Allahabad High Court
Mohd. Iliyas And Another vs Aman Ullah on 15 July, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 Reserved A.F.R. Case :- SECOND APPEAL No. - 610 of 1993 Appellant :- Mohd. Iliyas And Another Respondent :- Aman Ullah Counsel for Appellant :- Vipin Saxena,Sankatha Rai Counsel for Respondent :- Dhuruva Narain,Anadi Krishna Narayana,B.K.Narayan,N.L.Srivastava,Suresh Chandra Varma,Vijay Prakash Singh Kushwaha Hon'ble J.J. Munir,J.
1. This is a defendants' second appeal from a decree of Sri U.P.S. Kushwaha, the then Additional District & Sessions Judge, Etah dated 03.04.1993 allowing Civil Appeal no.35 of 1993, and in the result decreeing Original Suit no.138 of 1987 for mandatory injunction, permanent prohibitory injunction and possession.
2. It may be pointed out that along with this appeal, another appeal being Civil Appeal no.34 of 1993 was also filed. It was a defendants' appeal from the findings of the Trial Court on certain issues decided in the suit. The decree in the suit on grounds as would be detailed hereinafter went in favour of the defendants-appellants. At the hearing of the appeal before the lower Appellate Court, a preliminary objection was raised regarding maintainability of Civil Appeal no.34 of 1993 by the defendants. The objection was that there could be no appeal from mere findings unless some part of the decree went against the defendants. The lower Appellate Court held relying on authorities mentioned in the impugned judgment that an appeal against a mere finding is not maintainable. Accordingly, Civil Appeal no.34 of 1993 from certain findings recorded by the Trial Court was held not maintainable by the lower Appellate Court, and was ordered to be dismissed with costs. It was challenged in Second Appeal no.743 of 1993, that was connected to this appeal. This decree of the lower Appellate Court made in Civil Appeal no.34 of 1993, has been acknowledged by the learned counsel for the defendants-appellants to be based on a correct view of the law. He has, therefore, not proceeded with Second Appeal no.743 of 1993, which he has elected to withdraw at the hearing. Second Appeal no.743 of 1993 has, accordingly, been dismissed as withdrawn by an order dated 17.04.2019, separately made in the said appeal.
3. Heard Sri Vipin Saxena, learned counsel for the defendants-appellants and Sri Vijay Prakash Kushwaha, appearing on behalf of the plaintiff-respondent.
4. Appellants nos.1/a, 1/b, 1/c, 1/d, 1/e, 1/f & 1/g, who are the heirs and legal representatives of one of the two original defendants, Mohd. Iliyas, since substituted in this appeal after his death, and the second appellant Mohd. Saleem son of Mohd. Iliyas, shall hereinafter be referred to as the ''defendants'. It is clarified here that the two original defendants-appellants, Mohd. Iliyas and Mohd. Saleem, were the two original defendants to the suit. Likewise, the sole plaintiff who brought the suit giving rise to this appeal, Aman Ullah Khan, since deceased, has been substituted on record by his heirs and legal representatives, plaintiff-respondents no.1/1, Aman Rahman and no.1/2, Habiburrahman, both sons of late Aman Ullah Khan, who shall hereinafter be referred to, in singular, as ''the plaintiff'.
5. This appeal was admitted to hearing on some day in the month of August, 1994, the date of that month being torn off in the original records. It was admitted on the following substantial questions of law (some words in those questions have been reconstructed with the aid of learned counsel appearing for the parties, as margins of the page carrying some part of certain words of the questions framed, are also torn off):
"(1) Whether the court below was legally correct in allowing the plaintiff's claim in the absence of specific pleading about the status of the defendant-appellant in the plaint?
(2) Whether the courts below were correct in decreeing the suit of the plaintiff without fixing the identity of the plot alleged to have been purchased by the plaintiff from vendor?
(3) Whether the courts below read the documentary evidence filed by the plaintiff and arrived at a perverse conclusion?"
6. The hearing of this appeal commenced ex parte on 13.03.2019, when an additional question of law was framed by this Court, that reads as follows:
"Whether a suit to recover possession of a demised property is maintainable, without terminating the tenancy in accordance with law?"
7. The hearing remained inconclusive on that date and it was adjourned to the following date on 14.03.2019. Hearing could not be resumed and the matter was ordered to be listed on 29.03.2019. On 29.03.2019, it was again directed to be put up in the Additional Cause List on 09.04.2019. On 09.04.2019, the hearing resumed, with Sri Vipin Saxena, learned counsel for the defendants arguing further on their behalf. Sri Vijay Prakash Kushwaha, learned counsel for the plaintiff appeared and remained present. The hearing was adjourned to 17.04.2019. On 17.04.2019, Sri Vipin Saxena concluded his submissions on behalf of the defendants and Sri Vijay Prakash Kushwaha was heard on behalf of the plaintiff. The hearing concluded on that day, and judgment was reserved.
8. The suit giving rise to the present appeal was instituted by the plaintiff in the Court of Civil Judge, Etah being Original Suit no.130 of 1987, claiming a decree of mandatory injunction in favour of the plaintiff and against the defendants in terms that the defendants be ordered within time to be specified by the Court, to remove his firewood from the suit property, denoted in the plaint map by Hindi alphabets र, स, द, य, and render the same clean of all trash, with a further prayer that in the event the defendants fail to do so, the firewood be caused to be removed from the suit property through process of Court, at the defendants' cost. A further relief by way of permanent prohibitory injunction was sought to the effect that by a decree in favour of the plaintiff and against the defendants, the defendants be ordered not to interfere with the plaintiff's peaceful possession over the suit property, denoted in the plaint map by Hindi alphabets र, स, य, द, either themselves or through their agents or associates by collecting firewood there, or in any other manner.
9. It would be gainful to look at the course of proceedings before the Trial Court briefly, and the result there. But, before undertaking that it would be profitable to refer to the suit property, which the Appellate Court has chosen to describe and go by the way it is mentioned in the map (paper no.16C/3) on record of Civil Appeal no.35 of 1993. This map has been drawn to scale and is part of the report dated 19.08.1992, submitted by M.C. Mishra, Civil Court Amin, Etah. The lower Appellate Court has proceeded on the description of the suit property in the aforesaid map, annexed to the Amin's report dated 19.08.1992, on account of the fact that the maps given at the foot of the plaint and the written statement, are in the words of the Lower Appellate Court merely site plans, and not maps drawn to scale.
