HIGH COURT OF JAMMU AND KASHMIT AT JAMMU CSA No. 15 of 2005 and CMP No. 233 of 2007 Ghulam Mehndi Petitioner Bihari Lal Respondent
!Mr.S. A. Salaria, Advocate
^V.R. Wazir with R P Sharma
Coram:
Mr Justice Sunil Hali
Dated : 05/06/2008
:judgment:
This civil second appeal has been preferred against the findings of
fact and law by two courts below in civil original Suit No. 23/99-A 180/14. The
civil suit came to be filed by respondent No. 1 seeking possession of two
kholas, one compound of a one storeyed house with compound situated in
municipal limits of Poonch. The basis for seeking possession was the sale deed
executed by the owners of the property with the defendant. It was averred in
the suit that the defendant was put in possession by the owner of the property
on 11.3.1977 and appellant defendant dispossessed the plaintiff from the suit
premises purchased by him vide sale deed dated 10-3-1977.
The contention of defendant-appellant was that he was in possession of the
property for more than 12 years as such his right has matured into title on the
basis of adverse possession. In this respect reliance was placed on a decree
passed by Sub Judge, Poonch on 29.9.1979.
The main controversy involved in appeal is (a) whether the
plaintiff/respondent had been put in possession of the property by the erstwhile
owners at the time of execution of sale deed and (b) whether the possession of
defendant-appellant had matured into ownership on account of adverse
possession.
Before adverting to the merits of the case it is important to understand
the import of judgment passed by Sub Judge, Poonch on 29.9.1979 in a suit filed
by appellant against the present respondent. The case of the appellant in that
suit was that he has executed an agreement to sell with the erstwhile owners
in 1974. It is stipulated in the said agreement that if the sale deed is not
executed, part payment will be forfeited. The possession of the property will
be taken over after the execution of sale deed. The trial court found the
appellant in possession of property from which he could not be dispossessed
otherwise in due course of law.
That on the plea of adverse possession the courts below found on fact that
in view of stand taken in the suit filed by the appellant based on agreement to
sell pleading therein that he was put in possession on the basis of agreement
dated 11.9.1974 coupled with the recital of the agreement that possession will
be delivered at the time of sale deed, the possession of property is admitted
to be with the owners at the time of agreement to sell executed on 11.9.1974.
That no amount of oral evidence brought in after the above said pleadings
which are crystal clear on the factum of possession with the erstwhile owners at
the time of execution, admitted in documentary evidence, can be taken into
consideration in support of claim of the appellant of adverse possession as
projected by him. The appellant has admitted the execution of receipts EXPA/2
and EXPW/4. These receipts are not merely receipts, but enumerate the conditions
for the sale of land as well. On the issue of limitation, the courts below have
held that the plea is misconceived. Suit that was filed by the respondent for
possession of property on 30.3.1981 when admittedly sale deed was executed in
March 1977. The suit was well within time. In respect of 2nd question that he
is in possession for more than 12 years and his right has matured into title on
the plea of adverse is also misconceived. The appellant has admitted in his
earlier suit that he was put in possession by virtue of agreement to sell in
the year 1974 thereby conceding that the possession of property was with the
original owner on the said date. Respondent-plaintiff filed the suit in the
year 1981 which is well within time. This plea of appellant is also
misconceived.
The other issue which arose was that the plaintiff has not filed suit
within the period of limitation. This plea has also been rejected by the trial
court on the ground that sale deed was executed in 1977 and suit for possession
was filed on 30.3.1981.
Power of the High Court to intervene in civil second appeal is confined to
determine any substantial question of law which may arise in the appeal. The
High court assumes the jurisdiction to hear a second appeal only after it frames
substantial questions of law on the basis of which the judgment of court below
is to be scrutinized. It must be clearly understood that the legislative
intention was very clear that legislature never wanted 2nd appeal to become
‘third trial on facts’ or ‘one more dice in the gamble.’ It is clearly
understood that the duty is cast on this court to formulate substantial
questions of law before hearing the appeal. Another aspect is that appeal shall
be heard only on that question. What is substantial question of law is no
longer res-integra. The word ‘substantial’, as qualifying “question of law”,
means- of having substance, essential, real, of sound worth , important or
considerable.
This court has also clearly stated that substantial question of law would
be of law which is of general importance and in respect of which there is no
determination by the Apex Court. Coming to the present case the learned
counsel for the appellant has formulated as many as 7 questions which according
to him are substantial questions of law. In essence while scanning through
substantial questions of law framed by the learned counsel it is manifestly
clear that the appellant has clearly tried to show that his possession has
matured into title on the basis of adverse possession claimed by the owners.
His contention is that there was a decree in favour of the appellant that he is
in possession of the property which assumes finality as decree was not appealed
against. It is further averred that in face of decree holding the appellant to
be in possession of the property, the courts below have recorded finding in
contradiction to the said findings of the court.
The decree of the trial court passed in 1979 clearly states that petitioner
has only possessory title and he can be dispossessed if due process of law is
followed. The suit has been filed by the present respondent on the basis of sale
deed. It cannot be said that the trial courts have recorded contradictory
findings in holding that the plaintiff is entitled to the possession of
property. Courts below have found that the plaintiff is owner of property on
the basis of sale deed and has right to seek possession of property on the
basis of said deed. This in no way contradicts the findings recorded in the
decree in the year 1979 which only protected possessory right of appellant
against all except in real owner.
In respect of second question raised that he is in possession for more
than 12 years is belied by his own stand that he was put in possession of
property by virtue of agreement to sell in the year 1974 as averred in his suit.
The other substantial questions framed in the appeal relate to the appreciation
of evidence which this court cannot go into, in view of limitation imposed by
section 100 of CPC. It is not in dispute that finding of fact how wrong or
grossly inexcusable may be cannot be interfered by the court.
With this I do not find any merit in this appeal which is dismissed and
the interim direction shall stand vacated.
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