Rama Kant Tripathi and others vs Satya Narain and others

H. N. Tilhari, J.—This is defendants'' second appeal, arising out of the judgment and decree dated 4978 passed by Shri B. P. Srivastava, III Additional District Judge Pratapgarh, in Regular Civil Appeal No. 39 of 1977 Rama Kant Tripathi and others v. Satya Narain and others arising out of judgment and decree dated 23127 passed by Shri Ram Jiwan Gupta, IV Addl. Munsif, Pratapgarh, in Regular Suit No. 203 of 1970 Satya Narain and others v. Rama Kant Tripathi und others, whereby the appellate court had dismissed the defendants'' first appeal and has affirmed the trial court''s decree in the above mentioned suit whereby the plaintiffs'' claim for demolition, possession and injunction had been decreed whereas the plaintiffs'' claim for damages had been dismissed. The plaintiffrespondents'' claim in the above noted suit has been to the effect that one Shri Ram Nihore ; father of the plaintiffrespondents 1 to 3 had filed the suit for the relief for possession and injunction as well as for demolition of the construction raised by the defendants illegally over plot of land bearing No. 60/1 situate in village Sahaspur, Pargana and Tehsil Patti, district Pratapgarh. Plaintiffs claim that the land in dispute has been the Abadi Sahan land of the plaintiffs since the time of their ancestors and the plaintiffs also acquired title thereto after abolition of zamindari. The plaintiffrespondents alleged that after the zamindari had been abolished the land had been settled with plaintiffrespondents and defendantappellants have nothing to do therewith but on the strength of their force and might but without right and title the defendantappellants dug the foundation on the three sides of the Marha of the plaintiffrespondents on 13851970 and when they were asked not to do that they were bent upon to take the law in their own hands and to do Marpit. The plaintiffrespondents alleged that the defendantappellants removed the cattle pegs and Hauda etc. which belonged to the plaintiffrespondents and on the said portion the defendantappellants after demolishing Mend etc. raised certain constructions shown by letters Aa Ba Sa Da and also set up the cattle pegs on the western side of Ya Ra. They also placed Laktha and Majnaur and thereby dispossessed the plaintiffrespondents from the portion of the land shown by letters Da Ya Ra Pa Sa Da as well. The suit of the plaintiffrespondents was contested by the defendantappellants denying the plaintiffs'' title over the land as well as taking the plea to the effect that the land in suit is not identifiable on the spot. The defendants took specific plea in the written statement to the effect that the land in suit was the part of Ahata no. 7 at Abadi plot no. 213 of the First Settlement over which pucca well belonging to Sheo Datt used to exist. According to defendants'' case the defendants have always been in possession, user and occupation of the land in dispute, which according to defendants'' case was part and parcel of Ahata no. 7 at Abadi plot no. 213. The defendants claimed that on the enforcement of U. P. Act No. 1 of 51 i. e. U. P. Zamindari Abolition and Land Reforms Act the land in dispute stood settled with defendants as their land appurtenant and plaintiffs had no right to the same. The defendants denied the entire claim of the plaintiffs. On the basis of the pleadings of the parties the trial court framed the following issues:

(1) Whether the land in dispute is the Abadi land of the plaintiffs or it is Abadi land or land appurtenant of the defendants ?

(2) Whether the suit is within time ?

(3) To what relief, if any, is the plaintiff entitled ?

The trial court after consideration of the evidence recorded the following findings.

"That the land in dispute is the Abadi land of the plaintiffs and that the plaintiffs'' possession over the land in dispute has been upto the date the cause of action alleged to have accrued and so the suit is in time."

After having recorded these findings the trial court decreed the plaintiffs'' claim for possession over the land Aa Ba Sa Da and Da Ya Ra Pa Sa Da as shown or indicated in the siteplan in the Commissioner''s map. It may be clarified that the map is only siteplan drawn by the Commissioner. The trial court further directed the defendants to remove their constructions or constructions, which have been raised by the defendants, within the prescribed period of 30 days from the date of decree and to hand over vacant possession of the land to plaintiffs.

