High Court
Case Details
RSA 192/2000 PRESENT HON’BLE MR JUSTICE NISHITENDU CHAUDHURY 1. This second appeal is directed against the judgment and decree dated 17. 2.2000 passed by the learned Civil Judge (Sr. Divn.), Dibrugarh, in Title Appeal no. 9 of 1999 dismissing the appeal and affirming the judgment and decree date d 3.5.1999 passed by Civil Judge (Jr. Divin.) |No. 2 Dibrugarh (now designated M unsiff No. 2) in title suit no. 2 in 1993 thereby dismissing the suit of the pla intiff. This appeal was admitted on 7.2.2001 on two substantial question of law and the same are as below :
Legal Reasoning
(cid:28) (i). Whether the defendants can be allowed to raise any constructions without any permission from the authority under the Assam Town and country plann ing Act/ Assam Municipal Act and without leaving the required side margin thereb y blocking the free access of air and light to the plaintiff land and if so, whe ther a decree for permanent injunction can be passed restraining the defendants from making any such construction ? (ii). Whether the learned first appellate court , being the final court of facts, is required to discuss the evidences, both oral and documentary on rec ord as required under Order 41 Rule 31 of the Civil Procedure Code ? From above it appears that the first substantial question of law involve 2. s four parts in itself. First, construction without permission under Assam Town and Country Panning Act, 1959/ Assam Municipal Act 1956 secondly , without leavi ng required side margin, hardly blocking free excess of Air and light and fourth ly, whether permanent injunction can be granted on fulfillment of above conditio ns. 3. Before going to decide the aforesaid substantial question of law, it is necessary to narrate the facts of both the parties in short. The two plaintiffs , namely, Sri Jawed Rahman and Sri Ashlam Tarique Rahman both sons of Late Mohi bur Rahman of South Amola Patty in Dibrugarh town instituted title suit no. 7/19 93 against one Badrul Huda son of late Samsud Huda describing him as neighbor on the northern boundary of their residence. The case of the plaintiff in brief is that there was initially a six feet high boundary wall between the land of the defendants and that of the plaintiffs and they were enjoying free access of air and light to their rooms from that side without any disturbance and hindrance f rom anybody including the defendants. But all on a sudden the defendants raised the height of the wall from 6 feet to about 11 feet ignoring the protest of the plaintiff and allegedly without taking permission from the concerned development authority. According to the plaintiffs, the defendant did it on 15.5.1993 where upon the plaintiff lodged a complaint before the Deputy Commissioner who direct ed the officer in-charge of Dibrugarh police Station to do the needful. Accordin g to the plaintiff if the boundary wall is raised as attempted, the same would h inder free access of air and light to the plaintiffs. It was also contended that the defendant was seeking to raise construction on the land without leaving set back of 10 feet in front and 5 feet on two sides on the proposed construction a nd that too without taking permission from the development authority or municipa l authority as the case may be. With the above basic facts the plaintiffs prayed for a decree against the defendant for permanent injunction restraining the def endants and their agents employees etc. from raising any construction on the lan d described in the schedule to the plaint on the northern side of the boundary w all without leaving required space as per the Act and the rules of the Developme nt Authority or Municipality and/or without obtaining valid permission from Dibr ugarh Development authority. The plaintiffs also prayed for mandatory injunction to pull down the unauthorized construction already raised on the schedule land. It appears, although grievance was expressed in the pleading in regard to raisi ng of the boundary wall also, the prayer was limited to pulling down unauthorize d construction on land raised without permission and without leaving required se t backs. 5. On being summoned the defendant submitted written statement denying the case of the plaintiffs and asserting, inter alia, that no cause of action arose on 4.3.1993 or on any other date as alleged in para 13 of the plaint, that in 19 84 the defendant constructed a 11 feet high pucca wall on his own land at Southe rn boundary and constructed two rooms each measuring 11 feet by 11 feet where hi s wife was running a candle factory under the name and style of M/s R. Hazarika and Sons. The defendants pleaded that the workshop room was of brick and CI she et and was being run on the same land since 1971 taking licence from the DIC. Ac cording to the defendant he being joint director of publicity under the Govt. of Assam had to work at various capacities through out the State of Assam and as s uch he could not complete the said three rooms and plaintiffs never before had m ade any objection or at the time when the same were constructed. Moreover, as in 1984 there was no development authority at Dibrugarh and as such there was no scope for obtaining permission from it. The defendant denied that there was any violation of municipal Act or of the Town and Country Planning Act 1959. Rather Municipal Board allotted a holding no. 287 to the said houses of the defendant including the incomplete structure. The plaintiffs have got a garage on their no rthern boundary touching the boundary wall of the defendant without leaving any gap in between. The plaintiffs got also a sanitary latrine and then overhead tan k touching the boundary wall of the defendant while the defendant was away from home in view of his posting else where. The defendant specifically denied the c laim of the plaintiffs of enjoying free access of air and light for 25 years. Ac cording to the defendant when the roof of his incomplete room was being cast in the month of May, 1993 the plaintiff lodged a false complaint before the Deput y Commissioner who called for report from Dibrugarh Police Station and after inq uiry locally on 30.6.1993 the police submitted a report to the District Magistra te, inter alia, stating that there was an old existing wall since 1984 and there was a half constructed house which the defendant after his retirement as Addl. Director of Publicity had started to complete and the same was obstructed by th e plaintiff. The Addl. District Magistrate passed an order on the basis of the s aid report of the Officer-in-charge of Dibrugarh Police Station, the defendant a sserted. 