Gauhati High Court
Jawed Rahman & Anr vs Smti Rumena Huda Hazarika & Ors on 4 June, 2013
Author: Nishitendu Chaudhury
Bench: Nishitendu Chaudhury
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
(CIVIL APPELLATE JURISDICTION)
RSA NO. 192/2000
1. Sri Jawed Rahman
2. Sri Aslam Tariq Rahman
Both are sons of late MuhibarRahman,
Resident of south Amolapatty,
P.O. & P.S. Dibrugarh,
Dibrugarh , Assam.
... Appellants/Plaintiffs.
-Versus-
On the death of Badrul Huda
his legal heirs and representatives -
1. SmtiRumena Huda Hazarika
2. Sri Manirul Huda @ Jadu
3. Miss Jinu Huda,
4. Miss Ruma Huda
No. 1 is the widow No. 2 is the son
and No. 3 and 4 are the daughters
of late Badrul Huda,
All are residents of Sorumotorial,
P.O. Sachivalaya, Dispur, Guwahati-
6, Kamrup, Assam.
... Respondents/ Defendants.
For the appellants:-Mr. D.K. Das, Ms. P. Bhuyan, Advocates.
For the respondents:- None appeared.
PRESENT HON'BLE MR. JUSTICE NISHITENDU CHAUDHURY Date of hearing : 23.05.2013 Judgment delivered :04.06.2013
1. This second appeal is directed against the judgment and decree dated 17.2.2000 passed by the learned Civil Judge(Sr. Divn.), Dibrugarh, in Title Appeal no. 9 of 1999 dismissing the appeal and affirming the judgment and decree dated 3.5.1999 passed by Civil Judge (Jr. Divin.) |No. 2 Dibrugarh (now designated Munsiff No. 2) in title suit no. 2 in 1993 thereby dismissing the suit of the plaintiff. This appeal was admitted on 7.2.2001 on two substantial question of law and the same are as below :
" (i). Whether the defendants can be allowed to raise any constructions without any permission from the authority under the Assam Town and country planning Act/ Assam Municipal Act and without leaving the required side margin thereby blocking the free access of air and light to the plaintiff land and if so, whether a decree for permanent injunction can be passed restraining the defendants from making any such construction ?
(ii). Whether the learned first appellate court , being the final court of facts, is required to discuss the evidences, both oral and documentary on record as required under Order 41 Rule 31 of the Civil Procedure Code ?
2. From above it appears that the first substantial question of law involves four parts in itself. First, construction without permission under Assam Town and Country Panning Act, 1959/ Assam Municipal Act 1956 secondly , without leaving required side margin, hardly blocking free excess of Air and light and fourthly, RSA No. 192/2000 Page 2 of 14 whether permanent injunction can be granted on fulfillment of above conditions.
3. Before going to decide the aforesaid substantial question of law, it is necessary to narrate the facts of both the parties in short. The two plaintiffs , namely, Sri Jawed Rahman and Sri AshlamTariqueRahman both sons of Late MohiburRahman of South Amola Patty in Dibrugarh town instituted title suit no. 7/1993 against one Badrul Huda son of late Samsud Huda describing him as neighbor on the northern boundary of their residence. The case of the plaintiff in brief is that there was initially a six feet high boundary wall between the land of the defendants and that of the plaintiffs and they were enjoying free access of air and light to their rooms from that side without any disturbance and hindrance from anybody including the defendants. But all on a sudden the defendants raised the height of the wall from 6 feet to about 11 feet ignoring the protest of the plaintiff and allegedly without taking permission from the concerned development authority. According to the plaintiffs, the defendant did it on 15.5.1993 where upon the plaintiff lodged a complaint before the Deputy Commissioner who directed the officer in-charge of Dibrugarh police Station to do the needful. According to the plaintiff if the boundary wall is raised as attempted, the same would hinder free access of air and light to the plaintiffs. It was also contended that the defendant wasseeking to raise construction on the land without leaving set back of 10 feet in front and 5 feet on two sides on the proposed construction and that too without taking permission from the development authority RSA No. 192/2000 Page 3 of 14 or municipal authority as the case may be. With the above basic facts the plaintiffs prayed for a decree against the defendant for permanent injunction restraining the defendants and their agents employees etc. from raising any construction on the land described in the schedule to the plaint on the northern side of the boundary wall without leaving required space as per the Act and the rules of the Development Authority or Municipality and/or without obtaining valid permission from Dibrugarh Development authority. The plaintiffs also prayed for mandatory injunction to pull down the unauthorizedconstruction already raised on the schedule land. It appears, although grievance was expressed in the pleading in regard to raising of the boundary wall also, the prayer was limited to pulling down unauthorized construction on land raised without permission and without leaving required set backs.