Having felt aggrieved from the trial court''s decree the defendants preferred first appeal i. e. Regular Civil Appeal No. 39 of 1977. It may be mentioned that in the lower appellate court the defendantappellants moved an application for issue of commission as it had been done in the trial court. The lower appellate court had rejected the application for survey commission and also dismissed the defendants'' appeal and recorded the finding to the effect that the land in suit was the Abadl land of the plaintiffrespondents and not that of the defendantappellants and plaintiffrespondents were in possession of the same till the date when they were dispossessed there from as claimed in may, 1970, and, as such, suit was within time. The lower appellate court held the land in dispute to be the Abadi land or Sahan land of the plaintiffrespondents and not that of the defendantappellants. After having recorded the above findings the lower appellate court affirmed the findings of the trial court as well as the judgment and decree of the trial court and dismissed the defendantappellants'' regular first appeal.

Feeling aggrieved from the judgment and decree of the lower appellate court the defendantappellants have preferred the second appeal before this court

I have heard Shri Harguru Charan, Senior Advocate assisted by Smt. Maya Bhatt, an advocate of this court appearing for the appellants. I have also heard Shri H. S. Sahai, learned counsel for the respondents assisted by Shri Jaipal Singh, an advocate of this court, at length. A number of submissions have been raised before me by the learned counsel for the appellants with all force but only relevant submissions are being referred on which the appeal may be disposed of. Shri Harguru Charan, learned counsel for the appellants submitted and primarily pressed on the substantial questions of law raided in the memo of appeal that the learned courts below committed substantial error of law in not getting the land in dispute identified by boundaries etc. by issuance of survey commission. He submitted that it was essential for the court below to have got the lard surveyed locally and identified by the survey commissioner in view of the pleading of the parties and the dispute involved and by not doing so the learned courts below committed substantial error of law. He submitted that the finding that the land in dispute is plaintiffrespondent''s Sahan land is vitiated by error of law of substantial nature as the material and admissible evidence consisting of documentary evidence filed by the defendantappellants has been ignored from being considered on the ground that the land''s identity with reference to First Settlement number had not been determined and identified by the commissioner. Shri Harguru Charan submitted that defendantappellants had taken steps in that regard and had moved an application for appointment of survey commissioner. Shri Harguru Charan submitted that earlier survey commission was issued but by order dated 9975 the survey commissioner''s map and report submitted by the Survey Commissioner appointed by the court had been set aside, thereafter the court did not issue fresh survey commission to submit the report. He submitted, it was the duty of the court to have directed the commissioner to make fresh survey or it should have appointed another commissioner to do the survey work and submit the report. He submitted that the cost of survey commission could have been paid, no doubt, and in view of the provisions of Order 26 Rule 15 of the Code of Civil Procedure the court could have very well issued the second commission or could have directed the very commissioner to submit fresh report and it could have directed the defendantappellants to deposit the cost and in not doing so the trial court committed legal error. He further submitted that evidence has been rejected on the ground that there was no survey commission. His further contention is that the appellants had moved an application for fresh commission in the lower appellate court which has also been rejected on illegal considerations and thereafter the lower appellate court has also illegally ignored Exts. A1 to A8 on the ground that the land in dispute has not been got indentified with reference to the number of plot in the First Settlement and thereafter. Shri Harguru Charan submitted, therefore, the