Sadhu etc. vs Sandhya Lal Sharma

D.B. Lal, J.—These are 14 Civil Miscellaneous Petitions under Clause 9 of the Letters Patent for permission to file appeals before a Division Bench. Regular Second Appeal No. 6 of 1974 along with 13 other connected Regular Second Appeals were decided by this Court on December 4, 1974. The 14 appeals were dismissed and the decisions of the learned District Judge were confirmed. The Defendants have now sought to file Letters Patent Appeals before a Division Bench.

The case of the Plaintiffs was, that they were landowners of several Khasra numbers and were even in possesson over which the Defendants came as trespassers by getting entries in their favour in the Khasra Girdawari of Rabi 1968. As such the suits were filed for declaration and also for permanent injunction restraining the Defendants from interfering with the possession and enjoyment of rights by the Plaintiffs. In the alternative decrees for possession were also solicited which became necessary because the Defendants dispossessed the Plaintiffs during the pendency of the litigation.

The contest of the Defendants was that the Plaintiffs were no doubt landowners but the Defendants were the tenants and were in constant possession for the last thirty years. At the same time the Defendants admitted that neither any entries were made in the Revenue records nor any rent receipts were obtained. According to them, a mutual understanding took place between them that the Defendants will remain in possession but they will not get rent receipts and that the entries will not be made in the Revenue records.

The two Courts below found in favour of the Plaintiffs and rejected the defence of the Defendants. In the Regular Second Appeals as well, the said decision was confirmed. Now the Defendants want to re-agitate the question in another appeal under Letters Patent before a larger Bench. But leave to appeal under Clause 9 of the Letters Patent should not be granted too lightly. The Judge has to certify that the case is a fit one for appeal. A certificate cannot be granted merely on the ground that a point of law arises because unless such a point arises for decision, even the second appeal could not have been admitted. Rather the finding of the Judge should be that not only a point of law of considerable importance arises but a decision of the same is required by a larger Bench. There should be an apprehension in the mind of the Judge that his view might be mistaken or that it was arrived at after some difficulty or that his decision may even require confirmation by a larger tribunal. In Kalyan Das Vs. Brij Keshore and Others, a learned single Judge of that Court laid down elaborately circumstances under which Letters Patent Appeals are permissible. The learned Judge pointed out four circumstances under which certificate of fitness is to be granted. The first is the case in which a question of general importance arises which is manifestly in public interest or if a question of private importance exists, the same should be of magnitude so that material issues are involved and the Judge feels that a decision by a larger Bench is needed. Secondly, are those cases where questions arise of frequent occurrence and a decision of a larger Bench may be considered necessary. Thirdly, there are those cases in which the existing authorities of various High Courts are at variance and the controversy requires to be set at rest by a larger Bench. In the last, fourthly, are those cases in which the Judge himself arrives at the decision after some difficulty and there is a feeling that his decision may be wrong and, therefore, a larger Bench has to be approached. This decision of the learned single Judge of Allahabad High Court was noticed with approval by the then learned Chief Justice of this Court in Sunder Singh and Ors. v. Lokha and Ors. S.L.J. 1971 HP 420.

I have then to ponder and consider if the present 14 appeals fall in the category pointed out by the above noted decision. The Defendants claimed to be in possession from 30 years and further stated that there was mutual understanding not to demand rent receipts nor to get Revenue entries made in their favour. This part of the case was disbelieved by the two Courts below and was again disbelieved in the second appeal. It is a pure question of fact and need not be gone into any further. When the entries were not recorded in favour of the Defendants, hardly any argument can be raised as to what happened to the former Jamabandi entries and if a change was effected why and how that was effected, which is once again argued by the learned Counsel. The Girdawari entry of Rabi 1968 was again explained by the two Courts below and it was found as a fact that the local M.L.A. created pressure upon the revenue authorities, and the said entry was made in favour of the Defendants. No right was conferred upon the Defendants simply on that entry. That was not even the case of the Defendants. It was again found both as a question of fact and law that circumstances did exist to make the entries in favour of the Plaintiffs and not to make them in favour of the Defendants. The presumption of truth is attached to the latest Jamabandi entry. Circumstances were not made out why that presumption could not be drawn as it was for the Defendants to establish such circumstances, the Plaintiffs having already proved the genuineness of the recent Jamabandi entries. To that extent no question of law of general importance arises. As regards the Khasra entries a resume was taken and charts were prepared. Each one of the entry was considered and a decision was given. There are three decisions in respect of such entries. Individual cases were taken up and the devolution regarding Khasra numbers was considered right from 1943-44.

Thus these cases do not fall in any category enumerated by the learned single Judge in Kalyan Das v. Brij Kishore (supra). Neither a question of general importance arises nor there is question of frequent occurrence nor can it be stated that there is any conflict in the existing authorities. In fact the decision by the court was made without any hesitation and no question of difficulty arose. In the circumstances hardly a case is made out for fitness for a certificate of appeal for a larger Bench.

The application, is, therefore, dismissed.

This decision is given in C.M.P. (M) No. 14 of 1975 and shall form part of decision in the other connected C.M. Ps. A copy of this order shall be kept on the record of those cases.