Patna High Court
Sheo Chand Chaudhary Alias Sheochan ... vs Adalat Hussain And Ors. on 9 April, 2003
Equivalent citations: 2003(2)BLJR1260
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. Heard learned Counsel for the parties. Defendant No. 2 is the appellant against the judgment of affirmance. This appeal is directed against the judgment and decree dated 11-4-1994, passed by the learned 3rd Additional District and Sessions Judge, Gopalganj, in Title Appeal No. 24 of 1987/20 of 1988 (Sheo Chand Chaudhry v. Adalat Hussain and Ors.), whereby he has affirmed the judgment and decree dated 9-4-1987, passed by the learned Munsif, Gopalganj, in Title Suit No. 183 of 1977 (Adalat Hussain and Ors. v. Bihar Sarkar and Ors.). The trial Court had decreed the suit which has been affirmed by the learned Court of appeal below. Hence this appeal on behalf of the contesting defendant. We shall go by the descriptions of the parties occurring in the plaint.
2. The case of the plaintiffs (respondents herein) as per the plaint is that Plot No. 93, Khata No. 48, measuring an area of 12 Bighas 19 Kathas and 7 dhurs was Gairmazarua Malik land of Hathwa Raj, the ex-landlord. Out of the total area of this plot, 1 Bigha 2 dhurs is the suit land. Village Dharam Chak was visited by virulent plague in 1932 and many villagers deserted their original homes in the village. These villagers, therefore, shifted their residences to the open and barren field of plot No. 93, who erected temporary structures initially but subsequently built their Pucca and mud-built houses and some lands were brought under cultivation. Even after the plague subsided, these villagers continued residing over Plot No. 93. The plaintiffs also had occupied 1 Bigha and 2 dhurs of Plot No, 93 at the time of plague and had been coming in possession even since then openly to the knowledge of the Hathwa Raj and to all concerned and thus he had acquired an occupancy right over the same. Hathwa Raj vested in the State of Bihar in the year 1952, and the plaintiffs continued to be in possession of the disputed land and thus perfected their title by adverse possession. However, defendant No. 2 (the appellant herein) was a very cunning person and managed to secure a settlement from the Bhoodan Yagna Committee in his favour of the suit land. He as a resident of village Harayan at a distance of 1 k.m. from Dharam Chack and though he had sufficient lands in his own village in the name of his brother as also in his own name, he had been able to secure the settlement by the Bhoodan Committee for the land in village Dharam Chack. This defendant filed a petition for settlement of rent in his name and the Circle Officer reported the matter to the DCLR and the DCLR after fixing rent in favour of defendant No. 2 recommended removal of encroachment of the plaintiffs and other villagers from the suit plot. All the acts of Bhoodan Committee and the DCLR were illegal and mala fide. The order of the DCLR in fixing rent in favour of defendant No. 2 was also illegal. The Karamchari had reported the possession of the plaintiffs and others and so the order of the Circle Officer or DCLR was not sustainable. The plaintiffs, therefore, filed the suit for declaration that he was the occupancy raiyat of village Dharam Chack and he had acquired right and title over the suit land, and the Government of Bihar had no right to fix rent favour of defendant No. 2, and for the consequential reliefs.
3. Defendant No. 1, the Government of Bihar; through the Collector, Gopalganj, and defendant No. 2, appeared and filed W.S. in the lower Court. Their case was almost similar and it was to the effect that the suit as framed was not maintainable. It was, however, admitted that in the year 1932, there was a plague and this had made the villagers shift temporarily to plot No. 93. However, after the plague was over, these villagers went back to their original homes. Only 7 to 8 persons remained on the disputed plot No. 93. It was, however, denied further that the plaintiffs had any possession over 1 Bigha 2 dhurs of Plot No. 93. It was further denied that the plaintiffs had acquired any occupancy right on the disputed land. The Bhoodan Yagna Committee had actually settled the suit land in favour of defendant No 2 and the donation of entire Plot No. 93 by Hathwa Raj in favour of Bhoodan Yagna Committee was confirmed by the order of the DCLR. The DCLR on that basis fixed rent in favour of defendant No. 2. He was a person owning less than 1 acre of land in his own village Harayan and, therefore, the Bhoodan Yagna Committee settled the suit land with defendant No. 2 and accordingly the DCLR fixed rent in his favour. The plaintiffs were, therefore, not entitled to any relief as claimed.
4. On the basis of the pleadings of the parties, the following issues were framed for adjudication:
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got any cause of action for the suit?
(iii) Is the suit barred by Law of Limitation?