finding of the lower appellate court affirming the finding of the trial court is vitiated by substantial error of law as the evidence filed by the defendantappellants has been ignored and so finding is vitiated by error of law. On behalf of the plaintiffrespondents, the learned counsel for the respondents Shri H. S. Sahai submitted that really the second appeal is concluded by pure findings of fact as regards the question of title as to Sahan Darwaja or land appurtenant thereto. Shri Sahai submitted that the finding whether the land is Sahan Darwaja is a pure finding of fact. Shri Sahai further submitted that question of the nature of land or nature of property to be determined in the context of the facts shall be involving no question of law and is a question of fact and the finding recorded thereon is a pure finding of fact. Shri Sahai further submitted that the trial court while setting aside the report of the commissioner Which had been issued at the instance of the appellants vide order dated 9975 provided an opportunity to defendantappellants to move an application for fresh commissioner but the defendants did not avail the same inspite of the opportunity having been granted and, therefore, the lower appellate court was justified in rejecting the application. Sri Sahai submitted that once the court had given an opportunity after setting aside the survey commissioner''s report and defendants did not avail the same in the trial court there was nothing wrong and illegal on the part of the lower appellate court in rejecting the application for commission moved by the defendantappellants before the first appellate court. He submitted that it was the duty of the defendantappellants to have taken steps in the trial court, and, therefore, the finding does not suffer from any error of law, Shri Sahai in the alternative submitted that even if it be taken that the land in dispute is at Ahata no. 7 Abadi plot no. 213, the defendants'' case will not thereby have been improved. I put a question directly to him whether he concedes and admits that the land in dispute falls in Ahata no. 7 Abadi plot no. 213 of First Settlement. If that is so the court may examine other evidence to decide the case. He did not express willingness to make any concession on the ground of want of instruction, and he has rightly said so. A counsel on question of fact, unless so instructed, should ordinarily abstain from making concession. I have considered the contentions of the learned counsel for the parties. The law is well settled under section 100 of the Code of Civil Procedure since after the amendment of the Code of Civil Procedure by Act of 1976 the second appeal lies on a substantial question of law. Substantial question of law as shown in section 100 of the Code does not mean substantial question of law of general importance It only means question of law, a decision on which one way or the other may have the impact on the decision of the case one way or the other and on the rights of the parties. If the finding of fact has been recorded by the courts below after having ignored certain material piece of evidence or after having refused to take into consideration certain material piece of evidence on a ground not warranted by law or on a ground created because of inaction or fault of the court itself then such a finding cannot but be said to be a finding of fact vitiated by error of law. Similarly, if a finding has been arrived at after considering certain inadmissible piece of evidence and that evidence if taken out from consideration and that affects the finding one way or the other it can be said to be vitiated by error of law of substantial nature. A finding arrived at by making out a new case by a party which has not been taken at any stage then that finding may be said to be vitiated by law. There are many illustrations but the leading case on the subject may be said to be case of Ramchandra Ayyar and another v. Ramalingam Chattiar and another reported in (AIR 1963 SC 3( 2). Considering the present case in the context of these principles of law I find that in the present case the finding of fact is vitiated by substantial error of law as is being indicated hereinafter. The trial court while deciding the suit as well as while dealing with the eight documents filed by the defendantappellants i. e. Ext. A1 to A8 observed as under ;

