Himachal Pradesh High Court
Gian Chand vs Rattan Chand on 10 October, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 215 of 2023 Reserved on: 26.09.2023 Date of Decision: 10.10.2023 .
Gian Chand .... Appellant
Versus
Rattan Chand ....Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Nimish Gupta, Advocate.
of Rakesh Kainthla, Judge rt The present appeal is directed against the judgment & decree dated 09.06.2023 passed by the learned District Judge, Chamba, vide which the appeal filed by the appellant (defendant before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit before the learned Trial Court for seeking a permanent prohibitory injunction and mandatory injunction. It was pleaded that the plaintiff has a double-storeyed house over the suit land mentioned in Para 1 of the judgment of the learned Trial Court. The defendant has one single-story house adjacent to the plaintiff's house. The 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/10/2023 20:36:11 :::CIS 2defendant objected to the construction being raised by the plaintiff in the year 2002; however, the matter was compromised in the presence of the elders of the area vide .
Agreement dated 30.11.2002. It was agreed that the plaintiff would extend 06 inches projection (Chajja) of his house towards the house of the defendant and the defendant shall not cover this 6-inch space by raising the construction of the 2nd Storey of of his house. However, the defendant started raising construction of the 2nd Storey and tried to cover the 6 inches space. He was rt requested not to do so but in vain. Hence, the suit was filed before the learned Trial Court.
3. The defendant filed a written statement taking preliminary objections regarding lack of maintainability and cause of action, and the plaintiff having not come to the Court with a clean hand. The contents of the plaint were denied on merits. However, it was admitted that the house of the plaintiff exists over the suit land and the house of the defendant is located adjacent to it. It was asserted that the house of the plaintiff is triple-storeyed and the house of the defendant is double-storeyed. It was also admitted that parties entered into a compromise on 30.11.2002; however, it was denied that there was any stipulation regarding the construction of the 2nd storey.
::: Downloaded on - 10/10/2023 20:36:11 :::CIS 3It was asserted that the plaintiff violated the terms and conditions of the agreement by extending the lintel of his house beyond 06 inches. The defendant only raised the construction of .
the staircase from the ground floor to the lintel of the first floor.
No other construction was raised. The defendant intended to raise the construction of a toilet on the first floor but the plaintiff was obstructing the construction. Hence, it was prayed of that the suit be dismissed.
4. Learned Trial Court framed the following issues on rt 24.05.2019:
1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed to? OPP
2. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed to? OPP
3. Whether the suit of the plaintiff is not maintainable in the present form? OPD
4. Whether the plaintiff has no cause of action to file the present suit? OPD
5. Whether the plaintiff has not come to the Court with clean hands? OPD
6. Relief?
5. The parties were called upon to produce the evidence and the plaintiff examined himself (PW1), Sukh Lal (PW-2), and Surender Kumar (PW-3). The defendant examined Rattan Chand (DW-1).::: Downloaded on - 10/10/2023 20:36:11 :::CIS 4
6. The Learned Trial Court held that the execution of the agreement was not disputed. It was mentioned in the agreement that the defendant would not raise his wall on the 2nd .
storey without leaving 6 inches of space towards the house of the plaintiff. The defendant is bound by the agreement.
Photographs show that the defendant has raised construction of the 2nd storey touching the wall of the plaintiff's house in of violation of the terms and conditions of the agreement. The defendant had not only touched the wall of the plaintiff's house rt but he had inserted the iron bars of his lintel into the wall of the plaintiff's house. This violated the terms and conditions of the agreement between the parties. Hence, the learned Trial Court answered issues no.1 and 2 in the affirmative, issues no. 3 and 4 in negative, issue no. 5 as not pressed, and decreed the suit of the plaintiff.
7. Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendant filed an appeal, which was decided by learned District Judge, Chamba. Learned First Appellate Court concurred with the findings of the learned Trial Court that the execution of the agreement was not disputed. The defendant had agreed not to cover the 6 inches space while raising the construction of the house. The defendant ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 5 covered 6 inches of space left by the plaintiff. He touched the wall of his house to the plaintiff's house. This was duly corroborated by the photographs. The defendant cannot be .
permitted to take a U-turn from the promise made by him in the agreement. He cannot extend the projection of the walls of his house to touch the walls of the plaintiff's house. The learned Trial Court had properly appreciated the evidence; hence, the of appeal was dismissed.
8. Being aggrieved from the judgment and decree rt passed by the learned Courts below, the present appeal has been filed asserting that the learned Courts below passed the judgments based on presumption and assumptions ignoring the settled position of law. No demarcation report or tatima was produced before the learned Courts below and no decree for mandatory injunction could have been passed in their absence.
