====================================================== Ganga Sah v. Jahindra Sahani & Ors
Case Details
Patna High Court SA No.278 of 2012 (7) dt.17-09-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.278 of 2012 ====================================================== Ganga Sah .... .... Appellant/s Versus Jahindra Sahani & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Bhubneshwar Prasad For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 7 17-09-2013 (1) Heard the learned senior counsel, Mr. Keshav Srivastava appearing on behalf of the appellant under Order XLI Rule 11 C.P.C. (2) The defendant-appellant-appellant has filed this Second Appeal against the judgment and decree dated 14.02.2012 passed by the learned 6th Additional District Judge, Muzaffarpur in Title Appeal No.43 of 2006 whereby the Lower Appellate Court
Legal Reasoning
dismissed the appeal and confirmed the judgment and decree of the trial court dated 23.06.2006 passed by the learned Munsif, West Muzaffarpur in Title Suit No.186 of 1998. (3) The plaintiffs-respondents filed the aforesaid suit for declaration of title and recovery of possession of the suit property. The plaintiff’s case in short is that the suit plot no.911 belonged to one Lakhan Sahani. Ultimately two decimals land in the north-east corner of the suit plot was allotted to the plaintiff Patna High Court SA No.278 of 2012 (7) dt.17-09-2013 2 whereon the plaintiff has constructed his house and sahan. Revisional Survey Plot No.912 belonged to the defendant. They dispossessed the plaintiff from the suit land measuring half decimal from the suit land of the plaintiff. They also constructed latrine and drain. (4) The defendant-appellant filed contesting written statement. According to the defendant-appellant, his share 1 ½ katha is in eastern portion of R.S. Plot No.912 which includes 15 dhurs of the land purchased from Sitaram Sah through registered sale deed dated 12.12.1983. The share of defendants 2nd set is towards west to him. The defendant denied the encroachment alleged by the plaintiff. According to him, his house is exclusively standing on Revisional Survey Plot No.912. (5) The trial court decreed the plaintiff’s suit recording the finding that the defendant-appellant has encroached the land of the plaintiff and the plaintiff has been able to prove his case. On appeal, the Lower Appellate Court dismissed the appeal recording the same finding.
Legal Reasoning
(6) The learned senior counsel, Mr. Keshav Srivastava appearing on behalf of the appellant submitted only one point for consideration and according to him, this is the substantial question of law. According to the learned counsel, both the courts below Patna High Court SA No.278 of 2012 (7) dt.17-09-2013 3 wrongly relied upon the report of Survey Knowing Pleader Commissioner, P.W.6 and on the basis of the said report only, a finding has been recorded that the defendant has encroached half decimal of plot no.911. According to the learned counsel, the evidence of P.W.6/his report is not reliable evidence. While relying on the evidence of the said witness, both the courts below have not considered the cross-examination part of P.W.6 wherein he has admitted that he does not know the name of the institution from where he has got training regarding survey. Although, he has stated that he consulted the survey map but in his report, the map was not annexed. Therefore, according to the learned counsel, the courts below have approached the case in wrong angle and the findings recorded by both the courts below are wrong. The learned counsel in support of his contention relied upon AIR 1992 Supreme Court 1604(Jagdish Singh v. Natthu Singh) and 1991(1) PLJR 20(Shekhar Chandra Chakravarty and others vs. Mani Mohan Chatterjee). (7) From perusal of the judgment of the Lower Appellate Court, it appears that the finding recorded by both the courts below are based on the other evidences including the report of the Pleader Commissioner and the evidence of the Pleader Commissioner being P.W.6. Admittedly, the order whereby the Patna High Court SA No.278 of 2012 (7) dt.17-09-2013 4 Pleader Commissioner was appointed for measurement of the land was never challenged by the defendant. Against the report of the Pleader Commissioner also, no objection was filed by the appellant. (8) So far the decision relied upon by the appellant in the case of Jagdish Singh(supra) paragraph 8 is concerned, from perusal of the said decision, it appears that the Hon’ble Supreme Court has held that as to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the court of fact is vitiated by non- consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording the proper finding. So far this proposition of law propounded by the Hon’ble Supreme Court is concerned, there is no dispute that if the judgment is vitiated because of non- consideration of relevant evidence or the judgment is perverse, the High Court can reappreciate the evidence and can record the finding. (9) So far the other decision i.e. in the case of Shekhar Chandra Chakravarty and others (supra) is concerned, it appears that the trial court in that case recorded the clear finding that the measurement made by the Pleader Commissioner was not Patna High Court SA No.278 of 2012 (7) dt.17-09-2013 5 scientific and, therefore, it was held that the finding recorded by the trial court that there was encroachment by the defendant over the land of the plaintiff on the basis of partition deed is erroneous. It may be mentioned here that the facts of this case at our hand is entirely different. So, the decision relied upon by the appellant is not at all applicable in the present case. It may be mentioned here that admissibility of evidence is one thing and reliability of evidence is another thing. (10) In the case of V. Ramachandra Ayyar and another v. Ramalingam Chettiar and another, AIR 1963 Supreme Court 302, the Hon’ble Supreme Court has held that “if a finding of fact has been recorded by the first appellate Court without any evidence, that finding can be successfully challenged in second appeal because a finding of fact which is not supported by any evidence can be questioned under S. 100; and in that connection, it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted, by the lower appellate Court could not have been reasonably accepted the High Court would be justified in interfering with the decision of the lower appellate Court. All that it means is that it should be a case where the evidence, which is Patna High Court SA No.278 of 2012 (7) dt.17-09-2013 6 accepted by the lower appellate Court no reasonable person could have accepted and that really amounts to saying that there is no evidence.” In the present case, as stated above, neither the order appointing Pleader Commissioner for encroachment nor the report of the Pleader Commissioner was ever objected by the appellant. Now, therefore, on the basis of the cross-examination only, it cannot be said that no reasonable person could have accepted the evidence of P.W.6 or the report of P.W.6. (11) So far the submission of the learned counsel that because of the acceptance of this evidence, P.W.6, the finding is erroneous is the question of law also is concerned, it may be mentioned here that it is settled principles of law that additional obligation has been cast on the first appellate court by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of Patna High Court SA No.278 of 2012 (7) dt.17-09-2013 7 law unless such question of law be a substantial one vide Santosh Hazari v. Purushottam Tiwari (Dead) by Lrs case, (2001) 3 Supreme Court Cases 179. In the present case, as stated above, the admissibility of the evidence or the report of P.W.6 is not under challenge. Only the challenge is reliability of the evidence of P.W.6 and his report. The trial court and the appellate court both relied upon the evidence of P.W.6. Therefore, on the question that the evidence is not reliable, the finding recorded by the courts below cannot be interfered with in exercise of jurisdiction under Section 100 C.P.C. In my opinion, the point raised by the learned counsel for the appellant is not at all substantial question of law involved in this Second Appeal because it relates to reliability of evidence of P.W.6 with his report. (12) Accordingly, I find that no substantial question of law is involved in this second appeal and thus, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Saurabh/-