Jammu & Kashmir High Court
S. Seva Singh And Anr. vs S. Surjeet Singh And Ors. on 4 December, 2006
Equivalent citations: 2007(3)JKJ149
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. This Civil Second Appeal is directed against the judgment and decree dated 8-12-1986 passed by learned District Judge, Budgam in Civil First Appeal titled S. Harbans Singh and Ors. v. S. Seva Singh and Anr. whereby and where-under the appeal of the respondents-defendants came to be allowed and the judgment and decree passed by the trial Court viz. Munsiff Budgam dated 5-9-1973, so far it related to partly decreeing the suit of the plaintiff, came to be set aside.
2. It is necessary to give a flask back of the case, which is on the dockets of the civil courts for last five decades, the womb of which has given birth to the instant appeal.
3. Appellants plaintiffs had filed a civil suit before Munsiff Budgam on 21-8-1958 seeking decree of declaration, injunction and possession. Defendants-respondents filed written statement. Six issues came to be framed on 15-10-1958. There-after plaintiffs filed an application for amendment which came to be granted and accordingly they filed amended plaint on 9-9-1959. Defendants-respondents filed amended written statement on 6-10-1959. During pendency of the suit, the sole defendant died and his legal representatives came to be brought on record. Court more issues were framed on 7-11-1960, out of which two issues were treated as preliminary issues and the suit came to be dismissed on the point of limitation vide judgment and decree dated 15-5-1962. the plaintiff-appellant assailed the said judgment and decree before the Court of District Judge, Srinagar, which came to be allowed vide judgment and decree dated 24-8-1965 and the judgment and decree of the trial Court came to be set aside and the case was remanded to the trial Court for deciding it afresh after providing opportunities to the parties adduce evidence. The defendants; respondents assailed the judgment and decree of District Judge Srinagar, before this Court and this Court vide judgment decree dated 21-9-1966 up-held the said judgment of the learned District Judge and directed the parties to lead evidence on the point' of limitation, the onus of proof of which was on the plaintiffs-appellants. The file came up before the trial Court i.e. Munsiff Budgam on 15-11-1969 and it directed the parties to lead evidence. The trial Court vide order dated 1-12-1970 framed five more issues and directed the parties to lead evidence. The case was finaly argued and decided by the trial Court vide judgment and dated 15-09-1973, whereby and where-under suit of the plaintiffs? came to be partly dismissed and partly decreed to the extent of 6 kanals and 2 marlas falling under survey No. 104 situated at village Shogapora, Budgam and held the plaintiff entitled to decree for recovery of possession for the said land.
4. It appears that the plaintiff had not challenged the judgment and decree of Munsiff, Budgam dated 15-9-1973 and that part of the judgment had attained finality, but defendants-respondents had challenged it to the extent of decreeing the suit in favour of the plaintiff. The learned District Judge allowed the appeal and set aside the judgment to that extent, vide the impugned judgment and decree.
5. Peeling aggrieved by the impugned judgment, plaintiffs -appellants preferred this civil second appeal before this Court on 16-3-1987. During the pendency of the appeal, legal representatives of respondent No. 3 came to be brought on record vide order dated 22-9-2004 and the legal representatives of respondent No. 1 also came to be brought on record vide order dated 30-3-2005.
6. Plaintiffs appellants had sought decree of declaration, decree of recovery of possession, decree of permanent injunction on the averments contained in the plaint which can be aptly and precisely enumerated as under:
7. Plaintiffs have pleaded that they are the successors and heirs of Tara Singh and are in possession of major portion of his estate. Tara Singh died leaving behind his widow Jeevan Devi and mutation of succession/inheritance was attested in her favour. After the death of Jeevan Devi, the entire estate of Tara Singh came to be mutated in the name of mother of he plaintiffs and there-after in the name of plaintiffs - appellants. It is also averred that S. Mohya Singh-defendant had no right or title over the suit property and had no right to succeed to Tara Singh. Defendant Mohya Singh came in possession of 25 kanals and 8 marlas of land out of estate of Tara Singh and accordingly had sought decree for recovery of possession to that extent and decree of prohibition restraining the defendant S. Mohaya Singh from causing any kind of interference.
8. The suit came to be resisted by the defendant Mohya Singh on the ground that Tara Singh had died in 1976 B.K. leaving behind Jeevan devi widow and him -- defendant as adopted son. He - Tara Singh could not execute adoption deed during his life time, but came to be executed later on by his widow Jeevan Devi. He came in possession of the suit land right from the death of Tara Singh, though mutation was only attested in favour of widow Jeevan Devi, "but she was living with defendant right from the death of Tara Singh and even after the death of Jeevan devi, defendant Mohya Singh continued to be in possession and his possession has ripened into ownership by virtue of adverse possession. Further he had of resisted the suit on the ground that the suit was time barred and not triable by a civil court. He was adopted son of Tara Singh, The factum of adoption was challenged by the mother of plaintiffs but mot suit came to be dismissed. After hearing the parties, the trial Court held that defendant Mohya Singh had failed to prove that he was adopted son of Tara Singh. The said finding came to be upheld by learned District Judge, white hearing and deciding appeal of the respondents vide impugned judgment. Defendants - respondents have not challenged the judgment of the appellate court.