10. This Court is of opinion that the lower Appellate Court has adopted the right course of action in going by a map to scale drawn by the Civil Court Amin, that is part of his report dated 19.08.1992. Nothing has been brought to the notice of this Court that shows the validity of the aforesaid map to be impeached by the parties, or at least successfully. Thus, the description of the suit property in this appeal is also founded on the map annexed to the Civil Court Amin's report dated 19.08.1992, which is also part of the impugned decree. The suit property, thus, identified is shown by letters BCDEFGAB as denoted in the Amin Commissioner's map. The suit property is in two parcels of land, one denoted by letters BCDGAB, and, the other by DEFGD.
11. According to the plaintiff's case, he is owner of the whole of the suit property which he inherited from his father, Inam Ullah Khan. Inam Ullah Khan had purchased this property through a registered sale deed dated 22.02.1957 from its previous owner, one Smt. Kamla Devi, acting through her husband, Surendra Sharma, on the basis of a power of attorney. The case of the plaintiff is that the defendants had encroached upon the land, denoted by letters ADEFGA in the Amin Commissioner's map, on 15.05.1986 by collecting some firewood there. It is further claimed that the defendants encroached upon the land shown by letters BCDGAB on 13.09.1986 pending suit, that was initially presented to the Court of Munsif, Etah. The plaintiff has further averred that the defendants refused to remove the collected firewood from the suit property, and hence, the suit was initially framed for reliefs of mandatory injunction directing the defendants to remove the firewood from the suit property. The suit was instituted in the Court of the Munsif, Etah on 25.08.1986. At the cost of a little repetition, the suit property at the time of presentation of the suit was the one denoted by letters ADEFGA.
12. The learned Munsif vide his order dated 08.04.1987 held the suit to be beyond his pecuniary jurisdiction, and directed return of the plaint for presentation before a Court of competent jurisdiction. The plaint was returned on 27.04.1987 by the learned Munsif and was presented the following day, that is to say, on 28.04.1987 to the Court of the Civil Judge, Etah. In view of further encroachment made on the suit property, denoted by letters BCDGAB on 13.06.1986, the relief clause was amended to include the said land in the suit property, denoted in its entirety by letters BCDEFGAB.
13. It appears that the defendants filed a joint written statement, where they admitted that the plaintiff is owner of part of the suit property denoted by letters BCDGAB. It was also admitted by the defendants, vide paragraph 10 of their written statement that the land denoted as last mentioned was purchased by the plaintiff from Smt. Kamla Devi, through a registered sale deed, dated 22nd January, 1957.
14. The case of the defendants, in respect of this land is that they have not encroached upon the same as claimed by the plaintiff. Instead, they are in possession over the land last mentioned for more than 30 years past as tenants on a rent of Rs.3/- per mensem. It has further been averred in paragraph 5 of the written statement that the plaintiff had issued a rent receipt for Rs.36/- to the defendants on 05.01.1986, and again for a sum of Rs.36/- on 08.01.1986. The defendants have, thus, claimed that the portion of the suit property last mentioned is in the ownership of the plaintiff, of which the defendants are tenant. They are not trespassers in the said land. It is further averred that part of the suit property denoted by letters DEFGD in the map annexed to the Amin's report, is not part of land conveyed to the plaintiff by Smt. Kamla Devi. It is asserted that the plaintiff is not owner of this part of the suit property. Instead, it is asserted that the defendants have been in possession of this part for more than 40 years, ante-dating the institution of the suit. It is pleaded that they have matured their title to this part of the suit property, by adverse possession.
15. The learned Civil Judge, Etah framed as many as six issues. Of these, issues nos.1 & 3 were those that dealt with the substance of the lis. Issue no.4 was about valuation and the court fee paid, whereas issue no.2 is a defendants' issue, pleading the bar of time. The other issues on which event turned before the Trial Court are issues nos.5 & 6, which speak about the relief to which the plaintiff was entitled, and the sixth issue, again appears to be a defendants' issue, which goes to the effect:
"(1) Whether the plaintiff without asking for relief of recovery of possession is entitled to a mandatory injunction against the defendants?"
16. The Trial Court answered issues nos.1 & 3, dealing with the two together, in the manner that the plaintiff was held owner of the suit property in all its wholeness (that is denoted by letters BCDEFGAB). The defendants were held not to be tenants of the land denoted by letters BCDGAB. Instead, the defendants were held trespassers in the entire suit property, as above detailed. The Trial Court in writing its finding on issue nos.5 & 6, held that the plaintiff is not entitled to the relief of mandatory injunction because the defendants were in possession of the suit property. The suit was held liable to be dismissed because relief of recovery of possession was not sought. The suit was ordered to be dismissed with costs.
17. Aggrieved by the dismissal of the suit, the plaintiff filed First Appeal no.986 of 1990 to this Court. The relief sought in that appeal was that the decree of the Trial Court be set aside and reversed, and the suit decreed, in the terms claimed. The defendants also preferred an appeal from the Trial Court's judgment to this Court being First Appeal no. 947 of 1990, but that appeal was not from any part of the decree, the decree being entirely in their favour. The appeal was from the findings recorded by the Trial Court in relation to issue nos.1, 2 & 3. The two appeals were transferred to the District Judge, Etah for decision in accordance with law on 12.05.1992, in view of enlargement of the pecuniary jurisdiction of the Court of the District Judge, resultant upon amendment made to the Agra, Assam and Bengal Civil Courts Act, in that year. In the Court of the District Judge, First Appeal no.947 of 1990 was registered as Civil Appeal no.34 of 1993, whereas First Appeal no.986 of 1990 was registered as Civil Appeal no.35 of 1993. Both appeals were dismissed giving rise to Second Appeals nos.610 of 1993 and 743 of 1993. Second Appeal no.743 of 1993 has been dismissed as withdrawn on the motion of Sri Saxena, as already detailed hereinabove on 17.04.2019, and therefore, this Court is now concerned with the present Second Appeal no.610 of 1993 (arising from the decree in Civil Appeal no.35 of 1993) alone.
