Madhya Pradesh High Court
Balaram vs Badri on 6 January, 2020
Equivalent citations: AIRONLINE 2020 MP 25
Author: Vivek Rusia
Bench: Vivek Rusia
HIGH COURT OF MADHYA PRADESH, INDORE
SINGLE BENCH:HON'BLE SHRI JUSTICE VIVEK RUSIA
S.A.No.1317/2017
Balaram
Vs.
Badri & Others
______________________________________________________
Shri Nitin Phadke, learned counsel for the appellant.
Whether approved for reporting:
Reserved on 29.11.2019
______________________________________________________
JUDGEMENT
(Delivered on 06/01/2020) This is an appeal filed by the plaintiff arises out of the judgment and decree dated 29.02.2016 passed by 2nd Civil Judge Class-II, Dhar and Judgment dated 10.08.2017, passed by the IIIrd Additional District Judge, Dhar whereby the suit as well as the first appeal both have been dismissed respectively.
Facts of the case, in short, are as under:
The plaintiff is a permanent resident of Gram Aali, Tehsil and District Dhar. According to him, he is cultivating the agricultural land bearing Survey No.365/1/1 (area 0.304 hectares) with the help of his brothers. The defendant Nos.1 to 3 without any legal right came to the agricultural field on 06.03.2011 near about 8 AM and started construction by digging the holes. The plaintiff and the other villagers tried to convince them, but they abused them and did not stop illegal work. The plaintiff lodged a report in the Police Station, Nalcha and thereafter, made a complaint to the Tehsildar and Patwari for obtaining stay. On 27.03.2011 again the defendants came with 8-10 labours and started the construction of columns and beams. Being aggrieved by the aforesaid conduct, the plaintiff filed the present suit for declaration of title and permanent injunction on 01.04.2011. According to the plaintiff, after 01.04.2011, the defendants have completed the construction.
The defendant Nos.1 to 3 filed the written statement by submitting that they are in possession over the suit land since the period of ancestors. The suit is not maintainable for want of relief of possession. The plaintiff has not impleaded Pradhan Mantri Sadak Yojna Authority as one of the necessary party, hence, the suit suffers from non- joinder of parties. The suit is barred by time as the plaintiff did not approach within 12 years from the date of possession. The defendants further pleaded that the plaintiff is not exclusive owner of the suit land , he ought to have impleaded other co-owners as plaintiffs in the civil suit.
On the basis of pleadings the trial Court framed 7 issues for adjudication. The plaintiffs examined himself as PW1, Babulal as PW2, Nirmal Sharma as PW3 and got exhibited 21 documents as Exhibit P/1 to P/21 and photographs and CD as article A/1 to A/4.
In defence, the defendants have examined Badri as DW1, Pratap as DW2, Kanhaiya as DW3, Babu as DW4, Ramprasad as DW5 and got exhibited four documents as Exhibit D/1 to D/4.
After appreciating the evidence came on record vide judgment and decree dated 16.10.2012, the learned civil Court has dismissed the civil suit. Thereafter, the plaintiff preferred F.A.No.53-A/2012. Vide judgment dated 03.12.2014 learned ADJ has set aside the judgement and decree and remanded the case back to the trial Court for fresh adjudication.
After the aforesaid remand, the learned civil Judge has considered evidence came on record and recorded the findings on issue No.1 and 2 against the plaintiff. The findings on issue Nos.3 and 4 have been answered against the defendants and the findings on issue Nos. 5 to 7 have been answered against the plaintiff. Learned civil Court has held that the plaintiff has failed to prove his possession and the exclusive title over the suit land. The suit suffers from the non-joinder of party as the plaintiff is not alone the exclusive owner of the property. Vide judgement and decree dated 29.02.2016 the civil Court has dismissed the civil suit.
Being aggrieved by the judgement and decree the plaintiff preferred a first appeal i.e. F.A.No.30-A/2017. Vide judgment dated 10.08.2017, learned 3rd Additional District judge , Dhar has dismissed the appeal, hence, the present second appeal before this Court.
Shri Nitin Phadke, learned counsel appearing for the appellant submits that both the Courts below have committed grave illegality in dismissing the suit despite the fact that the plaintiff is title holder of the suit land. The plaintiff has successfully proved the encroachment by the defendants without any authority despite that by misleading the demarcation report Exhibit P/16 and P/19 the Courts below have dismissed the suit and first appeal as well. The plaintiff has duly proved his case by examining the revenue inspector and Patwari (PW3 and PW4). The plaintiff being co-owner can file a suit for protection of his land from encroachment. The other co- owners are not necessary party in the suit. Despite remand by the first appellate court, the trial Court did not give proper opportunity to the plaintiff, hence, appeal is liable to be admitted on the following substantial questions of law:
"A. Whether findings recorded by the Courts below regarding failure of the appellant-plaintiff to prove the extent of encroachment with exactitude are perverse on account of misreading of the documents Exhibit P/16 and P/19 as also the statements of PW/3 and PW/4.?