5. On being summoned the defendant submitted written statement denying the case of the plaintiffs and asserting, inter alia, that no cause of action arose on 4.3.1993 or on any other date as alleged in para 13 of the plaint, that in 1984 the defendant constructed a 11 feet high pucca wall on his own land at Southern boundary and constructed two rooms each measuring 11 feet by 11 feet where his wife was running a candle factory under the name and style of M/s R. Hazarika and Sons. The defendants pleaded that the workshop room was of brick and CI sheet and was being run on the same land since 1971 taking licence from the DIC. According to the defendant he being joint director of publicity under the Govt. of Assam had to work at various capacities through out the State of Assam and as such he could not complete RSA No. 192/2000 Page 4 of 14 the said three rooms and plaintiffs never before had made any objection or at the time when the same were constructed. Moreover, as in 1984 there was no development authority at Dibrugarh and as such there was no scope for obtaining permission from it. The defendant denied that there was any violation of municipal Act or of the Town and Country Planning Act 1959. Rather Municipal Board allotted a holding no. 287 to the said houses of the defendant including the incomplete structure. The plaintiffs havegot a garage on their northern boundary touching the boundary wall of the defendant without leaving any gap in between. The plaintiffs got also a sanitary latrine and then overhead tank touching the boundary wall of the defendant while the defendant was away from home in view of his posting else where. The defendant specifically denied the claim of theplaintiffs of enjoying free access of air and light for 25 years. According to the defendant when the roof of his incomplete room was being cast in the month of May, 1993 the plaintiff lodged a false complaint before the Deputy Commissioner who called for report from DibrugarhPolice Station and after inquiry locally on 30.6.1993 the police submitted a report to the District Magistrate, inter alia, stating that there was an old existing wall since 1984 and there was a half constructed house which the defendant after his retirement as Addl. Director of Publicity had started to complete and the same was obstructed by the plaintiff. The Addl. District Magistrate passed an order on the basis of the said report of the Officer-in-charge of Dibrugarh Police Station, the defendant asserted.
RSA No. 192/2000 Page 5 of 14
6. Upon such pleading of the parties trial court framed seven issues as follows :-
"1. Whether the suit is maintainable in law and facts ?
2. Whether the suit is bad for non-joinder of the mother of the plaintiff and other pattadars ?
3. Whether the defendant has started construction of a house on the suit land without taking permission from the development authority and construction of the said house disturbing free enjoyment of air and light by the plaintiffs which they are enjoying since last 25 years ?
4. Whether the boundary wall is weak and which may be collapsed at any time causing injury to the plaintiff and other inhabitant of that area ?
5. Whether the defendant construction 11" feet height boundary wall on his southern boundary and two rooms measuring 11" x 11" in 1984 and whether the alleged construction was started in 1984 without any objection from the plaintiffs ?
6. Whether the plaintiffs are entitled to get a decree of permanent as well as mandatory injunction as prayed for ?
7. To what relief the parties are entitled ?"
7. Plaintiffs examined as many as 4 witnesses while the defendant examine none.
RSA No. 192/2000 Page 6 of 14
8. That it appears from the records that the day the case was fixed for argument none appeared for the parties. The learned Trial Court perused the records and there upon passed judgment dated 3.5.1999 wherein there are discussions with regard to pleading and the evidence on record and indication is made that the plaintiffs have sale to establish their case. However, in the absence of the learned counsel of the parties, the learned Trial Court did not give any decision issue wise but observed that be plaintiffs have failed to prove their case and accordingly dismissed the suit leaving the parties to bear their own cost. Aggrieved, the plaintiffs preferred title appeal No. 9/1999 before the learned Civil Judge Dibrugarh.
9. The appellate court did not find favour with the decision of the trial court in regard to failure in giving issue wise judgment and observed that the learned trial court committed error in not discussing the issues and thereby committed error. However, in exercise of power under section 107 of the C.P.C. the appellate court itself discussed the issues. The appellate court framed two points for determination in the appeal and the same are as below :
"(a) Whether the lower court failed to discuss the issues properly and give reason based findings ?
(b) Whether the lower court failed to appreciate the evidence in its true and proper perspective ?"
The appellate court decided the first point of determination in the negative holding that the trial court fell in error in not making issue based judgment. To decide the second point of RSA No. 192/2000 Page 7 of 14 determination framed by it the lower appellate court discussed the evidence and decided the issues. The lower appellate court dismissed the appeal on merit upholding the conclusion of the trial court. Hence, this second appeal is virtually against concurrent findings of fact inasmuch as although the learned trial court did not pass judgment issue wise yet there are findings on facts of the case.
10. The facts in nutshell having stated thus let me proceed to decide the substantial questions of law referred to above.
11. Heard Mr. D.K.Das, learned counsel for the appellants on the substantial questions of law framed. Although names have been shown in the cause list yet none appears for the respondents.
