Gauhati High Court
Silchar Municipal Board vs Eastern Tea Estate Private Ltd. on 29 February, 2008
Equivalent citations: 2008(2)GLT69
Author: T. Nanda Kumar Singh
Bench: T. Nanda Kumar Singh
JUDGMENT T. Nanda Kumar Singh, J.
1. By this Second Appeal, the appellant/defendant is assailing the concurrent finding of fact by the courts below i.e. the learned Sadar MunsiffNo. 2, Silchar in Title Suit No. 227/1962 and the learned First Appellate Court i.e. learned Civil Judge (Sr. Divin.) No. 2 in T.A. No. 18/94 that:
The wall on the southern side of the respondent/plaintiff's holding number 760 of Malugram Ward is situated on his own land and also that there is no encroachment on the Municipal land made by the respondent/plaintiff on southern side of the said holding.
2. Heard Mr. K.K. Dey, learned Counsel appearing for the appellant/plaintiff and also Mr. B.K. Goswami, learned Senior Counsel assisted by Ms. T. Goswami, learned Counsel appearing for the respondent/plaintiff.
3. The present Second Appeal is admitted for hearing on the substantial question of law i.e. whether the learned Court below had committed error in law in relying on Exhibit-15, Survey Commissioner's Report in decreeing the suit."
4. The fact in short leading to the filing of the present second appeal are that the respondent/plaintiff filed the title suit No. 227/1962 against the appellant/defendant in the Court of learned Sadar MunsiffNo. 2, Silchar praying for--
a. For a declaration that the Wall on the Southern side of the plaintiffs holding No. 760 of Malugram Ward is situated on its own land and that there is no encroachment on any Municipal land made by the plaintiff on the Southern side of the said holding.
b. For a perpetual injunction restraining the defendants from giving effect of their threatened action ofremoving the alleged encroachment within the plaintiff's holding under cover of the provisions of Section 159 of the Assam Municipal Act by demolishing the walls of the plaintiff.
c. For a declaration that the action of the defendant is malafide and capricious and that they are liable for damages jointly and severally.
d. For a decree for Rs. 100/- as damages by way of compensation against the defendants.
e. Costs of the suit and future interest. f For any other or further relief to which the plaintiff may be held to be entitled.
5. The respondent/plaintiff pleaded in the plaint that the respondent/plaintiff is a company and amongst other properties it owns the land and building entered into the Silchar Municipal register as holding No. 760 Malugram Ward. The land on the holding appertains to R.S.Patta No. 16 Dag No. 157 and 156 corresponding to second RS Patta No. 308 and Second R.S. Dag No. 312 and 313 of Silchar Town and is situated on the Northern side of Itkhola Ferry approach road.
6. All structures on the land were built after obtaining formal permission from the appellant/defendant i.e. Municipal Board of Silchar Town. The respondent/plaintiff had/has made no encroachment on any part of the Municipal land. The appellant/defendant issued notice Under Section 159 of the Assam Municipal Act, 1956 to the respondent/plaintiff for removal of encroachment on the Southern side of It khola Survey approach road by putting a wall alleging that respondent/plaintiff made the encroachment on the Southern side of the said road. The respondent/plaintiff filed a Title Suit No. 227/1962 against the appellant/defendant for the reliefs mentioned above stating that the respondent/plaintiff did not make any sort of encroachment on the Municipal land of the appellant/defendant.
7. In course of trial of the Title Suit No. 227/62, on the application filed by the respondent/plaintiff under Order 26 Rules 9 &10 of the CPC a Commission was appointed for local investigation of the suit land. After repeated adjournments the Commissioner made the local inspection of the suit land i.e. the respondent/plaintiff's holding No. 760 of Malugram Ward and also there is any encroachment of any Municipal land made by the respondent/plaintiff on the Southern side of the said holding. The Commission after completing the investigation submitted the report in favour of the respondent/plaintiff.
8. The appellant/defendant filed a revision petition being Civil Revision No. 4/1987 before this Court for rejecting the said report of the Commission alleging that no opportunity was given to the appellant/defendant to object the said report of the Commission. This Court finally disposed of the Civil Revision by passing judgment and order dated 16.7.92 (Silchar Municipal Board, Silchar v. Eastern Tea Estates Private Ltd. and Anr. reported in 1992 (2) GLJ 77 and the 1993 (2) GLR 445) by directing the Lower Court to allow the appellant/defendant to adduce the evidence in support of the objections. The learned Trial Court after giving ample opportunity to the appellant/defendant to adduce evidence in support of their objections to the said report of the Commission examined the Amin Commissioner as PW No. 2 who submitted the said report. The learned Trial Court also exhibited the said report of the Commission as exhibit-15. The said report was taken into consideration by the trial court as well as by the appellate Court to the extent permissible under the law and also by the said judgment and order of this Court dated 16.7.92 passed in Civil Revision No. 44 of 1987.