The plaintiff was required to prove the portion illegally constructed by the defendant and a site map was required to establish this fact. The agreement was merely marked and it was not exhibited. The photographs were not properly appreciated, which led to a miscarriage of justice; therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set aside.
::: Downloaded on - 10/10/2023 20:36:11 :::CIS 69. The following substantial questions of law were proposed with the memorandum of appeal:
1. Whether both the learned Courts below have rightly appreciated the evidence in its right perspective .
thereby leading to miscarriage of justice to the appellant?
2. Whether findings returned by learned Courts below are perverse and contrary to facts of case and law applicable to the case?
3. Whether the Court can grant the Decree of Mandatory Injunction contrary to the pleadings of the parties and of beyond the scope of pleadings?
4. Whether without producing any document ascertaining the actual dimensions of the encroachment, the Decree for Permanent Prohibitory rt Injunction and Mandatory Injunction can be granted in favour of the plaintiff?
5. Whether the agreement becomes un-enforceable on account of breach of condition by any of the party and the same can be relied upon without proving the same in due process of law?
6. Whether the mandatory injunction could have been passed without there being any dimensions of the property to be demolished and whether the same is duly executable in the eyes of law?
10. I have heard Sh. Nimish Gupta, learned counsel for the appellant/defendant. He submitted that learned Courts below erred in decreeing the suit. The learned Courts below did not properly appreciate the evidence led before them. The relief was granted beyond the pleadings and no relief could have been granted based on the marked document. Hence, he prayed that the appeal be admitted on the proposed substantial questions of law.
::: Downloaded on - 10/10/2023 20:36:11 :::CIS 711. I have given considerable thought to his submissions at the bar and have gone through the records carefully.
12. Both the learned Courts below have concurrently .
held that the defendant admitted the execution of the agreement. He also admitted that the plaintiff was allowed to extend his projection up to 6 inches. He claimed that the plaintiff had extended the projection (Chajja) beyond 6 inches, of but he was unable to prove this fact. Both the learned Courts below also relied upon the photographs in which the walls of the rt house of the parties were shown to be touching each other. This was held to be a violation of the agreement executed between the parties. These are concurrent findings of fact and cannot be disturbed in second appeal.
13. It was held in Lisamma Antony v. Karthiyayani, (2015) 11 SCC 782, that it is impermissible to interfere with the findings of fact under section 100 of CPC. It was held:
"11. It is a settled principle of law that a second appeal under Section 100 of the Code of Civil Procedure, 1908, cannot be admitted unless there is a substantial question of law involved in it. As to what is a substantial question of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722], this Court has explained the position of law as under : (SCC pp. 725-26, para 6) "6. If the question of law termed as a substantial question stands already decided by a larger Bench ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 8 of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the .
absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in a second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first of appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question rt of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in the second appeal."
12. In view of the above position of law, the question formulated by the High Court in the present case, as quoted above, cannot be termed to be a question of law, much less a substantial question of law. The above question formulated is nothing but a question of fact.
Merely for the reason that on appreciation of evidence another view could have been taken, it cannot be said that the High Court can assume the jurisdiction by terming such a question as a substantial question of law.
13. Having gone through the impugned order challenged before us and after considering the submissions of the learned counsel for the parties, we are of the view that the High Court has simply re-appreciated the evidence on record and allowed the second appeal and remanded the matter to the trial court."
::: Downloaded on - 10/10/2023 20:36:11 :::CIS 914. Similar view was taken in Narendra v. Ajabrao, (2018) 11 SCC 564, wherein it was observed:-
"17. In the first place, we find that the High Court decided the second appeal like a first appeal under Section 96 of .
the Code in as much as the High Court went on appreciating the entire oral evidence and reversed the findings of fact of the first appellate court on the question of adverse possession. Such an approach of the High Court, in our opinion, was not permissible in law.
18. Second, the High Court failed to see that a plea of of adverse possession is essentially a plea based on facts and once the two courts, on appreciating the evidence, recorded that a finding may be of reversal, such finding is binding on the second appellate court. It is more so as it rt did not involve any question of law much less substantial question of law. This aspect of law was also overlooked by the High Court.
19. Third, the High Court has the jurisdiction, in appropriate cases, to interfere in the finding of fact provided such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or when it is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law and empower the High Court to interfere. However, we do not find any such error here."
