HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s Order whether the case is or not approved for reporting) Description of the case Second Appeal 81/2004 Smt. Daya Sah & others Vs. Chandra Dutt Pande & other Approved for reporting Date of Decision: 3.1.2008 Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 81/2004 1. Smt. Daya Sah Wife of late Kailash Chandra Sah 2. Major Rajesh Sah Son of late Kailash Chandra Sah 3. Smt. Sangita Chaudhari Wife of P.K. Chaudhari 4. Smt. Vinita Sah Wife of Samer Sah 5. Smt. Savit Chaudhari Wife of Lt. Col. Altul Chaudhary (All resident of Haysbartan, Tallital, Nainital) ………Appellant-Plaintiffs Vs. 1. Chandra Bhatt Pande Son of Sri Gusain Datt Pande 2. Smt. Parwati Devi Wife of late Jai Datt Pande 3. Leela Pande Daughter of Jai Datt Pande 4. Saroj Pande Daughter of Jai Datt Pande 5. Hansa Pande Daughter of Jai Datt Pande 6. Tulsi Pande Daughter of Jai Datt Pande 7. Mohan Pande Son of Jai Datt Pande (All resident of Hysbartan Compoind, Tallital, Nainital) ….. Respondent-defendants AND SECOND APPEAL NO. 82/2004 1. Smt. Daya Sah Wife of late Kailash Chandra Sah 2. Major Rajesh Sah Son of late Kailash Chandra Sah 3. Smt. Sangita Chaudhari Wife of P.K. Chaudhari 4. Smt. Vinita Sah Wife of Samer Sah 5. Smt. Savit Chaudhari Wife of Lt. Col. Altul Chaudhary (All resident of Haysbartan, Tallital, Nainital) ………Appellant-Plaintiffs Vs. 1. Chandra Bhatt Pande Son of Sri Gusain Datt Pande 2. Smt. Parwati Devi Wife of late Jai Datt Pande 3. Leela Pande Daughter of Jai Datt Pande 4. Saroj Pande Daughter of Jai Datt Pande 5. Hansa Pande Daughter of Jai Datt Pande 6. Tulsi Pande Daughter of Jai Datt Pande 7. Mohan Pande Son of Jai Datt Pande (All resident of Hysbartan Compoind, Tallital, Nainital) ….. Respondent-defendants AND SECOND APPEAL NO. 84/2004 1. Smt. Daya Sah Wife of late Kailash Chandra Sah 2. Major Rajesh Sah Son of late Kailash Chandra Sah 3. Smt. Sangita Chaudhari Wife of P.K. Chaudhari 4. Smt. Vinita Sah Wife of Samer Sah 5. Smt. Savit Chaudhari Wife of Lt. Col. Altul Chaudhary (All resident of Haysbartan, Tallital, Nainital) ………Appellant-Plaintiffs Vs. 1. Chandra Bhatt Pande Son of Sri Gusain Datt Pande 2. Smt. Parwati Devi Wife of late Jai Datt Pande 3. Leela Pande Daughter of Jai Datt Pande 4. Saroj Pande Daughter of Jai Datt Pande 5. Hansa Pande Daughter of Jai Datt Pande 6. Tulsi Pande Daughter of Jai Datt Pande 7. Mohan Pande Son of Jai Datt Pande (All resident of Hysbartan Compoind, Tallital, Nainital) ….. Respondent-defendants January 3, 2008 Hon’ble Rajesh Tandon, J. Heard Shri V.K. Bisht, Sr. Advocate assisted by Ms. Sangita Miyan, counsel for the appellant and Shri B.C. Pandey, Sr. Advocate assisted by Sri V.B.S. Negi, Advpcate counsel for the respondents. By the above second appeals filed under Section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 8.7.2004 passed by the District Judge, Nainital as well as the judgment and decree dated 18.4.2001 passed by the Civil Judge (Junior Division), Nainital.3 Second appeals were admitted on 13.10.2004 and following substantial questions of law were framed: 1. Whether the Courts below have illegally dismissed the Suit for demolition and possession of the plot in question by ignoring the sale deed 17th January, 1927 which establishes the ownership of the plaintiff/appellants on the plot in question, 2. Whether the defendants have not right to challenge the title of the owner? 3. Whether the defendants are bound by their own admission made before the municipal authority regarding the title of the plaintiff/appellant in respect of the land in dispute by virtue of the sale deed dated 17th January 1927? Earlier the appeals were decided vide order dated 13.6.2007 but both the parties have filed review applications. After hearing both the parties review applications were allowed on 17.11.2007 and the order was recalled on the ground that question of sale deed was not involved in the case and therefore, remand on the limited ground for consideration of sale deed was not required. Therefore, both the parties were given opportunity to argue and arguments were heard afresh. Briefly stated, three different suits being nos. 32/83, 38/83 and 2/90 were filed by the plaintiffs Kailash Chandra Sah stating therein that they are the owners of the Haysbartan House and Haysbartan compound. They have let out to the defendants a land measuring 25 x 15 ft. on a rent of Rs. 30/- per month as licencee, but in contravention of the conditions of the license, the defendants have occupied the land