Hanif Bux and Others vs Gads Mohammad

Rakesh Tiwari, J.—Heard Sri Jamal Ali, learned counsel for the plaintiffs appellant, learned counsel for the plaintiff respondent and perused the record.

The facts are that the plaintiff respondent filed Original Suit No.355 of 1995, Gaus Mohammad versus Hanif and others in the Court of Civil Judge (Junior Division), Banda on 20.7.1995 for dispossession of the defendants appellant from the property in dispute shown by letters E,F,G, H, C, I in the plaint map, injunction restraining the defendants from raising construction over the land shown by letters G,J, I D and mesne profits. Further relief sought by amendment was for mandatory injunction for removal of alleged construction made during the pendency of suit over the land in dispute shown by letters G,J, I D.

The plaintiff respondent alleged that he was bhumidhar of old plot no. 329/1 measuring 1 bigha 0.2 biswa i.e..47 acre, which was recorded in the name of his father Mohammad Bux before consolidation proceedings and after his death the plaintiff Gaus Mohammad became owner of the land in question shown by letters A, B, C, D in the plaint map; that his father had constructed over 5 biswa Abadi of the said plot and entire plot was surrounded by boundary walls; that the Consolidation Officer vide order dated 14.5.1984 ordered that entire khata no.76 was bhumidhari of the plaintiff; that the proceedings regarding mutation under Rule 109 of Consolidation of Holdings Rules were pending and that the plot in question was recorded as Abadi in revenue records.

During consolidation proceedings plot nos. 329/1, 329/2, 330 and 332/1 measuring 1.25 acres were consolidated together into new plot no. 158 over which the plaintiff claims to have constructed a room in the year 1992 shown by letters E,F,G, H in the plaint map. It was also averred that in the year 1992 the property in dispute shown by letters E, F, I, C was given to defendant respondent no.1 on licence which he denied to return the possession to the plaintiff and also gave threats for demolishing the property in dispute shown by letters G,J,I,D.

Lastly it was averred that the defendants had collected material and were going to raise boundary walls shown by letters G,J,I, G, hence the possession of the defendants was illegal and they were entitled for mesne profits at the rate of Rs.20/ per day.

The defendants appellant contested the suit denying the allegations of the plaint. According to them, the plaintiff had no concern with the disputed land and that their house existed over part of plot no. 329 since before consolidation operation. The land in their possession and in dispute was not identifiable and that the cases of the plaintiff referred in the plaint were not binding upon the defendants as they were not parties to the suits. The case of the defendants appellant also was that the house shown by letters E,F,G,H was constructed much earlier and the property shown by letters E,F,I, C was his Sahan and that the plot had been entered in class 6 as Abadi land. It was alleged that the plaintiff in collusion with the Lekhpal and other revenue employees got the proceedings under Section 122 of the U.P. Z.A. & L.R. Act and Rule 115C of the Rules decided in their favour and that the suit had been filed on false grounds.

The trial Court framed following issues on the basis of the pleading of the parties.

The parties examined witnesses in support of their cases and also filed documentary evidence etc.

The trial Court vide its judgment and decree dated 28.8.2008 decreed the suit partially for dispossession of the appellants from the property shown by letters E,F,G,H and Sahan shown by letters E,F,H,I for mesne profits at the rate of Rs.20/ per day. However, the suit was dismissed in respect of other reliefs claimed by the plaintiff.

Aggrieved by the judgment and decree dated 28.8.2008 in Original Suit no. 355 of 1995, the defendants appellant filed Civil Appeal No. 58 of 2008, Hanif Bux and others versus Gaus Mohammad. Interim order was granted to them during the pendency of the appeal. However, the appeal filed by the appellants was dismissed vide judgment and decree dated 30.1.2010 by the lower appellate Court confirming the judgment and decree dated 28.8.2008 passed by the trial Court.

It is in the aforesaid backdrop that this Second Appeal has been filed by which the relief has been sought for setting aside the judgments and decrees passed by both the Courts below and for dismissal of the suit of the plaintiff respondent in toto with costs throughout.

Sri Jamal Ali, learned counsel for the appellants has urged that the plot numbers of the plaintiff respondent relating to title are vague and misconceived; that the plaintiff pleaded that disputed property exists over plot no. 329/1 which was recorded in his father''s name and after his death he became sole bhumidhar whereas in plot no. 329/1 the name of Zainab Bibi daughter of Kallu resident of village Harha was also recorded vide order dated 26.5.1971 passed by J.O.(R) I, as cobhumidhar with Mohd. Bux, the father of the plaintiff and that plot no. 329 consists of two plots viz plot nos. 329/1 and 329/2; that plot no. 329/2 was recorded in the name of Hidayatullah hence, the plaintiff had to prove that the disputed property exists over plot no. 329/1 but he has utterly failed to prove it.

According to the learned counsel for the appellants, the alleged exclusive title of the plaintiff over plot no.329/1 is based on order dated 14.5.1984 of the Consolidation Officer which is said to be passed on compromise dated 27.4.1984 with Smt. Zainab Bibi but the plaintiff has not filed the copy of order dated 14.5.1984 and that the compromise dated 27.4.1984 is apparently a forged document which has been filed by an imposter as the recorded cobhumidhar in khata no.76 with plaintiff''s father is Zainab Bibi daughter of Kallu resident of village Kurrahi, Tehsil Naraini, District Banda whereas the alleged compromise is with Smt. Zainab Bibi wife of late Abdul Hafeez resident of village Kurrahi, Tehsil Baberu District Banda.

