Vijay Singh vs Khuman Singh

Pratap Krishna Lohra, J—The appellant-plaintiff has preferred this second appeal under Section 100 CPC against the impugned judgment and decree dated 5th November 2014, passed by Addl. District Judge No. 2, Udaipur (learned lower appellate Court), whereby the learned lower appellate Court has affirmed the judgment and decree dated 23.01.2013 passed by the learned Civil Judge (Jr. Div.) Udaipur City South, Udaipur (learned trial Court).

The facts, in brief, relevant for disposal of this second appeal are that appellant-plaintiff Vijay Singh filed a civil suit in the learned trial Court against respondent-defendant Khuman Singh for perpetual injunction in respect of Plot No. 146, situated at Savina Khera stating that the said plot measuring 25x18 yards purchased by him from Gram Panchayat Savina on 31.03.1962 through a sale deed for consideration and the Gram Panchayat issued Patta for the said plot in his favour on 05.04.1962 as such from the date of its purchase same is in his possession but the respondent-defendant wants to grab this plot by trespassing over it and has staked stones nearby on public land and thereby creating trespass and nuisance. According to appellant-plaintiff cause of action arose to him on 19.11.1999 which is continuing till date. He prayed for restraining respondent defendant by perpetual injunction not to trespass over his plot as well as public way and further restraining the defendant from raising any construction.

A written statement to the suit was filed on behalf of respondent-defendant denying the possession and ownership of appellant. It was his defence that Patta produced by appellant-plaintiff is forged one as no such patta was ever issued by Gram Panchayat Savina or Titaradi and that the neighbourhood shown in the patta are also fake. It was his defence that Patta for the disputed land bearing Plot No. 104 was issued by Gram Panchayat Savina to his grandfather on 13.11.1961 and since then he is in possession of the plot in question and his lot many things are lying there. It was stated that in connection with the forged Patta produced by appellant FIR was also lodged. Asserting that the land in question is in his use and occupation as owner since the date of issuance of Patta to his grandfather, defendant prayed for dismissal of the suit.

On the basis of pleadings of rival parties, learned trial Court framed two issues for determination. Appellant appeared in the witness-box as PW1 and got examined Ghashiram as PW2. He produced four documents to support his case. Respondent appeared himself as DW1 and got examined DW2 Shankar Malviya, Tehsildar, DW3 Chandri Bai, DW4 Himmat Singh Bhati, Tehsildar and DW5 Shankerlal Meghwal, Land Record Inspector and also produced 15 documents.

The learned trial Court after examining the evidence tendered by rival parties and the documents available on record, decided Issue No. 1, pertaining to grant of perpetual injunction, against appellant. The learned trial Court found that the plaintiff failed to prove his possession on the land in question and accordingly recorded findings and conclusions. Finally, the learned trial Court, on the basis of findings arrived at on issue No. 1, dismissed the suit.

Against the judgment and decree of the learned trial Court, appellant preferred first appeal before the learned lower appellate Court which re-examined the matter threadbare and scrutinized the entire evidence de novo. The learned lower appellate Court has completely repudiated the theory of appellant that the plot of land, which is subject matter of litigation, is in possession of plaintiff and arrived at the conclusion that the learned trial Court has not committed any error of law in passing the judgment and decree. Eventually, the learned lower appellate Court declined to interfere with the judgment and decree of the learned trial Court by dismissing the appeal, which has led to the filing of present second appeal by appellant-plaintiff.

In the present appeal, at second appellate stage, appellant-plaintiff has moved an application under Order 41 Rule 27 read with Section 151 CPC before this Court annexing certain photographs snapped on 08.01.2015 for taking the same on record as additional evidence. In order to show that he is in possession of the plot in question, as per appellant''s version, these photographs are important for just decision of the case and therefore be taken on record in the interest of justice.

I have heard learned counsel for the appellant and perused the judgments rendered by both the Courts below.

As regards application filed by plaintiff under Order 41 Rule 27, it is appropriate to point out settled position of law by the pronouncement of Hon''ble Apex Court in N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, (2001) 6 AD 37 : AIR 2001 SC 2802 : (2001) 6 JT 219 : (2001) 5 SCALE 65 : (2001) 7 SCC 503 : (2001) AIRSCW 2907 : (2001) 5 Supreme 689 that provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of appeal as it does not authorize any lacunae or gaps in evidence to be filled up. In the instant case, the suit filed by the appellant was for perpetual injunction seeking restraint order against the respondent for not raising construction on the land in question and to encroach over the suit land and therefore it was necessary for the appellant-plaintiff to prove his possession over the land in question. As the suit was filed almost 1 1/2 decades earlier, the appellant ought to have produced cogent evidence to prove his possession over the land in question. Admittedly, neither before the learned trial Court nor before the first appellate Court, appellant has produced any concrete evidence to show his possession over the land in question; both the Courts have concurrently found that appellant is not in possession. In that background, production of photographs, which by no stretch of imagination can be construed as valid evidence to prove possession, be allowed to be taken on record as additional evidence at the second appellate stage, as such, the application merits dismissal solely on the ground of inordinate delay and laches. Moreover, the appellant has miserably failed to establish that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him when decree appealed against was passed. Furthermore, there is no whisper in the application about due diligence by the appellant for the fact that document in question was not in his knowledge. The averments made in this behalf are absolutely vague, cryptic, unspecific and not inspiring confidence in view of the fact that the photographs which could not be produced before the learned trial Court/lower appellate Court by the appellant, how can now be permitted to be tendered in evidence. Moreover, from these photographs sought to be placed as additional evidence, it is not possible to infer that they are related to the same disputed place. Admissibility of such photographs itself is also under serious cloud. Even the averments of the application which has been drafted casually are not satisfying the requirements envisaged under Order 41 Rule 27 CPC. Therefore, the request of plaintiff to take photographs on record at the second appellate stage cannot be acceded to and application is hereby rejected.

