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Judgment
Defendants are appellants who have suffered judgments and decrees passed by both the learned Courts below and aggrieved thereby have filed the instant regular second appeal. The parties hereinafter in this judgment shall be referred to as the ''plaintiff'' and ''defendants''.
The plaintiff filed suit for permanent prohibitory injunction on the ground that it was the owner of the land measuring 16-9-0 bighas comprised under Khata Khatauni No. 573/695 to 697, bearing Khasra No. 3267, 3268, 3269 and 3229. It was alleged that suit land is possessed by the plaintiff but the same is shown in possession of the Kardar and his brother and an appeal qua the same is pending before the Court, wherein the parties have been directed to maintain status quo and not to alienate, encumber and change the nature of the suit land. It was further alleged that one Dine was in possession of Khasra No. 3269, measuring 0-2-0 bigha over which there existed two rooms. The said Dine died and the land/house was now in possession of the defendants. On 26.12.2009, when the Kardar of the deity was out of station, the defendants taking undue advantage cut and removed one tree each of Phagra, Raminia and Khirakh with the intention to raise construction.
The learned trial Court after recording evidence and evaluating the same decreed the suit and the defendants were restrained from cutting and removing the trees from the suit land comprised in Khasra No. 3267, 3268 and 3269/3 situated at Phati Rot, Kothi Bhallan, Tehsil and District Kullu.
Aggrieved by the judgment and decree so passed by the learned trial Court, the defendants filed appeal before the first Appellate Court, however, the same also came to be dismissed by the said Court vide judgment dated 23.02.2017.
It was thereafter the defendants have filed the instant appeal against the findings concurrently recorded by the learned Courts below.
Shri Naveen K. Bhardwaj, learned counsel for the defendants/appellants is at pains to argue that the judgments rendered by both the Courts below are totally perverse as it has failed to take into consideration pleadings, evidence and the law cited before them and thereby reached at a wrong conclusion. It was further urged that the suit was not maintainable by a person who is not the owner of the land and further the judgments and decrees so passed by the learned Courts below cannot be upheld as the demarcation which form the basis of the decree passed by the learned Courts below has not been carried out in accordance with the instructions issued by the Financial Commissioner in this regard.
On the other hand, Shri Rakesh K. Sharma, learned counsel for the respondent/plaintiff, while opposing the claim of the defendants would argue that the learned Courts below have committed no irregularities, much less illegality, therefore, the judgments and decrees passed by them deserves to be affirmed. He further argued that no question of law, much less substantial question of law arises for consideration, therefore, the appeal should be dismissed. I have heard learned counsel for the parties and have gone through the record of the case.
What is ''perverse'' was considered by the Hon''ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:- "26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined ''perverse'' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
The expression "perverse" has been defined by various dictionaries in the following manner:
Oxford Advanced Learner''s Dictionary of Current English Sixth Edition
PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
Longman Dictionary of Contemporary English - International Edition
PERVERSE: Deliberately departing from what is normal and reasonable.
The New Oxford Dictionary of English - 1998 Edition
PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
New Webster''s Dictionary of the English Language (Deluxe Encyclopedic Edition)
PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
Stroud''s Judicial Dictionary of Words & Phrases, Fourth Edition
PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8
"8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10)
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
The meaning of `perverse'' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7)
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that 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 law."
What is ''perverse'' has further been considered by this Court in RSA No.436 of 2000, titled ''Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:- "25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even 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 vice of procedural irregularity or the findings are such that no reasonable persons 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 conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
What is ''perversity'' recently came up for consideration before the Hon''ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:- "8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93)
"11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532)
"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on reappreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man''s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79)
"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
''103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615)
"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court''s entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
Adverting to the facts, it would be noticed that nowhere the defendants ever claimed that the suit to be not maintainable for non-joinder of necessary parties and that is clearly evident from the issues framed by the learned trial Court. That apart, this plea has also not been taken before the first Appellate Court and obviously, therefore, cannot be permitted to be raised for the first time in the second appeal.
As regards the suit being not maintainable by a person who is not the owner of the land as alleged, it would be noticed that the defendants are un-necessarily trying to create confusion, as nowhere the defendants in their entire written statement filed by defendant No. 2, as adopted by defendant No. 1, claimed that the plaintiff is not the owner of the suit land and have opposed the claim of the plaintiff only on the ground that they were in possession of the suit land. Even otherwise the defendants have failed to show how the suit was not maintainable or would not be maintainable.
Now adverting to the plea that demarcation had not been carried out in accordance with the provisions of law, it would be noticed that Local Commissioner was appointed by learned trial Court vide order dated 19.03.2015. The defendants filed objections to the report of the Local Commissioner on the ground that the demarcation has not been carried out in accordance with law, inasmuch as there were two houses over the suit land, as such the demarcation of the built up area was not possible and the same was effected by the Local Commissioner only in papers. Reply to these objections were filed by the plaintiff wherein, it was maintained that the report had been prepared after the Local Commissioner visited the spot, conducted the demarcation in accordance with law and it was only thereafter the report had been submitted to the Court.
It would be noticed that the learned trial Court examined the Local Commissioner Shri Surender Pal, Tehsildar as court witness (CW-1) who testified that he gave demarcation in accordance with the rules and thereafter prepared report Ex.PW1/A. He proved the spot map and field book Ex.PW1/C and Ex. PW1/D, respectively. He further stated that defendants refused to sign the statements. According to him, the parties were informed about the demarcation vide letter Ext.PW1/G. After demarcation Khasra No. 3269/1 area measuring 0-1-0 bighas and Khasra No. 3269/2 area measuring 0-0-12 bighas total measuring 0-1-13 bighas was found in possession of defendants. In addition to that Khasra No. 3268/1 measuring 0-3-5 bighas was found encroached by defendants. He also found that Khasra No. 3268/1 measuring 0-3-5 bighas a pucca house was standing whereas Khasra Nos. 3269/1 and 3269/2 were vacant except for construction work being carried out over a municipal area of 0-0-12.
In cross examination by the defendants, the Local Commissioner stated that the house, which was existing over Khasra No. 3268, had a marble floor which appears to have been freshly laid. According to him, he could not say as to when exactly the house was constructed. He further deposed that over Khasra No. 3269/2, there was a small incomplete bathroom.
The learned counsel for the defendants/appellants has not been able to point out as to who and in what manner the report of the Local Commissioner was not in accordance with law and having failed to do so, it cannot be held that the findings recorded by the learned Courts below after placing reliance upon the report of the Local Commissioner are perverse in any manner.
It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon''ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows: "15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus: "12. The phrase ''substantial question of law'', as occurring in the amended Section 100 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 in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "''substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
Finally, in paragraph 14, the Hon''ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus: "14. A point of law which admits of no two opinions may be a 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. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
The findings recorded by the learned courts below are based on the correct appreciation of the pleadings and the evidence and pure findings of fact are immune from challenge in the second appeal.
No question of law much less substantial question of law arises for consideration in this appeal.
Consequently, I find no merit in this appeal and the same is dismissed. Pending application, if any, also stands disposed of.