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Chela Meri & Another v. Mohammad Abu Khair Khan & Others
Legal Opinion Summary — B.D. Singh, J.
Factual and Procedural Background
Shaikh Lal Mohammad owned Survey Plots No. 327 and 328 (Khata No. 130) in Mohalla Aggarwa, Motihari, and had constructed three attached houses on the land. On his death his son Shaikh Abdul Rab (Defendant second party) came into possession of the three houses bearing Holding Nos. 115, 116 and 117. On 5 October 1939 the house on Holding No. 115 was sold to Bibi Khatoon (plaintiff / Respondent First Party). On 15 September 1950, by a registered deed (Exhibit A/Ext. 1), Shaikh Abdul Rab sold the houses on Holding Nos. 116 and 117 to the appellants (Chela Mery and Agnes), the sale being in the name of Agnes.
Bibi Khatoon instituted a suit impleading the appellants as Defendants First Party and Shaikh Abdul Rab as Defendant Second Party, seeking a declaration that the walls described in Schedule 1 of the plaint (identified in an attached sketch map) were common walls of the houses (specifically two walls marked A and B in the plaintiff's map) and that the parties had only the right to repair them, not to raise them or put a pucca roof thereon; she sought restraint against the defendants from further raising the walls or making any construction.
At trial six issues were framed; issues 3 and 5 were central: (3) Whether the wall described in Schedule 1 is a common wall? and (5) What are the respective rights of the parties with respect to that wall? The trial court found that AB (running north–south) was not a common wall but that BC and CD were common, and dismissed the plaintiff's suit. The plaintiff appealed; during the appeal she died and her heirs were substituted. The appellate court reversed the trial court, holding that AB, BC and CD are common walls (treating AB also as common) and decreed in favour of the plaintiff. The present appeal under Section 100 of the Code of Civil Procedure is by the appellants against the appellate court's judgment.
Legal Issues Presented
- Whether the appellate court erred by granting relief beyond what was pleaded by the plaintiff (specifically in relation to the CD wall).
- Whether the appellate court relied on inadmissible evidence and thereby erred in its findings.
- Whether the appellate court's reversal of the trial court's findings involved improper re-appreciation of evidence (a question of appreciation of evidence in a second appeal).
- Whether the appellate court misinterpreted Exhibit 1 (the sale-deed) and whether such misinterpretation constitutes a question of law that warrants interference in a second appeal.
Arguments of the Parties
Plaintiff / Respondent (Bibi Khatoon — as presented in the plaint)
- The sale-deed (Exhibit 1/Ext. A) and the agreement between her and the vendor (Respondent No. 2 / Shaikh Abdul Rab) established that two walls marked A and B in the plaintiff's sketch map were common walls between Holding Nos. 115 and 116.
- Under the agreement the vendor had no right to raise those walls or to put any construction over them; if any such construction was made, it ought to be demolished by court order.
Defendants First Party / Appellants (Chela Mery and Agnes)
- The terms of Exhibit 1 were that only two walls (BC and CD in their map) were common; the AB wall was exclusively the appellants' own wall.
- On appeal to this Court the appellants raised four specific objections: (i) appellate court granted more relief than pleaded (especially regarding CD wall); (ii) appellate court relied on inadmissible evidence; (iii) appellate court set aside the trial court judgment despite solid evidence (e.g., admissions of P.W.2, contents of Exhibit 1, existence of a drain by CD wall, construction contiguous to AB wall); and (iv) appellate court misinterpreted Exhibit 1.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raruha Singh v. Achal Singh, A.I.R. 1961 Supreme Court 1097 | In a second appeal the High Court's jurisdiction is confined to questions of law; the High Court should not re-appreciate evidence where the appellate court has recorded a definite finding of fact based on oral evidence and surrounding circumstances. | The court relied on this principle to reject the appellants' contention that the High Court should re-appreciate the evidence underpinning the appellate court's finding (point (iii)). The Court held there was no merit in re-appreciating evidence in this second appeal. |
| State of Bihar v. Rajabahadur Kamakshya Narain Singh, 1961 B.L.J.R. 446 | Supports the proposition that an appellate court should not make out a new case for a party (i.e., appellate relief should not go beyond the case as pleaded). | Used alongside Raruha Singh to uphold the submission that the appellate court's finding regarding the CD wall (which the plaintiff had not claimed) could not be sustained; the High Court modified the appellate judgment to exclude the part relating to the CD wall. |
| Bhusawal Borough Municipality v. Amalgamated Electricity Company Limited, A.I.R. 1966 Supreme Court 1652 | Misconstruction of a document which is not merely evidentiary but is a document on which a party's claim is based would be an error of law; the High Court in a second appeal may correct such misconstruction. | Considered by the Court on the question whether the appellate court misinterpreted Exhibit 1. The Court found that the appellate court's conclusion was not based solely on interpretation of Exhibit 1 but on other evidence as well; therefore, the contention that misinterpretation of Exhibit 1 amounted to a correctable error of law failed in this case. |
