Ram Bharose Lal and Another vs Tula Ram and Others

Pankaj Mithal, J.—The dispute involved in the second appeal is about an ''abchak'' (small piece of land used for flowing water) and a 9 ft. wide ''Rasta''.

The Plaintiff / Appellants herein, i.e., Ram Bharose Lal and Ram Autar instituted a suit for possession and permanent injunction in respect of the above disputed properties. The basis of the suit happens to be a sale deed dated 3.9.59 which was executed by Kunwar Hari Raj Singh transferring some land in their favour. The Defendant/Respondents contested the suit denying the title of the Plaintiff/Appellants over the aforesaid properties and at the same time claiming easementary right by prescription over the ''rasta''. The suit was dismissed by the court of first instance and the appeal of the Plaintiff/Appellants also met the same fate. Thus, having lost from both the courts below they have preferred this second appeal.

The appeal was admitted vide order dated 15.10.1976 and a substantial question of law was framed on 31.3.2008 which is as under:

Whether both the courts below committed an error of law in misinterpreting the title deed of the Plaintiff-Appellants ?

Heard Sri Anil Sharma learned Counsel for the Plaintiff/Appellants and Sri S. Alim Shah, learned Counsel for Respondents.

The contention of the learned Counsel for the Plaintiff/Appellants is that the courts below have misinterpreted and misconstrued the sale deed dated 3.5.1959 insofar as on the complete and harmonious reading of the same it is evident that the Plaintiff/Appellants have purchased not only a piece of land but also the disputed ''rasta'' under the said sale deed.

As regards the ''abchak'' he has moved an application for taking additional evidence on record under Order XLI, Rule 27, Code of CPC He contends that the partition deed between the family members of the Defendant/Respondents which he seeks to adduce as additional evidence clearly indicates that the ''abchak'' in dispute is not the property of the Defendant/Respondents. The application has been strongly opposed by the Defendant/Respondents and it has been alleged that any such evidence which was within the knowledge of the Plaintiff/Appellants cannot be taken as additional evidence at this stage of the second appeal after it had remained pending for more than 22 years as no reasons have been disclosed for not bringing it on record earlier or in the courts below.

In my opinion, the aforesaid controversy with regard to the ownership right of the Plaintiff/ Appellants over the ''abchak'' can be resolved even without referring to any additional evidence. The Plaintiff/ Appellants are the persons who are claiming ownership over the same, therefore, it is for them to prove their title over it. The statement of the counsel for the Plaintiff/Appellants as recorded under Order X, Rule of 2 Code of CPC in the lower court on 19.7.1971, in unequivocal terms states that the Plaintiff/Appellants are claiming ownership of the ''abchak'' on the basis of the sale deed dated 3.5.1959. The relevant portion of his statement as recorded on 19.7.1971 is reproduced hereinbelow:

Sri O. P. Goyal for the Plaintiff states that the Plaintiffs are owners of the ''abchak'' mentioned in para 5 (b) of the plaint through the deed of sale dated 5.9.1959.

In view of the above statement the entire claim of the Plaintiff/ Appellants in respect of the ''abchak'' is only by virtue of the sale deed dated 3.5.1959. I have gone through the above sale deed Ex. 1 on record. The sale deed nowhere recites that the said ''abchak'' is also a subject-matter of the transfer therein. The ''abchak'' as such, has not been transferred by the said sale deed in favour of the Plaintiff/Appellants. Therefore, the entire thrust of the claim of the Plaintiff/Appellants in respect of the said ''abchak'' on the basis of the above sale deed falls to the ground. Apart from the above, P.W. 1, i.e., Ram Bharose Lal himself specifically states as per his statement that he is not the owner of the ''abchak''. Thus, the claim of the Plaintiff/Appellants in respect to the ownership of ''abchak'' does not survive at all and as such any amount of additional evidence on this issue would not help them particularly in view of the statement of their counsel referred to above which is not disputed or is said to be incorrect. The Plaintiff/Appellants, therefore, cannot be permitted to improve their claim of ownership over ''abchak'' by the evidence other than the sale deed and to override the statement of their Counsel. Accordingly, application for additional evidence is virtually insignificant and requires no specific order and stands disposed of.