18. Going by the stance of the plaintiff vis-a-vis his claim to the suit property, the lower Appellate Court has rightly divided the entire suit property denoted by letters BCDEFGAB, into two parts, in order to judge the worth of the parties' claim, in Civil Appeal no.35 of 1993. The part denoted by letters BCDGAB is the one about which the plaintiff acknowledges the defendants' ownership and claims in himself tenancy rights. The other part of the property is denoted in the map, already much referred to, by letters DEFGD. This is that part of the property about which the plaintiff has claimed adverse possession and maturity of his title by prescription, on account of continuing in possession for more than 12 years. About the true owner of this part of the suit property and his plea of adverse possession, the lower Appellate Court has found the stance of the plaintiff to be rather inconsistent. To this, allusion would be made later in this judgment. For the moment in the sequence of events in the proceedings, there are some further developments to be noticed.
19. In the present appeal before the lower Appellate Court, the plaintiff finding his suit was dismissed as possession was found with the defendants and he had not sued for recovery of possession, but confined relief to mandatory and prohibitory injunction alone, applied to amend his plaint, in order to incorporate necessary pleadings; and, particularly, relief for recovery of possession. The said amendment application was made on behalf of plaintiff on 29.07.1992, and was allowed on 16.09.1992. This led the defendants to file an additional written statement, wherein it was pleaded that the plaintiff had never been in possession over the suit property. It was also averred that the defendants had been in adverse possession over the suit property for more than 30 years, and had, therefore, perfected their title by adverse possession. The suit was pleaded to be barred by time. The lower Appellate Court, after the additional written statement was filed, appears to have found contradictions in the plaintiff's stance, in the written statement originally filed in the suit, and the additional written statement. This was because in the stand taken in the written statement originally filed, regarding one part of the disputed property, the defendants had admitted himself to be the plaintiff's tenant, whereas in respect of other, he had asserted title in himself on the basis of adverse possession. Accordingly, the lower Appellate Court proceeded to examine the learned counsel for the defendants, Sri Dharmendra Sahai and defendant no.1 to the suit, Mohd. Iliyas under Order X Rule 2 CPC on 12.11.1992 and 12.12.1992, respectively.
20. Whatever emerged from the allegations made in the additional written statement and the statements of Sri Dharmendra Sahai, Advocate and Mohd. Iliyas, defendant no.1 to the suit, under Order X Rule 2 CPC, four additional issues were framed by the lower Appellate Court, which read thus:
"(7) Whether the suit is under-valued, as alleged in para 2 f the additional WS?
(8) Whether the court-fee paid is insufficient, as alleged in para 2 of the Additional WS?
(9) Whether the suit is barred by time, as alleged in para 3 of the additional WS?
(10) Whether the suit suffers with the defects of non-joinder of necessary parties, as alleged?"
21. How these four additional issues were disposed of as preliminary issues, which the lower Appellate Court has referred to, rather ineptly, as interim issues, is best described in the words of the lower Appellate Court, recorded in paragraph 12 of the impugned judgment. Paragraph 12 aforesaid reads thus:
"12. Issues no. 7, 8 and 10 were treated as interim issues and findings on these three issues were given on 26.11.1992 after giving opportunity to the parties to adduce additional evidence, if any, and after hearing oral arguments. At issue no.7, it was held that value of the trees was Rs.400/- and that the value of the suit for the relief of possession was Rs.28,900/- and that the relief of possession was under-valued. It was further held that the court-fee paid was insufficient. At issue no.10, it was held that neither power-house nor Babu Laxmi Dayal was necessary party to the suit. In view of the finding on issue no.7, plaintiff had moved application (24/A1) for amendment of plaint with a view to correct valuation clause. This application was allowed. Thus, the suit, as it now stands, has been properly valued."
22. The lower Appellate Court on this much of a changed canvas, with a relief of possession added, the defendants changing their basic stance as regard one part of the suit property vis-a-vis rights of the plaintiff, and other facts that emerged from the statements of the learned counsel appearing for defendants and defendant no.1 to the suit, framed the following points for determination under Order LXI Rule 31 of the Code:
"(1) Whether the plaintiff is owner of the land, shown by letters DEFGD in Amin's report dated 19.8.1992 (paper No.16C/3), of the file of Civil Appeal No.35/93?
(2) Whether the defendants had encroached in 1986 upon the land, shown by letters BCDGAB in the map of Amin's report dated 19.8.1992 (paper no. 16C/3) of the file of Civil Appeal no.35/93?
(3) Whether the defendants have become owners by adverse possession of the land shown by letters DEFGD in the said map?"
23. On the first point for determination framed by the lower Appellate Court, it held in favour of the plaintiff that the part of the suit property, denoted by letters DEFGD shown in the map (paper no.16C/3) is land purchased by the plaintiff through sale deed dated 22.02.1957, and that plaintiff is owner of the said land. The said point was answered in favour of the plaintiff.
24. On the second point, it was held that the defendants had not been in possession of the part of suit property, denoted by letters BCDGAB after October, 1962, and had encroached upon it in the year 1986. This point was, therefore, decided also in favour of the plaintiff.
25. On the third point of determination, it was held that on the conclusions drawn from evidence, while dealing with point no.2 that the defendants had not been remained in possession of any part of the suit property after October, 1962, it was further held that the defendants had encroached upon the land, shown by letters DEFGD in the Amin Commissioner's map (paper no.16C/3) for the first time in May, 1986. It was, therefore, concluded as regards point no.3 that the defendants have not become owners of the land shown by letters DEFGD, by adverse possession. The said point was also, therefore, decided in favour of the plaintiff. It was held further by the lower Appellate Court that the Trial Court dismissed the suit simply because the plaintiff was not found to be in possession of the suit property, and he had not sought any relief by way of a decree for recovery of possession. It was also recorded that the plaintiff had sought that relief before the lower Appellate Court by seeking amendment to the plaint, that was granted. It was further held that since he is owner of the suit property - the whole of the suit property shown by letters BCDEFGAB (incorrectly recorded by the lower Appellate Court as BCDGAB for the letters BCDEFGAB) as shown in the Amin Commissioner's map (paper no. 16C/3) on the file of Civil Appeal no.35 of 1993, whereas the defendants have not become owners of the suit property by adverse possession, the plaintiff is entitled to relief of possession as well as permanent prohibitory injunction. The lower Appellate Court, therefore, proceeded to allow Civil Appeal no.35 of 1993, and decreed the plaintiff's suit for recovery of possession of the suit property, denoted by letters BCDEFGAB in the Amin's map (paper no. 16C/3), as well as for the relief of permanent prohibitory injunction in relation to the said property. It was ordered that after the plaintiff recovers possession of the suit property, the defendants shall not interfere with his peaceful possession over the same, as denoted in the Amin's map by letters BCDEFGAB. The Amin's map (paper no.16C/3) was made part of the decree.
