Saluja Mukesh Kumar RSA NO.21 of 2014 1 2014.02.05 10:20 I attest to the accuracy and integrity of this document HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH RSA NO.21 of 2014 (O&M) Date of decision:10.1.2014 Darshan Singh ...Appellant Versus Municipal Council, Bassi Pathana ...Respondent CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK1 To be referred to the Reporters or not ?.
2. Whether the judgment should be reported in the Digest ?. Present: Mr.Gourav Goel, Advocate, for the appellant. RAMESHWAR SINGH MALIK, J.
(Oral) Plaintif has filed the instant regular second appeal against the concurrent findings recorded by the learned courts below in a suit for permanent injunction. Facts first. The suit for injunction was filed by the plaintiff-appellant claiming himself to be in physical possession of the shop in dispute for the last more than 50 years. It was pleaded that the plaintiff was running his business of repair of tractor parts etc. in the said shop under the name and style of M/s Jagdev Engineering Works. It was also claimed that the shop in question was earlier in possession of Shri Ram Singh, father of the plaintiff. Referring to a judgment and decree dated 5.2.1993 passed in Civil Suit No.9/06.1.1992 titled as `Shanti Devi v. Municipal Council', it was asserted by the plaintiff-appellant that it was held in the suit that the defendant was neither the owner nor in possession of Khasra No.422 in Saluja Mukesh Kumar RSA NO.21 of 2014 2 2014.02.05 10:20 I attest to the accuracy and integrity of this document which the shop in dispute was situated. Since the defendant was threatening to dispossess the plaintiff forcibly, he filed the present suit praying for decree of permanent injunction. Having been served with notice of the suit, defendant appeared and filed its written statement controverting the allegations levelled by the plaintiff. It was asserted that Smt. Shanti Devi has earlier filed the suit against this very defendant admitting the defendant to be the owner of the suit property bearing khasra No.422. Even in a subsequent litigation, Smt. Shanti Devi admitted the defendant-municipal council to be the owner of the suit property. It was further averred that the defendant was owner in possession of the suit property and plaintiff has no concern with it. It was also pleaded that the suit property vests in the defendant-municipal council in view of notification dated 7.1.1976 by virtue of which, the municipal limits were extended. Earlier, Smt. Shanti Devi widow of Shri Lachhman Dass claimed herself to be in possession of the suit property. She started litigation with the defendant council and ultimately eviction petition filed by the defendant was accepted by the court of competent jurisdiction on 25.1.2006 and the appeal of Smt. Shanti Devi was also dismissed. On completion of pleadings of the parties, the learned trial Court framed the following issues:- 1. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for in the head note of the plaint?. OPP.
2. Whether the suit is not maintainable?. OPD.
3. Whether the plaintiff has locus standi to file the present suit?. OPP.
4. Relief.”
. Saluja Mukesh Kumar RSA NO.21 of 2014 3 2014.02.05 10:20 I attest to the accuracy and integrity of this document To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial Court came to the conclusion that plaintiff failed to prove his case. Accordingly, the suit was dismissed vide judgment and decree dated 1.8.2013. Feeling aggrieved, the plaintiff filed his first appeal which also came to be dismissed by the learned Additional District Judge, Fatehgarh Sahib vide impugned judgment and decree dated 23.11.2013. Hence, this appeal. Learned counsel for the appellant submits that the learned courts below have proceeded on erroneous approach while passing the impugned judgments and decrees. The plaintiff-appellant has been coming in physical possession over the suit property since the time of his father and for the last more than 50 years. In such a situation, the appellant was entitled to protect his old and continuous possession even against the true owner because the appellant could have been dispossessed only in accordance with law. Relying upon the judgments of Hon'ble Supreme Court in Rame Gowda (D) by Lrs v. Mr. Varadappa Naidu (D) by Lrs. And Anr., 2004(1) SCC769and Walter Louis Franklin (Dead) through Lrs. v. George Singh (Dead) through Lrs., (1997) 3 SCC503and the judgments of this Court in Hukam Singh v. Tara Singh and others, 1992 CCC771(P&H), Puran and others v. State of Haryana and others, 2007(3) RCR (Civil) 3 and Kulwinder Singh v. Khem Lal Bansal and others, 2012 (5) RCR (Civil) 233, learned counsel for the appellant prays for setting aside the impugned judgments and decrees passed by the learned courts below by allowing the instant appeal. Saluja Mukesh Kumar RSA NO.21 of 2014 4 2014.02.05 10:20 I attest to the accuracy and integrity of this document Having heard the learned counsel for the appellant at considerable length, after going through the record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 Code of Civil Procedure ('CPC' for short) because no question of law, much less substantial question of law thereof, has been found involved in the present case. To say so, reasons are more than one, which are being recorded hereinafter. With a view to prove his case, plaintiff-appellant appeared in the witness box as PW-1 narrating his stand taken in the plaint by way of his affidavit Exh. PW1/A. However, in his cross-examination, plaintiff admitted the fact that property in dispute was situated in Khasra No.422. He also admitted that he had no proof of ownership qua the suit property. It was further admitted by the