Full Judgment
2. The facts giving rise to this appeal in short are that respondent herein filed the aforesaid suit contending that the abovementioned property was bought by him from its earlier owner Musammat Kabodari Bai, vide registered sale deed dated 9.5.1964. The appellant herein being son of his sister Mamola Bai was residing at village Majiwada with her parents where education facilities was not available. Due to such reason to make him educated and to get the employment, the respondent brought him in his family and by the time his parents also came there and started to reside with him. After some time, the parents of the appellant made him a request to provide them separate accommodation for residence, on which disputed house was given to them on tenancy @ Rs.20/- per month. The appellant and his parents being nearest relative, the respondent did not make any dispute with respect of the rent of such accommodation and did not take any step to get it vacated from them. Before six years from the date of filing the suit, his sister Mamola Bai had died. Thereafter the appellant did not pay the rent of such accommodation for two years. The same was not objected by the plaintiff but in the year 2000, when the appellant without his permission has started the activities to change the nature of property by removing the tiles of roof, on which firstly he approached the Tahsildar with a prayer to restrain the appellant from such activities. In such proceeding some order was passed. Consequently such construction activity was stopped by the appellant. But by carrying out such activities, the appellant had challenged and interfered in his right and title of such property. In further averment of the plaint, it is stated that such property was never sold by him to his brother, Shiv Prasad. Such Shiv Prasad being his brother was residing in some part of premises with his consent. In such premises, Shiv Prasad did not have any right or title over the property to transfer or assign the same to some other person. The disputed accommodation was constructed by the respondent himself. It is also stated that the appellant and his parents were neither remained in possession of such premises as owner of it nor perfected the right of ownership over such property by adverse possession. The same is neither recorded in the name of the appellant in Gram Panchayat record nor having any document of title of the same in his/their favour. In continuation it is stated that alleged sale deed dated 23.11.1971 got executed by the appellant in his favour from Shiv Prasad did not give him any right in the disputed property as Shiv Prasad did not have any right or title to transfer or assign the same in favour of the other person like the appellant. It is also denied in the plaint that in the knowledge of the respondent, the appellant had enjoyed such property openly and continuously and without any interference from the side of the respondent by spending huge amount of Rs.50,000/- on it. In addition by way of amendment, it is stated that in the written statements of the appellant by challenging the title of the respondent he has caused substantial injury to his right and title of such property. With these averments, the above mentioned suit is filed.
3. In written statements of the respondent, besides the undisputed facts relating to the relationship of the parties, it is stated that in the year 1964 some small part of such property was purchased by the respondent having length and width 9x8 hand, on which one hut (chapara) was situated. In further pleadings it is stated that in the year 1957, the appellant came in the family of respondent his maternal uncle for his eduction. Thereafter in 1958 he started the work of tailoring with the respondent. Near about in the year 1966 the respondent also called his sister and brother in law, the parents of the appellant to such village and asked them to construct their house on the disputed land for their residence, on which father of the appellant had constructed a room in the year 1966-67. Such land was adjoining to the abovementioned purchased property of the respondent. After constructing such house the appellant and his parents started to reside in the same. Thereafter nearabout in the year 1969 the aforesaid hut (chhapra) was sold by the respondent to his brother Shiv Prasad without any conveyance in writing or documentation because of such transaction was between the real brothers. Subsequent to it after two years Shiv Prasad had sold such property in favour of the appellant, vide registered sale deed dated 23.1.1971 and since then he is coming in possession of the same as owner of it. Meanwhile in the year 1973 he also constructed additional room at the place of the hut on adjoining to the existing room by spending Rs.50,000/-. The appellant had purchased such property from Shiv Prasad deeming him to be the ostensible owner of it, and on carrying out the construction of such house by him, the same was never objected or obstructed by the respondent-plaintiff. In such premises, the respondent did not have any right to take the possession of such property. In further pleading, it is stated that on the strength of the aforesaid sale deed dated 23.11.1971, he being in possession as owner of it, in the knowledge of the respondent and also spent a huge sum on its development had perfected his title on it by adverse possession. Now respondent did not have any authority to challenge the title of the appellant under the principle of estoppal and prayed for dismissal of the suit by awarding the compensatory cost to him.
4. In view of pleadings of the parties, after framing the issues and recording the evidence, on appreciation of the same, by holding that such property was purchased by the respondent from its earlier owner and was never sold by him to Shiv Prasad or any other person, in such premises, Shiv Prasad did not have any saleable right or authority to transfer or alienate the same in favour of the appellant or his parents and pursuant to it sale deed dated 23.11.1971 had not conferred any right or title to the appellant and also by holding that the appellant had not perfected the right of ownership over such property by adverse possession, decreed the suit of the respondent for possession and perpetual injunction On which the appellant preferred the appeal before the Subordinate appellate court. On consideration by affirming such decree of the trial court, the same was dismissed, on which the appellant has come forward to this court with this appeal.
