Sudesh Bansal, J
1. Appellant-plaintiff (hereinafter referred as ""plaintiff"") has preferred this second appeal under Section 100 CPC, assailing judgment and decree dated
22-2-2010 in Appeal No.31/2000, passed by District Judge, Sawai Madhopur dismissing appeal and affirming the judgment and decree dated 29-4-
2000 passed by Civil Judge (Junior Division) Bonli in Civil Suit No.3/1998 whereby and whereunder plaintiff’s suit for permanent injunction has
been dismissed.
2. The dispute in the present appeal is between brothers of one family. The plaintiff is claiming his sole ownership and exclusive possession over the
plot in question allotted by Gram Panchayat Bonli in his name, whereas, defendants have contended that the plot in question was allotted along with
other adjoining three plots and total four plots were allotted by Gram Panchayat to their father. At the time of allotment of all four plots, one plot was
allotted in the name of their father and allotment of other three plots were made in the name of three major sons as three other sons were minor at
that time. According to defendants all four plots are situated adjoining to each other and joint property of the family, surrounded by pakka boundary-
wall. There is no exclusive and separate possession of plaintiff over the plot in question, allotted in his name.
In the backdrop of aforesaid dispute both courts below have recorded findings of fact that the plaintiff could not prove his exclusive possession over
the plot in question and the plot in question has been found to be situated in middle of other three plots, and that all four plots have been surrounded by
pakka boundary-wall in a joint situation. Hence, civil suit for permanent injunction filed by appellant-plaintiff, against his five brothersdefendants, was
dismissed.
3. This court admitted the present appeal on 21-3-2018 on following substantial question of law:-
“Whether the impugned judgment passed by the first appellate court is vitiated as the same is non speaking?â€
4. The facts of case are that plaintiff filed a civil suit claiming therein that the plaintiff has no house in Bonli and on the basis of his old possession on
bada, a plot having size of 12X15=180 square yards was allotted to plaintiff by Gram Panchayat on 22.04.1973, of which najrana was deposited by him
and later on, due to having possession on some excess land area, revised patta dated 14.10.1989 for 55X40=2200 square feet, was issued. The said
plot was covered by boundary wall and that northern south wall was Kham, which was covered by bushes. It has been alleged that defendants were
not interested to give plaintiff’s share in the joint properties, and defendants want to dispossess the plaintiff from his plot. The plot in question is
self earned property of plaintiff, on which defendants have no right. Defendants are adament to usurp the plaintiff’s plot and desirous to raise
construction over plaintiff’s plot. Therefore, defendants be restrained from permanent injunction
5. The defendants filed written statement and denied facts of the plaint. It was pleaded that plot in question was not self earned property of the
plaintiff nor plot in question is in exclusive and separate possession of plaintiff and no boundary wall was raised by plaintiff, but the plot in question joint
with other three plots and all four plots were allotted to their father on 22.04.1973 and najrana amount of Rs.225/- has deposited by the father. Later
on for all four plots 16X10 feet land was found in excessive possession, hence revised patta issued on 14.10.1989 and collectively najrana of Rs.4515/-
was deposited by defendant No.1. In fact, out of four plots, one plot was allotted in the name of their father and three plots in the name of his three
major sons other three sons were minor at the time of allotment. All four plots are adjoining to each other surrounded by common compound wall and
joint property of the family. No material of plaintiff is lying on plot in question, but all four plots are in joint possession of the family of six brothers,
including plaintiff.
6. On the basis of pleadings of parties five issues were framed. Plaintiff examined himself as Pw.1 and two other witnesses Pw.2 Kamlesh and Pw.3
Basanti Lal and exhibited nine documents. Defendants examined Dw.1 Lallu Lal, Dw.2 Laddu Lal, Dw.3 Ramkaran, Dw.4 Chandra Shekhar, Dw.5
Kastoor Chand and Dw.6 Kajod Mal and exhibited 24 documents
7. The trial court considered oral and documentary evidence of both parties. Regarding the Issue No.1 that defendants have no right to encroach upon
plaintiff’s land marked as ABCD, the trial court concluded that all four plots were joint in possession of all family members. Plaintiff failed to
prove his exclusive, separate and sole possession over the plot in question. Even from the report of Commissioner (Ex.9) plaintiff’s sole possession
over plot in question was not proved. The plaintiff had not got constructed any wall. It was concluded that according to Commissioner’s report
western wall of plot in question was pakka construction, and on three sides of plots there were no wall (dol of sand) or bushes. Plaintiff could not
produce receipt of najrana amount deposited in Gram Panchayat. As such the plaintiff failed to provev his sole possession and the issue was decided
against plaintiff.