| Nedunuri Kameswaramma v. Sampati Subba Rao, A.I.R. 1963 Supreme Court 884 | Construction of documents (unless they are documents of title) produced to prove a question of fact does not ordinarily involve an issue of law, unless it can be shown that material evidence in them was misconstrued by the court of fact. | Applied to conclude that interpretation of Exhibit 1 (not a document of title here) did not ipso facto raise a question of law warranting interference, especially because the appellate court relied on additional material evidence and there was no clear misconstruction shown. |
Court's Reasoning and Analysis
The court addressed each of the appellants' four points in turn, applying the cited principles and the record evidence as follows:
- Regarding point (i) (appellate court granting more relief than pleaded): the Court examined the plaint and noted the plaintiff had not claimed any relief in respect of the CD wall. The respondent's counsel conceded no claim over CD wall. Relying on the principle in Raruha Singh and the similar view in State of Bihar v. Rajabahadur, the Court held that the appellate court should not have pronounced on the CD wall beyond the pleadings. Consequently, the appellate court's finding as to the CD wall cannot be sustained; the Court limited consideration to the AB wall.
- Regarding point (iii) (improper re-appreciation of evidence in second appeal): the Court reiterated the principle from Raruha Singh that in a second appeal the High Court's jurisdiction is confined to questions of law and that it should not re-appreciate evidence where the appellate court has recorded a definite finding of fact on oral evidence and surrounding circumstances. Applying that principle, the Court found no merit in the appellants' contention that the evidence had been wrongly appreciated by the appellate court.
- Regarding point (iv) (misinterpretation of Exhibit 1): the Court acknowledged the rule in Bhusawal Borough Municipality that misconstruction of a document forming the basis of a claim can be an error of law. However, the Court observed that the appellate court's conclusion did not rest solely on its interpretation of Exhibit 1; it also considered other evidence on the record. The Court further cited Nedunuri Kameswaramma to note that construction of documents (not documents of title) does not ordinarily present a question of law unless material evidence in them was misconstrued. Given that the appellate court considered other evidence and that no proper sketch on scale was available to ascertain exact positions, the Court found no justification to interfere with the appellate court's finding that the AB wall is common.
- Regarding point (ii) (reliance on inadmissible evidence): the Court considered the submission that the appellate court relied on inadmissible material (including findings in an earlier suit concerning a latrine). The Court held that even if that alleged inadmissible evidence were excluded, the appellate court's finding regarding AB wall could nonetheless be sustained on the remaining evidence. Thus the objection to reliance on inadmissible evidence did not prevent upholding the appellate finding on AB.
After addressing the points, the Court concluded that the appellate court's finding in relation to the CD wall must be disallowed as it granted relief beyond the pleadings, but the appellate court's conclusion that the AB wall is common (and that the plaintiff was entitled to the relief sought regarding that wall) was supported by the record and did not call for interference in this second appeal.
Holding and Implications
Holding: Appeal allowed in part.
Direct effects and implications as announced by the Court:
- The appellate court's finding and relief to the extent it concerned the CD wall cannot be sustained because the plaintiff had not pleaded any claim over the CD wall; that part of the appellate judgment is modified and set aside.
- The Court upheld the appellate court's finding that the disputed AB wall is a common wall belonging to both parties; the appellate court's decree insofar as it declared AB to be common and granted the plaintiff the relief in respect of that wall is sustained.
- Even excluding the allegedly inadmissible evidence relied upon by the appellate court, the AB finding is supportable on other evidence in the record, so the appellants' objections on that ground fail.
- There will be no order as to costs.
Broader precedent impact: The opinion modifies the appellate judgment on a pleading point but does not purport to lay down any new legal principle beyond application of existing authorities; it confines its decision to the facts and issues before the Court.
Appeal allowed in part.
B.D Singh, J.:— This appeal under Section 100 of the Code of Civil Procedure by Chela Mery and Agnes, who were Defendants First Party in the trial court, is directed against the judgment and decree of the learned Additional Subordinate Judge in Title Appeal No. 107/2 of 1963/70, whereby he reversed the judgment and decree of the trial court.