15. It was held in Ramathal v. Maruthathal, (2018) 18 SCC 303 that it is not appropriate for the High Court to disturb the concurrent findings of fact by re-appreciating the evidence and its jurisdiction is confined to the substantial question of law. It was observed:-
"13. It was not appropriate for the High Court to embark upon the task of reappreciation of evidence in the second appeal and disturb the concurrent findings of fact of the ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 10 courts below which are the fact-finding courts. At this juncture, for better appreciation, we deem it appropriate to extract Sections 100 and 103 CPC, which reads as follows:
"100. Second appeal.--(1) Save as otherwise .
expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an of appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the rt substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
***
103. Power of High Court to determine issues of fact.-- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal--
(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
14. A clear reading of Sections 100 and 103 CPC envisages that a burden is placed upon the appellant to state in the memorandum of grounds of appeal the substantial question of law that is involved in the appeal, then the ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 11 High Court being satisfied that such a substantial question of law arises for its consideration has to formulate the questions of law and decide the appeal. Hence a prerequisite for entertaining a second appeal is a substantial question of law involved in the case which has to be adjudicated by the High Court. It is the intention of .
the legislature to limit the scope of a second appeal only when a substantial question of law is involved and the amendment made to Section 100 makes the legislative intent more clear that it never wanted the High Court to be a fact-finding court. However, it is not an absolute rule that the High Court cannot interfere in a second appeal on a question of fact. Section 103 CPC enables the High Court of to consider the evidence when the same has been wrongly determined by the courts below on which a substantial question of law arises as referred to in Section 100. When rt appreciation of evidence suffers from material irregularities and when there is perversity in the findings of the court which are not based on any material, the court is empowered to interfere on a question of fact as well. Unless and until there is absolute perversity, it would not be appropriate for the High Courts to interfere in a question of fact just because two views are possible; in such circumstances, the High Courts should restrain itself from exercising the jurisdiction on a question of fact.
15. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 for whatsoever reasons. Justice has to be administered in accordance with the law. In the case on hand, the High Court has exceeded its jurisdiction by reversing the well- considered judgment of the courts below which is based on cogent reasoning. The learned Judge ought not to have entered the arena of reappreciation of the evidence, hence the whole exercise done by the High Court is beyond the scope and jurisdiction conferred under Section 100 CPC."
16. Similarly, it was held in C. Doddanarayana Reddy v. C. Jayarama Reddy, (2020) 4 SCC 659 that the High Court cannot interfere with the concurrent findings of fact unless there is ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 12 perversity or the same is de hors the evidence led before the Courts:
"25. The question as to whether a substantial question of law arises has been a subject matter of interpretation by .
this Court. In the judgment in Karnataka Board of Wakf v.
Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343], it was held that findings of the fact could not have been interfered with in the second appeal. This Court held as under : (SCC pp. 347-48, paras 12-15) of "12. This Court had repeatedly held that the power of the High Court to interfere in a second appeal under Section 100 CPC is limited solely to deciding a substantial question of law if at all the same arises rt in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392], this Court held : (SCC p. 393) 'It is now well settled that concurrent findings of fact of the trial court and the first appellate court cannot be interfered with by the High Court in the exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'
14.In Navaneethammal v. ArjunaChetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166] , this Court held : (SCC p.
166) 'Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 13 replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.' .
15. And again in Taliparamba Education Society v.
Moothedath MallisseriIllath M.N. [Taliparamba Education Society v. Moothedath MallisseriIllath M.N., (1997) 4 SCC 484], this Court held : (SCC p. 486, para 5) '5. ... The High Court was grossly in error in trenching upon the appreciation of evidence under of Section 100 CPC and recording reverse finding of fact, which is impermissible."
17. This position was reiterated in State of Kerala v.
rt Joseph, 2023 SCC OnLine SC 961, wherein it was held:
18. A perusal of the judgment impugned does not reflect any question of law, either substantial or "involving in the case" to have been framed by the Court in the Second Appeal. Section 100, of CPC jurisdiction is not akin to the jurisdiction conferred under Section 96 of CPC wherein it is open for the Court to consider both questions of fact and law. This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be "patently illegal."