9. The learned Trial Court i.e. Sadar Munsiff No. 2, Silchar after appreciation of the statement of PWs., DWS as well as exhibited document had decreed the Title Suit No. 227/62 by passing the judgment and decree dated 25.1.94. The learned Trial Court in its judgment and order dated 25.1.94 passed in Title Suit No. 227/62 made a clear cut finding that the wall on southern side of the respondent/plaintiff holding No. 760 Malugram Ward is situated on his own land and that there is no encroachment on any municipal land made by the respondent/plaintiff on the southern side of the said holding. On appeal filed by the appellant/defendant being Title Appeal No. 16/94 against the judgment and decree of the Trial Court dated 25.1.94 passed in Title Suit No. 227/62 in the Court of learned Civil Judge (Sr. Divn.) No. 2, the learned First Appellate Court i.e. civiljudge (Sr. Divn.)No. 2, Silchar made the same finding of facts as that of the finding of fact made by the learned Trial Court. In other words the learned First Appellate Court also made the finding of fact that the wall on the Northern side of the respondent/defendant holding No. 760 of Malugram Ward is situated on his own land and that there is no encroachment of any Municipal land made by the plaintiff on the southern side of the said holding. After such finding of fact the learned First Appellate Court dismissed T.A. No. 18/94 by passing the impugned judgment and decree dated 18.6.99. Hence this present appeal.
10. It appears from the submissions of the learned Counsel appearing for the appellant/defendant that the present appellant/defendant filed the present second appeal for interfering with the said concurrent finding of facts by the trial court and first appellate court by re-appreciating the evidence. Mr. B.K. Goswami, learned Senior Counsel appearing for the respondent/plaintiff urged that there is absolutely no substantial question of law as contemplated under Section 100 of the CPC and no materials have been made out for interfering with the said concurrent finding of facts.
11. Mr. Goswami, the learned senior counsel appearing for the respondent/defendant further contended that the substantial question of law formulated in the present second appeal at the time of admission is not a substantial question of law as contemplated in Section 100 of the CPC.
12. The High Court while deciding the second appeal by exercising jurisdiction under Section 100 CPC cannot proceed to reappreciate the evidence without adverting to the substantial question of law formulated at the time of admission and also that without deciding the substantial question of law framed at the time of admission of the second appeal, the High Court in exercise of jurisdiction under Section 100 CPC cannot set aside the findings of the subordinate court by reappreciating the evidence.
13. There must be first a foundation for the substantial question of law in pleading and secondly the question to be considered in the second appeal should be the substantial question of law emerged from substantial findings of fact arrived at by the court of fact and thirdly it must be necessary to decide that question of law for a just and proper decision of the case. The High Court, in the absence of substantial question of law that arose for consideration between the parties in the second appeal, cannot interfere with the findings of the first appellate court by taking different view on reppreciation of evidence. Reference may be made to Hamida and Ors. v. Md. Kahlil of the AIR in Hamida and Ors. (supra) read as follows:
Para 6. The High Court has upset the finding of fact recorded by the first appellate court, taking a different view merely on reappreciation of evidence in the absence of valid and acceptable reasons to say that the findings recorded by the first appellate court could not be sustained either they being perverse or unreasonable or could not be supported by any evidence. The High Court neither framed a substantial question of law nor any such question is indicated in the impugned judgment as required under Section 100 CPC of the Code of Civil Procedure. The approach of the High Court, in our view, is clearly and manifestly erroneous and unsustainable in law. Para 10 of the impugned judgement reads:
The appellate court although has decided the issue of personal necessity but from the judgment it appears that the appellate court has not decided this issue in its correct perspective. Since the trial court has not recorded any finding on the issue of personal necessity, the finding recorded by the appellate court cannot be said to a concurrent finding of fact. I am, therefore, of the definite view that in such circumstance, this Court can reappreciate the evidence and scrutinize the findings recorded by the appellate court under Section 100 CPC when admittedly this issue was not decided by the trial court . The sons of the plaintiff for whose requirement the plaintiff sought eviction, have not been examined. The nephew of the plaintiff was examined as a witness who supported the case of the plaintiff. The plaintiff has also not led any evidence to the effect that the house property where the plaintiff resides, is not sufficient for their own use and occupation. There is also no evidence to the effect that suitable alternative accommodation is not available to the plaintiff for meeting the requirement, I am, therefore, of the view that the finding recorded by the appellate court on the issue of personal necessity cannot be sustained in law for want of sufficient evidence.