9. As slated above, the plaintiffs appellants had not challenged that part of the decree passed by trial Court whereby suit of the plaintiff came to be partly dismissed. I he finding that the defendants failed to prove the factum of adoption has attained finality. Thus in the given circumstances, the controversy boils down to the extent of only 6 kanals and 2 marlas of land falling under survey No. 104 situated at Shogapora, Budgam.
10. The moot point for consideration in this appeal is whether the plaintiffs had Hied the suit within 12 years so far it related to 6 kanals and 2 marlas and whether the findings returned by the appellate Court is legally correct and whether it could be interfered with in the second appeal.
11. The appellants have projected and Formulated following points in the appeal:
(i) What is the evidentiary value of the Girdawari entries made for a number of years?
(ii) Can a Court of 1st. Appeal ignore the revenue record maintained for a number of years in a cursory manner and reverse the finding of fact recorded on the basis of the revenue record by the trial court?
(iii) Can a protected tenancy right created under the Tenancy Act be ignored by a Civil Court?
It appears that this Court vide order dated 6-10-1993 had formulated the following points for adjudication:
1. The evidentiary value of Girdawari entries for a long period in favour of a party:
2. Whether the 1st. Appellate Court is competent to ignore the record maintained, by the Revenue Department for a number of years?
3. What are (he rights created in favour of a party under the Tenancy Act as a protected tenant?
12. In my opinion, with respects I may say so, that this Court has not framed point No. 1 as projected, raised and formulated by the appellants in the memo of appeal. Keeping entire circumstances of the case in view, the question is whether any substantial question of law is involved in this appeal and whether points framed by this Court could be said to be substantial questions of law. I am of the considered view that the points formulated by this Court, with respect, I may say so, are not in any way substantial questions of law. In fact no substantial question of law is involved in this appeal. The 1st appellate Court vide the impugned judgment held that the entries in Girdawari and the oral evidence read with statement of S. Seva Singh, plaintiff were at variance and came to the conclusion that there was sufficient evidence on file that the entire suit land for which possession was sought was in possession of defendant S. Mohya Singh right form the death of Tara Singh. Rven plaintiffs. Seva Singh has admitted the same while tendering his statement before the trial court, lie has not made any mention as to when defendant-Mohya Singh came in possession of the suit property. Another plaintiff viz. S. Seva Singh had also not stated with to that extent. There is ample evidence on the file that mother of the plaintiffs was alive when Jeevan Devi widow of Tara Singh died and she had only brought a suit challenging alleged adoption of S. Mohya Singh, but she had not sought relief for recovery of possession during her life time. Thus the finding returned by the 1st appellante Court is correct in the given circumstances and is a finding of fact.
13. The finding on the point of limitation is a finding of fact, could not be disturbed in second appeal and could not be held to be a substantial question of law. The apex Court in a case titled Dudh Nath Pandey v. Suresh Chandra Bhattasali held that finding of limitation is n finding of fact and fresh appraisal of evidence is not permissible. It profitable to reproduce paras 6 and 7 of the judgment as under:
This pica was however, negatived by the High Court as it has never been taken when (he case was remanded to the First Appellate Court by judgment dated 8th Feb. 1961. Besides the question requires investigation into certain facts which was not possible in the Second Appeal. The High Court, however, reversed the finding of the First Appellate Court on the question of limitation relying on (he so-called admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of the defendant. Virtually, the High Court has made a fresh appraisal of the evidence and has come to a different finding contrary to the finding recorded by the First Appellate Court which the High Court could not do in the exercise of power under Section 100 of the Civil P.C. Even on merits, if the High Court had to rely upon the alleged admission in the written statement, the admission must he taken as a whole and it is not permissible to rely on a part of the admission ignoring the other. The High Court, in our opinion ha erred in making a fresh appraisal of the evidence to come to a different conclusion. Even otherwise, the plaintiff has to stand on his own strength.
According to the own admission of the plaintiff, a part of plot No. 1448 had been taken by the plaintiff form the which, the defendant filed a suit for eviction and got a decree against the plaintiff and obtained possession in execution of that decree. Obviously, therefore, a part of plot No. 1118 which was in occupation of the plaintiff at one time, belonged to the defendant. It was for the plaintiff to prove that the other part of Plot no, 1448 was settled with him by Dhalbhum Raj as alleged by him. The defendant was not obliged to prove his title in the present case. The plaintiff has to prove his title and the plaintiff sought to base his title on the settlement in 1949 from Dhalbhum Raj but the possession over the disputed plot was from much before 1949. In order to overcome this anomaly the plaintiff had to take up a stand that he was permitted by the Dhalbhum Raj Estate to take possession since 1946 although the actual settlement took place in 1949. The case of the plaintiff at the face of it looks absurd and we have our own constraints on the finding of the High Court on the question of the plaintiff's title. But as that finding on the question of plaintiff's title has become final it is no use dealing with this point any further and we have to confine ourselves only on the question whether the suit was barred by time. But the finding on the question of limitation recorded by the First Appellate Court on appraisal of evidence after taking into consideration the entire circumstances in the case was a finding of fact which could not have been set aside by the High Court in the exercise of power under Section 100 of the Civil P.C.