26. Sri Vipin Saxena, learned counsel for the defendants submits that the plaintiff's claim in the plaint is founded on concealment of a material fact. The said fact, according to Sri Saxena, is that whereas the plaintiff has claimed title to the suit property based on the registered sale deed dated 22.02.1957, executed on behalf of its previous owner Smt. Kamla Devi by her Attorney Surendra Sharma, he has not disclosed in the plaint that the said land was in the plaintiff's tenancy, anterior in time to acquisition of title by the plaintiff through the sale deed, last mentioned. He has emphasized that this fact as to tenancy occupation of the suit property finds mention in the sale deed in question. Learned counsel submits that another material fact has been concealed and suppressed by the plaintiff in his pleadings is that the plaintiff had executed a rent deed on 12.05.1957 (paper no.35A/1), in favour of the defendants. There was, thus, relationship of landlord and tenant between the parties. He submits that there is no whisper in the plaint that the plaintiff ever determined the defendants' tenancy in accordance with law, or that the defendants ever surrendered his tenancy. It is, therefore, pointed out that by application of no principle of law, can the defendants be called trespassers.
27. Sri Saxena points out that in the written statement while denying the plaint allegations, it has been pleaded in paragraph 5 that the defendants are tenants in occupation of the suit property, and have paid rent on 05.01.1985 and 08.01.1986. The plaintiff has also issued rent receipts relative to the aforesaid remittance of rent. It is urged that there is, thus, a clear relationship of landlord and tenant between parties. Sri Saxena further profiling the case of parties that wholesomely emerges from the state of pleadings, has drawn attention of the Court to the additional written statement, filed on behalf of the defendants, where it has been specifically urged that there is relationship of landlord and tenant between parties, and further that without determining his tenancy, the plaintiff has no right to recover possession from the defendants. Sri Saxena has placed great emphasis on the replica filed by the plaintiff on 22.10.1986, where he has admitted that when he purchased the suit property through the sale deed of 1957 from Smt. Kamla Devi, the defendants were tenants of the said land, but has not said a word thereafter that he had executed a rent note on 12.05.1957, in favour of the defendants. Sri Saxena has then referred to the evidence of parties and pointed out that the plaintiff appeared to testify in support of his case as PW-1, and at page 12 of his deposition, admitted the defendants as tenants in the suit property prior to its purchase by him. He also admitted that he had executed a rent deed in favour of the defendants. Based on the aforesaid evidence, Sri Saxena submits that there is no case of the plaintiff anywhere in the plaint, that he ever determined the tenancy of the plaintiff in accordance with law, or even a slight case that there was surrender of tenancy by the defendants, at any point of time.
28. Based on the aforesaid facts and evidence, Sri Saxena has urged that once there was relationship of landlord and tenant established between parties, and admitted to the plaintiff, a suit for possession in respect of an open piece of land cannot be maintained, without there being any pleading or evidence on record, regarding termination of tenancy or surrender thereof at any point of time. He submits that this is precisely what the substantial question of law no.1 framed by this Court at the time of admission of appeal is about, and also the further question that was framed on 13.03.2019 during the hearing of this appeal, which moots the same proposition of law. According to the learned counsel for the defendants, it is, thus, substantial question of law no.1 and the additional question framed on 13.03.2019, that are substantially one and the same, the answer to which would determine the fate of this appeal.
29. The submission of Sri Vipin Saxena regarding the aforesaid proposition is that a hostile trespasser who occupies by force, or a licensee who occupies land by mere permission, coupled with no transfer of property, can be dispossessed at the owner's suit based on title by proving his superior title and illegal occupation of the land by a trespassing defendant, or the defendant who had permission to begin with, but no longer has it. However, according to Sri Saxena, the tenant has some interest in the property transferred to him by the demise made in his favour, which places him in a completely different position from that of a trespasser, or a mere licensee with no interest coupled, except the licence to be in possession, as permitted. An owner, who chooses to evict his tenant in exercise of his rights of a landlord, has to determine the tenancy in accordance with law, before he can proceed to sue the tenant. The manner of determination of the tenancy would depend on the nature of the lease, that is to say, whether it is a fixed term lease, or a month to month lease, or a year to year lease, or a lease reserving an yearly rent. In case of a month to month lease, the lease can be determined by a notice under Section 106 of the Transfer of Property Act. After expiry of the statutory period, the owner/ landlord may sue to evict the tenant. But, in no case can he sue to recover possession treating the tenant as a trespasser, or a mere licensee, with no interest coupled.
30. Learned counsel for the defendants has placed reliance on a decision of this Court in Premlal and others vs. Dr. Jagat Prakash1, where it has been held thus:
"In my view the decision of the learned Civil Judge is manifestly erroneous. He thought that a suit for ejectment by the landlord is incompetent unless there was an agreement of tenancy between the parties. But he was in error because he confused a suit for ejectedment with one for recovery of rent. Ejectment is recovery possession of property by evicting someone in wrongful possession. Possession is an attribute of ownership, which vests exclusively in the owner unless he has parted with it - as under a lease, or lost it - as by adverse possession. Therefore he is entitled to recover possession of his property from any one who is in wrongful possession and cannot show a right to retain it. A suit for ejectment - or recovery of possession, which is the same thing - is founded on the inherent right of the owner, or his representative, to recover possession of his property and not upon any agreement of tenancy. In fact it is the defendant who relies on the tenancy to resist ejectment by showing that he has acquired a right to occupy the property. Precisely for this reason and to defeat such a plea in defence, a landlord suing for recovery of possession of the accommodation from a tenant must terminate the tenancy first and thereby deprive the tenant of his right to possession. Without such prior termination, a suit for ejectment must fail because the tenant can rely on his tenancy and assert his right to remain in possession. The learned Judge dismissed the suit because he found that there was no valid contract of tenancy, but did not realise that this was a ground for decreeing the suit for ejectment and not dismissing it, because in the absence of such a contract a tenant has no right to occupy the land and the landlord can rely in his inherent right as owner to recover possession of his property."
