Chota Lal vs Bholaram Agarwal and Others

M.H.S. Ansari, J.—At the stage of admission of the above Second Appeal on 3-6-1993, this Court recorded that the substantial question of law is as raised in the grounds of Memo of Appeal. At the time of final hearing, however, it was noticed that the Memorandum of Grounds do not specify the substantial question of law. However, the substantial question of law arising for consideration in this Appeal is whether the possession of the person can be disturbed on the ground of voidness of transaction under which possession is delivered and he can be denied the grant of relief of injunction against third parties on that ground.

The plaintiff in the suit O.S. No. 310 of 1988 is the appellant herein. The suit was filed against the Respondents - defendants for perpetual injunction restraining them from interfering with the possession of the plaintiff over the suit property. It was in the pleadings of the plaintiff that the suit schedule property is having Door No. 17-1-42/1 and is situated at Main Bazar Area, Ramavaram, that there is a basement constructed in the year 1962 over the suit site and that the plaintiff had purchased the suit schedule property from the sons of Late Giridharlal who in turn had purchased the same from one Sri M. Sambamurthy. The pleadings referred to the execution of an Agreement of Sale in favour of the plaintiff and payment of a consideration of Rs. 6,000/- on 14-3-1987 and that defendants 1 and 2 in the suit had tried to purchase the suit property and as the vendors did not sell the same to them, they developed a grudge against the plaintiff and started creating trouble and interference in the possession of the plaintiff over the suit land, with the support of the Defendant No. 3.

In the joint written statement filed by the Defendants 1 and 2, the purchase of the suit schedule property by the plaintiff was denied and it was averred that even if there was a purchase, the same is null and void as the property is situated in the scheduled area and that mere agreement would not create any interest in the property and therefore the plaintiff has no locus standi to file the suit. It was further averred that defendants 1 to 3 are residing abutting the suit schedule property and the said plaint schedule property is being used as common passage. Defendant No. 3 filed an independent written statement contending inter alia that the plaintiff is not the owner or possessor and denying the purchase alleged and that the plaintiff and his alleged vendors being non-tribals, the alienation alleged is null and void in view of the provisions of Regulation (1) of 1970. It was further averred that the suit property does not belong to the Heeralal and others from whom the plaintiff alleges to have purchased.

The Trial Court decreed the suit of the plaintiff with costs and on Appeal, the Subordinate Judge at Kothagudem allowed the Appeal A.S. No. 29 of 1992 filed by the defendants and thereby set aside the judgment and decree passed in O.S. No. 310 of 1989 on the file of Principal District Munsif Court at Kothagudem. It is against the said judgment of Appellate Court that the above Second Appeal has been preferred by the plaintiff.

It may be mentioned here that before both the Courts below, the respondents - defendants have not claimed any right in the suit schedule property except stating that as the suit schedule property is vacant, they being the owners of the adjacent properties, are using the same. The Trial Court inter alia relied upon Ex.C-1 to C-5 which pertain to the suit O.S. No. 4 of 1986 filed by Defendant No. 3 against Chotelal (plaintiff in the present suit), Bolaram and Hanuman Prasad (Defendant Nos. 1 and 2 in the present suit). That suit was filed by Defendant No. 3 with regard to construction by her of a room in front of her house. Ex.C-1 is the plaint. Ex.C-2 is the written statement filed by the defendants in that suit and Ex.C-3 is the sketch filed by the plaintiff therein (Defendant No. 3 in the present suit). The suit schedule property in the present suit is shown in the sketch on South of the Defendant No. 3''s house mentioning it as belonging to Pannalal; and Giridharlal. The Trial Court held that P.W.3 is the owner of the suit schedule property along with his brothers who are all sons of Girdharlal. The Trial Court also observed that except Defendant No. 1 who was examined as D.W.1, none of the other defendants choose to examine themselves except another neighbour D.W.2. The Trial Court also observed that D.W.1 admitted that there is a basement in the suit schedule property and that as per evidence of D.W.1, the same was constructed by D.W.1, the plaintiff and other defendants. The evidence of D.W.1 regarding construction of the basement was disbelieved by the Trial Court and it was observed that D.W.1 is bent upon giving false evidence. The Trial Court also held that there is no other evidence available to show that the suit schedule property is being used by the neighbours either as a backyard or for playground for children. The Trial Court, however, observed that there is discrepancy between the evidence of P.W.3 and P.W.1 with regard to the manner of transfer of the suit land in favour of the plaintiff but P.W.3 having been held to be the owner of the suit schedule property has admitted, having transferred the same to the plaintiff, the possession and enjoyment of the suit land by the plaintiff before the date of the suit, it was held, entitles him to a decree for injunction. The Appellate Court, however, noted the discrepancy in the pleadings and evidence on the part of the plaintiff with regard to his title over the suit schedule property and discarded the documentary evidence Ex.C-1 to C-5 with a simple observation that they do not give any clear picture of the suit schedule property and as such they do not deserve any consideration. It was further observed by the 1st Appellate Court that the relief of perpetual injunction being purely of equitable character, the pleading and evidence of the plaintiff being inconsistent, the plaintiff is not entitled to the relief of perpetual injunction.

