Karnataka High Court
Sri Raghavendra Swamy Mutt Reptd By Its vs Sri Uttaradi Mutt on 9 January, 2025
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 09TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.2892 OF 2006 (INJ)
BETWEEN:
SRI. RAGHAVENDRA SWAMY MUTT
BY ITS PEETADHIPATHI,
SRI. SUBHUDENDRA TEERTHA SWAMIJI,
MANTRALAYAM, ADONI TALUK,
KARNOOL DISTRICT,
ANDHRA PRADESH.
REP. BY POWER OF ATTORNEY HOLDER
SRI. R.K. VADEENDRA
S/O LATE R. KRISHNACHAR,
AGE ABOUT 51 YEARS,
R/O SRI. NANJANGUD RAGHAVENDRA SWAMY MUTT,
NO.524, 5TH BLOCK,
11TH MAIN, 45TH CROSS,
JAYANAGAR,
BENGALURU - 560 041.
MANJANNA
E ...APPELLANT
(BY SRI. PRABHULING K. NAVADAGI, SENIOR ADVOCATE FOR
Digitally signed SRI. PHANIRAJ KASHYAP AND SRI. GANAPATI M. BHAT,
by MANJANNA
E ADVOCATE)
Date:
2025.01.09
16:38:16 AND:
+0530
SRI. UTTARADI MUTT
BY ITS PEETHADHIPATHI
SRI. SATYATMA TEERTHA SWAMIJI.
REP. BY POWER OF ATTORNEY HOLDER
SRI. M. GURURAJACHAR,
S/O SRINIVASACHAR,
AGE: MAJOR,
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LANDLORD KAMALAPUR HOSPET,
BELLARY DISTRICT.
...RESPONDENTS
(BY SRI. AMIT KUMAR DESHPANDE, SENIOR ADVOCATE FOR
SRI. SATISH S. RAICHUR, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 05TH AUGUST, 2006
PASSED IN REGULAR APPEAL NO.11 OF 2003 ON THE FILE OF
THE ADDITION CIVIL JUDGE (SR.DN.), HOSPET, CONFIRMING
THE JUDGMENT AND DECREE DATED 16TH JANUARY, 2003
PASSED IN ORIGINAL SUIT NO.15 OF 1998 ON THE FILE OF
ADDITIONAL CIVIL JUDGE (JR. DN.), HOSPET.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
06TH JANUARY, 2025 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH
CAV JUDGMENT
This Regular Second Appeal is filed by the defendant challenging the judgment and decree dated 05th August, 2006 passed in Regular Appeal No.11 of 2003 on the file of the Additional Civil Judge (Sr.Dn.), Hospet (for short, herein referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 16th January, 2003 passed in Original Suit No.15 of 1998 on the file of the Additional Civil Judge (Jr.Dn.) and JMFC., Hospet (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiff came to be decreed.
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2. For the sake of convenience, the parties in this appeal shall be referred to in terms their ranking before the Trial Court.
FACTS OF THE CASE
3. The facts of the case in nutshell as averred in the plaint are that the plaintiff-Sri. Uttaradi Mutt (for short, hereinafter referred to as 'Plaintiff-Mutt') had filed Original Suit No.15 of 1998 before the Trial Court against the defendant-Sri. Raghavendra Swamy Mutt (for short, hereinafter referred to as 'defendant-Mutt'), seeking relief of permanent injunction, restraining the defendant-Mutt from disturbing the performance of 'Aradhana' of Sri. Narahariteertha Swamy Brindavana by the plaintiff-Mutt which is situate in the suit schedule property. It is averred in the plaint that, on the demise of the Peetadipathi of the plaintiff-Mutt body of the pontiff would be buried and thereafter structure be constructed therein and same would be called as 'Brindavana'. It is further stated in the plaint that, one of the Peetadipathis of plaintiff-Mutt Sri. Narahariteertha Swamy, whose Brindavana was built at Hampi on the riverbed of Tungabadra about 600 years ago in the suit schedule land. It is also stated that, 'Aradhana' would be celebrated for three days in a year and devotees would attend the 'Aradhana' at -4- Brindavana. It is further stated that, earlier Peetadipathi of the plaintiff-Mutt has made an application, seeking grant of the schedule land and after enquiry, the Tahsildar, Hospet had granted the schedule land to the plaintiff-Mutt on 11th April, 1971. The said grant of land was challenged before the Assistant Commissioner, Hospet and the appeal was pending before the said authority at time of institution of suit. It is the case of the plaintiff-Mutt that the plaintiff-Mutt is in peaceful possession and enjoyment of the suit schedule land and performing pooja of said Brindavana for more than 600 years, however, the defendant-Mutt, without any right or interest in respect of the schedule land, interfered with the Pooja activities of the Brindavan and as such, the plaintiff-Mutt had filed Writ Petition No.7415 of 1991, challenging the interference of the Police Authorities as well as the defendant-Mutt. It is also stated that, on the earlier occasion, the plaintiff-Mutt had filed Writ Petition No.16975 of 1987 before this Court in respect of another Brindavana and this Court, directed the State- Authorities, not to interfere with the religious functions of the plaintiff-Mutt. It is further stated that, 'Aradhana' for the year- 1988 is scheduled on 19th to 21st of January, 1988 and as the plaintiff-Mutt is preparing for 'Aradhana', the defendant-Mutt through its employees obstructed the sacred activities of the -5- plaintiff-Mutt and as such, the plaintiff-Mutt had filed Original Suit No.15 of 1998 before the Trial Court, seeking relief of permanent injunction against the defendant-Mutt.