measuring 33.850 sq. meter and have made constructions, which has been shown by the letters A,B,C,D in the plaint map. They have also encroached the land measuring 16.988 sq. meters, which has been shown by the letters A, B. B-1, G.D., Y.D. The defendants have also constructed two rooms in this portion, which has been shown by the letters F.C.H.E. in the plaint map. The plaintiffs have orally asked the defendants to remove the constructions but of no avail. For the said illegal constructions, the Jheel Vikas Pradhikaran has passed an order restraining the defendants from making any constructions. The plaintiffs have field another suit no. 32/83 for the demolition of the said constructions and compensation as well. Suit no. 38/83 was filed by the plaintiffs for ejectment of the defendants and possession in favour of the plaintiffs from the disputed land. Suit no. 2/90 was filed for permanent injunction restraining the defendants not to make constructions on the land shown by the letter A,B,C,D in the plaint map. In all the three suits the defendants have denied the relationship of lesser and lessee between the plaintiffs and the defendants. The tenancy was also denied. It has been alleged that the land in dispute does not belong to the plaintiffs rather the disputed land is situate at Haysbartan Compound Summer House. In the Month of July, 1985, due to heavy rain the western portion of the defendants house got damaged and the eastern wall fell down as a result of which water and debris entered in the house of the defendants. It has been stated that the defendants were having two rooms, kitchen, Latrine and Bathroom in the disputed land. The defendants have got repairing work in both the room and are in possession for the last 13 years. The disputed land of 25 x 15 ft. belong to the defendants and the suits of the plaintiffs are liable to be dismissed. The plaintiffs have filed the replication and have stated that the defendants are trying to occupy the land of the plaintiffs. The following issues have been framed by the trial Court in all three original suits. 1. Whether the suits has not been valued properly and court fee paid is not sufficient? 2. Whether the plaintiff is the owner of the property in dispute? 3. Whether the defendant no.1 and his brother i.e. husband of defendant no. 2 was the licensee of the plaintiff in respect of the property in dispute? 4. Whether the defendants have raised illegal construction over the land in dispute? 5. Whether the disputed land and building is the part of Halving Compound belongs to the defendants as stated in paragraph 11? 6. Whether this court has no jurisdiction to hear the suit ? 7. To what relief, if any, is the plaintiff entitled? The plaintiff have filed copy of the application of Sri Jai Dutt Pandey dated 11.4.1980 (Ex. 1), copy of the application dated 18.7.80 of Sri Jai Dutt Pandey (Ex.2), site plan (Ex.3), copy of the application of Jai Dutt dated 19.12.80 (Ex.4), copy of the application of Sri Chandra Dutt Pandey dated 2.9.81 (Ex.5), notice of Nagar Palika (Ex.6), and Judgment dated 21.7.84 Nagar Palika vs. Chandra Dutt Pandey (Ex.7). The defendants have filed 17 papers as per list 198-C one paper per list 111-C, bill house tax per list 112, receipt per list 113-C., bill per list 114-C, bill per list 115-C house tax bill per list 116-C, receipt 117-C, bill 118-C, assessment of tax paper no. 119-C, house tax receipt paper no. 120-C, map of Summar house 150-C. The defendants have filed 50 papers per list 150-C. The defendants have also field copy of the plaint of O.S. No. 32 of 1983. The plaintiffs have examined P.W.1 Sri K.C. Shah as P.W.1 and the defendants have examined Sri Chandra Dutt Pandey as D.W.1. The trial court has decided issue no. 1 and 6 as preliminary issues and held that the court has jurisdiction to entertain the suit and the suit is valued properly. While deciding issue no. 2, the trial Court has held that the construction in question which has been done by the defendants is not in the part of Haysbartan compound and the plaintiffs are not the owner of the property in dispute. Issue no. 3 was decided in favour of defendants and against the plaintiff with the findings that as the plaintiffs were not the owner of the land in dispute, therefore, there was no relationship of lesser and lessee in between the plaintiffs and the defendants. If three was any such agreement, the same was null and void. While deciding issue no. 4 the trial Court has held that if the Lake Development Authority had declared the