Om Prakash and Others vs Radhey Lal and Others

Sanjay Misra, J.—Heard Sri Neeraj Agarwal, learned Counsel for the defendant-appellants and Sri R.K. Upadhyaya along with Sri D.N. Sharma, learned Counsel for the contesting plaintiff-respondents.

This is a second appeal u/s 100 of the C.P.C. against the judgment and decree dated 21.10.1989/5.11.1989 passed in Civil Appeal No. 14 of 1988 whereby the defendants'' appeal has been dismissed and the judgment and decree of the trial court passed in Suit No. 183 of 1977, Radhey Shyam and Ors. v. Dori Lal and Ors. has been affirmed.

Learned counsel for the appellants has submitted that substantial questions of law that arises in this appeal is ''''whether the report of the Commissioner in Suit No. 33 of 1974, Radhey Shyam v. Dori Lal, wherein the defendant-appellants were not parties would be relevant and admissible in evidence against the defendants and reliance placed upon it to record a conclusion would vitiate the judgment''.

In support of his submission learned Counsel for the appellants has referred to the findings recorded by the trial court on issue No. 1, which was as to whether the plaintiff-respondents are owner in possession of the property in suit which is situated in village Ram Nagala and whether the defendants have perfected their title by virtue of Section 9 of the U.P. Zamindari and Land Reforms Act. While refering to the findings recorded by the trial court and as affirmed by the 1st Appellate Court it has been submitted that the Kutumb register, Khatauni, voter list, order dated 31.8.1977 passed by the Pargana Magistrate, evidence of Onkar Nath Tiwari, Advocate Commissioner in Suit No. 55 of 1974, resolution of the Gram Pradhan were all disbelieved by the courts below for the reason that they have either not been proved in accordance with law or that they had no relevance in so far as the possession claimed by the plaintiff-respondents was concerned. Learned Counsel submitted that the courts below have recorded their finding in favour of the plaintiff-respondents only on the basis of a voter list exhibit No. 4, report of the police exhibit No. 4 and oral evidence of Chandrawati, exhibit No. 9, who stated that the plaintiff-respondents were in possession. According to him when all the documentary evidence was of no help to the plaintiff-respondents, the courts below have committed an illegality in relying upon the aforesaid evidence and oral statement for decreeing the suit of injunction against the defendant-appellants.

Learned counsel for the plaintiff-respondents has submitted that the evidence filed by the plaintiffs related to their residence in village Ram Nagala and also that the defendant-appellants were residents of village Baraut. He submits that the evidence of Chandrawati was relevant for the purpose since she had clearly stated that her ancestors were Zamindar and the defendants'' witnesses admitted that the premises in question had remained locked for more than 10 years at the time of evidence. He further states that when the matter relates to cross cases, both the sides have to prove their possession in order to succeed in their pleadings. According to learned Counsel a finding of fact has been recorded that the defendants could not prove the possession over the land in question and therefore, even if the possession of the plaintiffs was forceable the injunction could not be refused on the failure of the defendants to even show an iota of right, title or interest in the land in suit.

Having considered the submissions of learned Counsel for the parties and perused the record, it is quite apparent that the trial court has considered the various documentary evidences filed by the plaintiff-respondents and has either not relied upon them, they being inadmissible in evidence or that they had no relevance to prove the possession of the plaintiffs. Since it was a cross case, the Court also considered the pleas of the defendant-appellants and found that apart from a pleading there was no evidence in the cross-case by the defendant-appellants to show their possession over the property in question. Faced with the aforesaid circumstances, the trial court proceeded to consider the Commissioner''s report in an earlier suit wherein the defendant-appellants were not party for the purposes of coming to the conclusion as to whether the plaintiff-respondents were in possession of the property in question. It found that in the earlier suit the plaintiff-respondents were found in possession. The courts below thereafter considered the evidence of P.W.-1 Chandrawati. She in her statement proved the possession of the plaintiff-respondents and therefore, the trial court believed the statement which was confirmed by the findings of the earlier suit and found that the plaintiff-respondents were in possession of the land in dispute whereas the defendant-appellants did not belong to the village in question nor they had filed any evidence to show that their ancestors were in possession of the land in question even at the time of abolition of Zamindari. The proceedings under the Code of Criminal Procedure were not relied by the courts below.

In view of the aforesaid findings, in so far as the reliance placed by the courts below, on the report of the Commissioner, in another suit, where the defendant-appellants were not party is concerned, the said was a piece of evidence which was corroborating/confirming the statement of Chandrawati and the courts below have considered the evidence in that light of the matter and it is not the sole reason for the courts below to arrive at a finding in favour of the plaintiff-respondents while decreeing his suit. Consequently, in so far as the substantial questions of law framed and argued by learned Counsel for the defendant-appellants is concerned, the same would not have much relevance in view of the fact that the courts below have considered such Commissioner''s report only as a piece of corroborating/confirming evidence and it is not the sole reason for decreeing the suit of the plaintiffs.

The judgments of the courts below are concluded by findings of fact and the reason given by the trial court is substantiated by the evidence. It is settled law that when concurrent findings are recorded by the facts finding court and valid reasons are given on weighty evidence, no interference would be required in such findings by the Second Appellate Court unless it is shown that the findings are perverse or that they are not based on evidence or a principle of law has been wrongly applied.

Learned counsel for the defendant-appellants has placed reliance on a decision of the Supreme Court in the case of Mrs. Vijaya Shrivastava v. Mirahul Enterprises and Ors. reported in 2006 ACJ 1572, to submit that when the trial court had framed several issues and recorded its finding on each of them, the 1st Appellate Authority was also required to deal with each and every finding on each and every issues and has therefore, committed illegality. He refers to paragraph 6 of the appellate court judgment to state that only one point has been framed by the appellate court and decided, which is quite illegal.

Order 41 Rule 31 of the C.P.C. is relevant for the said purposes. It provides that the judgment of the appellate court shall be in writing and state the point of determination. In view of the aforesaid provisions while going through paragraph 6 of the appellate court judgment it will be seen that the appellate court has framed the point for determination in the appeal by recording that the sole point for determination in this appeal is whether the plaintiff of O.S. No. 183 of 1977 who are defendants of the suit are owners in possession of the property in dispute.

Consequently, the submissions made by learned Counsel for the defendant-appellants to the contrary is misplaced and cannot be accepted.

In view of the aforesaid circumstances, the Second Appeal has no force and the substantial questions of law framed are answered accordingly.

The Second Appeal is dismissed. No order is passed for cost.