Shri Ashok Kumar vs Shri Devi Chand and Others

H.S. Thakur, J.—The Appellant who was Defendant No. 1 in the suit (hereafter to be referred as ''the contesting Defendants'') has preferred this appeal against the decree and judgment dated 6th January, 1981, passed by the learned District Judge, Mandi Kulu and Lahaul-spiti districts, affirming the decree and judgment passed by the trial court.

The relevant facts may be stated in brief. Shri Devi Chand Respondent (hereafter to be referred as ''the Plaintiff'') instituted a suit against the contesting Defendant and Respondents No. 2 and 3 (hereafter to be referred as ''proforma Defendants'') to the effect that the possession of the land sold by proforma-Defendant No. 2 Shri Chewang to the contesting Defendant, be delivered to him as he being the real brother of the said proforma-Defendant was entitled to pre-empt the sale. The contesting Defendant resisted the suit and refuted the claim of the Plaintiff to pre-empt this sale. The suit was, however, decreed in favour of the Plaintiff. The contesting Defendant-preferred an appeal in the Court of the learned District Judge which was also dismissed.

Aggrieved by the judgment and decree passed by the learned District Judge, the contesting-Defendant has filed this second appeal.

The learned Counsel for the Plaintiff has raised a preliminary objection that there being concurrent findings of fact, the second appeal was not competent. He has referred to besides other decisions the judgment of a Division Bench of this Court in Shankar Lal and Ors. v. Shri Lachhu Ram R.S.A. No. 16 of 1975, decided on June 1, 1981. It is desirable to refer to the relevant observations in this judgment:

It is now settled that decision on questions of fact howsoever erroneous and even if based on documentary evidence, is a finding of fact and cannot be interfered with in second appeal u/s 100 of the Code of Civil Procedure, Deity Pattabhiramaswamy v. S. Hanymayya and Ors. AIR 1959 S.C. 57 . It is also now well settled that construction of a document of title or of a document which is the foundation of the rights of the parties necessarily raises a question of law, Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., The Judicial Committee of the Privy Council in AIR 1930 91 (Privy Council) ruled that the entries in the Record-of-Rights are not the foundations of the title.

It is contended by Shri K.D. Sud, learned Counsel for the contesting-Defendant that the evidence on record has been misread by the learned courts below and as such there is a clear question of law involved in the case. He has referred to the judgment in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, He has relied upon the following observations:

In hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court.

In this judgment, however, the Supreme Court also observed as under:

It is well-known that as early as 1890, the Privy Council had occasion to consider this aspect of the matter in Mst. Durga Chowdharin v. Jawahir Singh Chowdhri 17 Ind App 122 (P.C.). In that case, it was urged before the Privy Council, relying upon the decision of the Calcutta and Allahabad High Courts in Futtehma Begum v. Mohamed Ausur ILR 9 Cal 309 and Nivath Singh v. Bhikki Singh ILR 7 All 649 (F.B.) respectively, that the High Court would be within its jurisdiction in holding that where the lower appellate Court has clearly misapprehended what the evidence before it was, and has been led to discard or not give sufficient weight to other, evidence to which it is not entitled, the High Court can interfere u/s 100. This contention was rejected by the Privy Council and it was observed that an erroneous finding of fact is a different thing from an error or defect in procedure, and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Their Lordships added that nothing can be clearer than the declaration in the CPC that no second appeal will lie except on the grounds specified in Section 584 (Corresponding to Section 100 of the present Code), and they uttered a word of warning that no court in India or elsewhere has power to add to or enlarge those grounds.

The learned Counsel has also referred to decisions in Orient Distributors Vs. Bank of India Ltd. and Others, and Madan Lal Vs. Mst. Gopi and Another, In Orient Distributors'' case (supra) the Supreme Court observed as under:

It is true that on the plea raised by the Appellants a question did arise as to whether the use of the main gate abutting Errabalu Chetty Street and the disputed passage giving access to the Appellants'' tenement on the first floor formed part of the demise granted by the second Respondent to them at a time of the creation of tenancy in 1959? But, admittedly, the tenancy had been created orally and there being no document pertaining thereto the question depended upon the inference to be drawn from the facts and surrounding circumstances obtaining at that time. In our view, therefore, the High Court was right in taking the view that the question was not purely a factual one but one relating to the propriety of the legal conclusion that could be drawn on the basis of proved facts.

In Madan Lal''s case (supra), the Supreme Court observed:

The principal point of controversy involved in the suit was whether Mansa Ram was in a fit state of mind when he executed the deed of adoption. This, substantially, is a question of fact but we find that the trial court and the District Court wholly ignored the weight of preponderating circumstances on the record and allowed their judgments to be influenced by inconsequential matters. The High Court was, therefore, justified in reappreciating the evidence and in coming to its own independent conclusion on the basis of that evidence.

It may, however, be pointed out that in Madan Lal''s case (supra), the Supreme Court also observed as under:

May we add that this judgment properly understood, will not be a charter for interference by the High Courts with findings of facts recorded by the final Court of facts. The situation, here, was of an exceptional character where evidence which was incapable of supporting more than one conclusion was considered as justifying a conclusion which no reasonable tribunal could rationally reach.

I shall now discuss the relevant evidence produced in this case and draw conclusions keeping in view the principles laid down in the aforesaid decisions of the Supreme Court.