construction of the defendant as void and against the rules, it had not effect on the suit and rights of the parties. While deciding issue no. 5 the trial Court has held that the defendants have successfully proved that their house situate in Habilion Compound. The plaintiffs have not adduced any evidence to prove adversely. While answering issue no. 8, the trial Court has held that State of U.P. and Bachchi Ram Gaur Trust are not the necessary parties to the suit and the suit is not bad for non- joinder of necessary parties. In view of the findings on all the issues, the trial Court has dismissed the suit of the plaintiff with costs. Feeling aggrieved by the judgment passed by the trial court, the plaintiffs went in appeal. Before the appellate Court the appellants have raised the only submission that the Trial Court has not considered the papers filed by the plaintiff per list 36-C. Rent note is the basis of the suit of the plaintiffs which has been admitted by the defendants in his written statement but the same has been ignored by the trial Court and as such the judgment and decree passed by the trial Court cannot be sustained. The appellate court after considering the documents Rent Note paper no. 44-C available on the record has come to the conclusion that the plaintiffs have failed to identify the land measuring 25 x 15 ft. which was allegedly given to the defendants on lease for Rs. 30/- per annum for a period of 15 years which form part of Haysbartan Compound. With the above findings the appellate court has dismissed all the three appeals. Present Second Appeal has been preferred against the concurrent findings of the two Courts below. At the time of admission of the appeal, counsel for the appellants have submitted regarding the sale deed dated 17th January 1927 that the same has not been taken into consideration by the courts below while disbelieving the title of the appellants. All the Substantial question of law have been framed on the point of sale deed dated 17th January 1927. Counsel for the defendant-respondents has submitted that the appellants have wrongly referred about the sale deed dated 17th January 1927. The counsel has invited my attention to the fact that there is admission of plaintiffs in Civil Suit No. 38 of 1983, to the effect that the house of the defendants is constructed over the land taken on lease by the defendants from Sri Bachi Gaur Trust. The plaintiff P.W.1 Sri K.C. Sah in his statement has stated to the following effect. izfroknh dk Hkou lej gkml fy[ks gq, LFkku ij uD’ks dh gnn ds vUnj cuk gS ;g lgh gS fd gStokVZu vkSj dkfuLVu Qs;j lkbV gh gS vksj uD’kk 150x@10 esa MkSVsM ykbu ls uhps iwjc dh rjQ dks gSA izfroknh us cph xkSM V~LV ls ,d yht esa j[kh gS mlh yht Hkwfe esa izfroknh dk edku cuk gS mlh txg dk ;g nkok fd;k gSA Thus in view of the statement of the plaintiff P.W.1 K.C. Sah as quoted above there was no reason for the courts below to give emphasis to the alleged sale deed. After the aforesaid admission there was no occasion for the courts below to give any weight to the sale deed dated 17.10.1927. The Trial Court has recorded the findings to the following effect regarding the sale deed. oknh ds vuqlkj izfroknhx.k us ykblsal dh “krksZ dk mYya?ku dj u flQZ vLFkkbZ fuekZ.k ds LFkku ij lhesUV o bZV dk fuekZ.k fd;k cfYd tks Hkwfe nh x;h Fkh mlls vf/kd ij fuekZ.k fd;k tc fd izfroknh i{k dk dguk gS fd oknh }kjk izfroknh ds i{k esa ,d fdjk;kukek fy[kk t:j Fkk tks 25 x 25 QhV ds ckjs esa FkkA fdUrq ;g fdjk;kukek dHkh vey esa gh ugh yk;k x;k vkSj bl izdkj izfroknh i{k oknh i{k dk dHkh ykblsalh ugha jgkA izfroknh i{k ds vuqlkj mudk orZeku fookfnr fuekZ.k oknh ds LokfeRo okys Hkw[k.M esa gh ugha gSA Thus the argument advanced by the counsel for the appellants was unfounded and has been raised for the first time in the Second Appeal. A perusal of the judgment of first appellate Court shows that no such question was raised by the appellant before that Court. The trial Court has given the finding while deciding issue no. 5, that the house in question is constructed over the Halvilion compound. S.D.M. Nainital has sent letter to the Additional District Magistrate, Nainital regarding survey of Bachhi Gaud Trust land. Copy of this letter is 173- C/2 on record. In this report house of the defendants have been shown in Halvilion Compound. The defendants-respondents have filed copy of the tax assessment by the Nagar Palika, which is paper no. 178-C/4 and 78-C/6 on record. In these papers separate entry of Pandey Niwas has been shown. Another