Issue No.2 regarding cause of action, the trial court held that the suit was filed on 2-2-1998 and the Commissioner’s report was prepared on 8-2-
1998, wherein no point or place was shown for removing any dol or bushes. Further independent witnesses Dw.5 Kastoor Chand and Dw.6 Kajod
Mal had stated that plaintiff did not try to raise any dol (wall) on plot in question. Accordingly, the trial court concluded that no cause of action arose
on 1-2-1998 for the plaintiff to file suit, and the issue was decided against the plaintiff.
Issue No.3, regarding valuation, considering the fact that the suit was filed for permanent injunction only and court fee of Rs.30/- was paid, which was
found proper and decided the issue against defendants.
Issue No.4, that suit property was of joint ownership and without partition of the same defendants cannot be injuncted, the trial court held that in view
of decision of Issue No.1 the suit property was found in joint possession of whole family and without partition of the same plaintiff failed to prove his
sole possession in absence of which defendants could not be injuncted, as such the issue was decided against plaintiff.
Consequently, the suit was dismissed vide judgment and decree dated 29-4-2000
8. Being aggrieved the plaintiff preferred first appeal before the first appellate court and regarding the issue No.1 argued that the trial court committed
illegality in treating the plot 55 ft x 40 ft of joint family, while the said plot was in the name of plaintiff and najrana of which was deposited by plaintiff.
It was also argued that since the plaintiff’s daughter was married with other daughters of the family cannot be presumed that there was joint
family. The argument of defendants before the first appellate court was that plaintiff filed the suit only for permanent injunction and not for
declaration. The plot in question was, in fact allotted to father of plaintiff and defendants, with other three plots and father deposited najrana
collectively and he was in possession of plots. The receipts of najrana were with defendants.
Considering submissions of both parties, the first appellate court found no illegality or infirmity in the impugned judgment passed by the trial court on
issue No.1. Since plaintiff did not challenge or raised any argument to decision of trial court on other issues, therefore, appellate court decided issue
Nos.2,3 and 4 accordingly and by dismissing the first appeal affirmed the judgment passed by trial court.
9. Counsel for plaintiff filed written submission and argued that suit for preventing anything detrimental to title and possession of plaintiff cannot be
stated to be merely for injunction and reliance has been placed on Velayudhan Vs. Mohammed Kutty [2017(2) WLC (SC) Civil 153]. Further
argument is that documentary evidence takes precedence over oral evidence and reliance has been placed on Banshi Lal Vs. Sohan Lal [2013(5)
WLC (Raj.) 84]. The first appellate court did not frame points for determination as required under Order 41 Rule 31 CPC and reliance has been
placed on K. Karuppuraj Vs. Ganesan [AIR 2021 SC 4652], Vinod Kumar Vs. Gangadhar [2014(2) WLC (SC) Civil 726] and U. Manju Nath Rao
Vs. U Chandra Shekhar [2017(2) WLC (SC) Civill 442].
10. Heard learned counsel for parties and perused impugned judgments passed by the trial court as affirmed by the first appellate court, as also record
of the case.
11. A perusal of the impugned judgments and other material available on record indicates that it is an admitted fact that all four plots were allotted by
Gram Panchayat, on same date, in lieu of old possession of father of plaintiff and defendants, one in the name of father and other three plots in name
of his three major sons. There was no allotment in name of three other sons who were minor at the time of allotment. It is not disputed that all four
plots are adjoining to each other and surrounded by common compound wall. Although plaintiff claimed sole ownership and exclusive possession of
plot on the basis of allotment in his name, but he failed to prove to have purchased the same from his self earned income. Neither plaintiff could
produce receipt of najrana nor could prove his absolute and exclusive possession. On the other hand circumstances show that plots in question were
allotted to father of plaintiff and defendants and all six brothers, including plaintiff and defendants are in joint possession of the same. Plaintiff failed to
prove his exclusive possession as the plot standing in his name is situated in middle of other three plots, which is undisputed position as per the site map
appended with plaint as also by the report of Court Commissioner.