14. As can be seen from the para extracted above, the High Court though that it could re-appreciate the evidence and scrutinize the findings recorded by the first appellate court under Section 100 CPC, this approach is plainly erroneous and against law. The High Court was also wrong in saying that the plaintiff did not lead sufficient evidence to establish his bona fide requirement. As observed by the first appellate Court and noted above already, there is evidence of the plaintiff, is nephew and the neighbour. The finding of fact recorded by the first appellate court based on evidence could not be interfered with by the High Court, that too in the absence of any substantial question of law that arose for consideration between the parties."
Para. 7. We repeat and reiterate this position as stated by this Court time and again. In one such judgment in Smt. Satya Gupta @ Madhu Gupta v. Brijesh Kumar , this Court, in Para 16, has stated thus:
16. At the outset, we would like to point out that the findings on facts by the lower appellate court as a final court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after re-reappreciating the evidence and without finding that the conclusions reached by the lower appellate court were not based on the evidence, cannot reverse the conclusions on facts found on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate Court on facts merely on the ground that on the facts by the lower appellate court another view was possible.
15. Mr. B.K. Goswami, learned senior counsel appearing for the respondent/plaintiff strenuously contended that this Court shall keep in view of the parameter of Section 100 CPC while deciding the present appeal. He also further submitted that the substantial question of law formulated in the present second appeal is not the substantial question of law contemplated in Section 100 of the CPC, but it is only a question of fact. It can never be the substantial question of law contemplated in Section 100 of the CPC. Hon'ble Mr. Justice Arijit Pasayat in Hero Vinoth case had observed that:
Para 21. The Phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradiction with-technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen no to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133 (1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta AIR 1928 PC 172 the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case, 1962 Supp. (3) SCR 549: ATR 1962 SC 1314, the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraj (Sir Chunilal Case, 1962 Supp. (3) SCRP.p. 557-58). "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.
16. This court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial : (Sir Chunilal Case SCR 557-58).
The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call is for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law:
Para 22. In Dy Commr. v. Rama Krishna Narain also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 CPC.
Para 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case.
An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis, (See Santosh Hazari v. PurushottamTiwari .
Para 24. The principles relating to Section 100 CPC relevant for this case may be summarized thus;
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law, Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence." It not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the findings.
17. The Apex Court in Surain Singh (dead) by Lrs. and Ors. v. Mehenga (dead) by Lrs. --held that interference by the High Court in a Second Appeal with the findings of fact would be when there is diverse findings of fact recorded by the learned trial court and the first appellate court. In the present case there is no diverse findings of fact by the learned trial court and the first appellate court.
18. Interference with the finding of fact by this Court in an appeal Under Section 100 of the CPC i.e. in Second Appeal should be only in exceptional circumstance where the learned courts below failed to consider the vital issue of evidence and the learned courts below also relied upon in admissible evidence.
19. The Apex Court in Hari Singh v. Kanhaiya Lal held that the concurrent finding of facts cannot be interfered with merely because there are lack of details in the pleading and the concurrent finding of facts can be interfered with when there is perversity in the finding of facts or in other words finding of facts are based on no evidence.
20. The Apex Court in Hero Vinoth (Minor) v. Seshammal considered the circumstances under which the High Court in a Second Appeal interfered with the concurrent finding of facts, Para 13, 19 and 24 (iii) of SCC in Hero Vinoth (Minor) (supra) reads as follows:
Para 13. Though as rightly contended by learned Counsel for the appellant the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, and re-appreciation of evidence is not permissible (sic. Except) where the trial court and/or the first appellate court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law.
Para 19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court are erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
Para 24 (iii) : The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognized material exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence." It not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the findings.
21. Having regard to the above discussions and also keeping in view of the ratio laid down by the Apex Court in the cases discussed above, this Court is of the considered view that the appellant/defendant had failed to make out material which call this Court for interference with the concurrent finding of the fact by the learned Trial Court as well as First Appellate Court.
22. This Court is of the considered view that there is no substantial question of law in this Second Appeal. Accordingly this second appeal is devoid of merit and hence dismissed.
23. Parties are to bear their own costs.