6. lows :- Upon such pleading of the parties trial court framed seven issues as fol (cid:28)1. Whether the suit is maintainable in law and facts ? 2. Whether the suit is bad for non-joinder of the mother of the plaintif f and other pattadars ? 3. Whether the defendant has started construction of a house on the sui t land without taking permission from the development authority and construction of the said house disturbing free enjoyment of air and light by the plaintiffs which they are enjoying since last 25 years ? 4. Whether the boundary wall is weak and which may be collapsed at any t ime causing injury to the plaintiff and other inhabitant of that area ? 5. Whether the defendant construction 11 (cid:29) feet height boundary wall on h is southern boundary and two rooms measuring 11 (cid:29) x 11 (cid:29) in 1984 and whether the a lleged construction was started in 1984 without any objection from the plaintiff s ? 6. Whether the plaintiffs are entitled to get a decree of permanent as w ell as mandatory injunction as prayed for ? 7. To what relief the parties are entitled ? (cid:29) Plaintiffs examined as many as 4 witnesses while the defendant examine n 7. one. 8. That it appears from the records that the day the case was fixed for arg ument none appeared for the parties. The learned Trial Court perused the records and there upon passed judgment dated 3.5.1999 wherein there are discussions wit h regard to pleading and the evidence on record and indication is made that the plaintiffs have sale to establish their case. However, in the absence of the le arned counsel of the parties, the learned Trial Court did not give any decision issue wise but observed that be plaintiffs have failed to prove their case and a ccordingly dismissed the suit leaving the parties to bear their own cost. Aggrie ved, the plaintiffs preferred title appeal No. 9/1999 before the learned Civil J udge Dibrugarh. 9. The appellate court did not find favour with the decision of the trial c ourt in regard to failure in giving issue wise judgment and observed that the le arned trial court committed error in not discussing the issues and thereby commi tted error. However, in exercise of power under section 107 of the C.P.C. the ap pellate court itself discussed the issues. The appellate court framed two points for determination in the appeal and the same are as below : (cid:28)(a) Whether the lower court failed to discuss the issues properly and give reason based findings ? (b) Whether the lower court failed to appreciate the evidence in its tru e and proper perspective ? (cid:29) The appellate court decided the first point of determination in the nega tive holding that the trial court fell in error in not making issue based judgme nt. To decide the second point of determination framed by it the lower appellate court discussed the evidence and decided the issues. The lower appellate court dismissed the appeal on merit upholding the conclusion of the trial court. Hence , this second appeal is virtually against concurrent findings of fact inasmuch a s although the learned trial court did not pass judgment issue wise yet there ar e findings on facts of the case. 10. bstantial questions of law referred to above. 11.
Legal Reasoning
Heard Mr. D.K.Das, learned counsel for the appellants on the substantial questions of law framed. Although names have been shown in the cause list yet n The facts in nutshell having stated thus let me proceed to decide the su one appears for the respondents. As stated above the first substantial question of law has three parts. T 12. he first part relate to construction without permission under Assam Town and Cou ntry Planning Act, 1959/ the Assam Municipal Act, 1956. The plaintiffs did neith er implead the Dibrugarh Municipal Board nor the Dibrugarh Development Authori ty. The plaintiffs have also not brought on record the concerned master plan or the building bye laws under the said authorities. Merely pleading that keeping o f 10 feet in front and 5 feet on each side is required under the law but without bringing the concerned bye laws and master plan it cannot be established that t he construction has been made without permission or illegally has been done. The plaint lacks the essential material facts as indicated and the necessary partie s are also not impleaded. Moreover the defendant have specifically pleaded that the construction was made way back in 1984 when there was no development authori ty in the town of Dibrugarh. In the absence of the master plan or in the absence of the said authorities it is not possible to find out as to what are the neces sary set backs for any construction on the schedule land in as much as it is not known as to whether the same is located in a commercial area or not. The set ba cks required for construction differ area wise depending on whether the locality is residential or commercial in character. Once the defendant took the plea in the written statement that municipality allotted holding number to the house in question it is presumed that there were necessary enquiry proceeding such allotm ent of holding number and as such burden fell heavily on the plaintiffs to estab lish by examining witnesses from the said authorities in this regard. Moreover, once it is pleaded that there was no development authority at the time construct ion was made in the year 1984 the plaintiffs were duty bound to lead evidence in this regard to establish its case. In this view of the matter the plaintiffs ha ve miserably failed to establish that the construction made by the defendant on the schedule land was really without permission or that there were no necessary set backs. This being the position the first and second part of the first substa ntial questions of law, namely, construction without permission and without leav ing required side margin do not arise under the pleaded facts and material on re cord and as such this substantial question of law does not arise from the materi als on records. 