B. Whether the lower appellate Court has committed an illegality in upholding the judgment of the trial Court which was passed without complying the specific directions of the appellate Court given in the remand order dated 03.12.2014?
C. Whether the Courts below have committed an illegality in non-suiting the appellant despite the establishment of the ownership and title of the appellant in respect of the suit land and failure of the respondents to prove their adverse possession over the encroached area of the suit land?"
Appreciation & Conclusion:-
The plaintiff approached the civil Court claiming himself to be title holder and in possession of the suit land. He has alleged that on 06.03.2011 and 10.04.2011 the defendants have illegally tried to raise construction over the suit land. The defendants came up with the plea that they are in possession since the period of their ancestors and acquired the title by way of adverse possession, the suit is time barred and suffers their non-joinder of parties. In order to prove the title the plaintiff filed Exhibit P/20, a sale deed dated 30.06.2008 whereby his mother Somali Bai purchased the suit land from Ramgopal and thereafter vide Exhibit P/21 the suit land had been mutated in the name of Somali Bai. After the death of Somali Bai the land has been mutated in the name of plaintiff but he not disclosed that how his name has been mutated in the records when he has inheritated the suit land co-jointly with his brothers viz Mahesh, Amar Singh, Dinesh and sister Kamla Bai, therefore, the plaintiff cannot become the exclusive owner of the suit land and despite that he filed the suit land without impleading his brother and sister as plaintiff or defendant. The plaintiff did not produce Will, consent letter, NOC or relinquishment deed in his favour. He has also not examined his brother and sister as witnesses. In para 23 of cross-examination, he has admitted that he is having five brothers and all are still alive being legal heirs of Somali Bai. He has also admitted that Somali Bai did not execute any sale deed or Will in his favour. He has already admitted that his brothers have not given any relinquishment deed in his favour. His name alone has been mutated in the revenue record and that does not confer any title in his favour. Therefore, it is clear that the relief of declaration and permanent injunction cannot be granted to him without there being co-shearer as plaintiffs in the sui .
Vide Annexure P/19 and P/20 it has been established that the defendants are in possession over the suit land and despite that the plaintiff did not seek the relief of possession, hence, by virtue of Section 34 of the Specific Relief Act, the suit for relief of declaration is not maintainable.
Shri Nitin Phadke, learned counsel appearing on behalf of the appellant submitted that in case of encroachment the trial Court ought to have directed suo- moto under Order 26 Rule 9 of the CPC. Even if there is no application the Court may suo-moto appoint the commissioner for obtaining a report in order to resolve the dispute of encroachment. In support of his contention, he has placed reliance over the judgment passed in the case of Prembai (Smt.) Vs. Ghanshyam and Others, reported in 2010(2) JLJ 271 & in case of Keshav Singh Vs. Dhantobai and Others (W.P.No.5325/2018, decided on 13.01.2019) In the present case, as per Exhibit P/19 & P/20 the defendants have been found into the possession over the suit land. As per Exhibit P/19, the house of Poonamchand, Fattu Singh, Kanhaiya, Babu, Punja, Badri, Ramprasad, Umrav, Gulab, Ratanbai, Jangaliya were found, therefore, when the evidence by way of Exhibit P/19 and P/20 has already come on record in respect of possession of defendants and others in the suit land, hence there was no need to appoint a commission under Order 26 Rule 9 of the CPC. The plaintiff's suit has been dismissed on the ground that (i) he is not the exclusive owner and in occupation,(ii) he did not impleaded other brothers and sisters as plaintiffs or defendants in the suit and (iii) he has also not claimed any relief of possession, hence the concurrent findings recorded by both the courts are not liable to interfered in this second appeal .
Even otherwise, the trial Court as well as first appellate Court has dismissed the plaintiff's suit by way of concurrent findings. The law is well settled in the case of concurrent findings by the civil Court as well as by the first appellate Court. The Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, reported in (1999) 3 SCC 722, has held as under:
5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court.
It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
6. If the question of law termed as a substantial ques-tion stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR 1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.
In case of Laxmidevamma v. Ranganath, reported in (2015) 4 SCC 264, again the Apex court has held as under:
16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.
Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others, reported in (2017) 9 SCC 586 has held as under:
"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.
18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."
In view of the above, present second appeal stands dismissed.
(VIVEK RUSIA) Judge Jasleen Digitally signed by Jasleen Singh Saluja Date: 2020.01.07 17:37:50 +05'30'