4. On service of notice, the defendant-Mutt entered appearance and filed detailed written statement denying the averments made in the plaint and had taken a specific contention that the State-Authorities have cancelled the grant of schedule land made in favour of the plaintiff-Mutt and as such, land is vested with the Government-Authorities and therefore, suit itself is not maintainable on the sole ground that the State Government had not been arraigned as a party in the suit. It is also contended in the written statement that, Sri. Narahariteertharu was one of the disciples of Sri. Madhwacharya, founder of the Madhwa sect and the said Sri. Narahariteertharu was the 18th pontiff of Madhwa hierarchy during the period from 1324 to 1333 A.D. It is also stated in the written statement that, after the demise of Sri. Narahariteertharu, his 'Mruthika Brindavana' was established by Vijayanagara Empire in a portion of land bearing Survey No.897 having total extent of 122 acre and 58 cents of Venkatapura Village, Hospet Taluk. It is also stated that the 'Brindavana' is a sacred place of public worship by all the followers of Sri. -6- Madhwacharya and as such, it is contended by the defendant- Mutt that, it is not exclusively belonging to the plaintiff-Mutt. It is also averred in the written statement that the defendant- Mutt is a Moola Mutt of Sri. Hamsanamaka Paramathma Sakshat Parampara.
5. It is also the further contention of the defendant-Mutt that the defendant-Mutt was also performing 'Aradhana' at 'Brindavana' of Sri. Narahariteertharu on Pushya Bahula Saptami and therefore, denied the exclusive right as claimed by the plaintiff-Mutt. It is also contended by the defendant-Mutt that the order of grant made in respect of the schedule land by the Tahsildar, Hospet was cancelled on 13th December, 1996 and thereafter, appeal was preferred before the Assistant Commissioner, Hospet, which came to be dismissed and the Assistant Commissioner, Hospet had permitted the plaintiff- Mutt to perform 'Aradhana' on the first day and the defendant- Mutt was allowed to perform the same on second day in morning and thereafter, the plaintiff-Mutt was allowed to perform the same in the afternoon on the second day and further the defendant-Mutt alone was permitted to perform 'Aradhna' on the third day and as such, the defendant-Mutt sought for dismissal of the plaint. It is also stated in the -7- written statement that the plaintiff-Mutt had suppressed the aforementioned facts in the plaint and therefore, the plaintiff- Mutt is not entitled for discretionary relief in the suit. Accordingly, defendant-Mutt sought for dismissal of the suit. Thereafter, application IA.No.6 was filed by the defendant-Mutt seeking amendment to the written statement to incorporate the certain factual aspects, which came to be allowed by the Trial Court. It is the contention of the defendant-Mutt in the amended written statement that the plaintiff-Mutt cannot maintain a bare injunction suit without seeking relief of declaration in view of cancellation of grant made in favour of the plaintiff-Mutt. It is also averred that the plaintiff-Mutt cannot seek relief of permanent injunction against the defendant-Mutt, for performance of Pooja, Aradhana and other rituals, without seeking relief of declaration and accordingly, the defendant sought for dismissal of the suit. Thereafter, the plaintiff-Mutt had filed application IA.No.17 under Order VIII Rule 9 of Code of Civil Procedure, seeking permission to file rejoinder to the amended written statement and as such, the said application came to be allowed. It is contended by the plaintiff-Mutt in the rejoinder that the Assistant Commissioner had dismissed the appeal and as such, the plaintiff-Mutt intends to challenge the same before the competent Authority and -8- therefore, the Government is not a necessary or proper party to the suit. It is the specific contention of the plaintiff-Mutt in the rejoinder that the 'Brindavana' was built by the plaintiff- Mutt and therefore, there is no necessity of seeking relief of declaration in the suit. Hence, sought for decreeing the suit of the plaintiff-Mutt.
6. The Trial Court based on the pleadings on record, formulated the issues and additional issue for its consideration.
7. In order to prove their case, the plaintiff-Mutt had examined 7 witnesses as PW1 to PW7 and produced 87 documents, which were marked as Exhibits P1 to P87. On the other hand, the defendant-Mutt examined sole witness as DW1 and produced 16 documents, which were marked as Exhibits D1 to D16.
8. The Trial Court, after considering the material on record, by its judgment and decree dated 16th January, 2003, decreed the suit of the plaintiff-Mutt and as such, restrained the defendant-Mutt and its agents from interfering with the performance of Pooja and Aradhana by the plaintiff-Mutt at 'Brindavana' of Sri. Narahariteertha Swamy. Being aggrieved by the same, the defendant-Mutt had preferred Regular Appeal No.11 of 2003 before the First Appellate Court and same was -9- resisted by the plaintiff-Mutt. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 05th August, 2006, dismissed the appeal and as such, confirmed the judgment and decree passed by the Trial Court in Original Suit No.15 of 1998. Being aggrieved by the same, the defendant-Mutt had preferred this Regular Second Appeal.
9. This Court, by order dated 23rd March, 2007, admitted the appeal to consider the following substantial question of law:
"Whether the Courts below were justified in granting the relief of permanent injunction as prayed for in the absence of the plaintiff seeking the relief of declaration of their right to perform poojas exclusively to the exclusion of the defendant when right to perform poojas and to the schedule land was denied by the defendants prior to the date of the suit?