On merits also, in a suit for perpetual injunction, plaintiff has to prove that he continued to be in possession on the basis of valid documents, but the evidence on record shows that patta produced by him did not match the plot in question as plot number and neighbourhood etc. did not tally and certain Pattas including the Patta produced by plaintiff were found to be forged. In that connection, FIR was lodged and after filing charge-sheet by the police, conviction was also recorded by the competent Court, however the same was stayed in appeal. When both the Courts below, based on evidence, arrived at a consistent factual finding against the plaintiff-appellant in respect of possession of the suit property by holding that he failed to prove that he was in possession of the suit land, refused to grant the relief of perpetual injunction, I am afraid as to how the appellant-plaintiff is legally entitled for the reliefs craved.

Hon''ble Apex Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 , has held that where a suit is filed for a bare injunction by the plaintiff against the defendant, who raises a cloud over the plaintiff''s title contending that he is the owner of the very same property, then, the proper course for the plaintiff would be either to withdraw the suit for filing a suit for declaration and possession or move an application for amendment of the prayer, seeking declaration of title and possession. It was further held that where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the Court may decide the issue regarding title, even in a suit for injunction. But such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. The persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. In the case on hand, it should be pointed out here that defendant filed a detailed written statement, strongly questioning the title and ownership of the plaintiff over the suit property and also disputing the alleged Patta issued in favour of plaintiff which was found to be a forged, sham and nominal document, as such, the learned Courts below on sound reasoning, rightly declined to grant relief in favour of the plaintiff as he miserably failed to prove his possession over the suit land. Title is core issue in the matter, but the plaintiff-appellant failed to make suitable prayer for declaration of title and consequential relief of possession. As pointed out above, even in the suit for injunction, in order to exceptionally consider the issue of title, the plaintiff did not have a good case as there was a strong question hanging on the factum of patta being genuine and his continuous possession on the plot in question. Therefore, I am of the considered opinion that when a cloud is cast over the plaintiff'' title on the suit property, the plaintiff should have either amended the prayer for larger relief of declaration and consequential relief of possession or after withdrawing the suit, should have filed a comprehensive suit. The findings of the Courts below are in perfect order. The trial Court as well as the lower appellate Court took much pains to go through the pleadings of the plaintiff with reference to the entire realm of evidence and consistently held that the appellant-plaintiff has miserably failed to prove his possession over the land since the land claimed by him with reference to patta issued by Gram Panchayat Savina was not found in the record of Gram Panchayat. The lower appellate Court clearly highlighted the factual aspect that even though the plaintiff claimed the plot in question, in light of the evidence, in particular the report of Land Records Officer, the defendant proved his case that he is in possession of the land.

In that background, on a close scrutiny of the evidence tendered by the appellant, and while testing the deposition of the witnesses of appellant on the touchstone of settled principles, I am afraid, concurrent findings of fact recorded by both the Courts below cannot be faulted. As a matter of fact, the appellant has miserably failed to prove his case for the reliefs craved. It goes without saying that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the First Appellate Court. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or against settled position of law on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. No such situation is available in the instant appeal.

It is trite that against the concurrent finding of the Courts below the second appeal can only be entertained when the Court is satisfied that the case involves substantial question of law. In Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., AIR 1962 SC 1314 : (1962) 3 SCR 549 Supp , the Supreme Court, after considering a number of decisions on the point, laid down the following test for determining whether a question of law raised in the case is substantial question of law or not:

"...The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

Thus, if no substantial question of law is involved in second appeal, the Court cannot reverse the judgment of the lower appellate Court even if the same is erroneous or other view is possible. Neither it is evident from perusal of the record that there is any substantial question of law based on proper appreciation of evidence, nor the substantial questions of law proposed by the plaintiff are satisfying the requirements enumerated hereinabove.

In totality, while construing the proposed substantial questions of law by the appellant and analyzing the arguments canvassed on behalf of the appellant, I am unable to find any question of law, which is fairly arguable. It is only where there is a room for difference of opinion on an arguable question of law, the Court may think it necessary to deal the question at some length and discuss alternative views so as to construe the same as the substantial question of law. On the other hand, if the question is practically covered by the authoritative pronouncements of the Hon''ble Apex Court, or if the general principles are to be applied in determining the question are also well settled, and the only question is to apply these principles to particular facts of the case, I am afraid, the same cannot be construed as a substantial question 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. None of these exceptions can be pressed into service in the instant appeal inasmuch as there is no cogent material on record to deviate from the general rule.

After analyzing the matter in its entirety, I am unable to find any error in appreciation of evidence by both the Courts below and taking into account the concurrent finding of fact, more particularly, the finding of learned lower appellate Court, which is the final Court of finding of fact, no case for interference in second appeal is made out. Consequently, I am not persuaded to interfere in the matter.

Resultantly, the present second appeal fails and same is hereby dismissed.