(iv) Whether the plaintiffs have got right, title, interest in the suit land?
5. The parties adduced evidence in support of their respective cases. The trial Court on contest held that the defendants had not filed any paper to show that the suit land along with other lands were given to Bhoodan Yagna Committee. The learned trial Court further found that the plaintiffs have been able to prove their title and possession with respect to the suit land by adverse possession and accordingly declared and confirmed the possession of the plaintiffs.
6. Defendant No. 2 appealed. The learned Court of appeal below held that the suit was maintainable. He further held that defendant No. 2 had never entered into possession of the suit land. He further that the plaintiffs were in possession of the suit land since long, perhaps since the year 1932, when the village was visited by plague and his possession was certainly uninterrupted, to the knowledge of the ex-landlord, as also to the knowledge of defendant No. 2 when he allegedly secured settlement in the year 1957 from Bhoodan Yagna Committee. The possession would, therefore, certainly amount to hostile possession against the ex-landlord before vesting, as also to defendant No. 2 after he allegedly secured possession in the year 1957 and, therefore, held that the learned lower Court had rightly decided that the plaintiffs had acquired title to the suit property on the basis of adverse possession. He further held that the plaintiffs had perfected their title by adverse possession much before defendant No. 2 had allegedly taken settlement of the same from the Bihar Bhoodan Yagna Committee and the confirmation thereof. Accordingly the learned Court of appeal below dismissed the appeal. Hence, the present appeal at the instance of defendant No. 2.
7. While assailing the validity of the impugned judgment, learned Counsel for defendant No. 2 (the appellant) submits that the proper remedy for the plaintiffs was to prefer statutory appeal in terms of Section 17 of the Bihar Bhoodan Yagna Act, 1954 (hereinafter referred to as the 'Act'). Not having availed of the same, the present suit is hit by the terms of Section 23 of the Act. He relies on the Division Bench judgment of this Court reported in 1986 PLJR page 414 (Pandit Brahma Nand Choubey alias Brahma Nand Choubey v. Members of Bhoodan Committee and Ors.). He further submits that it is manifest from the averments made in the plaint that the plaintiffs were aware of confirmation of the Daan Patra in favour of defendant No. 2.
8. Learned counsel for the plaintiffs (respondents) submits that the issues are concluded by concurrent findings of facts. He relies on the judgment of the Supreme Court reported in 1981 (Vol. 4) Bihar Law Judgments page 201 (Kshitish Chandra Bose v. Commissioner of Ranchi). He next submits that the frame of the suit is determined by the averments made in the plaint. The relief prayed for in the plaint was to seek the relief of declaration of title and confirmation of possession based on adverse possession and the issues were accordingly framed. He relies on the following reported judgment of the Supreme Court:
(i) 2002(1) AIR SCW page 794 (J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and Anr.);
(ii) AIR 2001 SC page 965 (Santosh Hazari v. Purshottam Tiwari).
He next submits that a second appeal is maintainable only if it raises a substantial question of law for determination by this Court. In his submission, no substantial question of law arises for the consideration of this Court. Defendant No. 2 did not in his written statement raise the issue of Daan Patra, nor was any such issue formulated before the learned trial Court, therefore, the same cannot be raised for the first time in this Court. He relies on the following reported judgments.
(i) AIR 2001 SC page 965 (Santosh Hazari v. Purshottam Tiwari);
(ii) 1982 (Vol. 5) Bihar Law Judgments page 168 (The State of Bihar, through the D.M., Bhagalpur v. Rameshwar Prasad Baidya and Anr.);
9. By order dated 23-2-1998, and reiterated by order dated 7-1-2003, the following substantial question of law was formulated for the consideration of this Court at the time of disposal of this appeal:
"Whether or not the judgments of the Court's below are fit to be reversed on the ground that the suit filed by respondent No. 2 herein (plaintiff) was barred by limitation in view of Section 17 of the Bihar Bhoodan Yagna Act and in view of the Division Bench judgment of this Court reported in 1986 PLJR 414 (Brahma Nand Choubey v. Members of Bhoodan Committee)."
By order dated 27-3-2003, lower Court records were called for per special messenger at the cost of defendant No. 2 (appellant).