10. I have heard Sri. Prabhuling K. Navadgi, learned Senior Counsel on behalf of Sri. Phaniraj Kashyap and Sri. Ganapati M. Bhat, appearing for the appellant/defendant-Mutt and Sri. Amith Kumar Deshpande, learned Senior Counsel on behalf of Sri. Satish S. Raichur, appearing for the respondent/plaintiff-Mutt.
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CONTENTIONS OF THE APPELLANT/DEFENDANT-MUTT
11. Sri. Prabhuling K. Navadgi, learned Senior Counsel appearing for the appellant/defendant-Mutt invited the attention of the Court to prayer made in the plaint and contended that the said prayer itself is not maintainable unless the plaintiff-Mutt claim any right over the schedule land. It is also contended by learned Senior Counsel appearing for the appellant/defendant-Mutt that, as the defendant-Mutt has disputed the possession and right of the plaintiff-Mutt over the schedule land and as such, a bare injunction suit is not maintainable without claiming the relief of declaration. It is also the contention of the learned Senior Counsel appearing for the appellant that, as the land in question is belonging to the Government and the Government had cancelled the grant made in favour of the plaintiff-Mutt, the suit filed by the plaintiff-Mutt is not maintainable without arraigning the Government as a party in the suit, since the Government is a necessary and proper party to adjudicate the suit on merits.
12. Nextly, it is contended by Sri. Prabhuling K. Navadgi, learned Senior Counsel that, Sri. Narahariteertharu is directly in lineage of Sri. Raghavendra Swamy of Sri. Manthralayam and therefore, the finding recorded by both the Courts below is
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contrary to the factual aspects on record and as such, though there is a concurrent finding of the fact by both the Courts below as both the Courts below have misread the evidence of the parties and no acceptable finding has been given in the impugned judgment and decree passed by the Courts below and further, there is a clear misconstruction of evidence of the parties by the Courts below.
13. Emphasising on the right of worship and Aradhana by the plaintiff-Mutt, Sri. Prabhuling K. Navadgi, learned Senior Counsel argued that, the land in question belongs to the Government and further, there is no claim made against the Government. By inviting the attention of the Court to paragraph 6 of the written statement, he argued that, both the Courts below have decreed the suit in a case where there is no evidence on record on the relief claimed by the plaintiff-Mutt and therefore, he contended that the impugned judgment and decree is liable to be set-aside. It is also the specific contention of learned Senior Counsel appearing for the appellant/defendant-Mutt that the right of possession is different from right to conduct Aradhana in the schedule land and both the Courts below have misread the admission made by PW1, wherein PW1 deposed that the Government had taken
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back the possession of the schedule land from the plaintiff-Mutt and accordingly, he sought for interference of this Court. In this regard, he refers to the judgment rendered in the case of NARASINGHA BAN GOSWAMI vs. PROLHADMAN TEWARI reported in 1919 ILR 46 CAL 465 and in the case of ESHAN CHUNDER ROY AND OTHERS vs. MONMOHINI DASSI reported in 1879 ILR 4 CAL 683 and sought for interference of this Court.
14. Nextly, it is contended by learned Senior Counsel appearing for the appellant/defendant-Mutt that, though this Court is having limited jurisdiction under Section 100 of Code of Civil Procedure to interfere with the concurrent finding of facts by the Courts below, however, the question of law involved in this appeal, had wide amplitude and having public importance of larger section of the devotees of the defendant-Mutt and therefore, this Court shall consider the case on merits and to answer the substantial question of law accordingly. In this regard, he refers to the judgment of Hon'ble Supreme Court in the case of SIR CHUNILAL V. MEHTA AND SONS LTD., vs. CENTURY SPINNING AND MANUFACTURING CO. LTD. reported in AIR 1962 SC 1314 and contended that the
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interference be called for under Section 100 of the Code of Civil Procedure.
15. Lastly, it is contended by Sri. Prabhuling K. Navadgi, learned Senior Counsel appearing for the appellant/defendant- Mutt that, this Court in an identical circumstances, in respect of the very same parties in Regular Second Appeal No.100446 of 2015 decided on 03rd July, 2024, allowed the appeal preferred by the defendant-Mutt and therefore, the finding recorded in the said judgment that the right of worship of an idol was different from right over the immovable property and as such, requested this Court to set-aside the impugned judgment and decree passed by the Courts below.
CONTENTIONS OF THE RESPONDENT/PLAINTIFF-MUTT
16. Per contra, Sri. Amith Kumar Deshpande, learned Senior Counsel appearing for the respondent/plaintiff-Mutt argued that the entire submission of learned Senior Counsel appearing for the appellant/defendant-Mutt is on factual aspects only and nothing has been argued with regard to question of law framed in the appeal and therefore, as both the Courts below, after appreciating the factual aspects on record, have arrived at a conclusion concurrently, the same cannot be disturbed in this appeal by exercising jurisdiction under Section
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100 of the Code of Civil Procedure, which is limited and circumscribed.