2. In order to appreciate the points of law involved in this appeal, it will be necessary to briefly state some material facts. One Shaikh Lal Mohammad was the owner of Survey Plots No. 327 and 328 of Khata No. 130 situated in Mohalla Aggarwa, in the Town of Motihari. Shaikh Lal Mohammad had constructed three houses on the aforesaid land separately, but attached to one another. On his death, his son Shaikh Abdul Rab (Defendants second party), came in possession of the three houses, bearing Holding Nos. 115, 116 and 117 of the Motihari Municipality. On the 5th October, 1939, Shaikh Abdul Rab sold the house on Holding No. 115 to Bibi Khatoon, who was plaintiff Respondent First party in this Court. On the 15th September, 1950, by a registered deed (Ext. A), Shaikh Abdul Rab, namely, Respondent No. 2, sold the remaining two houses on Holding Nos. 116 and 117 to the appellants. The said sale under Exhibit A was only in the name of Appellant No. 2, Agnes, daughter of Appellant No. 1. Subsequently, a suit had to be instituted by Bibi Khatoon, impleading the appellants as Defendants First Party and Shaikh Abdul Rab as Defendant second Party. In the suit, she sought for a declaration that the lands described in Schedule 8 of the plaint are the common walls and both parties bad got the right only to repair them and that they had no right either to raise the walls or to put any pucca roof on the same. It was further prayed that the defendants first party be restrained from further raising the walls and making any construction over the same.
3. The suit was mainly contested by Defendants First Party. On the pleadings of the parties, as many as six issues were framed. Out of them, issues Nos. 3 and 5 are important for the purpose of this appeal. The said Issues Nos. 3 and 5 read as follows:—
3. Whether the wall described under Schedule I of the plaint is a common wall as alleged by the plaintiff?”
“5. What are the respective rights of the parties, if there be any, with respect to the wail as described in Schedule 1 of the plaint?”
4. The trial court has considered those issues together. According to the case of the plaintiff, there was an agreement between her (the vendee) and her vendor (Respondent No. 2), as contained in the sale-deed (Ext. 1) that the two walls, marked A and B in the sketch map attached to the plaint, were common walls of the houses bearing Holding Nos. 115 and 116. Respondent No. 2, under the terms of the agreement had on right to raise the said walls or to put any construction over the same. According to the plaintiff, if any such construction was made, that had to be demolished by the order of the court.
5. According to the defendants first party, namely, the appellants, the terms of agreement in Exhibit I was that out of the three walls Indicated in the map attached to the written statement filed on their behalf, indicated by letters AB, BC and CD. Only two walls, namely, BC and CD. were common. BC wall runs east to west, whereas CD wall runs north to south. According to Defendants first party, AB wall was exclusively their own wall.
6. The trial court, after considering the evidence on the record, found that it appears from a reference to Exhibit 1 that “the wall, i.e, AB wall which runs north to south and which is mentioned in schedule 1 of the plaint is not the common wall.” It, however, found that the other two walls, i.e, BC and CD walls are common walls. In other words it found that AB wall is the exclusive wall of the defendants and it dismissed the suit filed by the plaintiff.
7. Aggrieved by the judgment and decree of the trial court, Bibi Khatoon preferred an appeal. During the pendency of the appeal she died and, therefore, her heirs were substituted in her place.
8. The appellate court, however, allowed the appeal and set aside the judgment and decree of the trial court. It will be relevant to quote the findings, of the lower appellate court in paragraphs Nos. 11 and 12 of the judgment.
11. “From these observations it seems clear to me that the walls AB, BC, CD, which would have been one wall if it were straight, are common walls, except for its direction of the common walls is north to south. The learned Munsif, it appears, has viewed the map from the tail end so he has fallen into an error in observing that the wall BC and CD are only common walls. As mentioned before there is nothing except the Defendant's latrine by the side of the wall CD but there are many structures of both the parties on both the sides of the wall AB, go it would be traversity of truth if this wall AB is not regarded as common wall.
12. “Considering all the facts, evidence and circumstances it appears to me that disputed wall AB (as shown in map Ext. 2), is also a common wall and belongs to both the parties and Defendant has no exclusive right over it and plaintiff is entitled to the decree sought for.”
9. Mr. Kaushal Kishore Sinha, learned counsel appearing for the appellants, has assailed the judgment and decree of the appellate court and has raised the following points for consideration of this Court:
(i) The court below has erred in granting more relief than sought for the plaintiff in her plaint.
(ii) The appellate court has erred in relying upon inadmissible evidence binding on the parties.
