Concurrent findings of fact of first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction u/s 100 of CPC: High Court of Delhi
The power of the High Court to interfere in second appeal under section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case and the same was upheld by High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of RAMESHWAR SINGH vs. THE CHIEF SECRETARY, GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI &amp; ANR. [CM APPLs. 4984/2022] on 28.01.2022. The facts of the case are that the plaintiff purchased a plot of land from one Sh. Kanwar Singh and Sh. Risal Singh, vide registered sale deed. According to the Plaintiff, he constructed a porch on the said property a decade before filing the suit in 2005 against threats made by defendant. It was sometime in December, 2005, that officials of the GNCTD made threats for demolition of the porch marked in red colour in the site plan averring that the porch has been constructed upon pusta. It was this threat which led to the filing of the suit. The trail court dismissed the suit on the ground that the plaintiff failed to prove his case. Thereafter, even the appeal was dismissed by the appellate court. The petitioner has filed a second appeal under section 100 Code of Civil Procedure requesting a restrain on the Defendant and their agents, servants, employees, workers, assigns, nominees from forcibly and illegally demolishing the porch constructed in the property of the Plaintiff. The plaintiff’s counsel submitted that the Trial Court has wrongly non-suited the Plaintiff. He submitted that since the sellers were not produced as witness before the Trial Court, therefore, case of the Plaintiff was not proved. Considering the facts and circumstances, the Court was of the opinion that no interference with the concurrent findings of the lower courts was warranted in the present second appeal as it cannot be said that the view taken by the first appellate court was based on no material. Accordingly, the present appeal was dismissed. The Court observed that, “It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The power of the High Court to interfere in second appeal under section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case”. Click here to read the Judgment
22 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th January 2022 RSA 12 2022 & CM APPLs. 4984 2022 4985 2022 RAMESHWAR SINGH Through: Mr. Devraj Singh Advocate. ..... Appellant THE CHIEF SECRETARY GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI & ANR. JUSTICE PRATHIBA M. SINGH Through: None. ..... Respondents Prathiba M. Singh J.This hearing has been done through video conferencing. The present second appeal arises out of a suit for permanent injunction filed by the Appellant Plaintiff in December 2005 against the Defendant Government of NCT of Delhi. The relief sought in the plaint is as under: the Defendant “It is therefore most respectfully prayed that this Hon’ble Court may be pleased to: a) Restrain their agents servants employees workers friends assigns nominees from forcibly and the porch constructed in the property of the Plaintiff being marked Red in color in the site plan annexed along with the plaint. illegally demolishing b) The costs of this suit may also be allowed in favour of the Plaintiff and against the Defendants. c) Any other and such further relief as this Hon’ble court may deemed fit and proper under RSA 12 2022 circumstances of the case may also be granted in favour of the Plaintiff.” The said suit came to be dismissed vide order dated 28th April 2014 in suit no. 177 2014 titled Shri Rameshwar Singh v. The Chief Secretary Govt. of NCT of Delhi passed by the Civil Judge Central 05 Delhi hereinafter “Trial Court”) on the ground that the Plaintiff failed to prove his case. An appeal was preferred by the Plaintiff against the said order in RCA 61015 2016 titled Rameshwar Singh v. The Chief Secretary. However even the said appeal came to be dismissed by the ASJ 02 South East Saket Delhivide the impugned order dated 30th July 2021 which has been challenged in the present second appeal before this Court. The case of the Plaintiff is that he purchased a plot of land admeasuring 1000 square yards forming part of Khasra No. 64 4 2 from one Sh. Kanwar Singh and Sh. Risal Singh vide registered sale deed dated 4th October 1985. According to the Plaintiff the plot was bounded on the East by a private Raasta having 10 feet width on the West by a Raasta of 15 feet width on the North by land belonging to a third party and on the South by a Raasta of 30 feet width. From the said plot the Plaintiff sold 450 square