17. Nextly, Sri. Amith Kumar Deshpande, learned Senior Counsel appearing for the respondent/plaintiff-Mutt contended that, there is no perversity in the judgment and decree passed by both the Courts below. By referring to the deposition of DW1, learned Senior Counsel submitted that the conduct of the defendant-Mutt has to be considered in interfering with the performance of Pooja by the plaintiff-Mutt and as such, he argued that the 'Aradhana' of particular pontiff is nothing but following the procedure of immediate predecessor of pontiff and as the plaintiff-Mutt is performing 'Aradhana' for more than 600 years, same cannot be scuttled at the instance of the defendant-Mutt. Therefore, learned Senior Counsel appearing for the respondent/plaintiff-Mutt enlightened the Court that, performing 'Aradhana' at Brindavana is different from performing Pooja of an idol and accordingly, sought for dismissal of the appeal.
18. Emphasising on the arguments relating to admission made by PW1 that the Government had taken possession of the land in question, it is argued by Sri Amith Kumar Deshpande, learned Senior Counsel that the Government-Authorities, have
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not followed the provisions contemplated under Section of 39 of the Karnataka Land Revenue Act, 1964 and no mahazar has been produced before the Courts to substantiate the fact of taking of possession by the Government-Authorities. Accordingly, he submitted that, as there is no perversity in the impugned judgment and decree passed by the Courts below and therefore, same has to be confirmed in this appeal.
19. Lastly, it is contended by Sri. Amith Kumar Deshpande, learned Senior Counsel appearing for the respondent/plaintiff-Mutt that the judgment of this Court in Regular Second Appeal No.100446 of 2015 decided on 03rd July, 2024 has been challenged before the Hon'ble Supreme Court in C.A. No.13706 of 2024 and leave has been granted by the Hon'ble Supreme Court and therefore, the finding in the judgment of this Court in Regular Second Appeal No.100446 of 2015 cannot be imported to resolve the issue in the present appeal. Accordingly, he sought for dismissal of the appeal on merits.
ANALYSIS OF THE CASE
20. In the light of the submission made by learned Senior Counsel appearing for the parties, the core questions to be answered in this appeal are as follows:
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1) Whether this Court is having jurisdiction under Section 100 of the Code of Civil Procedure to interfere with the finding of fact of the Courts below in the light of the substantial question of law framed in this appeal?
2) Whether the judgment and decree passed by the Courts below requires to be interfered with in the circumstances of the facts on record?
3) What order?
21. In order to answer the substantial question of law referred to above, it is expedient to consider the scope of Section 100 of the Code of Civil Procedure to interfere with the concurrent findings of both the Courts below. Hon'ble Supreme Court in the case of NAZIR MOHAMED vs. J. KAMALA AND OTHERS reported in (2020) 19 SCC 57, at paragraph 22 to 33.4 held as follows:
"22. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re- agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.
23. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a
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substantial question of law is involved. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.
24. The High Court framed the following questions of law:-
"1. Whether the Lower Appellate Court is right in refusing the relief of possession especially when the Lower Appellate Court granted relief of mesne profits till delivery of possession?
2. Whether the Lower Appellate Court is right in holding that the plaintiff is entitled to a declaration in respect of half of the suit property overlooking the pleadings and the documents of title in the instant case?"
25. On behalf of the Appellant-Defendant, it has strenuously been contended, and in our view, with considerable force, that there was no question of law involved in either of the second appeals, far less any substantial question of law, to warrant inference of the High Court in Second Appeal No. 64 of 2000.
26. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. , where this Court held:-
"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 calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be
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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."
27. In Hero Vinoth v. Seshammal2, this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out hereinbelow:-
"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 contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not 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, 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, 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 Veeraju: "5.... 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
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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."
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
29. To be a question of law "involved 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 Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.
30. Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami.
31. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari.
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32. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam. 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.
33. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
33.1. 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.
33.2. 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.
33.3. 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
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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 5 AIR 1963 SC 302 on a material question, violates the settled position of law. 33.4. 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-recognised 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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(emphasis supplied)
22. In the backdrop of arguments advanced by learned Senior Counsel appearing for the parties, it is the duty of this Court to ascertain whether the impugned judgment and decree passed by the Courts below suffer from 'perversity'. What is to be considered as 'perversity' in the impugned judgment was considered by the Hon'ble Supreme Court in the case of DAMODAR LAL vs. SOHAN DEVI AND OTHERS reported in (2016) 3 SCC 78 at paragraphs 8 to 14, which reads as under:
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"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.
9. In Krishnan v. Backiam and another, it has been held at paragraph-11 that:
"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 and others v. Salikram (Dead) Through Lrs., at paragraph 10, this principle has been reiterated:
"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 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 plaintiff/appellant that there
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has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the defendants/respondents 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 re- appreciation 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
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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 on 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 and others v. Gurdial Singh Mann (Dead) by Lrs., this Court has dealt with the limited leeway available to the High Court in second appeal. To quote paragraph-34:
"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
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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. Tiwari v. Union of India, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, Through Secretary (Labour) and others[5], it was held at paragraph-30:
"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
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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. , Kuldeep Singh v. Commr. of Police, Gamini Bala Koteswara Rao v. State of A.P. and Babu v. State of Kerala.
(emphasis supplied)
23. It is also to be noted that the Constitution Bench of Hon'ble Supreme Court in the case of SIR CHUNILAL V. MEHTA (supra) at paragraphs 2 to 6 held as follows:
"(2) It is not disputed before us that the question raised by the appellant in the appeal is one of law because, which the, appellant is challenging is the interpretation placed upon certain clauses of the managing agency agreement which are the foundation of the claim in suit. Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law.