plaintiff-appellant that he had no license regarding the disputed property to show his possession. The plaintiff also did not bring on record any kind of evidence to establish that he was carrying business in the disputed property. He further admitted that there was an earlier litigation instituted at the instance of Smt. Shanti Devi against the defendant-municipal council. It was also not denied by the plaintiff that one suit has already been filed by Smt. Shanti Devi for possession against the defendant- municipal council but that suit was withdrawn by her. In the absence of supporting cogent evidence, the electricity bill alone would be of no help to the plaintiff-appellant. In view of the admission made by the plaintiff himself, the learned courts below rightly recorded concurrent findings of Saluja Mukesh Kumar RSA NO.21 of 2014 5 2014.02.05 10:20 I attest to the accuracy and integrity of this document facts that the plaintiff was not in possession of the suit property because of which the impugned judgments deserve to be upheld. Plaintiff produced three more witnesses besides himself namely; Bant Singh (PW-2), Raj Kumar (PW-3) and Bhupinder Kumar Pathak (PW-4). Evidence of these three witnesses was also of no help to the plaintiff. Raj Kumar (PW-3) admitted in his cross-examination that the Government has already laid the foundation stone for construction of bus- stand at the disputed site. Thus, none of these three witnesses could either prove ownership or possession of the plaintiff on the disputed property. Once the plaintiff has failed to prove his possession over the suit property, he was rightly held not entitled for decree of permanent injunction. On the other hand, defendant-municipal council brought on record voluminous documentary evidence in the form of Exhibits D2 to D11 to show that the plaintiff had no connection with the suit property. Much stress was laid on behalf of the plaintiff on the cross-examination of Ramji Dass (DW-1). However, Ramji Dass (DW-1) made it clear in his cross- examination that name of the plaintiff was no where mentioned in the record. Mutation sanctioned by the competent authority on the basis of government notification dated 7.1.1976 also established the ownership of the defendant-municipal council. So far as the possession was concerned, an ejectment petition having been instituted by the municipal council under the Punjab Public Premises Act, qua the suit property against Smt. Shanti Devi, an ejectment order Exh.D5 was passed which clinches the issue regarding possession against the plaintiff-appellant. Thus, the learned courts below committed no error of law while rendering their concurrent findings of facts, dismissing Saluja Mukesh Kumar RSA NO.21 of 2014 6 2014.02.05 10:20 I attest to the accuracy and integrity of this document the suit of the plaintiff-appellant and the impugned judgments and decrees deserve to be upheld for this reason also. In fact, admission on the part of the plaintiff-appellant himself clearly proves that previously Smt. Shanti Devi was in possession of the suit property. Order of ejectment has already been passed against Smt. Shanti Devi vide Ex. D5. Further, the appeal preferred by Smt. Shanti Devi against ejectment order also stood dismissed vide order Ex. D10. In this view of the matter, it can be safely concluded that plaintiff failed to establish his possession by leading reliable and cogent evidence. It goes without saying that onus was on the plaintiff to prove his case and he miserably failed to discharge his onus. Having said that, this Court feels no hesitation to conclude that the learned courts below rightly appreciated the facts and law while passing their respective impugned judgments and decrees and same deserve to be upheld. So far as the above-said judgments relied upon by the learned counsel for the appellant are concerned, a close perusal thereof would show that none of the judgments is applicable to the facts of the present case. The judgments would have been applicable only if the plaintiff-appellant would have established his physical possession over the suit property. However, in the present case, he failed to do so. Once the plaintiff has failed to discharge his onus to prove the possession over the suit property, he was rightly not found entitled for decree of permanent injunction because of which none of the judgments cited by the learned counsel for the appellant are applicable herein. Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before Saluja Mukesh Kumar RSA NO.21 of 2014 7 2014.02.05 10:20 I attest to the accuracy and integrity of this document applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC533 During the course of hearing, learned counsel for the appellant failed to point out any jurisdictional error or patent illegality apparent on the record of the case in either of the impugned judgments so as to convince this Court to take a different view than the one taken by the learned courts below. The learned courts below have recorded concurrent findings of facts. Thus, there is no scope for interference at the hands of this Court while exercising its appellate jurisdiction under Section 100 CPC because there is no question of law, much less substantial question of law thereof, found involved in the instant appeal. By now, it is the settled proposition of law that whenever findings recorded by the learned courts below are primarily based on oral evidence, this Court would not interfere while exercising its appellate jurisdiction under Section 100 CPC. It has been so held by the Hon'ble Supreme Court in a catena of judgments and particulars of some of them are: Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, (1998) 3 SCC331:
1998. 3) RCR(Civil) 6 (SC); Satya Gupta v. Brijesh Kumar, (1998) 6 SCC423:
1998. 4) RCR(Civil) 37 (SC); Chandrabhagabai v. Ramakrishna and others, (1998) 6 SCC207:
1998. 3) RCR(Civil) 391 (SC); Ram Prasad Rajak v. Nand Kumar and Bros. and another, 1998(2) R.C.R.(Rent) 249 : (1998) 6 SCC213 State of Rajasthan v. Harphool Singh (dead) through L.Rs., (2000) 5 SCC652:
2000. 3) RCR(Civil) 191 (SC); M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar, (2000) 10 SCC244 Saluja Mukesh Kumar RSA NO.21 of 2014 8 2014.02.05 10:20 I attest to the accuracy and integrity of this document Baidyanath Bhattacharya v. S. Karmakar, (2000) 9 SCC505 Manorama Thampuratti v. C.K. Sujatha Thampuratti, (2000) 9 SCC233 Chandragouda and another v. Shekharagouda S. Pittanagoudar, (2000) 10 SCC617 Thimmaiah and others v. Ningamma and another, (2000) 7 SCC409:
2000. (4) RCR(Civil) 609 (SC); Mohd. Abdul Muqtedar v. Sk. Fakruddin, (2000) 9 SCC384 G. Thankamma Amma v. N. Raghava Kurup, (2000) 9 SCC517 Ananta Kalappa Jaratakhane v. Krishtappa, (2000) 9 SCC735 Kempaiah v. Doddanaraiah, (2000) 9 SCC60 Mohd. Hadi Hussain v. Abdul Hamid Choudhary, (2000) 10 SCC248and Ajit Chopra v. Sadhu Ram, (2000) 1 SCC114:
1994. 4) RCR(Civil) 635 (SC). The consistent view taken by the Hon'ble Supreme Court in the above-said judgments came to be reiterated further in the case of Narayan Rajendran & another v. Lekshmy Sarojini & others, 2009(2) RCR (Civil) 286. The relevant observations made by the Hon'ble Supreme Court in paras 63 to 72 of the judgment in Narayanan Rajendran's case (supra), which can be gainfully followed in the present case, read as under:-
“63. The analysis of cases decided by the Privy Council and this court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. Even prior to amendment, the consistent position has been that the courts should not interfere with the concurrent findings of facts.
64. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in Saluja Mukesh Kumar RSA NO.21 of 2014 9 2014.02.05 10:20 I attest to the accuracy and integrity of this document the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was : (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question.
65. The fact that, in a series of cases, this court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any Saluja Mukesh Kumar RSA NO.21 of 2014 10 2014.02.05 10:20 I attest to the accuracy and integrity of this document second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.
66. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.
67. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100.
68. The High Court seriously erred in interfering with the findings of facts arrived at by the trial court and affirmed by the first appellate court.
69. The scope of interference by the High Court in second appeal under section 100 Civil Procedure Code after 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. Saluja Mukesh Kumar RSA NO.21 of 2014 11 2014.02.05 10:20 I attest to the accuracy and integrity of this document 70. The legislative intention has been clearly spelt out in a series of cases of this court. In Gurdev Kaur (supra), this court exhaustively dealt with the cases before and after 1976 Amendment of CPC. This court clearly observed that the scope and ambit of section 100 Civil Procedure Code has been drastically changed after the amendment.
71. It is a matter of common experience in this court that despite clear enunciation of law in a catena of cases of this court, a large number of cases are brought to our notice where the High Court under section 100 Civil Procedure Code are disturbing the concurrent findings of fact without formulating the substantial question of law. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this court is compelled to interfere in a large number of cases decided by the High Courts under section 100 CPC. Eventually this court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial question of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.
72. We have once again undertaken this exercise and tried to crystallize the legislative intention by referring to a number of cases decided by this court with the hope that now the High Courts would refrain from interfering with the concurrent Saluja Mukesh Kumar RSA NO.21 of 2014 12 2014.02.05 10:20 I attest to the accuracy and integrity of this document findings of fact without formulating substantial question of law.”
. Reverting back to the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court in the judgments referred to here-in-above, it is unhesitatingly held that while exercising its appellate jurisdiction under Section 100 CPC, this Court will not interfere in the concurrent findings of facts recorded by the learned trial Court and affirmed by the first appellate court, particularly when the concurrent findings of facts are primarily based on oral evidence. Further, this Court will be transgressing its jurisdiction, while causing interference exercising its appellate jurisdiction under Section 100 CPC, if there is no substantial question of law involved. The learned counsel for the appellants could not raise any substantial question of law nor any has been found involved. Thus, the present one has not been found to be a fit case for interference at the hands of this Court. No other argument was raised. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is bereft of merit and without any substance, thus, it must fail. No case for interference has been made out. Consequently, the impugned judgments and decrees passed by the learned courts below are upheld. Resultantly, the instant appeal stands dismissed. Pending application also stands disposed of. No costs. 10.1.2014 (RAMESHWAR SINGH MALIK) mks JUDGE