31. He has, in support of the same proposition of law, relied upon a decision of this Court in Kali Ram (deceased) vs. Mistri Udai (deceased)2. This Court finds that the said authority is not directly attracted to the facts of the present case to be worthy of any elaborate reference. It is more about the jurisdiction of the Judge Small Causes Court vis-à-vis the regular side of the Civil Court, in relation to a suit for eviction from an open piece of land as distinguished from a building. The decision lays down law on various principles, but not the one that relates to the substantial question of law here.
32. In fact, it is this substantial question of law that between substantial question of law no.1 and the additional question framed on 13.03.2019, which accounts for what this second appeal has been argued about. In order to show by evidence that the Courts below have drawn perverse conclusions that the defendants were not tenants in the suit property, but had forsaken their tenancy way back in 1962, it is pointed out by the learned counsel for the defendants that the total absence of a mention in the plaintiff's pleading regarding the relationship of landlord and tenant, and further specific pleading about surrender of tenancy, together with other evidence on record, clearly shows that the defendants have continued in possession. It is submitted that once legal possession of the defendants is admitted, there is a presumption of continuance of possession, unless the contrary is shown. It is submitted that the contrary has not been shown by the plaintiff. The result is that the defendants once acknowledged to be in possession referable to a tenancy, their possession still subsists. Elaborating this submission on the strength of parties' case as pleaded and the evidence on record, Sri Saxena submits that in the plaint the plaintiff alleges himself to be in possession from 1957, when he purchased the suit property. In his replica and in his evidence, he claims to be in possession since 1962, when the defendants surrendered possession. It is pointed out that the defendants had filed a licence for his firewood vend (Lakri Ki Taal), which has been noticed by the Trial Court at page 6 of its judgment, in the second paragraph. The lower Appellate Court on page 25 of the impugned judgment has recorded a finding that possession of the plaintiff is there since 1970 - 71, which is not his case. How and in what manner the plaintiff came in possession, is not discussed by the lower Appellate Court. Learned counsel submits, therefore, that conclusions drawn by the lower Appellate Court from the evidence on record, are perverse, which may be legitimately set right by this Court, while answering substantial question of law no.1.
33. It is further argued by Sri Saxena that the fact that the plaintiff in his deposition has admitted that he stopped issuing rent receipts after October, 1962, does not show that the tenancy came to an end with abandonment, surrender or otherwise; non-issue of rent receipts ipso facto does not terminate a tenancy. The defendants have filed rent receipts of 1985 and 1986. He has also examined an Expert to prove the same, who has proven these to be genuine documents. The lower Appellate Court discarded the defendants' Expert on the specious ground that the Expert of the plaintiff, who has opined the receipts to be forged, knows Urdu, and the receipts are written in Urdu. Therefore, the Urdu knowing Expert produced by the plaintiff is more reliable. According to the learned counsel for the defendants, the aforesaid conclusion is again perverse. It has been argued by Sri Saxena that paper no. 52/C, 53/C and 54/C, that are copies of Municipal Assessment, may be relevant to show the plaintiff's ownership, but the same are not relevant so far as his possession is concerned. It is also urged that in his cross-examination, the plaintiff has admitted that he has another land, located at a short distance from the suit property, with two or three houses separating the two premises. The said other land lies towards west of the suit property. It has been acknowledged that address of the other land to the West, and that of the suit property is the same, that is, ''Thandi Sarak, Etah'. Learned counsel for the defendants has submitted that papers 23A/1 to 34A/1, do not relate to the suit property. There is no evidence on record to connect the aforesaid documents to this property. The plaintiff in his deposition at page 12 has acknowledged that another land of his towards West of the suit property is in existence. In those receipts bearing nos. 23A/1 to 34A/1, Thandi Sarak, Etah is mentioned, and not the boundaries.
34. Learned counsel submits that, that is a common address relating to both sites or both properties of the plaintiff. It is submitted that the said receipts are not at all shown to be referable to the suit property. The plaintiff's father, if he had at all established a firewood vend (Lakri Ki Taal), it was not on the suit property; it could be on land situate to the West of the suit propert. At least, there is no evidence on the basis of which that conclusion can reasonably be drawn in favour of the plaintiff. Learned counsel for the defendants has then relied upon paper no.37C, which is the Amin's report of 09.09.1986 and paper no. 86C, that is an Amin's report dated 25.12.1986. The said reports, according to the learned counsel for the defendants do not, in any manner, prove that the defendants have encroached upon the suit property. It is submitted, therefore, that the findings recorded by the lower Appellate Court on pages 25 and 26, is based on conjectures and surmises.
35. It is in the last submitted by the learned counsel for the defendants that the finding of the learned Courts below that the defendants had carried on the business of firewood at Hindu Nagar, G.T. Road, Etah during the period 1976 - 77, and therefore, could be presumed not be in possession of the suit property during that time, is perverse, inasmuch as, the defendants had specifically said that the firewood vend at Hindu Nagar was his son's business. He never vacated the suit property. This fact and evidence was not at all considered by both the Courts below, thus ignoring from consideration material evidence and drawing perverse conclusion from a misunderstood case.
