Dismissed

Shantisaran and Others v. Sadiq Hasan Alias Nibbar and Others

Allahabad HC6 Jun 2022/169/2022

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC, the High Court held that the first appellate court did not commit an error in reappreciating evidence to conclude the plaintiff owned the land and adverse possession was not established. The Court found no substantial question of law and dismissed the appeal.

What did the court decide?

The second appeal is dismissed at the admission stage.

Shantisaran and Others Vs Sadiq Hasan Alias Nibbar and… — Property and Title | Allahabad HC (2022)

A.F.R.

Court No. - 7

Case :- SECOND APPEAL No. - 169 of 2022

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Appellant :- Shantisaran And Others Respondent :- Sadiq Hasan Alias Nibbar And Others Counsel for Appellant :- Dinesh Kumar Mishra,Dinesh Kr. Chaudhary

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Counsel for Respondent :- A.Z. Siddiqui

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Hon'ble Subhash Vidyarthi J.

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Heard Sri Dinesh Kumar Mishra, Advocate, the learned counsel for the appellants and Sri A.Z. Siddiqui, Advocate who has filed a caveat on behalf of the plaintiff - respondent no. 1.

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By means of instant second appeal filed under Section 100 of the Code of Civil Procedure, the appellants have challenged the validity of the judgment and decree dated 30.04.2022 passed by the learned District Judge, Balrampur in Civil Appeal No. 19 of 2018 filed under Section 96 of the Code, whereby the first appeal filed against the judgment and decree dated 24.07.2018 passed by the learned Civil Judge (Junior Division), Balrampur in Regular Suit No. 98 of 1987, has been allowed and the judgment and decree of dismissal of suit passed by the learned trial court has been set aside and reversed and the suit has been decreed.

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The aforesaid suit had been filed by Late Amir Hasan, the predecessor in interest of the respondent no. 1 and 2, pleading that the house and other structures existing on the land shown in the map forming a part of the plaint belong to the plaintiffs and the remains of the structures are still lying on the aforesaid land, which is an abadi land and the land continues to be in possession of the plaintiff. Some Bamboo, Mango, Shisham and Neem trees had also been planted on the

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aforesaid land by the plaintiff, which are still existing thereon. Three huts were existing on the land in dispute, which were being used by the plaintiff's father and were in his possession. The defendants cut down and sold away some bamboos from the plaintiff’s land and the plaintiff had lodged a first information report in police stationMaharajganj complaining about the aforesaid offence. At the time of filing of the suit the plaintiff was aged about 90 years and he used to reside in the Balrampur City and he used to visit the land in question occasionally. Taking advantage of the plaintiff's absence, the defendants were trying to interfere in the possession of the plaintiff over the land in question and for this reason he filed a suit claiming permanent injunction.

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The defendant nos. 3, 5 to 12 and 14 filed a written statement, inter alia, stating that the description of the land in question given at the foot of the plaint is not correct and the defendants gave a site plan of the land in question, which according to them was correct. They pleaded that the plaintiff had not been residing in the village for the past about 50 years. When he used to reside in the village, a hut of the plaintiff existed on the land in question and when he started cultivation through other persons his hut also fell down and the site thereof came in possession of the answering defendants. The defendants stated that they were in possession of the land in dispute, therefore, the suit for permanent injunction was not maintainable.

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During pendency of the suit, the plaintiff Amir Hasan died and his sons – the Respondents no. 1 and 2 in this Second Appeal, were substituted as plaintiffs in his place.

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The following issues had been framed by the learned trial Court: -

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1- Whether the plaintiff is the owner and in possession of the land in dispute, if yes, then whether the plaintiff is entitled to get the decree of perpetual injunction as prayed by him?

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2- Whether the trees etc. existing on the land in disputed had been planted by the plaintiff, if yes, then its effect?

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3- Whether the plaintiff is entitled to any other relief?

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The plaintiff as well as the defendants had led evidence and after considering the entire evidence placed by the parties, the learned Civil Judge (Junior Division), Balrampur decided the suit holding that the plaintiffs could not prove their possession and ownership over the land in dispute. The plaint does not mention any boundaries of the land in question and the land cannot be identified by its description given in the plaint. The learned Civil Judge (Junior Division), Balrampur dismissed the suit filed by the plaintiffs for the aforesaid reasons.

