Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.198 of 2011 ====================================================== Sudhir Sah & Ors. Versus .... .... Appellant/s Tarun Kumar Singh & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Binoy Kumar Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 6 15-07-2013 Heard Ms. Mallika Mazumdar, learned counsel for the appellants and Mr. Dronacharya, learned counsel appearing on behalf of the respondents under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiffs-respondents-appellants have filed this second appeal against the judgment and decree dated 3.2.2011, passed by the learned District Judge, Khagaria in Title Appeal No. 16 of 2008 whereby the learned lower appellate court allowed the appeal and thereby reversed the judgment and decree of the trial court dated 30.8.2008, passed by the learned Munsif, Khagaria in Title Suit No. 11 of 2005.
Legal Reasoning
3. The plaintiff-appellant has filed the said suit praying for simple injunction restraining the defendants- respondents from interfering in the peaceful possession of the suit 2 Patna High Court SA No.198 of 2011 (6) dt.15-07-2013 2 / 6 property. According to the plaintiff, the suit property was purchased by the plaintiffs by a register sale deed dated 7.7.1993 from the rightful owners of the property, namely, Vishwanath Singh, Anup Devi and Kamla Devi. According to the defendant, Gopal Singh had one daughter, namely, Alkhi Devi and heir of Alkhi Devi sold the property to the defendant Tarun Singh and since then the defendant is coming in possession of the property. The defendants have purchased from the grand sons of Alkhi Devi and are in possession. 4. The Trial Court decreed the plaintiff suit for injunction recording the finding that Alkhi Devi was not the daughter of Gopal Singh and also recorded the finding that the plaintiffs are in possession of the property. 5. The defendants-respondents filed title appeal before the lower appellate court. The lower appellate court recorded a finding that in fact the plaintiffs have failed to prove their possession over the suit property and, therefore, they are not entitled for grant of injunction. Accordingly, the lower appellate court allowed the appeal and reversed the judgment of the trial court.
Legal Reasoning
6. Learned counsel for the appellants relying on the decision of the Apex Court in the case of M. Kallappa Setty Vs. 3 Patna High Court SA No.198 of 2011 (6) dt.15-07-2013 3 / 6 M.V. Lakshminarayana Rao (AIR 1972 SC 2299) submitted that injunction suit is maintainable and the plaintiff can maintain a suit if the defendant is disturbing the possession of the plaintiff. The learned counsel further submitted that the lower appellate court while reversing the judgment of the trial court has not discussed at all the evidence of the defendants and the lower appellate court has not at all given any finding with regard to the parentage of Alkhi Devi because the plaintiffs strongly disputed and alleged in the evidence that she was not the daughter of Gopal Singh. 7. On the other hand, learned counsel Mr. Dronacharya submitted that the plaintiffs have failed to prove their possession over the suit property, therefore, the question of title is not required to be gone into. According to the learned counsel, even if, the title is in favour of the plaintiff then also they are not in possession of the property, therefore, they will not be entitled for grant of injunction. According to the learned counsel, the finding of possession is finding of fact, therefore, it cannot be interfered with the second appeal jurisdiction. 8. So far the decision relied upon by the learned counsel for the appellant is concerned, it may be mentioned here that in that case the Hon’ble Supreme Court found that the plaintiff was in possession of the property and, therefore, it was 4 Patna High Court SA No.198 of 2011 (6) dt.15-07-2013 4 / 6 held that if the plaintiff is in possession of the suit property he can on the strength of his possession resist interference from the defendant who has no better title than himself and get injunction. In the present case it may be mentioned that the plaintiff has not sought for relief for declaration of title. Simply on the basis of possession, the plaintiff prayed that the defendants be restrained. Both the parties set up their title on the basis of sale deeds, therefore, the decision relied upon by the learned counsel for the appellants speaks about the well settled principles of law. It is important to be noted that for injunction the plaintiff, therefore, must prove his possession. So far the second submission of the learned counsel that the lower appellate court has not discussed the evidences of the defendants or no finding regarding parentage of Alkhi Devi is concerned, it may be mentioned here that from perusal of the lower appellate court judgment, it appears that the lower appellate court has considered the oral evidences and also documentary evidences produced by the plaintiffs. Since the plaintiff had filed the suit for injunction, the onus was on him to prove his title or possession on these suit properties. In such view of the matter, it appears that there are materials oral and documentary which were relied upon by the lower appellate court and then recorded a finding that the plaintiffs failed to prove 5 Patna High Court SA No.198 of 2011 (6) dt.15-07-2013 5 / 6 possession over the suit property. 9. In the case of Madamanchi Ramappa Vs. Muthaluru Bojjappa (AIR 1963 SC 1633). The Hon’ble Supreme Court has held that “once it is shown that the evidence on which Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the Courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of facts and cannot be agitated in a second appeal. 10. As stated above, the lower appellate court has discussed all the evidences of the plaintiffs and thereafter recorded the finding that the plaintiff failed to prove possession over the suit property. So far this finding is concerned, it is pure finding of fact. In the case of Vidhyadhar Vs. Manik Rao & Anr.[(1999) 3 SCC 573] and Abdul Raheem Vs. Karnataka Electricity Board & Ors. [(2007) 14 SCC 138], the Supreme Court has held that the High Court in a second appeal should not disturb the findings of fact unless it is shown that the findings recorded are perverse, being based on no evidence or that on the evidence on record, no 6 Patna High Court SA No.198 of 2011 (6) dt.15-07-2013 6 / 6 reasonable person could have come to that conclusion. Solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise jurisdiction under Section 100 of the Code of Civil Procedure. This view of the Hon’ble Supreme Court has again been reiterated recently in the case of Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal [(2012) 7 SCC 288 (para 37)]. 11. In view of the above settled proposition of law laid down by Hon’ble Supreme Court, the finding of fact i.e. the plaintiffs are not in possession of the property cannot be interfered with in the second appellate jurisdiction. Now, therefore, when the plaintiff failed to prove possession, there is no question of prima facie case arises and, therefore, in my opinion the learned lower appellate court has rightly dismissed the plaintiffs’ suit. In view of the above discussion, none of the points raised by the learned counsel for the appellant are substantial question of law. Thus, since no substantial question is involved in the present appeal, this second appeal is dismissed at the admission stage itself. Sanjay/- (Mungeshwar Sahoo, J.)