36. Repelling the aforesaid submissions of the learned counsel for the defendants, Sri Vijay Prakash Singh Kushwaha, learned Advocate appearing on behalf of the plaintiff, has urged facts hereinafter detailed, with his submissions dovetailed into the assertions of those facts and evidence, constituting the parties' case. The plaintiff is registered owner of the suit property marked by letters BCDEFGAB (in the Amin's map dated 19.08.1992) with an area of 7 decimals, situate behind Power House, Maharana Pratap, Thandi Sarak, Etah, District Etah. This property was purchased by the plaintiff through registered a sale deed dated 22.02.1957, executed by Surendra Sharma acting as his wife's Attorney. At the time of execution of the sale deed, the defendants were tenants of Smt. Kamla Devi and in possession. Subsequently, on 11.05.1957, the plaintiff executed a rent deed in favour of the defendants vis-à-vis the suit property, and the defendants was carrying on the business of firewood vend (Lakri Ki Taal) there. In the year 1962, the defendants shifted business to Hindu Nagar, G.T. Road, Etah, vacating the suit property on 31.10.1962. The last rent receipt that was issued by the plaintiff was one dated 21.10.1962; after that no rent receipt was issued, and there was no occasion to do so. In this connection, learned counsel for the plaintiff has invited the attention of the Court to paper 55Ga and 56Ga. Ever since 31.10.1962, the plaintiff was in possession of the suit property, and the grandfather of the plaintiff, to wit, the late Inam Ullah established business of firewood vend (Lakri Ki Taal) over the suit property in the year 1970, as that was time when he had retired from service. Inam Ullah passed away in the year 1976. Thereafter, the plaintiff is maintaining a kitchen garden on the suit property. In this connection, learned counsel for the plaintiff has drawn the attention of the Court to papers 23A, 24A, 25A, 26A, 27A to 29A, 52C, 54C. He points out that at a place denoted by letters क ख ग घ in the plaint map, the defendants established a sawmill on 15.05.1985, and subsequently on 15.05.1986, the defendants encroached over area of the suit property denoted by letters ADEFGA (in the Amin Commissioner's report), that is part of the suit property by collecting firewood over land marked as aforesaid. It was those acts of the defendants that compelled the plaintiff to file for mandatory and permanent prohibitory injunction on 25.08.1986, instituting the suit first before the Court of the Munsif. The said plaint being returned on account of it carrying a higher valuation, as already said, was filed before the Civil Judge, Etah. The Trial Judge granted an ad interim injunction vide order dated 25.05.1987, but lateron pending suit, the defendants encroached upon rest of the suit property, denoted by letters BCDGAB on 13.09.1986, by dumping firewood on that part. The said added cause of action was incorporated in the plaint and the relief amended, all through an amendment. The Trial Court returned findings on issues nos.1 and 3 in favour of the plaintiff, but dismissed the suit on a technical ground of there being no relief for recovery of possession. As already said, in appeal that amendment was incorporated, adding the requisite relief, to which allusion has already been made by this Court.
37. In the submission of the learned counsel for the plaintiff, the lower Appellate Court has finely marshaled facts and evidence, and identifying issues between parties, has divided the suit property into two parts: one, over which the defendants have acknowledged their tenancy, and the other over which the defendants claimed adverse possession, with the further plea that the said land is not owned by the plaintiff at all. He has particularly emphasized that on the three points of determination, the Appellate Court has returned well reasoned finding of fact holding inter alia that the plaintiff is the owner of the suit property; both the one in respect of which tenancy is acknowledged and the other in respect of which title is claimed by the defendants on the basis of adverse possession. It is submitted further that findings of the lower Appellate Court are based on appreciation of relevant evidence from which the lower Appellate Court has drawn fair and just conclusions. There is no perversity about them. The lower Appellate Court on the basis of evidence on record and reasonable conclusions drawn from it had held that the defendants had not been in possession after 1962, and further, that the rent receipts of 1985 and 1986 are products of forgery. The conclusions aforesaid have been drawn from documentary evidence, again based on a reasonable view of the same, which cannot be said to be perverse. Learned counsel lastly submits that none of the substantial questions of law involved in this appeal are liable to be answered in favour of the defendants.
38. This Court has given a thoughtful consideration to the matter. Indeed, the approach of the lower Appellate Court is one that is based on parties' case, the way it has shaped through pleadings initially filed, and then modified in reply or rejoinder, or by addition. It is true, as the learned counsel for the defendants submits, that in the plaint the entire background of facts where the defendants were initially tenants of the suit property at the time of its purchase in the year 1957 by the plaintiff, have not been disclosed. But, the non-mention of those facts though certainly revealed through time, appears to be a course that could have been eschewed. But, considering the nature of the suit and the facts found by the lower Appellate Court, the non-mention of a tenancy that ended almost 23 years before the cause of action for the suit arose, could well have been regarded by the one drawing up pleadings to be unnecessary history. The suit was one for injunction, and it was about something that happened in the year 1985 and 1986. In that background, the plaintiff or the learned counsel drawing up the pleadings, had no reason to believe or even imagine that the defendants would connect their brazen act of trespass, about which the plaintiff brought action in the year 1986, to a tenancy that the defendants forsook way back in the year 1962. At least, apart from the findings of the two Courts below, this could reasonable have been the perspective of the plaintiff when the suit was brought. Therefore, the submissions of Sri Saxena which make much about a case of suppresio veri, in the opinion of this Court does not hold much substance. This Court noticed that the plaintiff has not said much about the claim to one part of the suit property, that during the course of proceedings before the Courts below, was truncated from the other part of it. It is the part denoted by letters DEFGD, which the defendants elaborately said, was not part of the land purchased through the sale deed by the plaintiff from Smt. Kamla Devi. About this, the defendants said that they had adverse possession over it.
39. It was this stand of the defendants, that compelled the lower Appellate Court to do a considerable exercise of undertaking an examination of the defendant and his learned counsel, under Order X Rule 2 CPC to clarify their pleadings and their case. The lower Appellate Court while undertaking that exercise has noticed that about this land denoted by letters DEFGD, the defendants have taken contradictory stands in their statement under Order X Rule 2 CPC dated 12.11.1992. In one part, he has admitted that both portions of the suit property, that is to say, the part denoted by letters DEFGD, over which the defendants claim adverse possession and the one denoted by letters BCDGAB, about which the defendants has acknowledged the plaintiff's ownership, but set up his tenancy as a defence, are both parts of the suit property, that was taken on lease by him from the plaintiff (or his predecessor in title). In the second part of the said statement, the lower Appellate Court has noticed that the defendant has retracted his earlier admission and said that the smaller portion of the suit property, denoted by letters DEFGD did not belong to the plaintiff and the Power House could be owner of this piece of land. It is noticed by the lower Appellate Court that in the additional written statement filed by the defendant, it is pleaded in paragraphs 5 & 6 that the land denoted by letters DEFGD (part of the suit property which lies between the southern road and the Power House) did not belong to the plaintiff, but to the Power House, or Babu Laxmi Dayal. In their written statement, the defendants according to the lower Appellate Court's finding, do not disclose the identity of the person, who, according to them, is the owner of land denoted by letters DEFGD. The lower Appellate Court has remarked that the defence only was they have been in adverse possession of land for more than 40 years, and therefore, become owners of the said land. The lower Appellate Court has found the plea regarding this part of the defendants' case to be self-contradictory, where it is remarked that somewhere the defendants say that Babu Laxi Dayal is the owner of this part of suit property and elsewhere it is said that the Power House is the owner.