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The substituted plaintiffs challenged the aforesaid judgment and decree dated 24.07.2018 by filing an appeal under Section 96 of the Civil Procedure Code in the court of the learned District Judge, Balrampur and the aforesaid appeal has been allowed by means of the judgment and decree dated 30.04.2022. The aforesaid judgment and decree dated 30-04-2022 has been challenged by the instant second appeal only the defendant no. 2, 6/1 and 14 and rest of the defendants have been arrayed as proforma respondents in the Second Appeal.

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While deciding the first appeal, the learned appellate court framed the following two points for determination in the appeal: -

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(i) Whether the disputed land is owned and possessed by the plaintiff? (ii) Whether the defendants have proved their right over the land in dispute through adverse possession?

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The learned District Judge has held that the plaintiff has stated that the disputed land is owned and possessed by the plaintiff, the construction existing on the land were raised by the plaintiff and that he had planted the trees and bamboos on the said land. The defendants pleaded that the plaintiff was in possession over the land about 50 years ago and hut of the plaintiff existed there but the same has been destroyed and the land in question came into possession of the

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defendants. The trees and bamboos existing on the land have been claimed to be planted by the defendants.

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After examining the statement of the witnesses, the learned Appellate Court held that all the witnesses examined on behalf of the plaintiff, namely, P.W.1 Jamal Ahmad, P.W.2 Sadiq Hasan, P.W.3 Ramhet, P.W.4 Mohammad Ali, P.W.5 Shamshulla and P.W.6 Sagir Ahmad had supported the plaint version and all of them have specifically stated that the disputed land along with construction and trees existing over it, is owned and possessed by the plaintiff. No material contradiction arose during examination of the plaintiff's witnesses. The learned First Appellate Court further observed that the defendants' witnesses, namely, D.W. 1, Shanti Saran (the Appellant No. 1 in the Second Appeal) in para 4 D.W. 2 Ganga Prasad in para 5, D.W. 3 Rajendra Prasad in para 4 and 5, D.W. 4 Nanake in para 7 and D.W. 5 Salik Ram in paras 4 and 5 of their respective affidavits filed as their examination-in-chief, had categorically stated that the hut on the land in question had been constructed by the plaintiff and subsequently the plaintiff left the village and started cultivation on his field through other persons.

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The learned court below came to a conclusion that on the basis of the evidence led by both the parties, it appears that the dispute arose because of absence of the plaintiff from the village for a long period of time through which period the plaintiff used to visit the village casually and occasionally while residing at Balrampur City. In such circumstances, the land in dispute would have been used by the defendants casually and occasionally in absence of the plaintiff or his legal representatives/ successors after his demise. The First Appellate Court has recorded in the judgment under challenge that D.W. 4, Nanake has stated in his cross examination that he has been told by his father that the disputed land / property was owned and possessed by the plaintiff, Late Amir Hasan during his life time and the cowshed etc. existing on the said land was constructed by him.

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The learned First Appellate Court has held that the law is well settled that when the both the parties have led evidence, the burden to proof looses its significance, the court has to draw a conclusion on the basis of the entire evidence placed on record by both the parties. The evidence adduced by both the parties is sufficient to prove that the disputed land was in use and possession of the plaintiff till the time he shifted to Balrampur City.

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The learned court below held that lodging of first information report by the plaintiff in the year 1987 regarding theft of bamboo planted on the land in dispute shows that the plaintiff had reacted against the interference by the defendants upon his land and that possession of the defendants in absence of the plaintiff casually and occasionally cannot be recognized as adverse to plaintiff due to want of his knowledge. The defendants have failed to prove by clear and unequivocal evidence that their possession is hostile to real owner, i.e. plaintiff.

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The learned court below held that the trial court has failed to appreciate the evidence of the parties correctly and it had dismissed the suit filed by the plaintiff wrongly and that the suit deserves to be decreed, as the plaintiff’s possession and ownership over the disputed land has been established by the evidence available on the record. The learned first Appellate Court allowed the appeal and decreed the suit on the basis of the aforesaid findings.

