Union Of India Through The Secretary, Ministry Of Defence, New Delhi v. Ibrahim Uddin

Mrs. Poonam Srivastava, J. -

Heard Sri Subodh Kumar, learned Counsel for the appellant and Sri V.B. Singh Senior Advocate, assisted by Sri Mohd. Isha Khan for the plaintiff-respondent.

2. Counsels for the parties agreed that the appeal be heard finally at the initial stage itself. The lower appellate Court record was summoned on 20-10-2005. On 5-4-2006 Sri C.B. Gupta Advocate filed his Vakalatnama on behalf of Cantonment Board, Agra subsequently a cross-objection was preferred on 13-4- 2006 but no arguments were advanced on behalf of the Cantonment Board, Agra.

3. The appellant Union of India through the Secretary, Ministry of Defence, New Delhi defendant No. 1, alone preferred this second appeal against the judgment and decree passed by the VIIIth Additional District Judge, Agra in Civil Appeal No. 81 of 1998 arising out of Original Suit No. 442 of 1995. The suit was instituted by the plaintiff-respondent Ibrahim Uddin seeking a decree for declaration that he is the owner in occupation of the suit property. The suit was dismissed by the Civil Judge (Senior Division), Agra vide judgment dated 20-1-1998. The plaintiff preferred a civil appeal against the appellant and Cantonment Board, Agra which was allowed and plaintiff's suit was decreed. The Cantonment Board did not prefer any appeal in this Court. This appeal was filed on a number of questions of law but it was admitted on 7-3-2006 on the following questions of law :

(1) Whether the judgment and decree passed by the lower appellate Court is vitiated in law in as much as the land in dispute which was recorded in Column B-4 under Rule 6 of the Cantonment Land Administration Rule 1937 was wrongly and illegally discarded on the ground of secondary evidence in the presence of the original register maintained by the Military Estate Officer?

(2) Whether the certified copy of the relevant registers maintained under the Cantonment Act are admissible in evidence and appellate Court erred in law in discarding the same illegally against the relevant provisions of the evidence act and decreed the suit of the plaintiff on the false protect that there is no document was filed on behalf of the defendant?

(3) Whether the appellate Court did not consider this aspect at all that the suit for declaration without possession is not maintainable is barred by the provision of Specific Relief Act?

(4) Whether the lower appellate Court has committed illegality while accepting the will dated 1-3-1992 filed on 28-4- 1999 without its proof by plaintiff ?

4. Learned Counsel for the plaintiff respondent filed an application under Order XIII Rule 9 (1) (b) read with Section 151 C.P.C. to accept the document in original which was filed and relied upon by the lower appellate Court. The document adduced at the stage of first appeal before the Court below as additional evidence is Will deed dated 1-3-1929 in Urdu and its Hindi translation. Partition deed dated 1-3-1929 in Urdu and its Hindi translation and demand notice in Urdu and its Hindi translation were on record and filed in the trial Court.

5. Subsequently the documents were taken back after seeking permission from the Court in accordance with provisions of the Code as it was required in some other proceedings. The said documents have been filed in this appeal. Acceptance of the documents is objected by the plaintiff-appellant and an amendment application is filed to add two new grounds regarding acceptance of the documents and also framed an additional substantial question of law which is quoted below :

(5) Whether the withdrawal of all documents filed by the plaintiff-contesting respondent if any violation of provisions of Order XIII Rule 9 C.P.C, if so its effect?