11. The second substantial question of law relates to the duties of the firs t appellate court. Section 107 of the Code of Civil Procedure lays down the powe rs of the appellate courts and the same is quoted below : (cid:28)107. Powers of Appellate Court. - (1) Subject to such conditions and li to determine a case finally ; to remand a case ; to frame issues and refer them for trial ; to take additional evidence or to require such evidence to be taken. mitations as may be prescribed, an Appellate Court shall have power - (a) (b) (c) (d) (2) Subject as aforesaid , the Appellate Court shall have the same powers and sh all perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted there in. In the case of Santosh Hazare reported in (2003) 1 SCC 179 the Hon’ble Supreme C ourt has laid down law in this regard holding inter alia that the first Appellat e Court being the last court of facts and law is duty bound to discuss the plead ings and evidence in detail. Paragraph 15 of the said Judgment deals with this a spect of the matter and the extract of the same is quoted below : (cid:28) 15. A perusal of the judgment of the Trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by both the parties for de ciding the issues on which the parties went on trial. & & & & &.. The Appellate Cou rt has jurisdiction to reverse or affirm the findings of the Trial Court. First Appeal is a valuable right of the parties and unless restricted by law, the whol e case is there in open for rehearing both on questions of fact and law. The jud gment of the Appellate Court must, therefore, reflect its conscious application of mind and record and findings supported by reasons, on all the issues arising along with the contentions put forth, and press by the parties for decision of t he Appellate Court. The task of an Appellate Court affirming the findings of the Trial Court is an easier one. The Appellate Court agreeing with the view of the Trial Court need not restate the affect of the evidence or reiterate the reason s given by the Trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. (see Girijanandini Devi V. Bijendra Narain Choudhary8). We would, however, like to so und a note of causion. Expression of general agreement with the findings recorde d in the judgment under appeal should not be a device or camouflage adopted by t he Appellate Court for shirking the duty cast on it. While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by Trial Court mu st weigh with the Appellate Court, more so when the findings are based on the or al evidence recorded by the same Presiding Judge who author the Judgment. This d oes not certainly mean that when an appeal lies on facts, the Appellate Courts i s not competent to reverse a finding of fact arrived at by the Trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures a nd surmises, the appellate Court is entitled to interfere finding of fact. (See Madusudan Das v. Narayanibai 9). The rule is - and is nothing more than a rule o f practice --- that when there is conflict of oral evidence of the parties on an y matter in issue and the decision hinges upon the credibility of witnesses , th en unless there is some special features about the evidence of a particular witn ess which has escaped the trial Judge’s notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lie, the appe llate Court should not interfere with the finding of the trial Judge on a quest ion of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narayan Singh1 0). Secondly, while reversing a finding of fact the appellate Court must come in to close quarters with the reasoning assigned by the trial court and than assign its own reason for arriving at a different finding. This would satisfy the cour t hearing a further appeal that the first Appellate court had discharged the dut y expected of it. We need only remind the first appellate Courts of the Addl. Ob ligation cast on them by the scheme of the present Section 100 substituted in th e court. The first appellate Court continues, as before , to be a final course o f facts ; pure findings of fact remain immune from challenge before the High Cou rt 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 t he High Court has now ceased to be available to correct the errors of law or the findings of the first appellate court even of question of law unless such quest ion of law be a substantial one. (cid:29) After the aforesaid disposition of the Hon’ble Supreme Court, the second substan tial question of law referred herein above does not require any more discussion. This substantial question of law is accordingly decided in the affirmative in v iew of the law laid down by the Hon’ble Supreme Court. If the strict interpretat ion of ’substantial question of law’ as given by the Hon’ble Supreme Court in th e case of Sir Chunilal V. Mehta and Sons reported in AIR 1962 SC 1314 is to be r eferred the Second substantial question of law is no longer a substantial questi on of law in as much as this aspect of the matter is already decided by the Hon’ ble Apex Court of the Country. 13. In the case in hand, the first appellate Court has decided all the issu es on its own by discussing the evidence on record. Rather the first court did n ot discuss the issues and only made observations on facts at the time of summari zing the facts of the case. In this case, it can not be said that the appellate Court has not complied with the provisions of order XLI rule 31 of the code of C ivil Procedure. The second substantial question of law, therefore, does not aris e out of the facts of the case in hand. 14. issed. 15.
Decision
In the result, this second appeal fails and the same is accordingly dism No order as to cost.