40. On meticulous analysis of facts, evidence on record and considering the pleadings of parties, including the statement of the defendants, recorded by the lower Appellate Court under Order X Rule 2 CPC, it has been concluded that the claim based on adverse possession to one of the parts of the suit property is not tenable. It has been found that the property denoted by letters DEFGD was as much part of the suit property as the rest, that was purchased by the plaintiff through the registered sale deed dated 22.02.1957. It was this part of the land, of which the defendants were sometimes tenant way back in the year 1962. The said finding though not assailed before this Court with much vehemence, and rightly so, in the opinion of this Court, has been correctly recorded. There is, thus, no case of the defendants proven based on two sets of rights to the suit property; one based on tenancy as regards the property denoted by letters BCDGAB, and the other, based on title matured through adverse possession as regards the portion of it, denoted by letters DEFGD.
41. What has been argued before this Court is that the suit property is in the tenancy occupation of the defendants even before the acquisition of title by the plaintiff, and therefore, no suit to recover possession can be maintained, unless a notice determining the tenancy, under Section 106 of the Transfer of Property Act was issued. To this end, the thrust of the defendants' case is that conclusions drawn by the two Courts below that the defendants' tenancy came to an end in the month of October, 1962 with the defendants surrendering it, and withdrawing from the suit property is based on perverse conclusions drawn from the evidence on record. Thus, the defendants' case before this Court would be that what has been dealt with under point no.2, by the lower Appellate Court. There is no quarrel about the fact that the defendants were in possession of the suit property, when the plaintiff purchased the same, in the year 1957. The lower Appellate Court in finding that the possession of the tenant ceased in the month of October, 1962, or more precisely on 31.10.1962, and, thereafter possession of the suit property was surrendered to the plaintiff, that remained with him in his right as an owner, is based on consideration of cogent evidence. Rent receipts issued for the period April, 1958 to September, 1959 while the defendants' tenancy was current, and the subsequent rent receipts, paper 74A/1 to 76A/1, relate to the years 1984 and 1985, that correspond to the time when cause of action for the suit arose, complaining of trespass by the defendants have all been carefully considered by the lower Appellate Court. The rent receipts, bearing paper nos.74A/1 to 76A/1, have been condemned by the lower Appellate Court as products of forgery, based on a meticulous analysis of the rival opinion of two Experts about these receipts, and the circumstances attendant, recorded thus, by the lower Appellate Court:
"The two rent-receipts, viz., 76A1 and 77A1, filed by defendants, which relate to the years 1984 and 1985, now remain to be considered. Learned Civil Judge had regarded these receipts to be not genuine because the defendants claimed to be in possession during the period of 24 years from 1962 to 1986, but could produce only two receipts relating to that period. Learned Civil Judge further held that it was difficult to say as to whether the signatures on these two receipts were fictitious or not. I have carefully gone through the reports of both the hand-writing experts. PW4 C.K. Johri has been examined by plff. and DW1 Deepak Kashyap has been examined by the defendants. PW4 C.K. Johri has expressed his opinion that these two receipts (paper no.76A1 and 77A/1) are forged receipts, whereas DW1 Deepak Kashyap has expressed contrary opinion. PW4 C.K. Johri has compared not only the signatures appearing on this two receipts, but also the writing of these two receipts with other admitted signatures and writing PW4 C.K. Johri is fully conversant with Urdu language and the script in which these two receipts have been written. DW1 Deepak Kashyap is not conversant with Urdu language and his report is based merely on the comparison of signatures. Thus, the report of DW1 Deepak Kashyap is based upon lessdata. Besides this report of C.K. Johri is more detailed and gives better reason in support of his opinion, than the report of DW1 Deepak Kashyap. I am, therefore,, inclined to place reliance upon the report and statement of PW4 CK Johri to the affect that receipts (76A/1 and 77A/1) are forged. This being so, these two receipts have no evidentiary value and do not help the defendants."
42. A perusal of the aforesaid finding of the lower Appellate Court would show that these receipts have been condemned as products of forgery, by both Courts below. They were regarded as forged by the learned Civil Judge also. The Civil Judge's finding was, no doubt, a bit half hearted, where he said that it was difficult to say whether the signature on the two receipts were fictitious or not, but the lower Appellate Court has, for valid reasons assigned, accepted the reports of the plaintiff's Expert C.K. Jauhari, PW-4 on account of his being conversant with Urdu language, as that is the language in which those receipts are scripted. The other Expert had opined merely on comparison of signatures, and therefore, his report was found to be based on comparatively slender data than that of Jauhari. Apart from these two reports, the lower Appellate Court has minutely considered the evidence of parties, in all its detail, as expected of a Court of first appeal. He has examined the documentary evidence comprising papers 52C and 53C, that are copies of assessment lists for taxes imposed by the Municipal Board, Etah. There, the property number of the suit property has been found shown as 81, and that of the Power House as 79 and 80. It has been analyzed by the learned lower Appellate Court that the copy of the Register of taxes, issued by the Municipal Board, shows that Inam Ullah (father of the plaintiff) was in possession of the suit property in 1970 - 71, where he had his firewood vend (Lakri Ki Taal). The receipts bearing paper nos. 23A/1 to 26A/1, show that Inam Ullah had paid taxes to the Municipal Board as a licensee, carrying on the business of a firewood vend on the suit property, for the period 04.10.1972 to 31.03.1976. Receipts 27A/1 to 28A/1 would show that Inam Ullah had purchased weighing scales and weights in September and October, 1972, respectively, in order to facilitate his business of selling firewood. Paper no. 38A/1 further shows that Inam Ullah had taken out a certificate of testing of weights from the Marketing Inspector in September, 1972. From these documents also, the Appellate Court has concluded that Inam Ullah and the plaintiff, his son, remained in possession of the suit property during the period 1970 - 71 to April, 1981. The lower Appellate Court has reasoned that if the defendants had been in possession of the suit property during this period, and carried on business of selling firewood, it is they who would have filed receipts of taxes or copies of the Assessment Register, as has been done by the plaintiff. The failure of the defendants to produce any document relating to their business of selling firewood, or their occupation of the suit property, during the period of time from 1972 to 1981, shows that they were not in possession during this period.