document which has been relied by the counsel for the defendants is a map which is regarding the land acquired by the Government. In this map Pandey Niwas has been shown adjacent to Rajbhawan Road which is separate than the Haij Warton Cottage. No documentary evidence has been adduced by the plaintiffs to show that the construction of the defendants is on the land owned by the plaintiffs. The jurisdiction of this Court is confined only up to the substantial question of law and is not bound to examine all evidence and facts which has not been raised before the trial Court and the First Appellate court. In Shah Mansukhlal Chhagandial (D) through LRs v. Gohil Amarsing Govindbhai (D) through LRs reported in [2007 (66) ALR 310], the Apex Court has held as under:- “Yet again in Roop Singh v. Ram Singh 2000 (3) SCC 708=2000 (39) ALR 484 (SC), this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads: “7. It is to be reiterated that under section 100, CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under section 100, CPC. That apart, at the time of disposing of the matter, the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact finding Courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two Courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings.” 46. In Boodireddly Chandraiah vs. Arigela Laxmi and another [2007 (03) RD 610], the Apex Court has observed as under:- “6. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the First Appellate Court. It is true that the Lower Appellate Court should not ordinarily reject witnesses accepted but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in second appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two interferences of fact are possible, one drawn by the Lower Appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the Lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 7. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first Appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the First Appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve bank of India v. Ramkrishna Govind Morey, held that whether the Trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference. See: Kondiba Dogadu Kadam v. Savitribai Sopan Gujar and others 2000 (Suppl. RD 265 = 1999 (36) AlR 218 (SC). 8. The phrase “substantial question of law”. as occurring in the amended section 100 of the C.P.C. 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 contradiction. It is to be understood as something in contradiction 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 C.P.C. 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 v. T. Ram Ditta AIR 1928 PC 172, the phrase ‘substantial question of law’ as it was employed in the last clause of the then existing section 100 C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordship held that it did not mean a substantial question of law which was involved the case. In Sri Chunilal’s case (Supra), the Constitution Bench expressed agreement unit the following view of taken by a full Bench of the Madras High Court in Rirnmalapudi Subba “Rao v. Noony Veeraju AIR 1951 Mad. 969. “When a question of law is fairly arguable, where there is room for different of opinion on it or where the Court through it necessary to deal with that question at some length and discuss alternative views, 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 be particular facts of the case it would not be a substantial question of law.” 9. This Court 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 form difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to b 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.” 10. In Dy. Commnr. Hardoi V. Rama Krishna Narain AIR 1935 SC 521, also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) section 100 of the C.P.C. 11. 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, insofar 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 form the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law 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 involve 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 necessary of avoiding prolongation in the life of ant lis. See: Santosh Hazari v. Purushottam Tiwari (deceased by LRs. 2001 (92) RD 336 (SC)= (42) ALR 794 (SC). 12. The Principles relating to section 100, C.P.C., relevant for this case, may be summarized thus: (1) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a documents is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construction a documents, it given rise to a