10. I have perused the impugned judgment and heard learned counsel for the parties at length. Learned counsel for the plaintiffs (respondents) is right in his submission that the issues are concluded by concurrent findings of facts which bind this Court in second appellate jurisdiction and, therefore, this appeal is fit to be dismissed on this ground alone. Both the Courts below have concurrently found that the plaintiffs had perfected their title by adverse possession much before defendant No. 2 claimed to have taken settlement from Bhoodan Yagna Committee. It has further been concurrently found that the plaintiffs have all through been in possession and defendant No. 2 (appellant) never came in possession of the suit lands. Both the Courts below have further found that defendant No. 2 has not been able to prove his case of donation by Hathwa Raj in favour of Bhoodan Yagna Committee, nor has he been able to prove the Daan Patra by the Bhoodan Yagna Committee and the confirmation thereof. Learned Counsel for the plaintiffs has, therefore, rightly relied on the judgment of the Supreme Court in the case of Kshitish Chandra Bose v. Commissioner of Ranchi (supra) which was also a case based on adverse possession. While reversing the judgment of the High Court passed in a Second appeal, the Supreme Court has held as follows in paragraphs 10 to 12 of the judgment:
"10. Lastly, the High Court thought that as the land in question consisted of a portion of the tank or a land appurtenant thereto, adverse possession could not be proved. This view also seems to be wrong. If a persons asserts hostile title even to tank which, as claimed by the Municipality, belonged to it and despite the hostile assertion of title no steps were taken by the owner (namely, the municipality in this case), to evict the trespasser, his title by prescription would be complete after thirty years."
"11. On a perusal of the first judgment of the High Court we are satisfied that the High Court clearly exceeded its jurisdiction under Section 100 in reversing pure concurrent findings of fact given by the trial Court and the then appellate Court both on the question of title and that of adverse possession. In the case of Mst. Kharbuja Kuer v. Jangbahadur Rai, 1963 (1) SCR 456, this Court held that the High Court had no jurisdiction to entertain second appeal on finding of fact even if it was erroneous. In this connection this Court observed as follows :
"It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact."
As the two Courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding."
To the same effect is another decision of this Court in the case of R. Ramachandran Ayyar v. Ramalingam Chittiar, 1963 (3) SCR 604, where the Court observed as follows:
"But the High Court cannot interfere with the conclusion of fact recorded by the lower appellate Court, however, erroneous the said conclusion may appear to be to the High Court, because, as the Privy Council observed, however, gross or inexcusable the error may seem to be there is no jurisdiction under Section 100 to correct that error."
"11. The same view was taken in two earlier decisions of this Court in the cases of Pittaabhiramaswamy v. Hanymayya, AIR 1959 SC 57 and Rarubha Singh v. Achal Singh, AIR 1961 SC 1097."
"12. Thus, the High Court in this case had no jurisdiction after reversing the concurrent findings of fact of the Courts below on the question of adverse possession to remand the case to the Additional Judicial Commissioner on the question of title which also was concluded by the concurrent findings of fact arrived at by the two Courts as indicated above."
11. Learned Counsel for the plaintiffs is further right in submitting that the question whether or not the suit was hit by the provisions of Section 23 of the Act was never raised before the trial Court and, therefore, the parties did not have the opportunity to lead evidence on this point, nor was it discussed by the trial Court. Section 23 of the Act reads as follows :
"23. Provisions of Act to prevail over other laws.--The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in any other law for the time being in force."
12. The issues framed by the trial Court are set out in paragraph 4 hereinabove. It is manifest from a plain reading of the plaint and that this question was neither raised by defendant No. 2 in his written statement nor such an issue was framed. Obviously, therefore, the parties did not have the opportunity to lead evidence on this question nor the trial Court could have decided the same. The question whether or not the suit was hit by the provisions of Section 23 of the Act is a mixed question of law and facts and cannot be raised for the first time in the second appellate jurisdiction. Secondly, the question whether or not the plaintiffs had perfected their title by adverse possession could not have been adjudicated by the authorities under the Act, and could be adjudicated only in a suit. Law is well settled that the suit is the basic remedy of a citizen for adjudication of civil disputes and the Court shall always be reluctant to displace the jurisdiction of the civil Court, unless a clear case has been made out.