The Trial Court, has held that the plaintiff established that he was in possession and enjoyment of the suit land before the date of suit and in rebuttal absolutely there is no evidence to the contra. The Appellate Court, however, has not set aside the said finding of the Trial Court with regard to the possession of the plaintiff over the suit land. The Appellate Court presumed that as the suit site was being used by women folk for cleaning the utensils etc., and held, therefore, it can be presumed that the adjacent house owners have got easementary rights.

Sri K. Vinay Kumar, learned Counsel for the appellant, contended that the Appellate Court erred in setting aside the judgment and decree of the Trial Court on surmises and conjectures. The suit, it is contended, was one for perpetual injunction against interference with the possession of the plaintiff. The Plaintiff having successfully established his lawful possession of the suit property, as held by the Trial Court unless the finding as to possession is set aside by the Appellate Court, the decree in the suit should not have been set aside. The aforesaid contention of the learned Counsel for the appellant is well founded. The defendants in the suit have not claimed any right or title in the suit property and as noticed above, merely denied the right of the plaintiff in respect of the suit property. The Trial Court has noted the contradiction that although it was not pleaded by Defendant No. 1 that the suit schedule property belongs to Singareni Collieries, D.W.1 in his evidence sought to set up the title of the Singareni Collieries in respect of the schedule property. The construction of the basement on the suit schedule property has not been denied by D.W.1 (Defendant No. 1) in his evidence though stand was sought to be taken that the said basement was constructed by him (D.W.1), the plaintiff and other defendants. The Trial Court disbelieved the evidence of D.W.1, both as regards construction of basement and as regards ownership of the suit schedule property. The 1st Appellate Court, however, without appreciating the evidence and without giving any finding to the contra as to possession of the plaintiff over the suit schedule property set aside the Judgment of the Trial Court upholding the contention of the Respondents -defendants that the plaintiff has to succeed on the strength of his own case and not on the weakness of the defendant in a suit for injunction. The findings of fact arrived at by the Trial Court thus remain undisturbed. Needless to reiterate that the suit being one for permanent injunction, question of title arises only incidentally. The defendants have failed to establish easementary right claimed by them and the Trial Court rightly held that except D.W.1, none of the other defendants have chosen to lead evidence with regard to the nature of easementary right claimed to non-suit the plaintiff.

The Lower Appellate Court held that even assuming that the suit property was conveyed to the plaintiff, the said transaction is void being in contravention of Section 3(1) of A.P. Scheduled Areas Land Transfer Regulation, 1959. That seems to be the main reason for allowing the Appeal and setting aside the judgment and decree of the Trial Court.

Sri K. Vinay Kumar, learned Counsel for the appellant, contended that the appellant - plaintiff is entitled to protect his possession against third parties who have no manner of right, title or claim in the suit property and the effect of Regulation 1 of 1959 is a matter between the State and the plaintiff. The same cannot come in the way of the plaintiff in protecting his possession against third parties who have no right to interfere with the peaceful possession of the plaintiff.

A Transferee - non-tribal under the said Regulation 1 of 1959 is not entitled to retain possession. However, before he can be dispossessed or evicted from the land on the ground for holding the land in violation of the said regulations, appropriate proceedings have to be initiated by the appropriate authority for resumption/restoration of the property which was the subject matter of a transfer to the non-tribal transferee. The instant case is not one such where any proceedings have been initiated by the appropriate authority for resumption/restoration of the land. The Trial Court having held that the plaintiff is in possession prior to the date of the suit and the Lower Appellate Court not having disturbed the said finding of fact, the plaintiff has got a right to protect his possession against third parties who have no manner of right, in the suit property even though the transaction under which the plaintiff claims is void under Regulation 1 of 1959. I am supported in this view by a judgment of this Court in G. Ramaiah v. Ahmed Badruddin 1989 (1) APLJ 452 .