The lower appellate court has also made observation to the same effect while dealing with the documents Ext. A1 to A8. The observations of the lower appellate court read as under :

"In so far as the documentary evidence referred to above, viz. Ext. A1 to A8 are concerned they were absolutely of no avail to the defendantappellants, as remarked by the court below, because, apart from the facts that the land in suit was recorded as Abadi land in the extracts of Khasras and Khataunis, which are an admitted case of the parties, they showed nothing and the defendantappellants made no efforts to get another report and map prepared, after the report and map which were prepared by the learned commissioner, on their application, were set aside, inspite of repeated grant of time in the court below."

A reading of these observations of the trial court as well as of the lower appellate court per se show that the defendantappellants'' documentary evidence of the First Settlement indicating Abadi plot No. 213 has been excluded from consideration on the ground that defendantappellants did not make attempt to get the land surveyed. In the trial court the defendantappellants had admittedly moved an application under Order 26 Rule 9 of the Code for issuance of commission and survey of plot no 213 of First Settlement. A commission was issued to Shri Jamuna Prasad Singh, Vakil Commissioner who had submitted his report and map on 16375. Against that report the plaintiffrespondents had filed certain objections. The trial court accepted the objections and satisfied the commissioner''s report vide order dated 9975. After setting aside of the commissioner''s report the defendantappellants were afforded an opportunity of moving fresh application for appointment of next commission within a week. There is no dispute as to the fact that defendantappellants did not move fresh application for issue of commission before the trial court. The defendantappellants after filing the appeal moved an application for fresh commission under Order 26 Rules 9 and 10 read with Order 41 Rule 27 of the Code. The lower appellate court had rejected the application of the defendantappellants on the ground that inspite of time being granted by the trial court application for fresh commission had not been made by the defendantappellants in the trial court and, therefore, there was no question of issuing commission for survey. It took the view that the cause given by the lower appellate court for not moving the application for fresh commission is illness and consequential deterioration of the economic position of the appellants was hard to believe as there were four appellants and all simultaneously fell ill. With respect to the financial condition of the appellants that they were hard pressed economically at this stage, nothing has been mentioned in the judgment specifically while rejecting the application. The question before me is, once the trial court had taken the view that in order to elucidate the matter in dispute and the identity of the land survey commission is required to be issued and it issued a commission to a lawyer commissioner to make the survey. The commissioner submitted the report and then for one reason or the other the commissioner''s report had been set aside, was it not the duty of the trial court to have given further direction to the commissioner to submit fresh report or to have sent some other survey commissioner to submit the report elucidating the matter and subject matter in dispute or it was the duty of the appellants to move every time, the commissioner''s report is set aside, a fresh application for issuance of fresh survey commissioner. Once the view taken by the trial court that matter requires elucidation and the commission was issued for the first instance after consideration of necessity for elucidation was not by itself sufficient to make it obligatory on the trial court to direct the commissioner to submit fresh report or to appoint some other commissioner if there was some doubt about the integrity of the commissioner himself. In my opinion, and on the reading of the provisions of Order 26 Rules 9 and 10 and in particular sub rule (3) of Rule 10 of Order 26 of the Code, the trial court should have issued the direction to the commissioner for such further enquiry as was necessary or it should have issued a second commission as I have mentioned earlier to submit a fresh report once the earlier was set aside. Order 26 Rules 9 and 10 reads as under:

"9. Commissions to make local investigations,In any suit in which the Court deems a local inspection to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

Procedure of Commissioner,(1) The commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit,The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person,Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

A perusal of language of sub rule (3) of Rule 10 of Order 26 of the Code clearly shows if for some reason the Court is dissatisfied with proceedings of the Commissioner then it may direct such further inquiry to be made as it thinks fit. This provision clearly empowers the court to issue such further direction it leads me to hold that once the commissioner''s report is set aside the trial court need not to wait nor is required to see or to order that fresh application be moved for commission, instead when the power has been vested in the court to issue directions for further enquiry where the court is dissatisfied with the proceedings of the commissioner or report of the commissioner that power should be exercised in the circumstances mentioned i. e. when the report has been submitted and the court is dissatisfied with the commissioner''s report, the court itself should give direction in this regard and while issuing such direction, it is within the power of the Court under Rule 15 of Order 26 of the Code to order the party concerned to deposit the necessary expenses. Thus considered I find no substance in the contention of the learned counsel for the respondents that court had given the defendantappellants time to move application for commission and the appellants were to take steps by moving the application, as such the lower appellate court was justified in rejecting the application moved before it by the defendantappellants. In my opinion, when the application under Order 26 Rule 9/10 of the Code was made before the court it was not a case of application under 41 Rule 27 of the Code. In view of the provisions of section 107 of the Code it is within the power of the lower appellate court to perform such acts and to exercise such other powers as are exercisable by the trial court. Section 107 of the Code reads as under:

"107. Powers of Appellate Court,(1) Subject to such conditions and limitation as may be prescribed, an Appellate Court shall have power

(a) to determine a case finally ;

(b) to remand a case ;