Learned counsel for the appellant has further submitted that it is admitted case of the plaintiff that plot no.329/1 was merged with other plots and allotted new plot no. 158 which was recorded as Abadi, hence the provisions of the Consolidation of Holdings Act and the Consolidation of Holdings Rules were not applicable. The proceedings under Rule 109 of the C.H. Rules were not maintainable, therefore, recording the name of the plaintiff in plot no. 158 M area 0.47 acres in said proceeding is illegal.

It is lastly submitted that the findings recorded by the courts below that the title of the plaintiff over the disputed land is proved, is illegal and is based on no evidence or inadmissible evidence and the documents filed by the plaintiff do not make out the title of the plaintiff over the property in dispute.

He also submits that the findings recorded by the courts below about the title of the plaintiff respondent over the disputed land are incorrect, perverse and has materially prejudice the case of the plaintiff as the plaintiff was neither recorded as bhumidhar in the revenue records and nor he was in possession of the land in dispute. It is also submitted that the Courts below have misread the evidence and issue nos. 2, 4 and 11 have not been considered by the courts below, hence the judgments and decrees passed by the courts below are giving rise to the substantial questions of law framed in the memo of appeal.

In support of his above submissions, learned counsel for the appellants has relied upon paragraph 15 of the judgment rendered in the case of Santosh Hazari versus Purushottam Tiwari (deceased) By LRs., (2001) 3 SCC179. Paragraph 15 of the judgment reads thus:

" 15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice (see Girijanandini Devi v. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate court, moreso when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. ( See Madhusudan Das v. Narayanibai). The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is sufficient balance or improbability to displace his opinion as to where the credibility lie the appellate court should not interfere with the finding of the trial Judge on a question of fact. ( See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assigned its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present. Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."

Per contra, learned counsel for the respondent has submitted that the suit was filed for permanent injunction and that both the courts below have recorded concurrent findings of fact against the defendants appellant. He has relied upon the case reported in AIR 1998, MP73, Smt. Sarswati Devi versus Krishna Ram Baldeo Bank Ltd. and another, wherein it has been held that the Court will not interfere in the concurrent findings of fact of the courts below unless there is an illegality or mistake apparent on the face of record. He further submits that the defendants appellants have failed to show any substantial question of law which may be debatable and has not been settled in law. As regards paragraph 15 of the judgment rendered in the case of Santosh Hazari (supra) is concerned, it is urged by the learned counsel for the respondent that the facts and circumstances of the case in which the judgment was given was different. He submits that in that case the question before the Apex Court was regarding possession on the basis of adverse possession. He submits that the defendants appellants were owners and in possession of the plot in dispute for the last 7080 years i.e. from before Zamindari Abolition.

After hearing learned counsel for the parties at length and on perusal of the judgments and decrees of the courts below as well as the record it is apparent that issue nos. 2 and 4 have been dealt with together in details by the trial Court as well as appellate Court. The court below has held that the respondent has failed to prove his relationship over the disputed room and land as such the plaintiff is entitled to get vacant possession of the room and land from the respondent. The relevant extract of findings of the trial Court in respect of issue nos. 2 and 4 are as under:

In so far as issue no.4 is concerned, the court below has held that according to the decision on issue nos. 1,2 and 3, the possession of the defendants appellants is illegal and as such the plaintiffs are entitled to get compensation.

The next contention raised by the learned counsel for the defendants appellants that the land in dispute is not identifiable and as such it can not be said that they are trespassers and in an illegal possession of the room and Sahan. In this regard the trial Court has decided issue no. 1 with issue no.11. The relevant extract of findings are thus:

In so far as illegal possession of the room and Sahan is concerned, suffice it to say that the witnesses of the defendants appellant have confirmed the boundary walls of the land in dispute and as such the findings of the courts below that the land is identifiable on the basis of oral and documentary evidence needs no interference. Both the courts below have dealt with the issues which are alleged to have not been considered by the courts below. Therefore, there is no illegality or infirmity in the judgments and decrees of the courts below as has been pointed out by the learned counsel for the appellants.

The lower appellate Court has also discussed the aforesaid findings of the trial Court in its judgment and has affirmed thus:

In so far as the case of Santosh Hazari (supra) referred by the learned counsel for the appellants is concerned, it is to be noted that the defendant in that case had not produced any documentary evidence in support of his plea of adverse possession and that the oral evidence adduced by him was conflicting in nature and not worthy of reliance. The Apex Court has also found that the first appellate Court has, in a very cryptic manner reversed the finding on question of possession and dispossession. Admittedly that being the case of adverse possession, the judgment was rendered in a different set of circumstances. In the present case, the first appellate Court has not passed any improper order to give rise to any substantial question of law. The judgments of the courts below display conscious application of mind and recording of findings of fact supported by reasons on all issues and contentions of the learned counsel for the parties. There is no doubt, in my mind, that the Courts below have carried out their function correctly.

For all the reasons stated above, no substantial question of law as formulated by the learned counsel for the appellants in the present second appeal arises.

The second appeal is accordingly, dismissed. No order as to costs.