Rajasthan High Court - Jaipur
Trilok Chand Raigar vs Nagar Palika Niwai & Ors on 22 February, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S.B. Civil Regular Second Appeal No. 452/2008 Trilok Chand Regar Vs. Nagar Palika, Niwai & Others. Date of Judgment: 22.02.2011 Hon'ble Mr. Narendra Kumar Jain,J. Mr. R.D. Sharma on behalf of Mr. V.K. Sharma, for the appellant. BY THE COURT:
Heard learned counsel for the appellant.
2. Plaintiff-appellant filed a suit for permanent and mandatory injunction against defendants in the trial court pleading therein that the disputed piece of land marked as A,B,C,D,E,F, shown in Map annexed with the plaint is in possession of the plaintiff and it was earlier belonging to Prabhu Narain S/o. Laxmi Narain, Ram Bhajan S/o. Chandra Narain and Mangi Narain S/o. Vijay Narain. The said land bearing Khasra No. 3859/5501 measuring 2 Biswas and Khasra No. 3859/5580 measuring 2 Bighas was purchased by Ram Narain S/o. Godhu and Sua S/o. Sukkha through Registered Sale Deed dated 27.12.1958. Thereafter, a Patta was issued in favour of Ram Narain, Teeja and Ram Dev. However, defendants want to dispossess the plaintiff from his property, therefore, a decree of permanent injunction may be passed against the defendants.
3. Defendants No. 1 and 2 filed their written statement wherein it was pleaded that plaintiff has nothing to do with the land in dispute. The said land belongs to Municipal Board. The plaintiff is only a trespasser over it. Learned trial court framed Issue No. 1 whether disputed piece of land was purchased by the plaintiff and he is in possession of the same since 1958. Learned trial court after appreciating oral and documentary evidence of the parties decided said issue against the plaintiff and in favour of the defendants. Trial court observed that the land in dispute has been converted into Abadi Land and it has been mutated in the name of Municipal Board through Mutation No. 3506 dated 25.04.2004. Trial court further observed that the plaintiff has failed to place on record any documentary evidence to show his ownership over the land in dispute. Learned trial court, therefore, dismissed the suit of the plaintiff.
4. Being aggrieved with the same, an appeal was preferred by the plaintiff, which was also dismissed by first appellate court vide impugned judgment and decree dated 18.09.2008, which is under challenge in this second appeal preferred on behalf of the plaintiff-appellant.
5. During pendency of this appeal, the appellant has also filed an application under Order 41 Rule 27 C.P.C. for taking on record some documents. It is submitted in the application that one important document i.e. Sale Deed dated 28.09.1995 in favour of the plaintiff could not be presented before the trial court and first appellate court due to non-availability of the said document and the same is now annexed with this regular second appeal. The application does not disclose the cogent reason as to why the said document was not placed on record in time and when the plaintiff-appellant came to know about it. No date etc., has been given about knowledge of the said document. In fact, this document was very much in knowledge of the appellant, therefore, the said document, at this stage, cannot be allowed to be taken on record under Order 41 Rule 27 C.P.C. I do not find any merit in the application and the same is, accordingly, dismissed.
6. Issue No. 1, framed in the present case, will clearly reveal that it relates to question of fact and there is concurrent finding of fact by both the courts below, which cannot be interferred with by this Court in second appeal under Section 100 C.P.C.
7. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under:
......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.
8. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under:
......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....
9. The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under:
81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.
82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the Hihg Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.
10. In view of above referred settled proposition, no interference can be made by this Court in concurrent finding of fact recorded by both the courts below.
11. No substantial question of law is involved in this second and the same is, accordingly, dismissed in limine.
(Narendra Kumar Jain),J.
Manoj, Item No.8.