(3) The next question is whether the interpretation of a document of the kind referred to above raises a substantial question of law. For, Art.
133(1) provides that where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-cl. (c) an appeal shall lie to this Court if the High Court certifies that the appeal involves some substantial question of law. To the same effect are the provisions of S. 110 of the Code of Civil Procedure. In the old Judicial Commissioner's Court of Oudh the view was taken that a substantial question of law meant a
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question of general importance. Following that view its successor, the Chief Court of Oudh, refused to grant a certificate to one Reghunath Prasad Singh whose appeal it had dismissed. The appellant, therefore, moved the Privy Council for special leave on the ground that the appeal raised a substantial question of law. The Privy Council granted special leave to the appellant and while granting it made the following observation in their judgment:
"Admittedly here the decision of the Court affirmed the decision of the Court immediately below, and, therefore, the whole question turns upon whether there is a substantial question of law. There seems to have been some doubt, at any rate in the old Court of Oudh, to which the present Court succeeded, as to whether a substantial question of law meant a question of general importance. Their Lordships think it is quite clear and indeed it was conceded by Mr. De Gruyther that that is not the meaning, but that "substantial question of law" is a substantial question of law as between the parties in the ease involved."
Then their Lordships observed that as the case had occupied the High Court for a very long time and on which a very elaborate judgment was delivered the appeal on its face raised as between the parties a substantial question of law. This case is reported in 54 Ind App 126: (AIR 1927 PC 110). What is a substantial question of law as between the parties would certainly depend upon the facts and circumstances of every case. Thus for instance, if a question of law bad been settled by the highest court of the country the question of law however important or difficult it may have been regarded in the past and however much it may affect any of the parties would cease to be a substantial question of law.
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Nor again, would a question of law which is palpably absurd be a substantial question of law as between the parties. The Bombay High Court, however, in their earlier decision already adverted to have not properly appreciated the test laid down by the Privy Council for ascertaining what is a substantial question of law. Apparently the judgment of the Privy Council was brought to their notice though they do not make a direct reference to it, they have observed as follows:
"The only guidance that we have had from the Privy Council is that, substantial question is not necessarily a question which is of public importance. It must be a substantial question of law as between-the parties in the case involved. But hero again it must not be forgotten that what is contemplated is not a question of law alone; it must be a substantial question. One can define it negatively. For instance, if there is a well established principle of law and that principle is applied to a given set of facts, that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the principle of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the highest Court." One of the points which the learned judges of the Bombay High Court had to consider in this case was whether the question of construction to be Placed upon a decree was a substantial question of law. The learned Judges said in their judgment that the decree was undoubtedly of a complicated character but even so they refused to grant a certificate under S. 110 of the Code of Civil Procedure for appeal to the Federal Court because the construction
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which the Court was called upon to place on the decree did not raise substantial question of law. They have observed that even though a decree may be of a complicated character what the Court has to do is to look at its various provisions and draw its inference therefrom. Thus according to the learned Judges merely because the inference to be drawn is from a complicated decree no substantial question of law would arise. Apparently in coming to this conclusion they omitted to attach sufficient weight to the view of the Privy Council that a question of law is "a substantial question of law"
when it affects the rights of the parties to the pro ceeding. Further the learned Judges seem to have taken the view that there should be a doubt in the mind of the Court as to the principle, of law involved and unless there is such doubt in its mind the question of law decided by it cannot be said to be "a substantial question of law" so as to entitle a party to a certificate under S. 110 of the Code of Civil Procedure. It is true that they have not said in so many words that such a doubt must be entertained by the Court itself but that is what we understand their judgment to mean and in particular the last sentence in the portion of their judgment which we have quoted above.
(4) As against the view taken by the Bombay High Court there are two decisions of the High Courts in India to which reference was made before us. One is Dinkkarrao v. Rattansey. In that case applying the Privy Council's decision the High Court held that a question of law is substantial as between the parties if the decision turns one way or another on the particular view taken of the law. If the view taken does not affect the decision
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then it cannot be substantial as between the parties ; but it would be otherwise if it did, even though the question may be wholly unimportant to others. It was argued before the High Court on the basis of certain decisions that no question of law can be substantial within the meaning of S. 110 of the Code of Civil Procedure unless the legal principles applied in the case are not well defined or unless there can be some reasonable divergence of opinion about the correctness of the view taken and the case involves, a point of law such as would call for fresh definition and enunciation. Adverting to those cases Bose C. J., (as he then was) whom Delivered the judgment of the Court observed as follows :
"In the first case cited, it was also held that a misapplication of principles of law does not raise any substantial question of law so as to attract the operation of S. 110.......
