Govind Prakash And Ors vs Jain Shwetambar Temple Through Secretary

Appellant-objectors have preferred this execution second appeal to assail order dated 4th of January 2019, passed by Addl.

District Judge, Merta (for short, 'learned lower appellate Court'), rejecting their appeal and affirming order dated 10th of March 2015, passed by Senior Civil Judge, Merta (for short, 'Executing Court') in Civil Misc. Case No.10/2007, rejecting objections of the appellant-objectors under Order 21 Rules 97 & 99 read with Section 47 CPC by holding that appellant-objectors have failed to prove location of the disputed shops on the land, which is part of Khasra Nos.974/6 to 974/12. Subsequently, learned lower appellate Court, upon de novo examination of evidence and materials available on record, fully concurred with the findings and conclusions of learned Executing Court, resulting in rejection of the appeal.

Succinctly stated, facts of the case are that Gram Panchayat, Merta Road, issued a Patta/sale-deed in favour of one Deepchand on 17th of March, 1971 for a land measuring 35 x 30 yards, i.e. total 1050 sq.yds. As there was some dispute pertaining to land belonging to respondent-Temple, a civil litigation was pending between it and Gram Panchayat at the time of aforesaid allotment, which litigation continued upto this Court in the form of S.B. Civil Second Appeal No.209/67. The appeal was finally decided on 22nd of February, 1974 on the basis of compromise arrived at between respondent-Temple and the Gram Panchayat. In terms of the compromise, the land, which is part of Khasra Nos.974/1 to 974/17 shall be treated as land belonging to respondent-Temple and any allotment made by Gram Panchayat out of that land by issuance of Patta is to be treated as null & void. Pursuant to compromise decree passed by this Court, a notice was given to Deepchand by District Collector, Nagaur on 26th of December, 1974 as to why construction raised by him on the land be not demolished. A similar notice was also issued by Sub Divisional Officer, Merta on 30th of December, 1974. Being aggrieved by the aforesaid notices, Deepchand filed a civil suit for permanent injunction. The suit was decreed by learned trial Court on 9th of December, 1977. Against the judgment and decree, appeal preferred by District Collector, Nagaur was also dismissed on 19th of October, 1983. In the interregnum, Deepchand passed away and he was succeeded by his wife Smt. Sushila Devi. Smt. Sushila Devi, by a registered sale-deed, transferred 337.13 sq.ft. land to first appellant Govind Prakash on 4th of June 2002, followed by yet another sale-deed dated 11th of December 2002 for a land admeasuring 142.82 sq.ft. in favour of second appellant. Besides that, Smt. Sushila Devi entered into an agreement to sale in favour of third appellant for two shops situated on the land, which was part of Patta (Ex.1).

The compromise decree passed by this Court was put to execution by respondent-Temple by filing Execution Petition No.24/85 on 4th of September, 1985. Learned Executing Court issued warrant of possession on 12th of September, 2004. It so happened that the learned Executing Court before issuance of warrant of possession, vide order dated 12th of May 2004, directed the Tehsildar to survey boundaries of Khasra Nos.974/6 to 974/12. The assertion of appellants is that said survey was conducted without giving notice to them. Be that as it may, as the fact remains that Tehsildar in his survey report, submitted before learned Executing Court, clarified that two shops of first appellant, one shop of second appellant and two shops of third appellant are falling within the boundaries of Khasra Nos.974/6 to 974/12. Raising grievances about the survey report of Tehsildar as being prepared without notice to the appellants and further urging that the shops in question are not part of land belonging to respondent-Temple, at their behest objections were filed before the learned Executing Court, inter-alia, by invoking Order 21 Rules 97 & 99 read with Section 47 CPC. The objections were contested by the respondent-Temple. The learned Executing Court permitted parties to lead their evidence and finally, by its order dated 10th of March 2015, rejected the same. The learned Executing Court, upon consideration of evidence of rival parties and the survey report of Tehsildar, found that the shops of appellants are situated on the land belonging to Temple. The Court has further recorded a finding that appellant-objectors have failed to prove that the shops are not within the boundaries of land belonging to Temple. Being aggrieved by the same, appellants approached the lower appellate Court. Learned lower appellate Court, too, did not find any fault with the findings and conclusions of the learned Executing Court.

I have heard learned counsel for the parties at length.

Learned counsel appearing for the appellants, in support of his arguments has placed reliance on judgments in (1) Jamil Ahmed Taban & Ors. Vs. Must. Khair-Ul-Nisa & Ors. (AIR 1970 Delhi 205) and, (2) Smt. Mandera Vs. Sachindra Chandra (AIR 1962 Patna 211) whereas learned counsel for the respondent has essentially harped on concurrent findings of both the Courts below and the compromise judgment rendered by this Court in second appeal No. 209/67.