yards to different purchasers from time to time. According to the Plaintiff he constructed a porch on the property which was constructed a decade before filing of the suit in 2005. It was sometime in December 2005 that officials of the GNCTD made threats for demolition of the porch marked in red colour in the site plan averring that the porch has been constructed upon pusta. It was this threat which led to the filing of the suit. RSA 12 2022 In the written statement the GNCTD took the plea that the Plaintiff’s claim is wrong and misleading and that the Raasta which is 10 feet wide on the East side of the Plaintiff’s property is being used as a public utility for more than 20 years over which the porch has been constructed. In the written statement the plea taken was that even as per the sale deed only the land was sold in favour of the Plaintiff and there was no the Raasta on the East which was sold to the Plaintiff. Thus the Raasta was not part of the property which was sold to the Plaintiff and it was for common use. Trial was held in the suit and parties led their evidence. Witnesses were produced both by the Plaintiff as also the Defendant. On behalf of the Plaintiff the Plaintiff examined himself as PW 1 and also examined the Head Constable Virendra Singh Police Station Nangloi as PW 2. The Record Keeper in the office of Sub Registrar of Kashmere Gate was also summoned to produce the sale deed marked as Ex. PW3 1. On behalf of the Defendant Defendant examined one Sh. M.S. Narwal who has filed his evidence by way of affidavit marked as Ex DW1 A and along with Sarza plan. following conclusions: After analysing the sale deed on record the Trial Court came to the “16. At this juncture it would be worthwhile to reproduce the relevant portion of the sale deed dated 4th October 1985. Exhibit PW 3 1 which is as under: Whereas the vendors are co owner occupiers and in absolute possession in a piece of land measuring i bigha i.e. 1000 square yards part of Khasra No. 64 4 2 situated in the area of village Nangloi jaat Delhi and bounded as under: RSA 12 2022 East: Raasta 10 feet wide North: Other’s Property West: Raasta 15 feet wide South: Raasta 30 feet wide In the entire sale deed and even in the portion as reproduced above there is no mention that the Plaintiff purchased the property vide sale deed Exhibit PW 3 1 bound by a private Raasta having 10 feet width left by the original sellers from their own property. All that the sale deed Ex. PW 3 1 mentions that the property purchased by the Plaintiff has a 10 feet wide Raasta on the East. The version of the Plaintiff that the said 10 feet wide Raasta on the East was left by the original sellers from their own property is neither mentioned in the sale deed nor has been proved by the Plaintiff. The best evidence for proving this fact were the depositions of the sellers Shri Kanwar Singh and Shri Risal Singh which the Plaintiff did not produce in his evidence. Furthermore if for an instance it is assumed that in the sale deed Exhibit PW3 1 the said 10 feet wide Raasta on the East was left by the original sellers from their own property then by that analogy even the 15 feet wide Raasta on the West and 30 feet raasta on the South must also have been left by the original sellers from their own property. But the Plaintiff does not claims so and claims that only 10 feet wide raasta on the East was left by the original sellers from their own property which is contrary to the contents of the Sale Deed Exhibit PW 3 1.” Thus in view of these fact that the Plaintiff was unable to prove his case as to rights in the 10 feet Raasta on the East side the suit was dismissed vide judgment dated 28th April 2014. The appeal against the said order had also been dismissed by the Appellate Court. The finding of the Appellate Court is as under: RSA 12 2022 they were not “22. The official witnesses examined by plaintiff did not probablize the case of plaintiff with regard to aforesaid aspects and therefore their testimonies are discarded by me being inconsequential in nature. Testimonies of plaintiff witnesses were bereft of relevant details and Therefore I discarded the same. So far as defendant no. 2 is concerned it examined DW2 M.S. Narwal Executive Engineer Irrigation and Flood Control Department. This witness stuck to his version that 10th ft. wide raasta on east side was not the property of plaintiff. Coupled with the same in his cross examination he deposed that said raasta on east side of plot in question was part of bank of drain i.e. Pusta. This witness did not place on record any specific document showing the fact that said 10th ft. wide