There can be no doubt that that is a view which has been held by various High Courts in India, but the decision cited' omit to consi- der two decisions of' their Lordships of the Privy Council on this very point which. in our (1) 1.L.R. (1949) Nag. 224 opinion, very largely modify the views taken in the cases cited and which of course it is impossible for us to ignore." (P. 226 of ILR Nag): (at p. 301 of AIR) case the learned Chief Justice observed as follows :
Referring to the Privy Council case the learned Chief Justice observed as follows:
"In the Lucknow case the only question was whether the defendant there obtained an absolute interest or a limited interest under a will. That again was a question which was of no
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interest to anyone outside the parties to the suit. Nevertheless, their Lordships considered in both cases that the questions were substantial questions of law because they were substantial as between the parties. We can only consider this to mean that a question of law is substantial as between the parties if the decision turns one way or another on the particular view taken of the law. If it does not affect the decision then it cannot be substantial as between the parties. But if it substantially affects the decision then it is substantial as between the parties though it may be wholly unimportant to others." (p. 228 of Nag LR): (at p. 302 of AIR) It may be that in the case before it, the Nagpur High Court was justified in granting certificate because of the points involved was the construction of a deed of compromise and the High Court had interpreted that deed differently from the court below. But it seems to us that some of the observations of Bose C. J., are a little too wide. We are prepared to assume that the learned Chief Justice did not intend to say that where a question of law raised is palpably absurd it would still be regarded as a substantial question of law merely because it affects the decision of the case one way or the other. 'But at the same time his observation that the view taken in the cases cited before him requires to be modified in the light of the Privy Council decision would imply that a question of law is deemed to be a substantial question of law even though the legal principles applicable to the case are well defined and there can be no reasonable divergence of opinion about the correctness of the view taken by the High Court. If we, have understood the learned Chief Justice right, we think that he has gone further than was warranted by the decision of the Privy Council in Raghunath Prasad Singh's case.
(5) The other case relied upon was Rimmalapudi Subba Rao v. Noony Veeraju. In that case the test of the kind suggested by Bose 'C.J., was rejected on the ground that logically it would lead to the position that
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even a palpably absurd plea raised by a party would involve a substantial question of law because the decision on the merits of the case would be directly affected by it. What was, however, said was that 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 view, 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.
(6) We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by. the Bombay High Court is rather narrow the. one taken by the former High Court of Nagpur is too wide. 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 calls 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
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or that the plea raised is palpably absurd the question would not be a substantial question of law."
24. Following the law declared by the Constitution Bench of Hon'ble Supreme Court, in the present case, as there is concurrent finding of facts by both the Courts below, law is well settled that the High Court cannot be precluded from reversing the judgment and decree passed by the Courts below, if there is a perversity in the decision of the Courts below on account of mis-appreciation of evidence. At this stage, it is relevant to cite the judgment of the Hon'ble Supreme Court in the case of ESWARI vs. PARVATHI AND OTHERS reported in AIR 2014 SC 2912, wherein, it is held that, if there is mis-appreciation of evidence by both the Courts below in a given concurrent finding of facts, there is no absolute bar on the High Court to interfere with the concurrent finding of facts. In the light of the aforementioned dictum of Hon'ble Supreme Court with regard to exercising jurisdiction under Section 100 of the Code of Civil Procedure in a given case of concurrent finding, I have carefully examined the finding recorded by both the Courts below. It is relevant to deduce the issue No.1 and 2 framed by the Trial Court in Original Suit No.15 of 1998, which is extracted below:
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1) Whether the plaintiff-Mutt proves its lawful possession over the suit schedule land ?
2) Whether it is proved that the plaintiff-Mutt alone is performing the Aradhana of Sri. Narahariteerthaswamiji ?
25. Perusal of the finding recorded by both the Courts below would indicate that both the plaintiff and defendant Mutts are the followers of Sri. Madhwacharaya Dwitha Philosophy and Sri. Narahariteertharu was one of the disciples of aforementioned philosophy. It is also not in dispute that, Sri. Narahariteertharu Brindavana (Tomb structure) is situate at the suit schedule land. It is also admitted by the parties that, three days ritual called 'Aradhana' will be performed to Brindavana by the devotees. The plaintiff-Mutt contends that the said Brindavana is considered as 'Moola Brindavana', however, the defendant-Mutt called the same as 'Mruthika Brindavana'. The plaintiff-Mutt has laid its claim over the performance of Aradhana. It is to be noted that the schedule land belongs to Government and same was granted to the plaintiff-Mutt as per Saguvali Chit dated 11th April, 1971 (Exhibit P3). As per Exhibit P23, proceedings has been initiated, challenging the aforementioned grant made in favour of the plaintiff-Mutt and the Tahsildar, Hospet, by order dated 13th December, 1996
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(Exhibit D3), cancelled the grant made in favour of the plaintiff- Mutt and passed an order to resume the assigned land. It is also not disputed by the parties that, the said order of cancellation was questioned before the Assistant Commissioner, Hospet and same was dismissed on 23rd November, 2001. The said order was assailed before the Deputy Commissioner, Bellary in a revenue proceedings and the Deputy Commissioner, by order dated 28th March, 2006, allowed the petition preferred by the plaintiff-Mutt and as such, set-aside the order of cancellation dated 13th December, 1996 so also, order passed by the Assistant Commissioner, Hospet. The aforementioned order of the Deputy Commissioner was questioned before the Karnataka Appellate Tribunal and the Appellate Tribunal, by order dated 25th April, 2006, dismissed the appeal and same was questioned before this Court in Writ Petition No.39335-36 of 2018 and same is pending consideration before this Court, to determine the grant made in favour of the plaintiff-Mutt is lawful or not. At this juncture, it is to be noted that the claim made by the plaintiff-Mutt with regard to title over the suit schedule property is said to be answered in the aforementioned Writ petitions by this Court and as such, the contentions raised by learned Senior Counsel appearing for the plaintiff-Mutt that there is no need to seek a declaratory relief insofar as claim
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made by the plaintiff-Mutt is concerned cannot be accepted at this stage. However, the suit is filed in the year-1998 and by that time, order of cancellation was passed by the Tahsildar, Hospet on 13th December, 1996 and therefore, there was no impediment for the plaintiff-Mutt to file a suit in a comprehensive nature seeking declaratory relief along claiming relief of permanent injunction in the present suit. In that view of the matter, it cannot be ruled out that, there is no cloud in respect of ownership of the schedule land as on the date of the filing of the suit so also, the subsequent events to be considered as such. Therefore, I find force in the submission made by learned Senior Counsel Sri. Prabhuling K. Navadgi, appearing for the appellant/defendant-Mutt by referring to the paragraph 5 and 6 of the plaint so also, the denial of right of the plaintiff-Mutt to perform Aradhana as of right as per the averments made at paragraphs 5 to 8A of the written statement filed by the defendant-Mutt.