6. The facts pleaded in the plaint is that Hafiz Ahmad Bux and Hafiz Karim Bux are owners of 20 bighas of land. Survey Nos. 5 and 6 situated in Sarai Safrat (now generally know as Namneh Agra). The property was received as donation by Marathas and they are the title holder of the land since the year 1800. In the third generation of Hafiz Ahmad Bux and Hafiz Karim Bux, Sri Nazim inherited the property by means of partition deed in the year 1919. One of the branch of successors was issueless and therefore, the plaintiff became the successor Of the entire property. The property was never sold, alienated, transferred or gifted to any one by the ancestors of the plaintiff. The Military Estate Officer is the tenant of the ancestors at the rate of Rs. 22/- per month. The appellant-respondent denied the assertions made in the plaint. The pedigree was disputed. The defendant claimed to be the owner of the property and an additional written statement was filed stating that 8 acres of land of Survey No. 5 was given to one Sri R.D. Sharma and Kamleshwati on lease and the lease deed is said to be executed between 1-6-1956 to 31-5-1984. A suit for their dispossession is pending. An area of 3063 sq. feet of survey No. 6 was said to have been encroached by one Itwari Lal and a suit for dispossession of Sri D.B. Anand son of late Itwari Lal is pending. The trial Court framed as many as 8 issues. Issue No. 5 was regarding Court fee, issue No. 6, whether the suit is barred by provisions of Section 271 of the Cantonment Board Act, 1924 as well as Section 80 C.P.C. These three issues were decided as a preliminary issue in favour of the plaintiff and the same was never challenged. Issue Nos. 1, 2, 3 and 4 were decided together. The plaintiff Ibrahim Uddin was examined as PW- 1 on behalf of plaintiff and Sri H.C. Nakara S.D.O. as DW-1 on behalf of defendant. Besides the aforesaid oral evidence, a number of documentary evidence was brought on record by the plaintiff and respondent. The trial Court decided issue Nos. 1, 2, 3 and 4 relating to the ownership and occupation by the plaintiff in his own right. The trial Court dismissed the suit holding that the plaintiff has not been able to establish his right by means of any cogent evidence and, therefore, he is not entitled for a decree of declaration. The suit was dismissed. The plaintiff preferred an appeal. Additional evidence Paper No. 12- Ga was adduced on behalf of the plaintiff-respondent, which was a Will dated 1-3-1929 alongwith Hindi translation executed by Nazim in favour of the plaintiff. The appellant was allowed time to file objection against the acceptance of the Will as an additional evidence but the appellant failed to file any objection within the time allowed and, therefore, the first appellate Court admitted the additional evidence. The appellant did not file any revision or challenged the acceptance of the Will as additional evidence. The appeal was allowed and the judgment of the trial Court was set aside. The appellate Court recorded a specific finding that the disputed property was received by ancestors from the Marathas in the year 1800 and also certified copy of Paper No. 10Ga (1) was relied upon. The property was given to the Nana of the plaintiff, which was let out by them to NEO as tenants. Paper No. 21-Ga is a document written in Urdu by Karinda of the plaintiff. Hindi translation thereof is Paper No. 22-Ga. The plaintiff made a request for inspection of the documents, which was not permitted by the appellant. The appellate Court specifically relied on paper No. 10-Ga which is the partition deed. Paper No. 30-Ga is an application given by the plaintiff dated 17-5-1996 for inspection of the record but the plaintiff was not allowed to inspect the same by the appellant. The revenue records have not been adduced in evidence.

7. After hearing the respective Counsels at length and going through the record and also a careful consideration of substantial question of laws framed, only two questions of law requires to be examined and to be decided, which are as under :

(I) Whether the land in question was held by the plaintiff's ancestors right from the year 1800 and the same is being owned/held as owners having right and title over the land in dispute?

(II) The Union of India/MEO was lessee on rent at the rate of Rs. 22/- per month and it has a right to let out the land on lease for agricultural purposes?

8. Before I proceed to decide on the issues framed by the Courts below on the basis of the pleadings and written statement, the objection regarding acceptance of the documents which were taken back after the judgment of the first appeal and again brought on record requires to be decided. The submission on behalf of the appellant is that the documents were taken back in violation of the provisions of Order XIII Rule 9 C.P.C. The said papers cannot be placed on record in the manner it is done. Sri Subodh Kumar, Counsel for the appellant has emphasized that the return of the document to the plaintiff after the decision in appeal was per-se illegal and subsequently the same document cannot be accepted by this Court in the second appeal. So far the objection regarding return of the original record after the decision in appeal, is devoid of substance. The documents were returned only after an order was passed by the competent Court on an application under Order XIII Rule 9 C.P.C. It is entirely the discretion of the Court whether to return it or not. In the instant case, the Additional District Judge VIIth, Agra permitted the plaintiff to take it back as it was required in some other proceedings with a clear understanding that if the documents are required, it will be produced and thereafter the original documents was brought on record by leave of this Court. I cannot overlook that the documents were adduced as additional evidence in accordance with law and acceptance of the said documents were never challenged before any higher Court. I have also noticed the fact that the original documents were returned only after 90 days of the judgment passed by the First Appellate Court. So far the question of law raised on issue of return of documents and thereafter when this Court required the documents, during the argument in the second appeal the same was filed with an application and proper explanation. This acceptance of documents will not constitute a substantial question of law which calls for a consideration in this second appeal. The objections raised by the learned Counsel for the appellant regarding Section 60 of General Clauses Act is not sustainable in law, since Order XIII Rule 9 C.P.C. entitles a party to take back the documents which has been done in the instant case. The documents were already accepted as additional evidence under Order XLI Rule 27 C.P.C. by the first appellate Court and the Court has specifically relied on the said documents. The papers were taken back with the permission of the Court on conclusion of the first appeal. The judgment is the subject matter in this second appeal which the Court is to examine as to whether any substantial question of law arises and the judgment in the first appeal suffers from material illegality and raises a substantial question of law. Assuming the procedure as provided under the C.P.C. was not followed strictly while the document were returned after the decision in appeal, yet it cannot be taken into consideration while deciding a second appeal. By no means this would constitute a substantial question of law. It is evident taking back of the documents adduced in evidence is not a question to be decided in second appeal under Section 100 C.P.C. as it is an incident which is subsequent to the judgment in the first appeal.

