Nagaraju vs H.N. Doddaveerappa

K. Govindarajulu, J.—Defendant in OS 3/91 on the file of the Munsiff and JMFC at Periyapatna is the Appellant in this second appeal.

Parties will be referred according to the status found in the suit for convenience.

The suit of the Plaintiff is filed for permanent injunction in regard to the plaint schedule property restraining the Defendant, his men and persons claiming through him from interfering with the plaint schedule property. In the schedule to the plaint, property is described as dry land in Sy. No. 78/21 of Kasaba Hobli, Naralapura Village of Periyapatna Taluk. It is the case of the Plaintiff that he has been allotted the plaint schedule property under a grant certificate. He is in possession and enjoyment of the property. There being interference, he was obliged to the file the suit for permanent injunction.

The case of the defence is he is in possession of the property for more than 15 years, he is the cultivator and that it is a Government land. His application for regularisation of the said land is pending consideration before the revenue authorities. So, the Plaintiff cannot claim lawful possession or grant in regard to the property which is in possession of the Defendant as Defendant is in possession of the property. Their being no boundaries mentioned in the so called grant relied by the Plaintiff, the suit of the Plaintiff for lawful possession has to be dismissed.

On these pleadings, learned trial Judge has framed issues, permitted parties to lead evidence. PWs 1 and 2 were examined and Exs.P.1 to 6 were marked. In response, DWs 1 and 2 were examined and Exs.D.1 to 5 were marked.

Learned trial Judge has answered the following issues with the following reasons while decreeing the suit:

(1) Whether the Plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on date of the suit and earlier thereto?

(2) Whether the Plaintiff proves that the Defendant interfered with his possession?

(3) Whether court fee paid is sufficient?

(4) What decree or order?

My findings are as follows:

(1) In the affirmative

(2) In the affirmative

(3) Already held in the affirmative by an order passed by this Court dt,39.9.1993

(4) As per order below for the following reasons.

Aggrieved Defendant has preferred appeal in RA29/1995. Learned Appellate Judge while dismissing the appeal has raised the following points for consideration and has dismissed the appeal,

(1) Whether Plaintiff-Respondent has established his possession over the suit schedule property as on the date of suit and alleged interference?

(2) Whether findings on Issue No. 1 and 2 given by the trial court is correct?

(3) Whether the judgment and decree of the trial court needs to be interfered with?

(4). What Order?

My findings on the above points are as follows:

1) In the affirmative

2) -do-

3) in the negative

4) As per the final order, for the following:

Against the concurrent findings in regard to the Courts below, Defendant is in appeal.

Learned Counsel for the Defendant contends that it is settled law that Plaintiff has to succeed to his merits and cannot fall back on the weakness of the Defendants.

It is the positive case of the Defendant that for more than 15 years prior to the date of the filing of the suit, Defendant is in possession of the property. To prove his lawful possession, the revenue proceedings including the mahazar conducted by the Tahsildar is relied. So, the grant if any, cannot take away the right of a person who is in possession of the property and that his client has filed necessary application for regularisation of the unauthorised possession of the property and that his case is pending. So, the approach of the learned Judges of the Courts below is not in accordance with law. Places reliance on ruling of the Hon''ble Apex Court in Hero Vinoth (Minor) v. Seshammal reported in AIR 2006 SCW 2833, to contend that when there is a misreading of the documents by the Courts, it gives rise to a substantial question. So, this is a fit case for admission and framing of such a substantial question. So, pray for admitting the appeal.

In reply, it is contended by the learned Counsel for the Plaintiff that grant in question is not disputed. The application filed by the Defendant before the Deputy Commissioner is dismissed. So, there is no merit in the appeal.

Hon''ble Apex Court in Kashmir Singh v. Barcian Singh and Anr. (Appeal) civil 1036 of 2002 decided on 03.03.2008), has laid down the scope of Regular Second Appeal. Their Lordships have observed as follows:

The principles relating to Section 100, relevant for this case, may be summarized thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii)- The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law, A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position - is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ''decision based on no evidence'', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

In the light of the above said law, the material facts are taken up for consideration. In the facts of the case, two Courts have held that the Defendant is not in possession of the property and that they are concurrent findings. When there is a concurrent finding, the scope of the High Court in-second appeal is very limited. Only on the ground that the Lower Courts have misread the document and the same being resulted in injustice, is the case of the Defendant. The suit is of 1991. A reading of Ex.D.3 - an endorsement of the Tahsildar dated 16.7.1992 would probabilise that the application of the Defendant is pending. So, it is subsequent to the grant relied by the Plaintiff as the grant is dated 30.1.1979, Settled law is that any subsequent happenings after the filing of the proceeding has to be read cautiously. In the entire written statement it is not stated as to why the Defendant did hot file the application for regularisation of the unauthorised occupation prior to the filing of the suit. So, the theory put up by the Defendant that he is in possession of the property for more than 15 years prior to the filing of the suit do not prevail.

The next contention urged by the advocate for the Defendant is placing reliance on a receipt dated 3.9.1991. The document shows the seal of the Tahsildar out it do not show the year in which it is received. Neither any material nor person who has received the document is examined to support that the Defendant has filed the application before the concerned Tahsildar seeking regularisation even before the filing of the suit.

Even otherwise, nothing prevented the Defendant to file atleast the certified copy or copy of the application submitted by the Defendant seeking regularisation. When admittedly the land is given by the Government in favour of the Plaintiff, the Defendant cannot claim the right with the Government in regard to the same property. It is as a futile exercise, as the Government has lost the title over the granted land. So, there is no substantial question of taw involved in the facts of the case. So, the appeal is rejected at the stage of admission.