26. It is also to be noted that the PW1 in the Cross- examination at paragraph 26 deposed as follows:
"It is true that, on 21.12.1996, the Government resumed the possession of this land from our Mutt. There is a mention about resuming of land in the plaint to my knowledge."
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(emphasis supplied)
27. The aforementioned admission made by PW1 that the Government had taken possession of the land in question from the plaintiff-Mutt on 21st December, 1996 is a clear admission to the fact that, after cancellation of the order of grant, the Government had resumed the possession of the land in question. Though the learned Senior Counsel appearing for the respondent/plaintiff-Mutt argued that, no documents have been placed in respect of taking over the possession by the Government and also contended that the procedure contemplated under Section 39 of the Karnataka Land Revenue Act is not followed, however, the said contention cannot be accepted and same is liable to be rejected on the sole ground that the PW1 himself in his cross-examination had categorically deposed about taking of possession by the Government. At this juncture, it is relevant to cite the judgment of Hon'ble Supreme Court in the case of NAGINDAS RAMDAS vs. DALPATRAM ICHHARAM @ BRIJRAM AND OTHERS reported in (1974) 1 SCC 242, wherein it is held that, admissions in pleadings or judicial admissions in comparison with evidentiary admissions is a relevant fact to adjudicate the dispute on merits of the case. At paragraph 27 of the judgment, it is held as follows:
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"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself, Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under S. 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
(emphasis supplied)
28. The aforementioned aspect was considered by the Hon'ble Supreme Court in the case of VIKRANT KAPILA AND ANOTHER vs. PANKAJA PANDA AND OTHERS reported in AIR 2023 SC 5579, at paragraph 22.3 it is held as follows:
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"22.3 Admission in pleadings means a statement made by a party to the legal proceedings, whether oral, documentary, or contained in an electronic form, and the said statement suggests an inference with respect to a fact in issue between the parties or a relevant fact. It is axiomatic that to constitute an admission, the said statement must be clear, unequivocal and ought not to entertain a different view. Coming to admission in pleadings, these are averments made by a party in the pleading, viz., plaint, written statement, etc., in a pending proceeding of admitting the factual matrix presented by the other side. To constitute a valid admission in pleading, the said admission should be unequivocal, unconditional, and unambiguous, and the admission must be made with an intention to be bound by it. Admission must be valid without being proved by adducing evidence and enabling the opposite party to succeed without trial. A court, while pronouncing a judgment on admission, keeps in its perspective the requirements in Order VIII Rule 5, Order XII Rule 6 and Order XV Rules 1 and 2 of CPC read with Sections 17, 58 and 68 of the Indian Evidence Act."
(emphasis supplied)
29. At this juncture, emphasis has to made on re- appreciating the evidence of PW1 relating to an admission made in the deposition. It is relevant to cite the judgment of Hon'ble Supreme Court in the case of RAJA GOUNDER AND OTHERS vs. M. SENGODAN AND OTHERS reported in AIR
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2024 SC 644, wherein at paragraphs 13 and 14, it is held as follows:
"13. Sections 17 and 18 of the Indian Evidence Act, 1872 ("the Act") defines "admission" and "admission by party to proceeding or his agent". Section 17 of the Act reads thus: -
"17. Admission defined admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
13.1. Admission is a conscious and deliberate act and not something that could be inferred. An admission could be a positive act of acknowledgement or confession. To constitute an admission, one of the requirements is a voluntary acknowledgement through a statement of the existence of certain facts during the judicial or quasi-judicial proceedings, which conclude as true or valid the allegations made in the proceedings or in the notice. The formal act of acknowledgement during the proceedings waives or dispenses with the production of evidence by the contesting party. The admission concedes, for the purpose of litigation, the proposition of fact claimed by the opponents as true. An admission is also the best evidence the opposite party can rely upon, and though inconclusive, is decisive of the matter unless successfully withdrawn or proved erroneous by the other side.
13.2 The above being the position, pithily stated on what constitutes an admission, Section 17 of the Act does
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not come in aid to answer or appreciate the documentary evidence marked in the suit. Therefore, Section 17 has to be read along with Section 18 of the Act, which reads thus:-
"18. Admission by party to proceeding or his agent.-Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions.
by suitor in representative character.- Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. Statements made by -
(1) by party interested in subject-matter.-
persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or (2) by person from whom interest derived.- persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.." 13.3 Section 18 of the Act deals with:
(i) admission by a party to a proceeding,
(ii) his agent,
(iii) by a suitor in a representative character,
(iv) statements made by a party in trusted subject matter,
(v) statements made by a person from whom interest is derived.