13. Section 9 of the CPC reads as follows :
"9. Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suit of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I.--A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II.--For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
Exclusion of jurisdiction of Civil Court is not to be readily inferred (Dhulabhai v. S, AIR 1969 SC 78, S. v. Indian Iron & Steel, AIR 1970 SC 1298; Kul Bhushan v. Fequira, AIR 1976 P & H 341). Ouster of jurisdiction of the Civil Court is not to be readily inferred (Narahari v. Jadu Moni, AIR 1987 Ori. 122). Unless the six conditions are fulfilled, the Civil Court's jurisdiction cannot be ousted (Agriculture & C v. Pautappa, AIR 1973 Bom. 348). The Statute ousting jurisdiction must be strictly construed (Abdul Waheed v. Bhanvani, AIR 1966 SC 1718), and it is for the party seeking to must the jurisdiction to establish his right to do so (Abdul Waheed v. Bhanvani, AIR 1967 SC 781). A presumption is against the ouster of jurisdiction of the ordinary Courts and this presumption has to be over-borne (Desikacharyulu v. S, AIR 1964 SC 807). In case of doubt as to jurisdiction, Court shall lean towards assumption of jurisdiction (Gurdwara & C v. Shiv Rattan, AIR 1955 SC 576). The judgment of the Supreme Court in Premier Automobiles v. K.S. Wadke (AIR 1975 SC 2238) is also relevant in the present context.
14. The following passage occurring in the speech of Viscount Haldane at page 391 in the case of Neville v. London "Express" Newspaper Ltd., (1919 Appeal cases 368 HL) is illuminating :
"There are three classes of cases in which a liability may be established by Statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is whether the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it......" With respect to that class it has always been held, that the party must adopt the form of remedy given by the statute."
15. Defendant No. 2 (the appellant herein), who was appellant before the learned Court of appeal below did not raise this question before any one of the Court's below and cannot, therefore, be raised before this Court for the first time. Learned Counsel for the plaintiff has, therefore, rightly relied on the judgment of the Supreme Court in the case of J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and Anr. (supra), wherein it has been held that the decision of the High Court on second appeal was erroneous by treating denial of title of landlord by tenant as primary ground for eviction though it was not at all the issue before the trial Court. The Supreme Court has observed in paragraph 19 of the judgment that"... Thus what was not an issue before the trial Court at all become the core issue on which the High Court has founded its decision. This is not only violative of the established procedure for civil trials but also violative of principles of justice and fair play, the tenants have been certainly prejudiced in their defence and, therefore, availability of that ground for eviction of tenants in the present proceedings cannot be sustained."
16. Learned Counsel for the plaintiffs has rightly relied on the judgment in the case of Santosh Hazari v. Purushottam Tiwari (supra), wherein the Supreme Court has explained as to what should constitute a substantial question of law in a second appeal. Paragraph 14 of the judgment is illuminating and is set out hereinbelow for the facility of quick reference.
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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 circumstance 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."
17. Learned Counsel for the plaintiffs has rightly relied on the Division Bench decision of this Court in the case of The State of Bihar v. Rameshwar Prasad Baidya and Anr. (supra) paragraph 12 of which is relevant and is set out hereinbelow for the facility of quick reference.
"The last two contentions do not also merit any consideration. The question about the State of Bihar being not liable for the mala fide action of defendant No. 2, which may involve determination of facts, is a new plea taken for the first time in second appeal and it cannot be entertained. Defendant No. 2 contested the suit after restoration of his name. He did not raise any grievance against the restoration of his name. A plea to this effect was taken before the lower appellate Court but the same does not appear to have been pressed, In this Court defendant No. 2 has not appeared to raise any such grievance. In such circumstances, such a plea at the instance of the State of Bihar cannot be allowed to be agitated at the stage of second appeal. These two contentions, therefore, also fail."
18. It is thus manifest that the question of law raised by defendant No. 2 (appellant) before me to the effect that the suit is hit by the provisions of Section 23 of the Act did not arise from the pleadings of the parties before the trial Court, no issue to that effect was framed, the parties did not have the opportunity to lead evidence in that respect nor was it canvassed before the trial Court. It was also not canvassed before the learned Court of appeal below and, therefore, cannot be permitted to be raised for the first time in this Court. Learned Counsel for the plaintiffs is, therefore, right in submitting that such an issue cannot constitute a substantial question of law in a second appeal. He has rightly relied on the judgment of the Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari (supra) and the judgment of this Court in the State of Bihar v. Rameshwar Prasad Baidya (supra).
19. It is thus manifest that the question of law canvassed by defendant No. 2 (appellant), before me does not arise on the pleadings of the parties before the trial Court, no such issue was framed, the parties did not have the opportunity of leading evidence therein, nor canvassed and decided by the trial Court, The issue was also not raised before the learned Court of appeal below. The same cannot, therefore, be permitted to be raised for the first time before this Court in second appellate jurisdiction, nor does it constitute a substantial question of law fit to be entertained in second appellate jurisdiction.
20. In the result, this appeal is dismissed with costs throughout Let the lower Court records be sent down through special messenger soon after preparation of the decree.