Govind Das Vs. Kanhiya Lal & Anr.
EmailAppeal: Civil Appeal No. 2031 of 1990
Petitioner: Govind Das
Respondent: Kanhiya Lal & Anr.
Apeal: Civil Appeal No. 2031 of 1990
Judges: B.N. KIRPAL & S.N. VARIAVA, JJ.
Date of Judgment: Apr 05, 2000
Head Note:
PRACTICE AND PROCEDURE
Civil Procedure Code, 1908,
Section 100 – Second Appeal – Power and jurisdiction of High Court – Concurrent findings of fact by lower courts – Dispute related to the question as to when the respondent came into exclusive possession of the land – High Court reversing the concurrent findings holding the same to be perverse – Validity. Held there being no question of law much less substantial question of law High Court was not justified in reversing the concurrent findings of fact recorded by lower courts.
(Para 6)
JUDGEMENT:
ORDER
1. The appellant filed a suit in 1967 for a declaration with regard to the title of the suit property namely, a parcel of land measuring 0.13 acre and for possession of the same. The case of the appellant was that the land belonged to his father who had died in 1964 at the time when he was a minor. The respondent had taken unfair advantage of the appellant’s minority and had forcibly taken the possession of the land in question.
2. The respondent in his written statement set up a case to the effect that there was an exchange of land between him and the appellant’s father. It was alleged that an area measuring 0.12 acre which belonged to the respondent was given in exchange to the appellant’s father and as a consequence thereof a suit land measuring 0.13 acres was taken in possession by the respondent.
3. The trial court did not accept the story put forth by the respondent. After disbelieving the defence and on the basis of the evidence produced before it the trial court passed a decree for restoration of possession in favour of the appellant on the basis of the title.
4. The lower Appellate Court affirmed the finding of the trial court and dismissed the respondent’s appeal.
5. In second appeal however, the High Court reversed the concur-rent finding of the Courts below. The High Court examined the evidence which had been led, apprised the same and then observed that the conclusion arrived at by the Courts below was perverse. The High Court accepted the respondent’s case that he had been in exclusive possession through his father from 1945 and since 1967 in his own right and therefore the suit filed by the appellant herein was barred by time.
6. It appears to us that the High Court clearly overlooked the provisions of Section 100 C.P.C. No question of law, leave alone substantial question of law, was formulated and in any case we do not find any question of law arising in the present case. The only point in dispute was as to since when the respondent got into possession of the land in question. Whereas the case put forth by the appellant herein was that the respondents took possession in 1964, the plea raised by the respondents herein was that it is their father who first took possession in 1945 as a result of exchange of land. We fail to see as to how any ques-tion of law, leave along the substantial question of law, could possibly arise in a case like this. The plea of exchange of land which was raised by the respondent clearly proved that the land in question did belong to the appellant’s father and after their death to the appellant. The concurrent finding of the trial court and the lower Appellate Court has been that the appellant was in possession of the land till samvat 2019 at least. The High Court could not have come to the conclusion that this find-ing was perverse which would have justified the High Court exer-cising its jurisdiction under Section 100 CPC.
7. We do not find the conclusion which was arrived at by the trial court and the lower Appellate Court as being perverse. Two Courts have taken a particular view with regard to the evidence adduced before it. The conclusion which was arrived at was more than a plausible one. Under the circumstances, the High Court had no justification to interfere with this concurrent finding of fact. For the aforesaid reasons, this appeal is allowed, the judgment of the High Court is set aside and the decision of the lower Appellate Court is restored. The appellant would be enti-tled to costs.
1. The appellant filed a suit in 1967 for a declaration with regard to the title of the suit property namely, a parcel of land measuring 0.13 acre and for possession of the same. The case of the appellant was that the land belonged to his father who had died in 1964 at the time when he was a minor. The respondent had taken unfair advantage of the appellant’s minority and had forcibly taken the possession of the land in question.
2. The respondent in his written statement set up a case to the effect that there was an exchange of land between him and the appellant’s father. It was alleged that an area measuring 0.12 acre which belonged to the respondent was given in exchange to the appellant’s father and as a consequence thereof a suit land measuring 0.13 acres was taken in possession by the respondent.
3. The trial court did not accept the story put forth by the respondent. After disbelieving the defence and on the basis of the evidence produced before it the trial court passed a decree for restoration of possession in favour of the appellant on the basis of the title.
4. The lower Appellate Court affirmed the finding of the trial court and dismissed the respondent’s appeal.
5. In second appeal however, the High Court reversed the concur-rent finding of the Courts below. The High Court examined the evidence which had been led, apprised the same and then observed that the conclusion arrived at by the Courts below was perverse. The High Court accepted the respondent’s case that he had been in exclusive possession through his father from 1945 and since 1967 in his own right and therefore the suit filed by the appellant herein was barred by time.
6. It appears to us that the High Court clearly overlooked the provisions of Section 100 C.P.C. No question of law, leave alone substantial question of law, was formulated and in any case we do not find any question of law arising in the present case. The only point in dispute was as to since when the respondent got into possession of the land in question. Whereas the case put forth by the appellant herein was that the respondents took possession in 1964, the plea raised by the respondents herein was that it is their father who first took possession in 1945 as a result of exchange of land. We fail to see as to how any ques-tion of law, leave along the substantial question of law, could possibly arise in a case like this. The plea of exchange of land which was raised by the respondent clearly proved that the land in question did belong to the appellant’s father and after their death to the appellant. The concurrent finding of the trial court and the lower Appellate Court has been that the appellant was in possession of the land till samvat 2019 at least. The High Court could not have come to the conclusion that this find-ing was perverse which would have justified the High Court exer-cising its jurisdiction under Section 100 CPC.
7. We do not find the conclusion which was arrived at by the trial court and the lower Appellate Court as being perverse. Two Courts have taken a particular view with regard to the evidence adduced before it. The conclusion which was arrived at was more than a plausible one. Under the circumstances, the High Court had no justification to interfere with this concurrent finding of fact. For the aforesaid reasons, this appeal is allowed, the judgment of the High Court is set aside and the decision of the lower Appellate Court is restored. The appellant would be enti-tled to costs.