12. As stated above the first substantial question of law has three parts. The first part relate to construction without permission under Assam Town and Country Planning Act, 1959/ the Assam Municipal Act, 1956. The plaintiffs did neither implead the Dibrugarh Municipal Board nor the Dibrugarh Development Authority. The plaintiffs have also not brought on record the concerned master plan or the building bye laws under the said authorities. Merely pleading that keeping of 10 feet in front and 5 feet on each side is required under the law but without bringing the concerned bye laws and master plan it cannot be established that the construction has been made without permission or illegally has been done. The plaint lacks the essential material facts as indicated and the necessary parties are also not impleaded.Moreover the defendant have specifically pleaded that RSA No. 192/2000 Page 8 of 14 the construction was made way back in 1984 when there was no development authority in the town of Dibrugarh. In the absence of the master plan or in the absence of the said authorities it is not possible to find out as to what are the necessary set backs for any construction on the schedule land in as much as it is not known as to whether the same is located in a commercial area or not. The set backs required for construction differ area wise depending on whether the locality is residential or commercial in character.Once the defendant took the plea in the written statement that municipality allotted holding number to the house in question it is presumed that there were necessary enquiry proceeding such allotment of holding number and as such burden fell heavily on the plaintiffs to establish by examining witnesses from the said authorities in this regard. Moreover, once it is pleaded that there was no development authority at the time construction was made in the year 1984 the plaintiffs were duty bound to lead evidence in this regard to establish its case. In this view of the matter the plaintiffs have miserably failed to establish that the construction made by the defendant on the schedule land was really without permission or that there were no necessary set backs. This being the position the first and second part of the first substantial questions of law, namely, construction without permission and without leaving required side margin do not arise under the pleaded facts and material on record and as such this substantial question of law does not arise from the materials on records.
11. The second substantial question of law relates to the duties of the first appellate court. Section 107 of the Code of Civil RSA No. 192/2000 Page 9 of 14 Procedure lays down the powers of the appellate courts and the same is quoted below :
"107. Powers of Appellate Court.- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power -
(a) to determine a case finally ;
(b) to remand a case ;
(c) to frame issues and refer them for trial ;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid , the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.
In the case of SantoshHazare reported in (2003) 1 SCC 179 the Hon'ble Supreme Court has laid down law in this regard holding inter alia that the first Appellate Court being the last court of facts and law is duty bound to discuss the pleadings and evidence in detail. Paragraph 15 of the said Judgment deals with this aspect of the matter and the extract of the same is quoted below :
" 15. A perusal of the judgment of the Trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by both the parties for deciding the issues on which the parties went on trial. ................. The Appellate Court has jurisdiction to reverse or affirm the findings of the Trial Court. First RSA No. 192/2000 Page 10 of 14 Appeal is a valuable right of the parties and unless restricted by law, the whole case is there in open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record and findings supported by reasons, on all the issues arising along with the contentions put forth, and press by the parties for decision of the Appellate Court. The task of an Appellate Court affirming the findings of the Trial Court is an easier one. The Appellate Court agreeing with the view of the Trial Court need not restate the affect of the evidence or reiterate the reasons given by the Trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. (seeGirijanandini Devi V. BijendraNarain Choudhary8). We would, however, like to sound a note of causion. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the Appellate Court for shirking the duty cast on it. While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by Trial Court must weigh with the Appellate Court, more so when the findings are based on the oral evidence recorded by the same Presiding Judge who author the Judgment. This does not certainly mean that when an appeal lies on facts, the Appellate Courts is not competent to reverse a finding of fact arrived at by the Trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or RSA No. 192/2000 Page 11 of 14 on conjectures and surmises, the appellate Court is entitled to interfere finding of fact. (See Madusudan Das v. Narayanibai 9). The rule is - and is nothing more than a rule of practice --- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses , then unless there is some special features about the evidence of a particular witness which has escaped the trial Judge's notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. (See SarjuPershadRamdeoSahu v. JwaleshwariPratap Narayan Singh10). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial court and than assign its own reason for arriving at a different finding. This would satisfy the court hearing a further appeal that the first Appellate court had discharged the duty expected of it. We need only remind the first appellate Courts of the Addl. Obligation cast on them by the scheme of the present Section 100 substituted in the court. The first appellate Court continues, as before , to be a final course of facts ; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the findings of the RSA No. 192/2000 Page 12 of 14 first appellate court even of question of law unless such question of law be a substantial one."
After the aforesaid disposition of the Hon'ble Supreme Court, the second substantial question of law referred herein above does not require any more discussion. This substantial question of law is accordingly decided in the affirmative in view of the law laid down by the Hon'ble Supreme Court. If the strict interpretation of 'substantial question of law' as given by the Hon'ble Supreme Court in the case of Sir Chunilal V. Mehta and Sons reported in AIR 1962 SC 1314 is to be referred the Second substantial question of law is no longer a substantial question of law in as much as this aspect of the matter is already decided by the Hon'ble Apex Court of the Country.
13. In the case in hand, the first appellate Court has decided all the issues on its own by discussing the evidence on record. Rather the first court did not discuss the issues and only made observations on facts at the time of summarizing the facts of the case. In this case, it can not be said that the appellate Court has not complied with the provisions of order XLI rule 31 of the code of Civil Procedure. The second substantial question of law, therefore, does not arise out of the facts of the case in hand.
14. In the result, this second appeal fails and the same is accordingly dismissed.
15. No order as to cost.
JUDGE RSA No. 192/2000 Page 13 of 14 BARUAH RSA No. 192/2000 Page 14 of 14