raasta was a public land. Lack of evidence with regard to said reply did not probablize the case of plaintiff. Said lack of evidence at the most can be seen as a shortcoming in the case of defendant no. 2. Said shortcoming did not probablize the case of plaintiff as the case of plaintiff has to stand on his own legs as per judge made laws. Even otherwise plaintiff has put suggestion to this witness that said 10th ft. wide raasta on east side of plot in question was left by plaintiff in his own property alongwith the length of the property. Said suggestion was refuted by this witness. Even otherwise said contention of plaintiff was not mentioned in the plaint. Therefore said suggestion was an improvement on the part of plaintiff which did not probablize the case of plaintiff. Thus I discarded the said claim of plaintiff. The net result is that plaintiff failed to prove his case based on preponderance of probabilities. Ld. Trial Court rightly dismissed the suit of plaintiff. In view of the aforesaid appreciation present appeal has no merits and stands dismissed. No order as to cost. Decree Sheet be prepared accordingly Trial Court RSA 12 2022 Record be sent back along with copy of this judgment.” The submission made by Mr. Devraj ld. Counsel appearing for the Plaintiff Appellant is that the Trial Court has wrongly non suited the Plaintiff. He submits that in the present case a substantial question arises as to whether the Trial Court was right in holding that since the sellers were not produced as witness before the Trial Court the case of the Plaintiff was not 10. Heard. An analysis of the Trial Court’s judgment clearly shows that the Trial Court has perused the sale deed and has also reviewed the evidence on record. Thereafter the Trial Court has come to the conclusion that the 10ft. Raasta on the East was not part of the land which was sold. The Trial Court only made a passing observation that the best evidence to prove the Plaintiff’s case would have been the sellers whom the Plaintiff did not produce. In the opinion of this Court the question as to whether the sellers are required to be produced in such a case would not be a substantial question of law as the Plaintiff has chosen to lead evidence in the manner it best thought. The production of these two witnesses or otherwise did not have a bearing on the Trial Court’s judgment because in any case the Trial Court has analysed the sale deed and evidence in detail and has come to the conclusion that the Plaintiff could not prove his case. 12. Thus in the opinion of this Court the Appellate Court also having upheld this very finding no substantial question of law arises in this matter and there is no ground for warranting interference against the concurrent findings of the Trial Court. It is settled law that in a second appeal the scope RSA 12 2022 of interference is quite narrow. The Supreme Court in C Doddanarayana Reddy by LRs & Ors v C Jayarama Reddy by LRs & Ors AIR 2020 SC 1912 has held as under: “25. The question as to whether a substantial question of law arises has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman E Ismail Madris Un Niswan: 6 SCC 343 it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: the practice of 12. This Court had repeatedly held that the power of the High Court to interfere in second appeal Under Section 100 Code of Civil Procedure is limited solely to decide a substantial question of law if at all the same arises in the case. It has the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on 13. In Ramanuja Naidu v. V. Kanniah Naiduthis Court held: It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The Single Judge of the High Court totally misconceived his the second in deciding appeal Under Section 100 of the Code in the way he did. 14. In Navaneethammal v. Arjuna Chetty this Court held: Interference with the concurrent findings of the courts below by the High Court Under Section 100 Code of Civil Procedure must be avoided unless warranted by RSA 12 2022 compelling reasons. In any case the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.” 13. The Supreme Court recently in KN Nagarajappa & Ors. v. H Narsimha Reddy [Civil Appeal Nos. 5033 5034 of 2009 decided on 2nd September 2021 has reiterated the above position of law. 14. After considering the aforesaid judgments this Court is of the opinion that no interference with the concurrent findings of the lower courts is warranted in the present second appeal. Accordingly the present appeal is devoid of merit and is dismissed along with all pending applications. PRATHIBA M. SINGH JUDGE JANUARY 28 2022 Aman SK RSA 12 2022 