It is contended by the learned Counsel for the Appellant that the courts below have not properly considered the documents on record. He has mainly relied upon Ex. D.5, Ex. D.6, Ex. D.7 and Ex. D.8 and the entries reflected in the khasra-girdawari. It is contended by the learned Counsel that on the basis of these documents, it is conclusively established that prior to the sale the contesting-Defendant was a tenant of the land in dispute and the Plaintiff had no right to pre-empt the sale. I have examined these documents. Ex. D.5 is the attested copy of an application filed by the contesting Defendant before the Tehsildar, Kulu for making an entry in his favour in the revenue record showing him as a tenant of the land in dispute, under Chewang proforma-Defendant. In the application, the contesting Defendant claimed his tenancy right in the land, from the year 1974. This application was filed on 7-5-76. Ex. D.6 is the attested copy of the statement of Shri Chewang Proforma-Defendant, recorded by the Tehsildar on 11-6-76. Ex. D.7 is the attested copy of the order passed by the Tehsildar on 11-6-76 on this application, whereas Ex. D.8 is the attested copy of the statement made by the contesting-Defendant on 11-6-76. The contesting-Defendant in his statement, recorded on 11-6-76 has stated that he was in cultivating possession of the land for more than a year. It is pertinent to refer to the statement of Shri Chewang proforma-Defendant, Ex. D.6. He has stated that the cultivation of the land had been given up by him to Shri Ashok Kumar (contesting-Defendant) one year defore and that he had come in possession thereof from that time. It is further stated by him that the cultivation which is entered in his name in the revenue record in respect of the land may be corrected and that he has no objection in making that correction. It is also pertinent to refer to Ex. P.10 which is the attested copy of entries in the khasra-girdawari. On the basis of the order passed by the Tehsildar, Kulu (Ex. D.7), the entries have been reflected in the khasra-girdawari in favour of the contesting-Defendant from Kharif 1976.

It is desirable to refer to other evidence relevant to the claim of tenancy right made by the contesting-Defendant. Ex. D. 1 is the attested copy of the sale-deed executed by Chewang proforma-Defendant in favour of the contesting Defendant, whereas Ex. P.1 is original sale-deed. In this document, no mention regarding the tenancy rights of the contesting-Defendant in the land, has been made. On the contrary, it is specifically stated that the possession of the land sold to the contesting-Defendant has been physically delivered on the execution of this deed. Shri Chewang, the proforma-Defendant has also appeared as a witness as DW-9. In his examination-in-chief, he has specifically stated that the possession was delivered to Ashok Kumar (contesting-Defendant) after the registration of sale-deed. The contesting-Defendant who appeared as DW. 6 has stated that in 1974 for the first time he cultivated the land. In the written statement filed by the contesting-Defendant, it has been stated that in view of Himachal Pradesh Land Reforms Act, he has become the owner of the land.

I have perused the judgments of the Courts below. I am of the view that Ex. D.5 to Ex. D.8 are not of much help to the Appellant/contesting-Defendant. In the statement made by Chewang, it is not stated that the contesting-Defendant has been settled as a tenant on the land. Even the contesting-Defendant in his statement has said that he was in possession of the land for a period of more than one year and that Shri Chewang tenant had also no objection to the correction of the entries. In the application, however, filed before the Tehsildar, as also in his written statement, it has been claimed by the contesting-Defendant that he had been in possession of the land since the year 1974. A parusal of the entries in the Khasra-girdawari shows that no part of the land has been brought under cultivation since the year 197 and the description of the land has been continuously coming either as bagicha khali or dhek till 30th April, 1978. No crop is shown to have been cultivated or grown in the land even after 1974. Similarly, in the sale-deed the possession is stated to have been delivered on the execution of the sale-deed. As such, I am in agreement with the findings of the Courts below that the contesting-Defendant was not settled as a tenant on the land and he had not cultivated the land as contended by him. On the contrary, the attempt to claim tenancy rights in the land appears to have been made by the contesting-Defendant to defeat the right of the Plaintiff to pre-empt the sale. Without going into the question whether Ex. D.5 to Ex. D.8 are admissible in evidence or not, I am of the view that these documents in the face of other evidence on record are not of any help to the contesting-Defendant. The conclusion drawn by the Courts below while considering the evidence on record including Ex. D.5 to Ex. D.8 is fully justified. At the same time, in case the contesting-Defendant had acquired tenancy rights in the land in dispute, it was natural that this relevant fact was incorporated in the sale-deed. Similarly, if the contesting-Defendant had in fact been a tenant of the land, he in the ordinary course of human conduct should have claimed ownership rights in the land on the basis of Himachal Pradesh Tenancy and Land Reforms Act on payment of nominal compensation. As such, the plea of the Appellant/contesting-Defendant that he was a tenant of the land stands fully negatived. Accordingly, no fault can be found with the findings of the Courts below on this point. For the aforesaid reasons, the objection of Shri M.L. Sharma, the learned Counsel for the Plaintiff, that the appeal is liable to be dismissed due to the findings of fact of both the Courts below is not without force.

It is contended by Shri K.D. Sud, the learned Counsel for the Appellant/contesting-Defendant that the expenses incurred on the purchase of stamps for the execution of sale-deed as also registration expenses be awarded to the Appellant even if no such relief was earlier claimed by him. It is further contended by him that no evidence is required to be led to prove this fact. Be it as it may, but in view of the facts and circumstances of the case, I do not deem it proper to give this relief to the Appellant at this stage. No other point has been canvassed before me.

In view of my above discussions, there is no merit in this appeal and the same is dismissed with costs.