appeal is required to be

framed and accordingly, this second appeal does not deserve

admission. Thus, the second appeal is dismissed at admission

stage and is decided accordingly.