While it is true that initially Shri Deepchand was allotted the land in dispute by Gram Panchayat, Merta Road and after his death being wife Smt. Sushila Devi, predecessor-in-title of the appellants stepped into his shoes but then the lis involved in the matter is confined to the location of land. Precisely, it was obligation of the appellants to have proved that land on which the shops are constructed by them is not part of the land owned by Temple. Any objection submitted by an individual under Order 21 Rules 97 & 99 read with Section 47 CPC is required to be founded on substantial ground. Furthermore, the objector is also expected to prove that issuance of warrant of possession is not desirable for the reason that land in question is not part of the decree. Undeniably, in the instant case, a compromise decree was passed by this Court while deciding second appeal No.209/67 with a clear stipulation that the land, which is part and parcel of Khasra Nos.974/1 to 974/17, belongs to Temple and any allotment made by the Gram Panchayat to any individual from this land be treated as cancelled. The learned counsel for the appellants has essentially attacked the survey report prepared by the Commissioner/Tehsildar on the ground that the same was prepared without any notice to them. The argument per se appears to be alluring but is lacking substance for the simple reason that title was acquired by the appellants 18 years posterior to the preparation of Commissioner's report and at that point of time they were not party to the litigation.

In the matter of location/measurement of an agricultural land, entries in the revenue record are more authentic and substantial. Moreover, when the dispute is pertaining to any agricultural land, allegedly owned by a temple, it was an appropriate course resorted to by the learned Executing Court. Assuming it that survey report prepared by the Tehsildar at the relevant point of time had some discrepancy or fault, the predecessor-in-title of the appellants ought to have raised objection before the appropriate authority. The appellants having stepped into the shoes of their predecessor-in-title cannot be allowed to take advantage of the omissions of their predecessor-in-title. Law is trite that nobody can transfer better title than his own and if the predecessor-in-title of the appellants was not having valid title or the so called title acquired stood annulled, as compromise decree was by this Court, obviously, appellants cannot be allowed to raise any grievance much less plausible grievance to thwart execution of a decree, which has attained finality.

Supreme Court, in the matter of Misrilal Ramratan Vs. A.S. Shaik Fathimal [1995 (Supp) 4 SCC 600], made it clear that Commissioner's report cannot be rejected on the spacious plea of non-examination of the Commissioner. The Court held:

"It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case."

Both the learned Courts below have examined the evidence and other materials available on record threadbare to record concurrent finding based on sound appreciation of evidence. I am afraid, upon perusal of both the impugned orders, it is not possible to infer that both the Courts below have misconstrued the evidence or eschewed the material evidence in recording their conclusions. The procedure adopted by the learned Executing Court by trying the objections submitted on behalf of appellants as civil suit is also clearly apparent.

In the instant appeal, I am unable to find involvement of any question of law much less substantial question of law and the judgments relied on by learned counsel for the appellants are also of no assistance to the appellants, who have stepped into the shoes of their predecessor-in-title and are bound by the acts of their predecessor-in-title. The predecessor-in-title of the appellants was under an obligation to prove by evidence that the land on which the shops exist is not part of the land owned by Temple but neither he sought permission to tender any contrary evidence to impeach the Commissioner Report nor raised any objection against it. Therefore, objections of the appellants against the Commissioner Report are wholly untenable on the anvil of Order 26 Rule 10(2) CPC.

Coming to the proposed questions of law, it would be apposite to mention here that the phrase "substantial question of law", as occurring in the amended Section 100 of the Code of Civil Procedure, is not defined in the Code. The word "substantial", as qualifying "question of law", means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something purely technical, of no substance, or consequence, or merely academic. When a question of law is fairly arguable, where there is room for difference of opinion on it, or where the Court thinks it necessary to deal with that question at some length and discuss alternative views, then obviously the question may be construed as a substantial question of law. On the other hand, if the question is covered by the decision of the Apex Court, or if the general principles to be applied in determining the question are well settled, and the only question is to apply principles to the particular facts of a case, it may not be a substantial question of law. The general rule is that High Court shall not interfere with the concurrent findings of Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where: (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts below have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts below have wrongly cast the burden of proof. When Court refers to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

In view thereof, the instant appeal being bereft of any substantial question of law merits rejection summarily.

Consequently, the execution second appeal fails and same is hereby dismissed. No orders as to costs.