Sri M.R.K. Chowdhary, learned Counsel for the respondents, however contended that this Court in exercise of jurisdiction u/s 100 CPC, would not interfere merely because the Lower Appellate Court has not expressly reversed certain findings of the Trial Court. Reliance was placed by Sri. M.R.K. Chowdhary, on a judgment in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, . The aforesaid judgment no doubt supports the contention of the learned Counsel for the respondents. However, in the instant case, the Lower Appellate Court has neither reversed the finding of fact arrived at by the Trial Court nor on the appreciation of evidence come to a different finding of fact. The Lower Appellate Court merely proceeded on the basis that the plaintiff has failed to satisfy the Court with his own conduct that his dealing in the matters has been fair or honest and thereby disentitled himself to the relief of perpetual injunction, a relief of a purely equitable character. Further, the Lower Appellate Court was mainly influenced in setting aside the judgment of the Trial Court on the ground of contravention of the provisions of A.P. Scheduled Areas Land Transfer Regulation, 1959. I have already considered that aspect of the matter, supra. The authorities under the said Regulation, 1959 are not precluded from taking appropriate proceedings against the plaintiff for the alleged violation. That will not, however disentitle the plaintiff from seeking appropriate relief against third parties who have no right to interfere in the possession of the plaintiff.

Sri M.R.K. Chowdhary, learned Counsel for the respondents, next relied upon a judgment of Supreme Court in Smt. Annapoorani Ammal Vs. G. Thangapalam, in support of his contention that no substantial question of law arises in the instant case warranting interference in Second Appeal. The Supreme Court in the case relied upon observed that

"13. After going through the judgment of High Court in this appeal, we find that there is no substantial question of law and much less a question of law on the basis of which the learned Judge exercised jurisdiction u/s 100 and interferred with the findings of fact".

As already noticed, the Lower Appellate Court has not arrived at any findings of fact, but set aside the judgment of the trial Court on certain other grounds, referred to above.

Lastly, it was contended that no substantial question of law as contemplated u/s 100 CPC has been formulated and therefore this Court would not be justified in reappreciating the evidence or substituting its own conclusion or otherwise interfere with the judgment of the lower Appellate Court. Reliance for the said contention was placed on Dr. Ranbir Singh Vs. Asharfi Lal, . That was a case where the High Court formulated no question of law on basis of which it proposed to interfere with the findings of fact. The Supreme Court having noticed the same, observed, that it has been the consistent view of the Court that there is no jurisdiction to entertain a Second Appeal on the ground of erroneous finding of fact based upon an appreciation of the relevant evidence. It was further observed that the Sub-section (1) of Section 100 of the CPC contemplates that an appeal shall lie to the High Court against every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

In the instant case, the appreciation of evidence has not been undertaken by this Court nor is it warranted in the light of the limited scope of the jurisdiction of this Court u/s 100 with regard to appreciation of evidence. What has been noted is that the Lower Appellate Court has neither reversed the findings of fact arrived at by the Trial Court nor come to any independent finding of fact to the contra.

No doubt, the jurisdiction of this Court to entertain a Second Appeal after 1976 amendment to the CPC is confined only to such appeals as involve a substantial question of law specifically set out in the Memorandum of Appeal.

In Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. 1997 (2) SC 152 while considering the intendment of the Legislature for amending Section 100 CPC and the change brought about in Section 100 CPC by the Amendment Act of 1976, which has drastically restricted the scope of Second Appeals, observed, that the jurisdiction of the High Court to entertain a Second Appeal after 1976 Amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the Memorandum of Appeal and formulated by the High Court. Adverting to the proviso to Section 100 CPC, it was observed as follows :

"The proviso presupposes that the Court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a "substantial question of law" is thus, the sine-qua-non for the exercise of the jurisdiction under the amended provisions of Section 100 C.P.C."

In the instant case, the substantial question of law arising for consideration has since been formulated, though it was not so formulated at the stage of admission. Such power to formulate the substantial question of law at the time of hearing of the Second Appeal even if it was not earlier formulated by this Court is discernible from the passage extracted above from the judgment of the Supreme Court (Supra 5 cited).

In the light of foregoing the judgment of the Appellate Court in A.S. No. 29 of 1992, dated 19-4-1993, is set aside and the judgment and decree in O.S. No. 310 of 1988 on the file of the Principal District Munsif, Kothagudem, be and is hereby affirmed. However, this will not preclude the authorities to take proceedings under the A.P. Scheduled Areas Land Transfer Regulation Act.

In the result, the above Second Appeal is allowed with costs.