Farid Ahmad and Others vs Bibi Mataban and Others

S.K. Chattopadhyaya, J.—The plaintiffs-appellants have impugned the concurrent findings of fact arrived at by the courts below in a suit for declaration of title in respect of the suit property. The point for discussion is as to whether the courts below properly appreciated the evidence on record, which called for interference by the High Court in this second appeal.

Mr. Dwivedi, learned senior counsel appearing on behalf of the appellants, submits that both the courts below have misappreciated the crucial documents, namely, Exts. 2 series and 3 series and thus committed an apparent error of law. His second contention is that the courts below have also misconstrued the evidence to reject the contention of the plaintiffs-appellants that they have acquired title by adverse possession.

On the other hand, Mr. Mazumdar, learned senior counsel appearing on behalf of the respondents, has contended that until and unless the High Court is of the opinion that the judgment rendered by the courts below are perverse, no interference is called for. He further contends that in the present case the courts after proper scrutinising the evidence on record have dismissed the suit of the plaintiffs and inference drawn from the Khatian in the case cannot be interfered in second appeal.

The trial court has considered Exts. 2 series and 3 series in Paragraph 5 of its judgment in deciding issues no. IV and V. Exts. 3, 3/A, 3/B and 3/C are Jarpeshgi deeds, which were executed by defendant no. 1 in favour of Jhapas Mian on 24.7.1928 in respect of plots no. 285 and 881. These documents were relied by the plaintiffs to show that defendant no. 1, Munshi Mian transferred 2 Kathas 10 Dhurs out of total area of 7 Kathas 5 Dhurs and in the southern boundary the name of Shaikh Wali has been mentioned. The extent of land transferred is 2 1/2 Kathas, which is not one third of 7 Kathas 5 Dhurs. The trial court, however, found that no evidence was adduced by the plaintiffs to show that the recital of boundary was described at the dictation of Sheikh Munshi, who was uncontrovertibly an illiterate man. It is well settled that title cannot pass by mere admission, estoppel or mere acquiescence and it has to be created only when it conforms to the requirement of statutes. Reference, if any, may be made to the decisions reported in 1966 S.C. 606 and 1993 (1) PLJR 172. Similarly, the trial court has found on evidence that Ext. 2/B read with Khatian of revisional survey appears to be fictitious and shady transaction because neither any payment of rent through Jumanjati Mian, nor mutation of his name was ever made in respect of the land and, as such, Ext. 2/B does not establish the title of the plaintiffs was regard to Fika''s property. So far Ext. 3/B is concerned, the trial court has found that there is no recital of the boundary of the said deed, which was written by the scribe at the direction of Sheikh Munsif. It has also discarded Ext. 3/A on the ground that title cannot pass by mere admission. It has been found that the plan tiffs have not examined any witness a show that the scribe wrote out the record as stated by Sheikh Munshi and it was read over and explained to him before affixing his thumb mark. Moreover these documents were not proved. Another important finding of the trial court is that the plaintiffs-appellants have failed to explain as to why the names of their ancestors were not mutated and why the name of defendant no. 1 was mutated by the Revenue Authority about all the lands of Khata no. 6. The trial court further found that the plaintiff''s case that by family arrangement on partition they were in cultivating possession of Fika''s one thing area of land has been found false as a report of the Pleader Commissioner as well as the map attached to it. Moreover according to the court below, Exts. 1 series, the certified copies of revision survey and C.S. Khatian show that the name of ancestors of the plaintiffs were not recorded alongwith Most. Fika and with the defendants'' ancestors. Thus, according to the court, Ext. 6 series false the appellants'' claim of being member of Fika''s family. These findings of the trial court have been confirmed by the lower appellate court on further scrutinising at these exhibits.

It is well settled that the High Court while exercising jurisdiction u/s 100 C.P.C., cannot reverse the findings of lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible. Reference, if any, may be made to the case of Smt. Satya Gupta Alias Madhu Gupta Vs. Brijesh Kumar, . In the case of Hari Singh Vs. Kanhaiya Lal, , it has been held that concurrent findings of fact cannot be interfered with by the High Court on appraisal of evidence.

So far the plea of adverse possession is concerned, the same has been considered in paragraph-6 of the trial court''s judgment and the court below on perusal of the Khatian has found that in the said Khatian and the running Zamabandi till date the name of defendants and their ancestors are there, which show occupation of the defendants and continuity of their possession. Thus, the trial court also rejected the plea of acquisition of title by adverse possession. This finding of the trial court, it appears, was not questioned before the appellate court because in paragraph-13 of the appellate court''s judgment two questions fell for consideration, which were as follows:

i. Whether the impugned judgment of the court below is based upon proper appreciation of the evidence or not?

ii. Whether the appellants have proved their relationship with the family of Fika by cogent and reliable evidence? Moreover, as early as in 1934 Privy Council 5, in the case of Anup Mahto vs. Mita Dusadh and others it is held that inference drawn from statements in Khatian cannot be interfered in second appeal and failure to raise presumption is not misdirection.

The decision of the Supreme Court in the case of Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, relied by Mr. Dwivedi, in my view, is quite distinguishable from the facts of the present case. In that case their Lordships in exercising of power under Article 136 of the Constitution of India has held that jurisdiction under the article has to be exercised sparingly. But that cannot mean that injustice must be perpetuated because it has been done two or three times in a case. So far jurisdiction of the High Court u/s 100 is concerned, it is welt settled by now that the High Court has no jurisdiction to entertain the second appeal on the ground of erroneous findings of fact, however gross error there may seem to be. On facts Mr. Dwivedi has failed to point out that any substantial question of law is involved in this appeal. I find no merit in this appeal and, as such, it is dismissed.