The qualifying circumstances to merit as admission are subject to satisfying the requirements.
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14. The Privy Council in Gopal Das and another v. Sri Thakurji and others, held that a statement made by a person is not only evidence against the person but is also evidence against those who claim through him. Section 18 of the Act lays down the conditions and the requirements satisfied for applying to a statement as an admission. We keep in our perspective Sections 17 and 18 of the Act while appreciating Exs. B-3 and B-6."
(emphasis supplied)
30. At this stage, it is also relevant to cite the judgment of Hon'ble Supreme Court in the case of GAIV DINSHAW IRANI AND OTHERS vs. TEHMTAN IRANI AND OTHERS reported in AIR 2014 SC 2326, wherein it is held that the appellate Court is not precluded from taking note of developments subsequent to commencement of the litigation, if such events have a direct bearing on the relief claimed by the parties in the suit to mould the relief accordingly. In this regard, as it is argued by the learned Senior Counsel appearing for the respondent/plaintiff-Mutt that Writ Petition No.39335-36 of 2018 is pending consideration before this Court to adjudicate the question of grant made in favour of the plaintiff-Mutt is concerned, and therefore, in the light of the said fct, I find force in the submission made by learned Senior Counsel appearing for the appellant/defendant-Mutt that the finding recorded by
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both the Courts below, requires to be set-aside as the plaintiff- Mutt had failed to establish that the plaintiff-Mutt is in lawful possession over the schedule property consequently, it cannot be held that the plaintiff-Mutt alone is performing Aradhana of Sri. Narahariteertha Swamy. Therefore, on careful examination of the finding recorded by the Trial Court on issue Nos.1 and 2 as mentioned above, I am of the view that the reasons assigned by the Trial Court are far from the factual aspects on record and as such, interference is called for in respect of finding recorded by the Trial Court in Original Suit No.15 of 1998. It is also necessary to conclude that, in the light of the observation made above that the Trial Court was misdirected in appreciating the evidence of PW1 as well as the finding recorded on issue Nos.1 and 2, the First Appellate Court ought to have applied its mind in the right perspective in the light of provision contained under Order XLI Rule 31 of the Code of Civil Procedure Code, so also, the dictum of Hon'ble Supreme Court in the case of SANTHOSH HAZARI vs. PURUSHOTTAM TIWARI (DEAD) BY LEGAL REPRESENTATIVES reported in (2001) 3 SCC 179. Therefore, I am of the considered opinion that, both the Courts below have failed to establish that the respondent/plaintiff-Mutt had made out a case for grant of relief of permanent injunction, which is discretionary and
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equitable in nature and accordingly, interference is called for under Section 100 of Code of Civil Procedure that, in view of perversity in the judgment and decree passed by both the Courts below.
31. Nextly, though the learned Senior Counsel Sri. Prabhuling K. Navadgi, appearing for appellant/defendant-Mutt places reliance on the judgment of this Court in Regular Second Appeal No.100446 of 2015 decided on 03rd July, 2024 between the very same parties, however, in view of the fact that the said judgment is pending consideration before Hon'ble Supreme Court in C.A. No.13706 of 2024 and leave has been granted therein, I do not wish to consider the submission of both the sides on this aspect.
CONCLUSION
32. In view of the judgment of Hon'ble Supreme Court in the case of MOHD. YUNUS vs. GURUBUX SINGH reported in 1995 Supp (1) SCC 418, I am of the view that, both the Courts below have grossly mis-appreciated the evidence on record particularly the deposition of PW1, which goes to the root of matter. Therefore, interference is called for in this appeal under Section 100 of the Code of Civil Procedure on the sole ground that the grant made in favour of the plaintiff-Mutt itself
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is at stake in view of various proceedings referred to above and that apart, under the circumstances of the case, the plaintiff- Mutt ought to have filed suit for declaration with consequential relief as the defendant-Mutt had questioned the title of the plaintiff-Mutt in respect of the suit schedule property as there is cloud in title of the suit schedule land in view of the law declared by Hon'ble Supreme Court in the case of ANATHULLA SUDHAKAR vs. P. BUCHI REDDY (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS reported in (2008) 4 SCC
594. In addition to this, PW1 deposed that the Government had taken back the possession of land in question and nothing is placed before the Trial Court with regard to the date on which the plaintiff-Mutt regained the possession of suit schedule property. Therefore, I find force in the submission made by learned Senior Counsel appearing for the appellant/defendant-Mutt that, though there is a concurrent finding of facts, however, both the Courts below, have erroneously misread the oral and documentary evidence on record and as such, the substantial question of law referred to above favours the appellant/defendant-Mutt. The points for consideration stated above, also supports the contention of the appellant/defendant-Mutt. Accordingly, I pass the following:
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ORDER
1) Regular Second Appeal is allowed;
2) Judgment and decree dated 05th August, 2006 passed in Regular Appeal No.11 of 2003 on the file of the Additional Civil Judge (Sr.Dn.), Hospet and judgment and decree dated 16th January, 2003 passed in Original Suit No.15 of 1998 on the file of the Additional Civil Judge (Jr.Dn.) and JMFC., Hospet are hereby set-
aside;
3) Original Suit No.15 of 1998 filed by the plaintiff-Mutt on the file of the Additional Civil Judge (Jr.Dn.) and JMFC., Hospet is hereby dismissed.
Sd/-
(E.S. INDIRESH) JUDGE ARK