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Assailing the correctness of the aforesaid judgment and decree passed by the learned First Appellate Court, Sri. Dinesh Kumar Mishra, the learned counsel for the defendant - appellants, has firstly submitted that the judgment of the learned First Appellate Court is not sustainable in the eyes of law for the reason that the First Appellate Court has given its own finding of facts without setting aside the finding recorded by the learned trial court.

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It is settled law that the powers of First Appellate Court are coextensive with that of the trial court while deciding the suit. A perusal of the judgment passed by the first appellate court indicates that the

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court has formulated two point for determination - (1) whether the disputed land is owned and possessed by the plaintiff and (2) whether the defendants have proved their right over the land in dispute through adverse possession. The first Appellate Court has proceeded to examine the entire evidence available on record and after examination of the entire evidence, the learned first appellate court has came to a conclusion that the learned trial court has failed to appreciate the evidence led by the parties correctly and has wrongly dismissed the suit filed by the plaintiff. The first appellate court has recorded a finding that the disputed land was in use and possession of the plaintiff till time he shifted to Balrampur City and use of the land by the defendants in absence of the plaintiff cannot be treated as hostile possession of the defendants and it may not be recognized as possession adverse to the plaintiff due to want of his knowledge.

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While deciding the issue no. 1 as to whether the plaintiff is owner and in possession of the land in dispute, the learned trial court had held that the plaintiff could not prove his possession and ownership on the land in dispute, which had not been sufficiently described in the plaint. After examining the entire evidence available on record, the learned first Appellate Court held that the trial court has failed to appreciate evidence of the parties correctly and that the evidence adduced by the parties is sufficient to prove that the disputed land was in regular use and occupation of the plaintiff till he shifted to Balrampur City and that the defendants could not prove their title by adverse possession, and thus the learned First Appellate Court has in fact reversed the finding of the learned trial court and therefore, there is no force in the submission of the learned Counsel for the appellants that the learned first Appellate Court has allowed the appeal without reversing the finding of the facts recorded by the trial court and it does not give rise to any substantial question of law.

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The second submission of the learned counsel for the appellants is that the first Appellate Court has erred in law in allowing the appeal only

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on the basis of the statement of D.W. 4, Nanake, without considering the evidence of the plaintiff’s witnesses, who were four in number.

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As has already been observed that in the preceding paragraphs, the learned First Appellate Court had referred to the statements of the witnesses of the plaintiff, namely, P.W. 1 Jamal Ahmad, P.W. 2 Sadiq Hasan, P.W. 3 Ramhet, P.W. 4 Mohammad Ali, P.W. 5 Shamshulla and P.W. 6 Sagir Ahmad and has also referred to the specific paragraphs of the examination in chief of the defendants’ witnesses, namely, D.W. 1 Shanti Saran, D.W. 2 Ganga Prasad, D.W. 3 Rajendra Prasad, D.W. 4 Nanake and D.W. 5 Salik Ram and all of them had stated that they had been informed by their ancestors regarding the hut constructed by the plaintiff Amir Hasan prior to 70-80 years. Therefore, I find myself unable to accept the submission of learned counsel for the appellants that the judgment of the learned first appellate court is based only on the statements of D.W. 4 Nanake.

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The learned counsel for the appellants next submitted that the First Appellate Court erred in law in allowing the appeal without deciding the point of possession of contesting respondents / plaintiffs. However, as has been noticed in the previous paragraphs of this judgment, the learned First Appellate Court has thoroughly examined the statements of the witnesses produced by the plaintiff as well as by the defendants and after examining the entire evidence available on record, it has held that the disputed land was in regular use and occupation of the plaintiff till he shifted to Balrampur City and occasional use of the land in question by the defendants cannot be treated as hostile possession of the defendants and that the plaintiff was in possession of the land in dispute and the defendants could not show that they dispossessed the plaintiff and entered into the possession of land in dispute.

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The defendants pleaded that the land in question was originally in possession of the plaintiff and when he started living in Balrampur City, the land came into possession of the defendants, but they did not

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plead as to how this transfer of possession took place. It is not the case of the defendants that the plaintiff had handed over possession of the land to the defendants and it is also not their case that they entered into possession of the land in a hostile manner in the knowledge of the plaintiff. Therefore, the defendants have not set up a case of adverse possession also.