43. The criticism to this finding by Sri Saxena is that these documents do not refer to the suit property, but to the plaintiff's plot located to the west of the suit property, both of which bear the same address. This Court does not think so. A perusal of the findings of the lower Appellate Court on this point show that the suit property has been assigned a specific premises number by the Municipal Board, being no.81, whereas the premises number of the Power House was 79 and 80. This takes wind out of the sails of that submission of Sri Saxena that the papers about the business of firewood vending by the plaintiff's father, indicated by papers nos. 23A/1 to 26A/1, and some more that Sri Saxena has mentioned, are not referable to the suit premises, but to an adjoining plot. The specific premises number assigned to the suit premises being 81, there is absolutely no substance in the suggestion that the nearby plot of the plaintiff and the suit property bear the same address, and the licence and receipts relating to business of firewood are referable to business, carried on by the plaintiff's father and the plaintiff, on the adjoining westward plot. The lower Appellate Court has further considered the documents, bearing paper nos. 55C to 63C, that are copies of the Register of Municipal Taxes from the Municipal Board, Etah. It shows Iliyas, defendant no.1, carrying on business of a firewood vend at Hindu Nagar, G.T. Road, Etah during the period 1976 - 77 to 1986 - 87. The lower Appellate Court has also referred in this connection to the evidence of DW-2, who is none other than the original defendant, Mohd. Iliyas. He has admitted in his evidence that one of his sons had been carrying business of firewood vending at Hindu Nagar, Etah for 6 - 7 years. From all these evidence, the lower Appellate Court has drawn a conclusion that the defendant was not in possession of the said premises from 1976 - 77 to 1986 - 87, recorded in the following words:
"If Mohd. Ilyas had been in possession of the disputed land and had been carrying on the business of Tal on the disputed land during the period from 1976 - 77 to 1986 - 87, he could certainly produce documentary evidence of the nature of 55C to 63C in respect of the disputed land. The inability of the defendants on this score shows that he had not been in possession of the disputed land during the period from 1971-72 and some years thereafter."
44. The lower Appellate Court has also looked into two Amin Commissioners' reports filed in the suit during the course of trial, one dated 09.09.1986, and the other dated 25.12.1986. The lower Appellate Court has carefully examined the initially pleaded case and the amendments to the plaint, which disclose encroachment on one part of the suit property when the suit was filed and more encroachment pending suit, regarding which amendment to the plaint was sought, and concluded that the two reports squarely establish the plaintiff's case of encroachment, in the manner pleaded.
45. It is by now well settled that this Court in exercise of its jurisdiction under Section 100 CPC cannot overturn findings of facts, or even findings that are merely erroneous in law, unless those findings are perverse, or ignore some material evidence or take into consideration absolutely irrelevant considerations, which if not done, would have led the lower Appellate Court to a different conclusion. It has been held thus on this issue how much not just an error of law would not attract the jurisdiction of this Court, under Section 100 of the Code, unless the finding is clearly perverse in Bholaram vs. Ameerchand3, where it has been held by their Lordships thus:
"1. ........... We have gone through the judgment of the High Court as also of the courts below and we find that by and large the High Court seems to have reversed the concurrent findings of fact arrived at by the trial court and the appellate court and, therefore, prima facie travelled beyond the limits imposed on its jurisdiction under Section 100 of the Code of Civil Procedure. The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law."
46. Defining the true content of what a question of law would mean under Section 100 of the Code, their Lordships of the Supreme Court have laid down the following principles, in relation to exercise of jurisdiction by the High Courts, while deciding second appeals in SBI v. S.N. Goyal4, :
"What is a substantial question of law?
13. Second appeals would lie in cases which involve substantial questions of law. The word "substantial" prefixed to "question of law" does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. "Substantial questions of law" means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case. Be that as it may."
47. The law relating to interference with a finding of the first Appellate Court on ground that it is perverse was considered by the Supreme Court in Damodar Lal vs. Sohan Devi5, where in a suit for eviction of a tenant on ground that there was structural change or material alteration, made by the tenant to the suit premises, rendering the latter liable to be evicted, and the first Appellate Court had found for a fact that structural alteration had been done on the basis of evidence of the landlord, it was held by their Lordships thus:
"8. "Perversity" has been the subject-matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of the Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
"11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
9. In Krishnan v. Backiam [Krishnan v. Backiam, (2007) 12 SCC 190] , it has been held at para 11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram [Gurvachan Kaur v. Salikram, (2010) 15 SCC 530 : (2013) 2 SCC (Civ) 113] , at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court [Salik Ram Boloram Mehar v. Guruvachan Kaur, 2000 SCC OnLine MP 340] was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the appellant-plaintiff that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW 1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW 2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs 1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on reappreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] , this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp. 278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
''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 by both 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.' The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tewari v. Union of India [S.R. Tewari v. Union of India, (2013) 6 SCC 602 : (2013) 2 SCC (L&S) 893] , after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131] , it was held at para 30: (S.R. Tewari case[S.R. Tewari v. Union of India, (2013) 6 SCC 602 : (2013) 2 SCC (L&S) 893] , SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is ''against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131] , Kuldeep Singhv. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429] , Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] and Babu v. State of Kerala [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity."
48. The law as it stands, the findings of the fact recorded by the lower Appellate Court, even findings of law, are not such as may be termed as perverse. These are, therefore, binding on this Court under Section 100 CPC. These cannot be interfered with by this Court in the manner of a Court of First Appeal, where both questions of fact and law are open. The findings of the lower Appellate Court on the point whether the defendants' possession is referable to his tenancy or to an encroachment is clear. It has been held that the defendants' possession over the suit property is referable to an act of encroachment, done in the year 1986. It is not at all referable to the defendants' tenancy, that ended in the month of October, 1962. These findings on a perusal of the record, are not found to be perverse or those recorded in ignorance of material evidence or ones taking into consideration irrelevant evidence. The findings, therefore, cannot be disturbed by this Court in the present second appeal once it is held that the defendants' possession is referable to an act of encroachment over the suit property, and not one that is based on the long surrendered tenancy. The substantial question of law no.1 and the one further framed on 13.03.2019, are answered in the manner that the plaintiff's possession being referable to an act of trespass, and not to a demise of the suit property, no notice under section 106 CPC was required by the plaintiff to be served before bringing a suit for recovery of possession against the defendants. The other substantial questions of law framed have not been pressed. No other point has been pressed by the learned counsel for the defendants.
49. In the result, this second appeal fails and is dismissed with costs throughout.
50. The interim stay order dated 20.04.1993 is hereby vacated.
Order Date :- 15.7.2019 Anoop