Mool Chand vs Smt. Neelam Devi and Another

Poonam Srivastav, J.—Heard Sri S. Alim Shah, learned Counsel for the appellant and Sri D.C. Mathur, learned Counsel for the respondents.

This is plaintiffs second appeal against the judgment and decree dated 5.4.2008, passed by the Special Judge/Additional District Judge, Bijnor, in Civil Appeal No. 90 of 2007, confirming the Judgment and decree dated 20.9.2007, passed by the Judge, Small Causes Court, Bijnor, in Original Suit No. 238 of 2001.

The dispute is in respect of a house situated in Mohalla Kaisthan, Kasba and Tehsil Chandpur, district Bijnor. The entire property belonged to one Rajwati w/o Bhukkhan Saran, who sold it on 5.7.1940 to Chandu Lal, Raghuvir Saran, Ram Saran and Mangu Lal all sons of Fanda Mal. The plaintiff was the owner of 1/4 share of the aforesaid property, and the same was auctioned in execution proceedings of a money decree. The property was purchased by one Nisar Ahmed son of Tafazzul Hussain in the auction sale. The auction purchaser sold the property to Chandu Lal, who subsequently became owner of half portion of the house. The plaintiffs claim is that even after the auction sale, he continued to be in possession of his portion and thus perfected his right on the basis of adverse possession, therefore, he cannot be evicted from the portion in his occupation.

The defendant/respondents contested the suit by filing written statement and also preferred counterclaim for recovery of the possession. The defendant/respondent No. 1 Smt. Neelam Devi purchased the entire house from Chandu Lal, Raghuvir Saran, Ram Autar Verma and Krishna Kumar Verma, vide sale deed dated 14.9.1995. It is also brought on record that the Partition Suit No. 170 of 1995 was instituted at the instance of the appellant, which was dismissed in default on 1.2.2001. The plaintiff claimed that the said suit was instituted on wrong legal advice, therefore, no steps were taken to get the suit restored and subsequently the instant suit for permanent injunction was instituted.

Learned Counsel for the appellant has argued that the plaintiff/appellant had already perfected his right before the present_| defendant/respondents purchased the property and, therefore, he became the owner of 1/4 share as he continued to be in occupation within the knowledge of owners and his possession is a hostile possession within the knowledge of real owners and thus the plaintiff perfected his title and he is owner in possession and is entitled for permanent injunction.

The trial court framed a number of issues. The relevant substantial question of law raised before this Court relates to issue No. 1, whether the plaintiff is owner in occupation on the basis of adverse possession and issue No. 2, whether the suit is barred under Order IX, Rule 9, C.P.C. as stated in paragraph No. 5 of the written statement? The trial court dismissed the suit on the ground that the plaintiff had instituted Suit No. 170 of 1995, Mool Chand v. Raghuvir and Ors. which was dismissed in default and no steps were taken for getting the suit restored. The property over which the plaintiff claimed to have perfected his right on the basis of adverse possession, was also not accepted by the courts below since it was sold in Execution Case No. 241 of 1954. The plaintiff was residing in the capacity of licensee and licence having been revoked by the defendant/respondents, the status of the plaintiff/appellant is no better than a trespasser. Counter-claim for possession of portion in occupation of plaintiff was allowed and decreed and the lower appellate court also refused to grant any relief whatsoever to the plaintiff/appellant.

Learned Counsel for the appellant has tried to show that the two judgments suffers from substantial error of law though 12 substantial questions of law are raised in the instant appeal but the main argument revolves around the substantial question of law No. 1, which is enumerated hereinbelow:

I. Whether Mangu Lal, father of the appellant and the appellant became the trespasser from the date of auction and since that date the appellant has been in continuous open hostile adverse possession against the true owner without their consent and matured his title on the basis of remaining adverse continuous possession after the expiry of the statutory period of 12 years?

Sri D.C. Mathur, learned Counsel for the defendant/respondents has disputed the argument advanced on behalf of the appellant by Sri S. Alim Shah, advocate. In respect of the aforesaid substantial question of law. Submission is that since the two Courts have recorded concurrent findings of fact that the possession of the plaintiff was not hostile to the knowledge of the defendants and he was residing only in a small portion as a licensee, he cannot be granted relief of injunction since he has not been able to establish his title. The courts below have recorded findings that occupation of the plaintiff is only on the basis of licence granted by the defendants and once licence has been revoked, counter-claim has been allowed, the plaintiff has no right or claim to the property whatsoever.

I am in agreement with the submission made by the counsel for the defendant/respondents that a heavy burden lies on the'' shoulders of the plaintiff to gain any benefit on the basis of adverse possession. The witnesses examined on behalf of the plaintiff are also of no help. Findings regarding adverse possession by the two Courts is absolutely legal and nothing has been brought on record to establish the right of adverse possession by the plaintiff. I do not find any error of law in the two judgments while discarding the case of the plaintiffs adverse possession and thus refrain from Interfering in the findings of fact. I cannot lose sight of the fact that the plaintiff had instituted a previous Suit No. 170 of 1995, Mool Chand v. Raghuvir and Ors. claiming 1/15 share in the property.

Submission of the counsel for the appellant that the suit was instituted on wrong legal advice, which was dismissed in default, is a big hurdle, which the plaintiff has miserably failed to overcome. Order IX, Rule 9, C.P.C. specifically bars a subsequent suit by the plaintiff in respect of the same cause of action. Previous suit was also Instituted claiming share in the property and on the basis that after auction sale, he is in continuous possession of the property and, therefore, his share may be declared as owner on basis of possession.

It is not brought to my notice as to what precluded the plaintiff from moving a restoration application and then move an amendment application in the same suit. Order IX, Rule 9, C.P.C. prohibits any subsequent suit and the two courts have accordingly recorded findings that the subsequent suit at the Instance of the plaintiff was not maintainable. Explanation that the previous suit was on erroneous and wrong legal advice, is not sufficient and the courts below were absolutely correct while refusing to grant the same relief, which was claimed in the previous suit. The two judgments challenged in the Instant appeal do not suffer from any error of law much less substantial error of law. Findings that the plaintiff is a trespasser, cannot be Interfered in exercise of Jurisdiction u/s 100, C.P.C. The defendant/respondents are entitled for possession of the property in occupation of the plaintiff since counter-claim stands decreed and confirmed in appeal.

The Apex Court depreciated the liberal construction and generous application of provisions of Section 100, C.P.C. Hon''ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference u/s 100, C.P.C. For ready reference, extract of paragraph No. 7 of the case of Veerayee Ammal Vs. Seeni Ammal, is quoted below:

7....We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi AIR 1205 3 held:

It is well-settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact.

Similar view has been expressed in a number of other decisions by the Apex Court in the cases of Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, ; Rajeshwari Vs. Puran Indoria, ; Gurdev Kaur and Ors. v. Kaki and Ors. 2006 All CJ 1481 (SC) : 2006 (3) AWC 2373 and Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others,

The Apex Court in the recent case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., ruled that a point of law which admits of no two opinions may be proposition of law but cannot be a substantial question of law. To be ''substantial'' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned.

It will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and Involved in the case or not? The same view has been expressed by the Apex Court in the case of Govindaraju Vs. Mariamman,

The judgments under challenge cannot be interfered in this appeal in exercise of Jurisdiction u/s 100, C.P.C. The two Judgments do not suffer from any error and no substantial question of law arises. The Instant second appeal lacks merit and is, accordingly, dismissed with costs.