In view of aforesaid, i.e., the statement of the counsel for the Plaintiff/Appellants recorded under Order X, Rule 2, C.P.C., the recital of the sale deed and the statement of P.W. 1 Ram Bharose Lal, the inevitable conclusion on the point is that the Plaintiff/Appellants are not the owners of the said ''abchak'' .

Therefore, the finding about the ownership of the ''abchak'' as recorded by the courts below is correct and suffer from no perversity.

Now, I proceed to answer the substantial question of law as has been framed so as to adjudicate the rights of the parties in respect of the ''rasta''.

Sri S. A. Shah, learned Counsel for the Respondents at the outset has submitted that there is no misinterpretation or mis-constructon of the sale deed by the courts below and as such, no substantial question of law is involved in this second appeal.

In Santakumari and Others Vs. Lakshmi Amma Janaki Amma (D) By Lrs. and Others, Supreme Court while considering the ambit of substantial question of law u/s 100 of Code of CPC ruled that construction of a document under which a claim of property is made is a substantial question of law is a well-settled proposition of law. This view was expressed by the Supreme Court relying upon the earlier decision in Guran Ditta v. T. Ram Ditta, AIR 1928 PC 172 , as reaffirmed by the Supreme Court in Kochukakkada Aboobacker (Dead) by L.Rs. and others Vs. Attah Kasim and others, and Neelu Narayani V/s. Lakshmanan, (1999) 9 SCC 237

A similar view has been expressed by the Supreme Court in P. Chandrasekharan and Others Vs. S. Kanakarajan and Others, in the following words:

There cannot be any doubt whatsoever that a substantial question of law is different from a question of law. Interpretation of a document which goes to the root of the title of a party to the lis would indisputably give rise to a question of law.

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When thus the courts below misread and misinterpreted a document of title read with other documents and the plan for the identification of the suit lands whereupon the Plaintiffs themselves relied upon, a substantial question of law arose for determination of the High Court in between the parties to the suit.

Thus, from the above two decisions of the Apex Court it is evident that where a document on which the title of the parties is based has been misinterpreted or even misread it would amount to a substantial question of law as it affects the valuable rights of the parties concerning tangible property.

On the other hand, Sri S.A. Shah has placed reliance upon Parmatma Prasad Vs. Mt. Sampatti and Others, In this case a single Judge of Allahabad High Court while considering the words "misconstruction of a document" held that if a Court has mis-constructed the legal effect and the nature of the document it would amount to mis-construction or mis-interpretation e.g., where a document creates a lease deed but the Court interprets the same to be a licence. The interpretation of the recital of the facts in the document would not amount to mis-constructon of the document but would only be an erroneous view of the facts contained in the document. A similar view has been expressed by the Apex Court in the case of Ram Kishore and Anr. v. Shanker Lal, 2002 (4) AWC 2674 (SC)and it has been laid down that a consideration of a document of alienation of a property as to whether it is gift or a sale is a question of law. In Radha Sundar Dutta Vs. Mohd. Jahadur Rahim and Others, it has been laid down that the nature of the rights granted under a document is a matter to be decided on the consideration of the terms of the document which is a question of law. Further Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., provides that a matter with regard to the construction of the terms of the document is a question of law. The relevant extract of the aforesaid ruling is reproduced hereinbelow:

It is well-settled that a construction of a document of title or a document which is the foundation of the rights of the parties necessarily raises a question of law.

From the legal position discussed above, it is clear that where a document of title has been misinterpreted, misconstrued or even misread it involves a substantial question of law or atleast a question of law.

Thus, in the instant case even though the sale deed dated 3.5.1959, which is a document of title may not technically involve misconstruction or misinterpretation but even its misreading by the courts below is sufficient to give rise to a substantial question of law or at least a question of law which does require consideration in this second appeal.