(iii) The appellate court has erred in setting aside the judgment and the decree of the trial court which were based on solid evidence on the record, for example, admission of P.W 2, contents of Exhibit 1, existence of drain by the side of the CD wall, and construction of Pucca building in continuation of AB wall by Respondent No. 2. According to the learned counsel for the appellants, the lower appellate court has not considered these points while setting aside the judgment and the decree of the trial court.
(iv) The appellate court has erred in not correctly interpreting the contents of Exhibit 1.
10. As regards point (i) learned counsel for the appellants drew my attention to the plaint. By reference to the plaint it is clear that the plaintiff had no claim with regard to the CD wall. Learned counsel appearing on behalf of the Respondents First Party has conceded that there was no claim over CD wall. Learned counsel for the appellants, in this connection, also relied upon a decision of the Supreme Court in the case of (1) Raruha Singh v. Achal Singh (A.I.R 1961 Supreme Court 1097), wherein it was observed that the appellate court should not make out a new case, which was not pleaded by a party. A similar view was taken in the case of (2) the State of Bihar v. Rajabahadur Kamakshya Narain Singh (1961 B.L.J.R 446). In my view, therefore, the submission of the learned counsel for the appellants under point (i) is well founded and the finding of the lower appellate Court to the extent it relates to CD wall cannot be sustained. It may be noticed that the trial court had also given a finding that the CD wall is common. That funding also is not called for, and cannot be upheld. As it appears from Paragraph No. 6 of the judgment of the appellate court, points raised by the different parties are mentioned. It is clearly mentioned therein that the disputed wall was shown by letters AB in the map Exhibit 2. Therefore, according to me, in this appeal, the finding with regard to AB wall alone has to be taken into account.
11. Now I turn to consider the submissions of the learned counsel for the appellants on Point No. (iii). This point relates only to appreciation of evidence. A reference may be made to the decision of the Supreme Court in the case of Raruha Singh (A.I.R 1961 Supreme Court 1097 supra), on which reliance has been placed on behalf of the appeh lants. In that very decision, their Lordships have observed that in Second Appeal, the High Court's jurisdiction is confined to questions of law. When on the questions at issue to be dealt with in the light of oral evidence and surrounding circumstances, if the appellate court records a definite finding, it would not be open for the High Court to re-appreciate the evidence. In that view of the matter, there is no merit in the submission of the learned counsel for the appellants under this point
12. Now I turn to consider point No. (iv). The contention under this head by the appellants' counsel is that the lower appellate court has misinterpreted Exhibit 1 and that according to him it will amount to a question of law. Learned counsel, in this connection, relied on a decision of the Supreme Court in the case of (3) Bhusawal Borough Municipality v. Amalgamated Electricity Company Limited (A.I.R 1966 Supreme Court 1652), wherein it has been observed that misconstruction of a document which is not merely of evidentiary value but one upon which claim of a party is based would be an error of law and the High Court in second appeal would be entitled to correct it. In my opinion, this submission of the learned counsel for the appellants also is not tenable. It may be noticed that the learned court below has come to the conclusion not merely by interpreting Exhibit 1, but has also taken into account, as pointed out earlier, other evidence on the record as well. In the Case of (4) Nedunuri Kameswaramma v. Sampati Subba Rao (A.I.R 1963 Supreme Court 884) it has been observed that a construction of Documents (Unless they were documents of title) produced by the parties to prove a question of fact did not involve an issue of law, unless it could be shown that the material evidence contained in them was misconstrued by the Court of fact. Exhibit I was also placed before me. There also it refers to the two walls being common. In the absence of any sketch map drawn on proper scale on the record, it would be difficult to find out the exact location of the walls, but none the less, I do not find justification for interference with the findings of the lower court in this second appeal regarding the AB wall being common. Therefore, the submission of the learned counsel for the appellants under Point No. (iv) also fails.
13. Lastly, I advert to consider the submission of the learned counsel under Point No. (ii) The contention of the learned counsel for the appellants in this regard is not tenable. Even if I exclude the alleged inadmissible evidence, the finding of the appellate court regarding AB wall can be sustained on other evidence on the record. Under this point, learned counsel has submitted that the appellate court has relied upon the findings in Title Suit No. 356 of 1952, out of which Title Appeal No. 145 of 1954 arose. In these litigations, learned counsel for the appellants submitted the issue between the parties related to a latrine in Holding No. 116, and, therefore, according to the learned counsel, those findings were neither relevant nor admissible in evidence. That may be so, but, as observed by me earlier the findings of the appellate court can be sustained even after exclusion of that part of the evidence.
14. In the result, after a careful consideration, I allow this appeal in part and the judgment and decree of the court below are modified to the extent as indicated above. In the circumstances of the case, there will be no order as to costs.
Appeal allowed in part.
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