Shri Durga Prasad & another v. Tarkeshwari Singh & Ors.

The plaintiffs-respondents-appellants have filed this second appeal against the judgment and decree dated 19.6.1990 passed by the learned 3rd Additional District Judge, Motihari in Title Appeal No. 19 of 1986/ 12 of 1986 whereby the lower appellate court allowed the appeal and thereby reversed the judgment and decree dated 10.2.1986 passed by the learned Munsif, Sadar, Motihari in Title Suit No. 68 of 1974/ 18 of 1986.

2. The plaintiffs-appellants filed the aforesaid suit for declaration of title and recovery of possession from the defendants 3rd party with respect to the suit property measuring 2.5 dhur in plot No. Patna High Court SA No.302 of 1990 dt.29-01-2013 2 426 of khata No. 123. According to the plaintiff he has got 2.5 dhur ancestral land in plot No.426 and adjacent to that ancestral land some Parti land of the ex-landlord was there. The plaintiffs came in possession of 2.5 dhur land of the ex-landlord and continued in possession thereof. This is the suit land. In the ancestral land the plaintiffs constructed two rooms. In one room the plaintiff had a bicycle shop and in the other room a tenanted saloon is running. In 1956 the plaintiffs constructed a house in the suit land but because of no permission was obtained from the municipality the construction was stopped after construction of one room only. Prior to this construction he had inducted Harishankar Dubey in the year 1954 permitting him to construct a Gomti. He was running a betel shop and subsequently he abandoned it. Thereafter the plaintiff inducted defendant No.2 in the Gomti on monthly rent of Rs.5 and the rent was enhanced to Rs.9/- in the year 1965. The defendant No.2 paid the same till 1969 and thereafter the rent was enhanced to Rs.15/-. The defendant did not accept this enhancement so the plaintiff asked the defendant to vacate the suit property. The defendant filed application for mutation of his name in the municipality which was rejected. However, subsequently, he obtained a settlement from the State of Bihar. Hence the suit has been filed.

3. The defendants filed contesting written statement alleging Patna High Court SA No.302 of 1990 dt.29-01-2013 3 that there is no relationship of landlord and tenant between the parties and that the ex-landlord never settled the land to the plaintiffs. The land was vacant so the plaintiff came in possession thereof since 1945-46. It was not in possession of the plaintiffs. The defendant then filed application before the circle officer for fixing rent. After enquiry the said land has been settled in favour of the defendant and since then he is paying the rent.

4. After trial the trial court decreed the plaintiffs’ suit finding that there is relationship of landlord and tenant between the parties as the plaintiff has got title and interest over the suit property vide paragraph 17 and 20. The defendants filed title appeal. The appellate court reversed the finding and held that the plaintiff has failed to prove title and relationship of landlord and tenant. Therefore, the appeal was allowed.

5. At the time of admission on 7.2.1995 the following substantial question of law was formulated:- “whether the findings of the learned appellate court is vitiated in not considering Ext.5 and 7 in the background of evidences led in the court below and considered by the learned trial court”.

6. At the time of hearing of second appeal the learned counsel submitted that another substantial question of law is also involved for Patna High Court SA No.302 of 1990 dt.29-01-2013 4 decision in this second appeal. According to the learned counsel the appellate court has not considered the oral evidences therefore, the appellate court judgment is also vitiated. The learned counsel in support of the aforesaid substantial question of law submitted that after full-fledged discussion of the Ext.5 & 7 which are the documents of title of the plaintiffs the trial court held that the said documents are genuine document and on the basis of the same plaintiffs’ title has been declared. No documents have been produced by the defendant to prove his title. While reversing the judgment of the trial court the lower appellate court has not at all considered the oral evidences adduced by the parties.

