Anil Kumar, J.@mdashHeard Sri U.S. Sahai, learned Counsel for the appellants in present Second Appeal No. 460 of 1979 Tribhuwan Nath (now deceased through his heirs) and Ors. v. Bateshwar Nath (now deceased through his heirs) and Ors.
2. By means of present Second Appeal u/s 100 CPC, the judgment and decree dated 10.01.1979 passed by the Additional District Judge, Pratapgarh in Civil Appeal No. 132 of 1974 and judgment and decree dated 12.10.1974 passed by Additional Munsif, Pratapgarh in Regular Suit No. 196 of 1968 by which the plaintiffs'' Suit was dismissed are under challenge.
3. In brief the facts of the case are that the plaintiffs-appellants have filed a Suit for permanent injunction and damages registered as Suit No. 196 of 1968 (Tribhuwan Nath and Ors. v. Bateshwar Nath and Ors.) on the ground that their ancestors were Zamindar of the Village Misirpur, District Pratapgarh alongwith the other Zamindars and the portion of the Suit i.e. Plot No. 216 has always been in their possession and they became owner in view of the provision as provided u/s 9 of U.P. Act No. 1, 1951 and the defendants have no concern whatsoever in respect to the land in dispute. The defendant in their written statement denied all other allegations made by the plaintiff and further alleged that the Suit was not maintainable, that previously plot No. 216 of the 3rd settlement was the joint property of the defendant No. 1 and 2 and the plaintiffs; that in 1924 by partition the father of defendants No. 1 & 2 got three parts of 142/2 i.e. 142/2/2; 142/2/4 and 142/2/6 and the grandfather of plaintiffs got 4 parts of the plot; that the defendants and their father planted trees in their parts and developed it in the shape of grove. The Suit land is the north western part of their said grove 40216; that the entries of this plot in the recorded were not according to spot, hence they got it corrected by moving proper applications; that plaintiffs have no concern within the Suit land or the trees or other things existing on it. Further, the defendants instituted proceedings u/s 145 Cr.P.C. regarding Suit land and during the pendency of these proceedings plaintiffs have forcibly erected a boundary wall; that the revision dismissed on 20.11.1968 by the learned Sessions Judge and the defendants were given possession of the Suit land but in the meantime the plaintiffs filed the present Suit.
4. It was further submitted by the defendant-respondents in their written statement that the Map given given by the plaintiffs is incorrect, Suit is beyond time, is undervalued, the court fee paid is insufficient and that the court has no jurisdiction to try the Suit.
5. In order to decide the controversy which is involved in the present case, the learned trial court had framed 9 issues which are quoted as under:
1. Whether the Suit land is Abadi of plaintiffs?
2. Whether plaintiffs have been the owners of the disputed property u/s 9 of U.P. Act No. 1 of 1951 ?
3. Whether defendants are Bhumidhars of disputed property?
4. Whether the Suit is barred by time?
5. Whether this Court has no jurisdiction to try this Suit.
6. Whether the Suit has been undervalued?
7. Whether the court fee paid is insufficient?
8. Whether the plaintiffs are entitled for damages? If so, how much?
9. To what relief, it any, are the plaintiffs entitled?
6. On the basis of the pleadings and evidence as led by the parties, the trial court had decided the issue Nos. 1, 2 & 3 holding therein that the defendants have perfected their Abadi rights over it u/s 9 of the U.P.Z.A.L.R. Act, 1951, and have Bhumidhari rights over the Suit land.
7. It was further held by the trial court while deciding the issue Nos. 4 & 5 that the plaintiffs were not in possession over the land in dispute and the Suit was filed by them is beyond time, accordingly, the Suit filed by the plaintiffs was dismissed with costs by means of judgment and decree dated 12.10.1974. Aggrieved by the same, the plaintiffs-appellants filed the Civil Appeal (numbered as 132 of 1974).
8. Appellate court after taking into consideration the material (oral and documentary evidence) has held that the plaintiffs-appellants had failed to prove their case, land in Suit was not Abadi of the plaintiffs. They are neither the owner of the same nor the Suit filed by them was within time; on the said ground the appeal filed by the plaintiffs-appellants was dismissed by judgment and decree dated 01.10.1979.
9. Aggrieved by the above said judgment passed by the courts below, the present Second Appeal u/s 100 C.P.C. has been filed by the plaintiffs-appellants.