14. An entry recorded in the revenue record is rebuttal in terms of Section 31 of the Land Revenue Act. The parties are within their rights to lead evidence to show as to who is/was in possession and the entry recorded in the revenue record is not correct. The oral evidence could not be brushed aside because of the revenue entries. Any finding vis-a-vis revenue entry is not a finding of question of law, but is finding of fact and the High Court can not interfere with such a finding. I am fortified in my view by a judgment of the apex Court rendered in case titled Corporation of City of Bangalore V.M. Papaiah AIR 1989 SC 1809. It is profitable to reproduce para 5 of the afire said judgment hereunder:
We do agree that the suit can not be dismissed on the ground that the relief of declaration of title and possession has not been specifically mentioned in the plaint. But the observations on the question whether the issue of title is involved in the suit or not are clearly discrepant. In some other part of the judgment the High Court has mentioned a portion of the relevant evidence on the question of title and possession and made adverse comments against the findings of act recorded by the first appellate Court without giving any valid reason therefor. So far the revenue records are concerned, the appellate Court considered the same and held that they did not support the plaint. The High Court has reversed the finding saying that the interpretation of the first appellate Court was erroneous. It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question law. These errors have seriously vitiated the impugned judgment of the High Court which must be set aside
15. Apex Court in case tilled Mst. Sugani v. Kameshwar Dar 2006 AIR SCW 2606, held that appreciation of the facts, the meaning of entries and contents of documents can not be held to be raising substantial question of law. It is profitable to reproduce para 27 of the said judgment hereunder:
...If the question of law termed as a substantial question 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 if 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 can not 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 appellate Court is shown to in a judicial mariner, it cannot either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey held that whether the trail Court should not have exercised its jurisdiction differently is not a question of law justifying interference.
16. Keeping in view the ratio laid down by the apex Court in the aforesaid judgments, I am of the considered view that points I and 2 framed by this Court are not substantial questions of law.
17. Now coming to the point No. 3, neither the plaintiff nor the defendants had raised the plea of tenancy. The case projected by the parties as per pleadings as discussed above, was as to who will succeed to Tara Singh. S. Mohya Singh, defendant had not raised the plea that he was/is in possession as tenant and he has not claimed to be a protected tenant. Thus this point is beyond the pleadings. It is beaten law that a point which is beyond the pleading can not be raised in second appeal. I am fortified in my view by a judgment of the apex Court in case Siddu Venkappa Devadigs v. Smt. Rangu S. Devadiga and Ors. , whrein their lordships have held:
...the defendant traversed that claim in his written statement and pleaded that the business always belonged to him as owner. There was thus no plea that the business was 'benami' for Shivanna. We also find that the parties did not join issue on the question that the business was 'benami'. On the other hand, the point at issue was whether premises where it was being carried on. It is well settled having been laid down by this Court in Trojan and Co. v. RM. N.N. Nagappa Chettiar and Raruha Singh v. Achai Singh decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be found. The High Court, therefore, went wrong in ignoring this basic principle of law and in making out an entirely new case which was not pleaded and was not the subject matter of the trial.
18. Placing reliance on the aforesaid judgment, the apex Court in ease reported as Iswar Dull v. Land Acquisition Collector 2005 AIR SCW 3578 has taken the same view.
19. Again their lordships in case titled R.V.E. Venkatacchalla Gounder v. Arulmign Viswesaraswani has held that:
The learned Counsel for the temple, defendant respondent No. I, faintly urged that the appellant being a trustee of the temple was trying to misappropriate the property belonging to the temple. For such an insinuation there is neither any averment in the written statement nor any evidence in the written statement nor any evidence laid. Such a submission made during the course of hearing has been noted by us only to be summarily rejected....
20. It is also pertinent to mention here that plaintiffs have in para 6 of the amended plaint indicated when and how cause of action had accrued to them, They have specifically pleaded that cause of action had accrued to them prior to one year before filing of the suit. Thus they had not indicated that cause of action, accrued to them on different dates. How the learned trial Court came to conclusion that plaintiffs had brought suit within 12 years so far it related to 6 kanals and 2 marlas and not within 12 years so far it related to rest of the suit property. The opinion made and findings recorded by learned appellate Court are not perverse in any way, but are legally correct and based on facts. Viewed thus, the impugned judgment merits to be upheld.
21. For the foregoing reasons, this appeal is dismissed being without merit and the impugned judgment is upheld.
22. Registry to prepare decree sheet. Send down the record to the trial Court as well as to the appellate Court alter placing copy of the judgment and decree on the record.