7. On the other hand, the learned counsel appearing on behalf of the respondents submitted that it is not the case of the appellants that lower appellate court has not considered the Ext.-5 and 7 but the case of the appellants is that the lower appellate court has not considered in the manner considered by the trial court, therefore, the question raised by the appellant is not at all a substantial question of law. After perusing the documents the appellate court doubted Ext.5 and so far Ext.-7 is concerned the lower appellate court found that the said document relates to the ancestral land of the appellants measuring

2.5 dhur therefore, the substantial question of law framed is not at all a substantial question of law because the lower appellate court has Patna High Court SA No.302 of 1990 dt.29-01-2013 5 inferred fact after considering the document so it cannot be interfered in second appellate jurisdiction because it will amount to substituting a finding of fact by the High Court. So far the substantial question of law raised at the time of hearing of the appeal, the learned senior counsel submitted that the lower appellate court has considered the oral evidences of the parties. It is the onus of the plaintiff to prove his title and the plaintiff cannot take advantage of the weakness of the defendants.

8. From perusal of the lower appellate court judgment it appears that the lower appellate court has considered all the evidences oral and documentary adduced by both the parties. At paragraph 14 the document i.e. Ext.-5 and 7 have been considered. According to the lower appellate court the Bandobasti paper filed by the plaintiff i.e. Ext.5 has got interpolation over it making it of a doubtful character. The lower appellate court also after considering Ext.-7 held that the said Ext.7 is the return relating to the plaintiffs ancestral land. Now therefore, as would be evident from the judgment the lower appellate court after considering Ext.-5 has recorded a finding that it is of doubtful character. So far this finding is concerned according to the learned counsel the appellate court should have consider this document in the manner which has been considered by the trial court. So far this submission is concerned, in my opinion, it relates to the Patna High Court SA No.302 of 1990 dt.29-01-2013 6 manner of consideration of documentary evidence. In my opinion, therefore, it is not a substantial question of law. In the case of Hero Vinoth (Minor) vs. Seshammal (2006) 5 SCC 545 the Apex Court has held that inference or appreciation of facts from recitals or contents of a document are questions of fact. However, the legal effect of terms of a document or construction of document involving application of any principle of law are question of law. In view of this decision of the Apex Court the inference drawn by the appellate court are inference of fact and the question formulated is not with regard to legal effect of terms of the document or construction of document i.e. Ext.5 and 7 involving application of any principle of law. So far the substantial question of law raised at the time of hearing regarding non-consideration of oral evidences are concerned as stated above from perusal of the judgment of the lower appellate court it appears that the lower appellate court has considered the oral evidences of all the witnesses of both the parties. Therefore, the manner of discussion made by the appellate court cannot be challenged in second appellate jurisdiction particularly, when it cannot be said to be a substantial question of law.

9. The learned counsel for the appellant relied upon a decision of the Apex court reported in 2009 (4) PLJR (SC) 111 L.N. Aswathama and another vs. P. Prakash and submitted that the duty Patna High Court SA No.302 of 1990 dt.29-01-2013 7 of the appellate court was to consider the entire evidence. On surmises and conjectures the trial court judgment cannot be reversed. From perusal of the said judgment it appears that the High Court without considering the principles of law regarding acquisition of title by adverse possession reversed the judgment of trial court. The Apex court held that the first appellate court can re-appreciate evidence and record finding of difference from those recorded by the trail court and first appellate court would not reverse then on the basis of conjectures and surmises or without analyzing relevant evidence in entirety. In the present case as stated above the lower appellate court has considered all the evidences in its entirety and has recorded its reasons for different conclusion. Therefore, this decision will not help the appellants.

10. In view of my above discussion, in my opinion, no other substantial question of law is involved for decision in this second appeal and so far the substantial question of law formulated at the time of admission is concerned, it is answered against the appellants and in favour of the respondents.

11. In the result, this second appeal is dismissed. The parties shall bear their own costs. Patna High Court, Patna. Date : 29.01.2013 S.S./N.A.F.R. (Mungeshwar Sahoo, J.)