10. When the matter come up for hearing, Sri U.S. Sahai, learned Counsel for the appellants pressed the present Second Appeal on the following substantial questions of law quoted as under:
1. Whether in a Suit where the nature of the land is disputed by the defendants who claim the land as bhumidhari land while the plaintiffs claimed the land to be Abadi, the trial court having failed to frame an issue u/s 331-A of U.P. Act No. I of 1951 and having failed to refer the issue to Collector for its decision the findings recorded by the courts below are without jurisdiction and stand vitiated in view of Section 331-A of U.P. Act No. 1951?
2. Whether Sehan rights being rights in the nature of easementary rights cannot be exercised over the land belonging to defendants and also over the land which is the ownership of defendants and whether is it necessary that the plaintiff must also be the owner of the land over which he is exercising his Sehan rights before the date of vesting ?
3. Whether after the date of vesting in case the plaintiffs succeed that the land in dispute was appurtenant to his house and was used as the Sehan land, the plaintiffs will not become owner u/s 9 of U.P. Act, No. I of 1951, and his ownership right will be dispelled on the ground that the plaintiffs could not establish that in the partition Suit it could not be connected with the land in dispute fell in the share of the plaintiffs?
4. Whether the element constituting possession over the land in the nature of Sehan land include the rights of egress and ingress and also similar rights of tethering the cattle, storing cow dung cakes and using the land as Ghari, Charni and Baithka?
11. Sri U.S. Sahai, learned Counsel for the appellants submits that the land in Suit is portion of the house of the respondent and the same is as a matter of fact. He further submits that the plaintiffs-appellants were always in possession over the land in Suit and the respondents-defendants or any of them were never in possession of the land in Suit, as such the judgments passed by the Courts below are perverse in nature being not in accordance with the facts of the case, so the same are liable to be set aside.
12. I have heard Sri U.S. Sahai, learned Counsel for the appellants and gone through the documents on record as well as the orders passed by the court below while deciding the fact that whether the land in question belongs to the plaintiffs-appellants as claimed by them as their Sehan and the same is vested with them in view of the provision provided u/s 9 of U.P. Act No. I, 1951.
13. A categorical finding of fact has been given by the courts below that from the perusal of the Exhibit 13 which is (Chittha-Batwara) and from the copy prepared by the learned Commissioner in the proceedings u/s 144 Cr.P.C., the Court concerned has categorically held that the land in dispute was of the defendants-respondents and the same was released in their favour as they were in possession over the same.
14. Further, the courts below have held that the land in Suit was the same portion of the land No. 142/2 which was given to the defendants-respondent (according to the Exhibit No. 13) and their ancestors in possession of the same, the plaintiffs-appellants were not able to prove their title to the land in question was the Abadi land or they are the owner of the same, the Suit filed by them was also not within time.
15. In this regard on the appreciation of material on record, it is clearly established that the courts below after taking into account the pleadings and documents (Oral and documentary evidence) especially Exhibit 13 which is ''Chittha Batwara'' and the report submitted by the learned Commissioner in the proceedings u/s 144 Cr.P.C. have held that the land in dispute belongs to the defendants-respondents and they are in possession of the same and the plaintiffs were neither in the possession of the Plot in dispute as claimed by them as per the provisions provided u/s 9 of the U.P. Act No. 1, 1951 nor they are the owners.
16. Further, the courts below have also held that the land in dispute was a portion and their ancestors as well as the defendants were in possession of the same. The above said finding recorded by the courts below is a categorical finding of fact and needs no interference.
17. In the present case, in view of the facts stated hereinabove, the judgments which are under challenge in the present Second Appeal have been passed by the courts below on the appreciation of pleadings on record as well as the documentary evidence, thus no substantial question of law arises which needs to be adjudicated and decided in the present case.
18. The Apex Court in the case of Santosh Hazari v. Purshottam Tiwari 2001 (42) ALR 794 (SC) ruled that a point of law which admits of no two opinions may be preposition of law but cannot be a substantial question of law. To be ''substantial'' a question of law it 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. It will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case or not?
19. Accordingly, on a careful consideration of the entire matter, I think that the appellant has no case. The judgments under challenge cannot be interfered in this appeal in exercise of jurisdiction u/s 100 CPC as the impugned judgments do not suffer from any error or illegality.
20. For the foregoing reasons, the instant Second Appeal fails and is dismissed.
21. No order as to costs.
