) ------ Dhrubnarayan Ojha aged about 80 years, son of Late Keshwar Ojha resident v. Shankar Thakur son of Late. Durga Prasad Thakur, resident of Purana Sahibganj, P.O. Sahibganj
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.553 of 2018 ------ (Against the judgment dated 09.10.2018 passed by learned Principal District Judge, Sahibganj in Civil Appeal No.17 of 2016) ------ Dhrubnarayan Ojha aged about 80 years, son of Late Keshwar Ojha resident of Purana Shaibganj, P.O. Sahibganj & P.S. Sahibganj(T), Distt.- Sahibganj. .... .... …. Appellant/Appellant/Plaintiff Versus Shankar Thakur son of Late. Durga Prasad Thakur, resident of Purana Sahibganj, P.O. Sahibganj & P.S. Sahibganj(T), Distt.- .... …. Respondent/ Respondent/Defendant. Sahibganj. .... For the Appellant : Mr. Kalyan Banerjee, Advocate ------ ------ P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellant. 2. This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment and decree of concurrence dated 09.10.2018 passed by the Principal District Judge, Sahibganj in Civil Appeal No.17 of 2016 whereby and where under the learned first appellate court dismissed the appeal which was preferred against the judgment and decree passed by the Civil Judge, Senior Division, Sahibganj in Title Suit No.23 of 2004. 3. The brief facts of the case is that the plaintiff filed Title Suit No.23 of 2004 in the court of Civil Judge (Senior Division) I, Sahibganj for declaration that the plaintiff is owner and title holder of the suit property and that the defendant is not having any right, title, interest over it but wrongly and illegally encroached 1 S.A. No.553 of 2018 upon the same and also for vacation and delivery of possession of the suit property through machinery of the court. 4. The case of the plaintiff in brief is that the property described in Schedule A of the plaint is ancestral property of the plaintiff having been recorded in the name of the ancestor Keshwar Ojha, father of the plaintiff and Inder Ojha along with other plots. After partition between the ancestors of the plaintiff, the suit land fell to the share of the plaintiff and the name of the plaintiff was mutated. The defendant who is the neighbour towards north of the said plot has encroached a portion of about 0-01-06 dhur of land of the plot No.2 wrongly and illegally and defendant constructed a bamboo roof over the same. The plaintiff got the land demarcated but the defendant refused to vacate the encroached land. 5. The defendant on the other hand challenged the maintainability of the suit on various technical grounds and further pleaded that the suit land is being owned by the ancestors of the defendant; being in possession thereof since 50 years. The plaintiff never objected to construction over the suit land and the suit of the plaintiff is barred by limitation. The averments made in the plaint are false. The defendant has never encroached the land of the plaintiff. The report of the private Amin who demarcated the land is not correct. 6. On the basis of the rival pleadings of the parties, the trial court settled five issues which are as under: - (i) Is the suit maintainable? (ii) Has the plaintiff any cause of action against the defendant? (iii) Is the suit barred by law of limitation? 2 S.A. No.553 of 2018 (iv) Has the defendant encroached the portion of land of the plaintiff described in Schedule-B of the plaint? Is the plaintiff entitled to the reliefs as claimed? In support of his case, the plaintiff examined four witnesses and proved (v) 7. the documents which have been marked as Ext.1 to 5. From the side of the defendant, two witnesses were examined but the defendant did not prove any document. Learned trial court considering the evidence in the record first took up issue No.4 and came to the conclusion that Ext.2, 4 and 5 which are documents relating to the private report, are not reliable documents as the same does not bear the signature of the party or witnesses and also considered that Ext.4 and 5 were silent about encroachment of the land by the defendant. The testimony of P.W.4 demolished the reliability of Ext.2 and held that the plaintiff has hopelessly failed to prove his case. Hence, the learned trial court dismissed the suit. 8. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Civil Appeal No.17 of 2016 which was heard and disposed of by the Principal District Judge, Sahibganj by the impugned judgment and decree as already indicated above. The learned Principal District Judge, Sahibganj made independent appreciation of the evidence in the record and formulated three points of determination which are as under: - (i) Whether the Ext.2, Ext.4 and Ext.5 are sufficient to establish the fact that there is an encroachment of land by the defendant? (ii) Whether the plaintiff has got valid cause of action for the suit? 3 S.A. No.553 of 2018 (iii) Whether a Judgment passed in a premature suit shall operate res judicata? 9. The learned first appellate court first took up the point for determination No.(i) and considering the fact that the plaintiff has failed to prove that the defendant has encroached upon the portion of the land of the plaintiff as described in the Schedule ‘B’ of the plaint and went on to observe that Ext.2, 4 and 5 are not sufficient to establish encroachment of the land of the plaintiff by the defendant. In respect of the point for determination No.(ii), the learned appellate court concluded that the suit is at a premature stage and the cause of the action has not ripen. Lastly, the learned appellate court took up the point for determination No.(iii) and held that the judgment passed in a premature suit shall not operate as res judicata and dismissed the appeal. 10. The learned counsel for the appellant submits that both the courts below have committed perversity by passing the judgments in a cryptic manner and arriving at the conclusion that the plaintiff has failed to prove his case that the defendant encroached upon the land of the plaintiff. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be decreed. 11. Having heard the submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that perversity so far as it relates to interfering with the findings of fact by exercise of the jurisdiction under Section 100 and 104 of the Code of Civil Procedure, is that if a finding of fact is arrived at by ignoring or excluding the relevant materials or by taking into 4 S.A. No.553 of 2018 consideration the irrelevant material or if the finding, so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law or if the finding of the court is based on no evidence or evidence, which is thoroughly unreliable or the evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person, would have arrived at those findings then the findings may be said to be perverse, as has been held by the Hon’ble Supreme Court of India in the case of Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Others reported in (2010) 13 SCC 216 paragraph-28 of which reads as under :- “28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non- application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685].“ and the same has been reiterated by the Hon’ble Supreme Court of India in the case of Bharatha Matha and Another vs R.Vijaya Renganathan & Others reported in (2010) 11 SCC 483 and which has also been reiterated by the Hon’ble Supreme Court of India in the case of K.N. Nagarajappa and Others vs. H. Narasimha Reddy reported in 2021 SCC Online SC 694. 12. Now coming to the facts of the case, the suit of the plaintiff has been filed with the contention that the defendant has encroached upon suit land which belongs to the plaintiff and the basis for such claim is the private report which 5 S.A. No.553 of 2018 does not bear the signature of the party or the witnesses. After going through the materials available in the record, this Court do not find any illegality in the concurrent finding of fact arrived at by both the courts below to the effect that the plaintiff has failed to establish any encroachment upon his land by the defendant. Such finding of fact has not been arrived at by ignoring any admissible evidence or relying upon any inadmissible evidence nor such concurrent finding of fact can be termed as perverse. 13. Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this appeal. 14. Accordingly, this appeal, being without any merit, is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 23rd of July, 2024 AFR/ Saroj 6 S.A. No.553 of 2018