12. As far as the judgment in case of Velayudhan (supra) is concerned in the said case suit was for perpetual injunction and a dispute arose whether
question of title was necessary or called for. In the instant case there is no such dispute and the ownership of plaintiff has not been disputed but the
plaintiff has not been found in exclusive and sole possession over the property in question, rather possession has been found as joint with brother
defendants.
As far as judgment in case of Banshi Lal (supra) is concerned the said case was a dispute between landlord and tenant wherein it was held that
documentary evidence takes precedence over oral evidence. While the present case is between brothers of a family for a property purchased by their
father.
In case of K. Karuppuraj (supra) the first appellate court neither re-appreciated entire evidence on record nor considered the reasoning given by the
trial court. While in the instant case before the first appellate court the appellant had challenged only the finding of trial court on the issue No.1 and
findings of other issues were not put to challenge. Therefore, in facts and circumstances of the case the first appellate court has not committed any
illegality in considering only one issue, particularly when the first appellate court has considered the fact of property, has been proved to be of joint
family and that plaintiff failed to prove his self income, payment of najrana amount, or his sole ownership and possession over the plot in question.
Similarly judgment in case of Vinod Kumar (supra) is also of no help of appellant as before the first appellate court it has not challenged decision of all
issues.
13. In case at hand, the appellant assailed the finding of issue No.1 before the first appellate court, which was dealt with as per available evidence on
record. Nevertheless the first appellate court has considered submission and evidence of both parties and decided each issue independently. Length of
judgment of first appellate court is not a criteria, to observe that first appeal has not been decided after considering the evidence as a whole. In such
situation, the substantial question of law in this appeal stands answered in negative.
14. In case of Umerkhan Vs. Bismillabi [(2011)9 SCC 684] Hon’ble Supreme Court has propounded that if a second appeal is admitted on
substantial question of law, while hearing second appeal finally, can re-frame substantial question of law or can frame substantial question of law
afresh or even can hold that no substantial question of law involved, but the High Court cannot exercise its jurisdiction of Section 100 CPC without
formulating substantial question of law.
15. It is a case where the plot in question belongs to property of joint family and both courts below have come to a concurrent finding that the plaintiff
has miserably failed to prove the plot as his self earned property or in his exclusive and sole possession and the appellate court found the first appeal to
be devoid of merits. Consequently the dismissal of the suit by the trial court was upheld by the appellate court, plot in question with other three
adjoining plots have been found to be joint possession of plaintiff and defendants. Counsel for the appellant has not been able to point out any
perversity or make out any substantial question of law in respect of the judgments and decrees passed by the trial court as also the appellate court.
The conclusions of the courts below are based on evidence on record. The Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam Vs.
Savitribai Sopan Gujar [(1999)3 SCC 722] has held that the concurrent findings of facts even if erroneous cannot be disturbed by the High Court in
exercise of the powers under section 100 CPC. This proposition is well established. Findings of fact based on appreciation of evidence are the
province of the trial court and the first appellate court.
16. Concurrent findings of fact need not to be interfered with unless not suffer from perversity, and re-appreciation of evidence to draw a different
conclusion than taken by the courts below is not warranted, while exercising jurisdiction under Section 100 CPC by High Court. Even if finding of fact
may be incorrect, same is not scope for interference at the stage of second appeal. As has been held by the Apex Court in Pakeerappa Rai Vs.
Seethamma Hengsu & Ors., [(2001) 9 SCC 521], Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC 409], Bholaram Vs. Ameerchand,
[(1981) 2 SCC 414], Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC 434] and State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019) 10 SCC
595].
17. Consequently, the second appeal is without any force and the same stands dismissed
18. Second stay application and any other pending application(s), if any, also stand(s) disposed of.
19. Record of courts below be sent back forthwith.
