Naran Senapati Vs. Cuttack Municipality, Through Its Chairman, the Collector and ors. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 3. on consideration of materials and the evidence on record, the learned munsif as well as the learned additional subordinate judge came to hold that the plaintiffs have failed to establish their right, title and interest over the suit property. (c) failure to determine some material issue of law; (d) failure to determine some material issue of usage having the force of law ;and (e) substantial error or defect in procedure which may possibly have affected the decision of the case on merits. under the present section substituted by amendment in 1976. operative from 1-2-1977, a second appeal will lie only if the court is satisfied that the case involves a substantial question of law. court has to clearly understand the issue or the matter in dispute before it. the courts below have elaborately analysed the evidence on record, and have come to hold that the plaintiffs have failed to establish their case. it was further observed that plaintiffs failed to prove that suit land relating to c.a. pasayat, j. 1. a suit for declaration of exclusive right of the plaintiffs (appellant and respondents 4 to 6 in this appeal) over the suit property, for confirmation of possession and for permanent injunction against cuttack municipality (defendant no. 1-respondent no. 1) and defendants 2 and 3 (respondents' 2 and 3) interfering with peaceful possession of the plaintiffs, and for mandatory injunction ' against defendants 2 and 3 (respondents 2 and 3) to close down the windows of northern side wall of their tiled roof house existing on the southern boundary of the disputed plot no. 179 of village bidanasi, cutback, having been dismissed and the dismissal by learned first munsif, cuttack having- been confirmed in appeal by the learned additional subordinate judge, cuttack, the present appeal has been file by plaintiff no. 5 under section 100 of the code of civil procedure, 1908 (in short. 'cpc')..2. factual backdrop as presented by plaintiffs-appellants essentially is as follows : c.s. plot nos. 178 and 179 measuring ac. 0.284 decimals and ac.0.007 decimals respectively, correspond to r. s. plot nos. 203. 204 and 205. these are their private lands, which extend to the public road on its west, appertaining to c. s. plot no. 186. plaintiffs and their ancestors had been possessing the aforesaid' two c. s. plots as the part and parcel of their homestead during the current settlement operations, though plot no. 178 corresponding to r. s plot nos. 204 and 205 and a part of 203 was recorded in their names, plot no. 179 measuring ac.0.007 decimals which forms a part of r. s. plot no. 203 was mistakenly recorded in the name of cuttack municipality. notwithstanding this mistaken recording in the name of cuttack municipality, c.s. plot no. 179 all along is being used by them as a part and parcel of their hornestead, from the time of their ancestors. this mistake of recording came to the knowledge of the plaintiffs immediately prior to filing of the suit, and that is how a suit was necessary to be filed. it is further stated that the house plot of defendants 2 and 3 and the courtyard comprised in c. s. plot no. 181 abuts the public road on its east and the main public road standing on plot no. 186 is used by them for their ingress and egress to their residential house and court-yard. taking advantage of the mistake of recording there was interference with the plaintiffs' possession. there was also re-construction of the mud built thatched house by defendants 2 and 3 on the southern boundary of the disputed plot, by opening two windows towards the suit plot on their southern house wall without any permission from defendant no. 1, which affected privacy and caused inconvenience to the plaintiffs. the municipality and other defendants resisted the claim on the ground that the plaintiffs have no cause of action. 3. on consideration of materials and the evidence on record, the learned munsif as well as the learned additional subordinate judge came to hold that the plaintiffs have failed to establish their right, title and interest over the suit property. however, it 'was concluded that the disputed plot was used as a passage with approach to the main municipal road, and serves as a passage of defendants 2 and 3 and the general public. ,it was also concluded that the suit was not maintainable being barred by the principles of res judicata. reference was made to judgment and decree in title suit no. 86 of 1970.4. the scope for interference in a second appeal under section 100, cpc is very limited. . the scope of a first appeal differs from that of a second appeal in that the former is not limited to any particular: grounds of appeal such as those provided by section 100, cpc. the provision restricting the grounds that may be taken in second appeal is based on public policy expressed in the maxim interest re publicae ut sit finis litum it concerns the state that there be an end to litigation. a