(c) to frame issues and refer them for trial;,

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.� Sub section (2) of section 107 of the Code provides that appellate court had the same powers and shall perform the fame duties as are imposed on court of original jurisdiction. Order 26 Rule 9 of the Code confers a power as well as imposed a duty on the trial court in the matter of doing justice and that duty is that if the court is of the opinion that local investigation is requisite or even proper for the purpose of elucidating any matter in dispute then the court may issue the commission for the purpose as it thinks fit with suitable directions. It is well settled principle of law that when a power is conferred to be exercised under certain conditions and under certain circumstances for doing justice to the parties in the course of justice and those conditions exist in the opinion of the court for exercise of that power then it becomes the duty of the court or parties to perform that job. This duty, under Order 26 of the Code which is imposed on the trial court, confers the same powers as well as duty on the appellate court in view of the provisions of subsection (2) of section 107 of the Code. The appellate court could reject the application for commission on the ground if it would have come to that conclusion that there was no need and that neither it is necessary nor proper to issue commission for elucidating the matter in dispute. Learned counsel for the parties have no where pointed me out nor have contended that the application for commission had been rejected by the appellate court on that ground, instead it has been rejected on the ground that the appellants may move fresh application before the trial court. A I have mentioned earlier that once the trial court has set aside the commissioners report which had been issued at the instance of the defendantappellants, on the application of the defendantappellants, it was the duty of the trial court itself to have issued further directions for investigation either to the very commissioner or it could have appointed a different commissioner. That being the position, the lower appellate court, in my opinion, as such, actcd illegally in rejecting the appellants'' application for survey commission instead it refused to exercise the jurisdiction vested and to perform the obligation fastened on it by law. It is well settled principle of law that no party is made to suffer because of the mistake pf the court or error of the court itself. In the present case, as I have mentioned earlier, the two courts below have excluded the defendantappellants'' documentary evidence consisting of Ext. A 1 to A 8 relating to Ahata no. 7 at plot Abadi plot no. 213 of First Settlement which defendantappellants claimed to be their Sahan land while plaintiffrespondents had claimed the land in dispute to be plot no. 60, the appellate court ought to have issued second commission if the trial court failed to perform its duty but I find that the lower appellate court has also acted illegally and failed to perform or discharge its legal obligation which has been fastened by the legislature on the courts under section 107 (2) of the Code read with Order 26 of the Code and on that basis the appellants'' documentary evidence or admissible evidence has been ignored from consideration by the two courts below while recording the finding on issue no. 1. This being the state of affairs of facts relating to proceedings of the case, in my opinion, the finding of fact arrived at by the lower appellate court in the present case even if concurrent, can be said to be vitiated by error of law as per tests as have been laid down in the case of Dilbagh v. Sharad Chandra AIR 1988 SC 1858 that the finding of fact arrived at after having ignored the material evidence on illegal ground vitiates the finding not only because of simple error of law but in such cases the finding can be said to be vitiated by substantial error of law.

Thus considered, in my opinion the present appeal has got force and deserves to be allowed. I do hereby allow the second appeal, set aside the judgment and decree of the lover appellate court. Instead of remanding the matter to the trial court it appears to me just and proper to remand this case to the first appellate court with the direction that let a fresh survey commission be issued to a lawyer commissioner to survey the land in dispute with reference to the three settlement numbers i. e. I, 11 and III Settlement as the plaintiffs have based their claim on the number of plot as plot no. 60/2 of Third Settlement and the defendants'' case is that plot of land is a part of Ahata no. 7 of Abadi plot no. 213 of First Settlement. If in this regard i. e. in regard to survey and identity of lard parties want to file additional documentary evidence the same will be taken on record but no other evidence will be allowed. After the commission report is submitted before the lower appellate court the parties may beallowed to file objections, if they so like. If the appellate court comes to the conclusion that there is something which require further elucidation by the commissioner even after submission of the report, it may exercise further powers under Order 26 Rule (3) of the Code and thereafter decide the appeal afresh in the light of evidence on record. The costs of the survey commission shall be borne by the defendantappellants which cost shall be assessed by the lower appellate court and the appellants will be informed to deposit the same. The reason for not taking steps by the defendantappellants during the trial has been stated to be that there was illness and other financial or economic scarcity. In such matters where there is financial scarcity and it appears that party concerned is being denied justice on account of financial scarcity, it is well settled principle of law as enshrined in the Constitution as well vide Article 39 A that doors of justice should not be closed or justice should not be denied to any citizen by reason of economic or other disabilities. Article 39 A of the Constitution of India reads as under :

"39 A. Equal justice and free legal aid,The State shall secure that the operation of the legal system promotes justice, en a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by economic or other disabilities.''''

Costs of the second appeal shall be borne by the parties respectively.

(Appeal Allowed,)