Suit for permanent injunction over disputed property dismissed by trial court but decreed on appeal. In second appeal, the High Court upheld the finding of plaintiff's possession as a pure finding of fact and dismissed the appeal.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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I. RSA No.500 of 1992 Reserved on: 02.05.2024 Pronounced on: 18.05.2024
ROSHAN LAL AND OTHERS
. . . . APPELLANTS Vs.
THAMBU RAM
. . . . RESPONDENT
CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA
Present: - Mr. Chander Pal Tiwana, Ms. Swati Tiwana, Advocates, for Mr. R.S. Chahar, Advocate, for the appellants.
Mr. Sanjay Mittal, Advocate, for the respondents.
DEEPAK GUPTA, J.
This Regular Second Appeal is filed by the defendants of the case against reversal, inasmuch suit for permanent injunction regarding property in dispute filed by the plaintiff was dismissed by the Trial Court, but the appeal of the plaintiff was accepted and the suit was decreed by the First Appellate Court.
3.1 According to the plaintiff-Thambu Ram (respondent herein) , he along with proforma defendants are owner in possession of the property in dispute, shown by letters ABCDE in the attached site plan and as detailed in para No.2 of the plaint, on which they had constructed their kaccha and
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pucca houses and residing therein. It was alleged that despite having no concern with the same, defendants are bent upon to encroach the same. Prayer was made to restrain the defendants from doing so.
3.2 Some of the defendants contested the suit and in their written statement, they denied the plaintiff/proforma defendants to be owner in possession of the suit property and rather, claimed that they (contesting defendants) are the owner in possession of the same. According to the defendants, suit land is part and parcel of Ahata No.76 Ghar No.136, which was in possession of Ramji Lal in the year 1947 BK and that contesting defendants purchased the agricultural land of Ramji Lal and ever-since the time of purchase of the agricultural land by defendants from Ramji Lal in 2000 BK, they also came in possession of Ghar No.136 along with the agricultural land purchased by them and out of the same, a plot measuring 90’ x 65’ was given by them to defendant No.13-Bharat Singh, in which he has been residing for the last 30 years after constructing a chapper therein. These defendants claimed further that on account of their long and continuous possession, they had become owner of the suit property by way of adverse possession. They prayed for dismissal of the suit.
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Ld. Trial Court, issue No.1 held that plaintiff could not prove his title or possession over the suit property. At the same time, it was found that defendants had failed to prove that suit land was part of Ghar No.136, which was recorded to be in possession of Ramji Lal at the time of bandobast abadi. Trial Court further found that as per site plan Ex.P2, disputed land was adjoining to the house of the plaintiff, on which a chapper had been constructed with a broken shed as per the report of the Local Commissioner, but the disputed plot was found to be a vacant land, on which possession of none of the parties was found and thus, plaintiff had failed to prove his case. Consequently, the issue was decided against the plaintiff. Finding on issue No.2 went against the defendants. Under issue No.3, it was held that defendants had failed to adduce any evidence to prove their possession over the suit land or to have constructed any house thereon and so, defendants could not claim estoppel against the plaintiff. As such, the issue was decided in favour of the plaintiff and against the defendants. Issue No.4 was disposed of as not pressed. As a result of cumulative findings on all the issues, suit was dismissed vide judgment dated 12.05.1989.
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produced on file, plaintiff was proved to be in possession and as such, the finding on issue No.1 was reversed by the Appellate Court and consequent thereto, the suit was decreed by allowing the appeal and by setting aside the judgment of the trial Court, vide judgment dated 06.09.1991.
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appraised the record carefully.
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become owner by way of adverse possession, show their admission regarding the title of the plaintiff over the property in dispute. Defendants have failed to prove either their title or their possession over the suit property.
“It has to be kept in mind that the right of appeal is neither a 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 at 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 cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot 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 fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd, AIR (1962) SC 1314 held that :-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law."
It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It
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is true that the 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 had 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 cannot 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 of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.”
(DEEPAK GUPTA) 18.05.2024 JUDGE ����� 1. Whether speaking/reasoned? Yes 2. Whether reportable? No
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2 issues framed by the court
Whether the High Court could interfere with the first appellate court's finding of fact that the plaintiff was in possession of the suit property in second appeal.
Whether the defendants proved their title or possession over the suit property.
Colour shows how this judgement treated each authority
Kondiba Dagadu Kadam vs Savitribai Sopan GujarRelied on¶11
1999 (3) SCC 722 · Who else cites this
Roshan Lal and Others
Thambu Ram
Deepak Gupta
As recorded by the court registry
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