Now this second appeal was admitted on 15.10.1976, i.e., much before the Code of CPC Amendment Act 104 of 1976 was enforced w.e.f. 1.2.1977. Section 97(2)(m) of the said Code of CPC Amendment Act provides that the amendment introduced by Section 37 of the said Act mandating framing of substantial question of law before deciding second appeal would not apply to the second appeals which have been admitted before the enforcement of the aforesaid Section 37 and, as such, shall be decided as if such amendment has not come into force. Thus, framing of substantial question of law is not necessary where the second appeal has been admitted prior to 1.2.1977 and such second appeals can be decided only on the basis of the question of law as was provided under the unamended C.P.C.

To examine as to whether the courts below have actually misread the sale deed dated 3.5.1959 affecting the title of the Plaintiff/Appellants over the ''rasta'' it is appropriate to reproduce the same which is in Hindi as a whole:

(Emphasis supplied)

A plain reading of the above sale deed reveals that under the sale deed in the earlier part the vendor has described himself to be the owner of the ''rasta'' and a piece of the land of which boundary and measurements are said to have been given at the foot of the document. At the foot of the document only the boundaries and measurements of the piece of the land have been given. However, in the body of the document it has been specifically stated that he is transferring the piece of land with ''rasta'' ( ) with complete rights for a total sale consideration of Rs. 700. This part of the recital in the sale deed has completely been totally ignored by the two courts below and thus they have recorded that under the sale deed only the piece of land has been transferred. However, if the document as a whole is read it shows that the vendor has transferred not only the piece of land but also the ''rasta'' which was also in the ownership of the vendor. Therefore, I am of the view that the aforesaid sale deed also transfers the ''rasta'' in favour of the Plaintiff/Appellants alongwith a piece of land as described therein.

At this juncture, Sri S. A. Shah, learned Counsel for the Respondents asserted that where two inferences are possible the view taken by the courts below should be accepted. The submission is not devoid of merit as in second appeal the High Court is not ordinarily entitled to substitute its own opinion but the said principle is not applicable where the view or the inference drawn from the document by the courts below is palpably erroneous and is beyond the comprehension of a prudent man. Here, as said earlier the courts below have not read the sale deed as a whole and have completely ignored its recitals where the ''rasta'' has also been transferred in unequivocal terms. Therefore, I am of the view that this is not a case where on the plain reading of the sale deed itself two views or inferences are possible.

Thus, I hold that the courts below have grossly erred in holding that the Plaintiff/Appellants are not the owners of the ''rasta'' by misreading the document of title. The substantial question framed above as such is answered in affirmative in favour of the Plaintiff/Appellants.

In the last, a faint effort has been made by the Respondents to establish their easementary right over the aforesaid ''rasta''. In this connection the Court of first instance had framed an issue, i.e., issue No. 2 to the effect as to whether the Defendants have acquired easementary rights on the passage in suit? The said issue was decided against the Respondents as there were no pleadings with regard to the same. In appeal preferred by the Plaintiff/Appellants before the lower appellate court the Respondents have not taken any cross-objection in this regard or assailed the findings on issue No. 2. I have perused the written statement of the Defendant/Respondents and find that the Defendant/Respondents have nowhere pleaded any such easementary right over the land. In the absence of the foundation in the pleadings to this effect, I do not find any error on the part of the Court of first instance in deciding issue No. 2 against the Defendant/Respondents. Even the appellate court has not recorded any specific finding that the Defendant/Respondents have acquired any easementary right over the said ''rasta''. Therefore, this submission of the learned Counsel for the Defendant/ Respondents cannot be sustained and must fail.

In view of above discussion and the answer to the substantial question of law the appeal deserves to be allowed and is hereby allowed. The judgment and orders of the two courts below dated 1.6.1976 and 14.5.1973, passed in Civil Appeal No. 128 of 1973 and Original Suit No. 553 of 1968, respectively are set aside and the suit of the Plaintiff/Appellants is decreed in part for permanent prohibitory injunction restraining the Defendant / Respondents from encroaching the disputed ''rasta'' by making any construction or projection thereon and from interfering the Plaintiff/Appellants'' use and occupation of the same.

No costs.