Dhanesh Prasad Tiwari vs Ganesh Prasad & Anr

Heard.

This second appeal has been filed by the appellant/plaintiff under Section 100 of the Code of Civil Procedure being aggrieved by the impugned

judgment and decree dated 4.10.2018 passed by 5th Additional District Judge, Rewa in Regular Civil Appeal No.185/2016 arising out of judgment and

decree dated 16.5.2012 passed by Civil Judge Class-I, Rewa in Civil Suit No.8A/2012 whereby the learned Civil Judge dismissed the suit.

The plaintiff/appellant filed a civil suit for declaration of title and handing over the possession of the suit land admeasuring 8x40=320 sq. ft. which is

part of Khasra No.652/2-A situated at village Sirkhini Tehsil Raipur Karchuliyan. As per the suit, the respondent No.1 had encroached the a part of

land admeasuring 8x40=320 sq. ft of Khasra No.652/2-A belonged to appellant/plaintiff and when on opposition of appellant, defendant/respondent did

not remove the said encroachment, the appellant filed an application before the S.D.O., but when no action had been taken by the SDO, the appellant

filed the civil suit which was dismissed and thereafter he filed the first appeal which has also been dismissed. Hence, this second appeal has been

filed.

There are concurrent findings of learned Courts below against the appellant with regard to possession and tile over the suit property. The appellant

failed to establish that he was the title holder and was in possession of the suit property. The appellant before the trial court also failed to proved that

the respondent has encroached the aforesaid land which belonged to him.

After appreciation of evidence, learned First Appellate Court found that the findings of the learned trial Court are properly based on evidence available

on record. The plaintiff/appellant has no right over the suit property, hence, appeal was dismissed filed by the appellant. There has been concurrent

finding of the Courts below and purely question of facts are involved in this appeal, no perversity or illegality has been committed by the learned

Courts below. In case of “Guruvachan Kaur Vs. Salikram, (2010) 15 SCC 530, it was held that it is settled law that, in exercise of power under

Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the findings of fact, recorded by the first appellate Court which is the

final Court of fact, unless the same is found to be perverse, which is discussed by Hon'ble the Supreme Court in case of “Damodar Lal Vs. Sohan

Devi and others, (2016) 3 SCC 78 ,wherein Hon'ble the Supreme Court has held that even if the finding of fact is wrong, that by itself will not

constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and

surmises. The safest approach on perversity is the classic approach on the reasonable man's interference on the facts.

In the light of the above principles laid down by the Hon'ble Supreme Court, it is not proper and legally justified to interfere with the concurrent

findings of fact arrived at by learned Trial Court and the First Appellate Court on a pure question of fact. In Second Appeal, the re-appreciation of

evidence and interference with the findings of fact is not permissible. This Court can interfere with the concurrent findings of fact, only when a

Substantial Question of law arises. If the Courts below have neither ignored any material fact, nor has considered any inadmissible evidence, then this

Court cannot interfere with the concurrent findings of fact.

In view of the aforesaid, the concurrent findings of fact arrived at by two Courts below do not suffer from any illegality or infirmity. In these

circumstances, the appeal being devoid of merit and is accordingly dismissed.