second appeal will lie only on the ground of an error in law or procedure. - (see kishanlal biharilal maheswari and ors. v. ramrao hanumant hao patil and anr.: air 1981 sc 1183). it will not lie merely on the ground of an error on a question of fact. the mere fact that possibly another conclusion could have been arrived at would not be a ground for interference under section 100. under the old section 100. a second appeal could be filed on the following grounds, namely:(a) the decision was contrary to law;(b) the decision was contrary to usage having the force of law;(c) failure to determine some material issue of law;(d) failure to determine some material issue of usage having the force of law ; and(e) substantial error or defect in procedure which may possibly have affected the decision of the case on merits.under the present section substituted by amendment in 1976. operative from 1-2-1977, a second appeal will lie only if the court is satisfied that the case involves a substantial question of law. unless the conclusions arrived at by the courts below are perverse and unreasonable, and are against the weight of materials on record, there is no scope for interference.5. the further question is when a substantial question of law is involved. a finding of fact recorded inferentially and without any basis gives rise to a substantial question of law. however, generally a question of law which is not dependent upon examination of the evidence and requires no fresh investigation of facts, a finding based on evidence but perverse in the sense that no normal person could arrive at that finding, a finding based on no legal evidence or without judicial consideration of the facts in issue, and the evidence on record are substantial question of law depending of course on the effect caused by them on the adjudication of the issues between the parties. complete disregard of a relevant and valuable piece of evidence gives rise to substantial question of law. misconstruing of evidence and acting without evidence amount to substantial question of law. court has to arrive at its findings of fact from the evidence tendered before it. a finding based on no evidence. or in disregard of evidence or , on inadmissible evidence or on assumptions of facts without inquiry is an error of law. court has to clearly understand the issue or the matter in dispute before it. a misconception of issue or of the true questions in controversy in the case is an error of law. court has to draw such inferences of facts as are reasonable from the facts placed before it. a refusal to draw any inference from proved facts one way or other or the drawing of an inference which cannot be drawn from and is not warranted by the facts is an error of law. a court commits an error of law when it bases its decision on no evidence at all and on mere surmises and conjectures, and/or it misreads the evidence, i.e., assumes certain evidence to exist where there is none or vice versa. unless findings of fact are shown to be unreasonable, perverse and unconnected with the evidence, there is no-scope for interference while exercising jurisdiction under section 100, cpc. the courts below have elaborately analysed the evidence on record, and have come to hold that the plaintiffs have failed to establish their case. the courts below have held that not a single document has been filed to show th3t they had title either over c. s. plot no. 179 or over r. s. plot. no. 203 or even a portion of it. it was further observed that plaintiffs failed to prove that suit land relating to c. s. plot no. 179 forms a part of r. s. plot no. 203 and the same belongs to them. so far as possession is concerned, it was observed that evidence unmistakenly established that defendants 2 and 3 and others use the suit land as a way in order to go to the western side municipal road. it was noticed by the courts below that there was no challenge to the correctness of entries in draft no. 254 of mauza bidanasi, which is a document having sufficient significance to the dispute. plaintiffs were required to establish their case, and cannot derive any support from the weakness if any in the case of the defendants. the plaintiffs having filed to establish their case, even if it is accepted that there is any inherent weakness in the case of the defendants, there is no scope for upsetting the conclusions of the courts below. the conclusions of the courts below cannot be characterised to be perverse of unreasonable.6. in that view of the matter, it is unnecessary to go into the question whether the principles of res judicata have been correctly applied to the facts of the case. the courts below have taken note of the accepted position that the disputed plot was being used as a passage. the learned counsel for municipality states that there was never any intention on the part of the municipality to affect the right of user of the passage and the public road by any person.there is no scope for interference in this appeal, and the same is accordingly dismissed; but without any order as to costs.