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The learned first Appellate Court has relied upon the decisions of the Hon’ble Supreme Court in P. Lakshmi Reddy versus L. Lakshmi Reddy , AIR 1957 314 wherein it was laid down that for claiming title on the basis of adverse possession, it should be nec vi vec, nec precario, i.e., the possession adverse to the competitor. Whatever may be the intention of a person acquiring title by adverse possession, his adverse possession can not commence unless he obtains required possession with animus.. The learned first Appellate Court also relied upon Annasaheb Bapusaheb Patil and others versus Balwant alias Babasaheb Patil (dead) by L.Rs. Etc., AIR 1995 SC 895, in which it was held that the claim of adverse possession being a hostile assertion involving expressly or impliedly a denial of title of the real owner, the burden is always on the person who asserts such a claim to prove by cledar and unequivocal evidence that his possession was hostile to the real owner.

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In Vishwanath Bapurao Sabale versus Shalinibai Nagappa Sabale and others, (2009) 12 SCC 101, the Hon’ble Supreme Court held that: -

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“ 20. ... Once he proved his title the onus was on Laxmibai and consequently upon the appellant to prove that they started possessing adversely to the interest of Shivappa. For the purpose of arriving at a finding as to whether the appellant and Laxmibai perfected their title by adverse possession, the relationship of the parties may have to be taken into consideration.

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* * *

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23. Furthermore for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse

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possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession. 24. In P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 23, this Court held: (SCC pp. 71-72, para 23)

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“23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.”

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(emphasis in original)”

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The learned first Appellate Court has held that the law is settled that when both the parties have led evidence, the question of burden of proof poses its importance and logical conclusion can be drawn on the basis of the entire evidence. The law in this regard is that the initial burden of proof lies on the plaintiff to prove his claim, but when the plaintiff has discharged his burden by proving that his ownership and possession of the land, the onus shifts on the defendant to prove his possession and how he acquired it. In the present case, the plaintiff’s witnesses as well as those of the defendants. had stated that originally the plaintiff was in possession of the land. Although the defendant / appellant had disputed the plaintiff’s claim, they failed to plead and prove as to when did they enter into possession of the land and what was the nature of their possession. In these circumstances, the suit was rightly decreed by the learned first Appellate Court and there is no illegality in it.

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The scope of interference in a Second Appeal is well settled and it has been reiterated by the Hon’ble Supreme Court in S. Subramanian v.

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S. Ramasamy , (2019) 6 SCC 46 in the following words: -

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“7.3. As per a catena of the decisions of this Court, while deciding the second appeal under Section 100 CPC, the High Court is not required to reappreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the courts below when the findings recorded by both the courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case

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while deciding the second appeals, which is not permissible under the law.

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7.4. Even otherwise, it is required to be noted that as per a catena of the decisions of this Court and even as provided under Section 100 CPC, the second appeal would be maintainable only on substantial question of law. The second appeal does not lie on question of facts or of law. The existence of “a substantial question of law” is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam³ , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:

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(i) Contrary to the mandatory provisions of the applicable law;

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(ii) Contrary to the law as pronounced by the Apex Court; OR

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(iii) Based on inadmissible evidence or no evidence.

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It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.

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7.5. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain⁴ . In the aforesaid decision, this Court has specifically observed and held: (SCC p. 437)

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“Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.”

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The findings of the learned First Appellate Court are based upon a thorough and proper examination and scrutiny of the entire evidence

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available on record and, in any case, the same cannot said to be perverse, so as to warrant interference by this Court in exercise of its powers under Section 100 of the Civil Procedure Code. All the submissions made by the learned Counsel for the defendants / appellants do not give rise to any substantial question of law. I find no good ground for admission of the appeal.

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Accordingly, the second appeal is dismissed at the admission stage.

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However, there will be no order as to costs.

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Order Date :- 6.6.2022

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Aditya

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Digitally signed by ADITYA KUSHWAHA Date: 2022.06.13 17:48:32 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Shantisaran and Others v. Sadiq Hasan Alias Nibbar and Others

Case brief

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Shantisaran and Others v. Sadiq Hasan Alias Nibbar and Others

Case brief

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