[Umerkhan v. Bismillabi (2011) 9 SCC 684 (two-Judge Bench)
19. Recently, a Bench of two learned Judges in Singaram v. Ramanathan Civil Appeal No. 4939 of 2021 held as under:
"This is undoubtedly subject to various well-known exceptions which, however, cannot permit the Second Appellate Court to interfere with the findings of fact as a matter of course. Such restrictions are placed on the High Court in order that there is finality to litigation at a particular level ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 14 in the hierarchy of Courts. The limitation on the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high public policy. This limitation is sought to be secured by insisting upon the requirement that a Second Appeal is .
considered only when there is a substantial question of law. Therefore, the existence of substantial question of law and the judgment which revolves around answering the substantial questions of law are not mere formalities. They are meant to be adhered to."
of (Emphasis supplied)
18. It was submitted that the injunction could not have rt been granted in absence of the report of demarcation or the site plan. This submission is not acceptable. The grievance of the plaintiff is that the defendant was raising construction by covering 6 inches of space agreed to be left by him in the agreement. The learned Trial Court had passed a decree for mandatory injunction directing the defendant not to insert the Saria of his 2nd-storey lintel into the wall of the plaintiff's house and not to raise construction of the 2nd storey under the projection of the house of the plaintiff. He was also directed to remove the saria and wall of his 2nd storey under the projection of the house of the plaintiff. The dispute between the parties was regarding 6 inches of space from the wall of the defendant's house in the 1st storey. It can be easily measured by any person ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 15 and does not require any tatima. Thus, the judgments and decrees are not bad in the absence of tatima.
19. The judgments of the learned Courts below clearly .
show that the agreement was violated as the walls of the house of the plaintiff and defendant are touching each other. Since the defendant had agreed to leave 6 inches of space; therefore, the learned Trial Court was justified in issuing the injunction. The of plea that tatima was required and no injunction could have been issued in the absence of tatima cannot be accepted keeping in rt view the nature of the dispute between the parties.
20. It was submitted that the plaintiff had himself violated the agreement. However, both the learned Courts below have concurrently held that this plea was not established by the defendant. The defendant did not examine any person to corroborate his version. Again, this is a concurrent findings of fact and cannot be interfered with while exercising jurisdiction under Section 100 of CPC. Substantial questions of law nos.1 and 2 are related to the appreciation of evidence, which is not permissible while exercising jurisdiction under Section 100 of CPC as stated above. Therefore, the appeal cannot be admitted on these substantial questions of law.
::: Downloaded on - 10/10/2023 20:36:11 :::CIS 1621. The defendant admitted the execution of the agreement. He had also admitted that he had agreed to leave 06 inches of space and not to raise construction upon the same. It .
was laid down by the Hon'ble Supreme Court of India in Srinivas Ram Kumar v. Mahabir Prasad, 1951 SCC 136: 1951 SCC OnLine SC 11, that where the plaintiff put forward a case, the Court can grant the relief to the plaintiff based on the plea taken by him, as of he would not be prejudiced by such a relief. It was observed:
"12. A plaintiff may rely upon different rights rt alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.
13. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 17 in Babu Raja Mohan Manucha v. BabuManzoor Ahmad Khan [Babu Raja Mohan Manucha v. BabuManzoor Ahmad Khan, (1942-43) 70 IA 1: 1942 SCC OnLine PC 30]. This appeal arose out of a suit commenced by the appellant- plaintiff to enforce a mortgage security. The plea of the defendant was that the mortgage was void. This plea was .
given effect to by both the lower courts as well as by the Privy Council. However, the Privy Council held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it in the form of restitution under Section 65 of the Contract Act. Although no such alternative claim was made in the plaint, the Privy Council allowed it to be advanced and of gave a decree on the ground that the respondent could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this rt relief was allowed to the appellant even though the appeal was heard ex parte in the absence of the respondent."
22. In the present case also, since the defendant had admitted the execution of the agreement and that no construction was to be raised in 6 inches of space, therefore, it was permissible for the Court to grant the relief based on such admission and the substantial question of law no.3 will not arise in the present case.
23. The actual dimension of the encroachment and tatima were not necessary because the dispute related to 06 inches projection, therefore, the substantial questions of law No. 4 and 6 do not arise.
24. The plea taken by the defendant that the plaintiff had breached the terms and conditions of the agreement was not ::: Downloaded on - 10/10/2023 20:36:11 :::CIS 18 accepted by the learned Courts below and the defendant had also not led any evidence in support of his plea, therefore, it cannot be said that the agreement had become unenforceable on .
account of breach of terms and conditions and the substantial question of law no.5 will also not arise.
Final Order:
25. In view of the above, the present appeal does not of disclose any substantial question of law. Hence, the present appeal fails and the same is dismissed. Pending miscellaneous rt application(s), if any, also stand disposed of.
(Rakesh Kainthla) Judge 10th , October 2023 (saurav pathania) ::: Downloaded on - 10/10/2023 20:36:11 :::CIS