5. Shri B.R. Koshta, learned appearing counsel of the appellant after referring the aforesaid pleadings of the parties, evidence and the exhibited documents argued that without proper appreciation of the evidence available on record and contrary to his perfected right of title through the aforesaid sale deed, dated 23.11.1971 executed by Shiv Prasad in his favour or in any case by adverse possession, the suit of the respondent has been decreed against him under wrong premises. In continuation he said that the land, on which the alleged house is situated being nazul land, the suit of the respondent could not be decreed against him. In any case after selling such property to him by Shiv Prasad the real brother of the respondent by the aforesaid sale deed, the respondent did not have any authority or right to get the decree, as prayed in the suit. He also argued that the respondent is estopped by his conduct to get such decree by virtue of Section 115 of Evidence Act as he did not object his construction of the alleged house when the same was carried out and prayed for admission of this appeal on the proposed substantial questions of law raised in the appeal memo.
6. Having heard the counsel keeping in view his arguments, I have carefully examined the record of the courts below alongwith the impugned judgments.
7. As per concurrent findings of the courts below the disputed house and its land described in plaint was bought by the appellant from its earlier owner, vide registered sale deed dated 19.5.1964, (P-1) and subsequent to such registered sale deed such property or any part of it was never sold by him either to Shiv Prasad or to any other person. So Shiv Prasad did not have any authority or right to transfer the same and if the same was transferred by Shiv Prasad, vide sale deed dated 23.11.1971 in favour of the appellant or his family, then such document did not give any right or title to the appellant in the alleged property. On going through the evidence, I have not fond any perversity in appreciation of the same in the judgments impugned. So such concurrent findings of courts below on this question holding the appellant did not acquire any title in the disputed property being based on evidence is a finding of fact and the same could not be interfered at this stage, by appreciation of evidence in view of law laid down by the Apex Court in the matter of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others reported in AIR 1999 S.C. 2213 in which it is held as under :-
" The right of appeal is neither natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force of the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal can not be decided on merely equitable grounds. The concurrent findings of facts however, erroneous can not be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of law. 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 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 can not 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."
8. So far the question raised on behalf of appellant that he has perfected his title on such property by adverse possession is concerned, it is apparent on record that on appreciation of evidence courts below have concurrently held that appellant had not perfected his right or title over such property by adverse possession. The same being findings of facts is not giving rise to any substantial question of law, which could be interfered under Section 100 of the CPC at this stage by entertaining this appeal. As such in view of law laid down by this court in the matter of Seeganram v. Magna reported in 1986 Weekly Note, Vol. 1 No. 87 and in the matter of Ram Singh v. Kashiram reported in 1997 Revenue Nirnay 195, the concurrent findings of courts below based on appreciation of evidence on the issue of adverse possession being findings of facts could not be interfered under Section 100 of CPC at the stage of second appeal.
9. So in the aforesaid premises, this appeal is not involving any substantial question of law on the grounds raised by the appellant's counsel in his argument.
10. I have found one more circumstance in the judgment of the courts below that in pendency of the impugned suit Smt. Balli (PW-5), the wife of said Shiv Prsad was alive and by entering in the witness box categorically deposed that for two years her family was residing in the disputed house as tenant of the respondent @ Rs.10/- per month. On that basis also concurrently held by the courts below that Shiv Prasad never remained the owner of such property and in such premises, he was not having saleable right in such property, Therefore, in such premises, also I have not found any circumstance to admit this appeal by framing any substantial question of law. 11.So far the argument of the appellant advanced on the principle of estoppal is concerned, it is suffice to say that when on appreciation of the evidence the courts below have concurrently found that appellant has never perfected his title over the property either by the alleged document of sale or by adverse possession, then in view of aforesaid legal position the principle of estoppal does not come in the way of the respondent to get the decree of possession and perpetual injunction. So such argument is also not helping to the appellant for admission of this appeal.
12.In such premises also there is no circumstance to frame any substantial question of law.
13.In view of aforesaid discussion, I have not found any substance or circumstance in the matter giving rise to any question of law, rather than substantial question of law requiring any consideration under Section 100 of CPC at this stage. Therefore, this appeal being devoid of any such question deserves to be and is hereby dismissed at the initial stage of motion hearing. There shall be no order as to the cost.