9. The appellate Court decided issue Nos. 1, 2, 3 and 4 simultaneously and came to a conclusion that the land was owned by ancestors of the plaintiff-respondent which came down from Marathas and on the basis of Paper No. 10-C. It was gifted or donated by Marathas Estate and it also bears seal of Maratha Government. It is also conclusively held that there was a partition in the year 1819. The appellate Court has categorically come to a conclusion on the basis of Paper No. 11-C and 12-C as also on perusal of the original Will, the land in question was owned by Syed Warzid Ali which was inherited by Ibrahim Uddin. There is a categorical finding of fact based on the evidence on record that the land in dispute was owned by ancestors of the plaintiff and they had right and title over the same. This conclusion was arrived after drawing an adverse inference since the appellant relied on Paper No. 92C, 93C, 94C and 95C. which were plan sheet of survey of India pertaining to the 1968-69. Survey Nos. 5 and 6 which were adduced in evidence but the said documents were only photo copies. The witness admitted that he was not present at the time of its execution. There was a specific admission by the witness on behalf of the appellant that the original were in their possession but in spite of it only photocopies were filed without proving it from the original record which was admittedly kept in a almirah in his office. In the circumstances, the secondary evidence was rightly discarded by the appellate Court. The two substantial question of law regarding rejection of certified copies by the Court below are also not worth consideration. Thus the lower appellate Court was absolutely right in holding that the papers and documents relied upon by the appellant have not been proved in accordance with law. The Court below has recorded a finding that the MEO was taking care of the land since last 4-5 years as lease holder. These findings are findings of fact and cannot be assailed in a second appeal. The Court below has also accepted the Will dated 1-3-1929 and since there was no rebuttal on behalf of the appellant, therefore, recital of the Will was accepted. The contents of the Will cannot be re-examined by this Court in a second appeal, especially since no steps were taken by the appellant to challenge the admission of the Will as additional evidence. The said will for the first time was challenged in the second appeal and it is submitted that since the Will was unregistered Will, it was the onus of its propounder to prove it in accordance with law.

10. Counsel for the appellant has placed reliance on a decision of the Apex Court in the case of Meenakshiammal (Dead) through Lrs. v. Chandrasekaran & Anr., (2005) 1 SCC 280, and has emphatically argued that the Will was an unregistered deed, it was not proved in accordance with law and the lower appellate Court was wrong in upholding the recital of the Will. The next decisions relied upon on the question of Will by Sri Subodh Kumar are, Gangamma & Ors. v. Shivalingaiah, (2005) 9 SCC 350; Bhagat Ram & Anr. v. Suresh & Ors., (2003) 12 SCC 35; Santosh Kumar Gupta v. Harvinder Nath Gupta & Ors., 1997(1) JCLR 831 (All) : 1997 (88) R.D. 621.

11. I have gone through the judgments placed before me challenging the genuineness of the Will. All the cases relate to a dispute between the beneficiary and another person claiming to be the actual successor of the testator and relate to the question as to whether the Will was executed in suspicious circumstances or not ? The signature of the testator was not established by means of cogent evidence or other such factors. The principle laid down in the decisions cited on behalf of the appellant cannot help him in the present circumstances, as presumption drawn by the appellate Court cannot be challenged in the second appeal without any foundation. In the instant case, the only assertion of the learned Counsel for the appellant is that the Will could not have been executed at the relevant time and also that there were other sharers who were entitled to the property and exclusive claim of the plaintiff should not have been accepted by the Court below. The co-sharers have not come forward to challenge the Will. These objection without any evidence in rebuttal or that the documents were taken back after the judgment in the first appeal is not sufficient to discard the findings of the Court below. The lower appellate Court has recorded a finding of fact regarding ownership over the land, pe- degree, partition of the land in the year 1890 and finally arrived at a conclusive finding of fact against the defendant- appellant who failed to prove their case beyond their own admission that the land in question was given on lease for five years but nothing has been produced to establish its renewal after expiry of the lease.

12. Clause B-1, B-2, B-3, B-4 and B-5 Classification of land first time introduced by enactment of Cantt. Land Administration Rule 1925. The General Land Register was prepared near about in the year 1928, whereas the partition is in the year 1890. The appellants also failed to file the notification in the Official Gazette regarding survey Nos. 5 and 6 which is situated outside the notified area and to establish that such area was declared under section 43a of the cantonment act, 1924. In the circumstances, I do not find that it is a case where this Court in exercise of jurisdiction under Section 100 C.P.C. can set aside the findings of fact arrived at by the Court below. In the case of Sri Sinha Rajanuja Jeer alias Sri Vanamamalai Ramanuja Jeer Swamlga v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer & Ors., AIR 1961 SC 1720, it was ruled that the High Court has no jurisdiction to entertain a Second appeal on the ground of erroneous finding of fact however gross error may be. The High Court was not justified in interfering with the District Judge' finding of facts. In the case of Ramchandra Ayyer & Anr. v. Ramalingam Chektiar & Anr., AIR 1963 SC 302, it was ruled that interference by the High Court in Second Appeal, finding of fact by trial Court reversed by Lower Appellate Court does not entitle interfere merely because judgment of Lower Appellate Court is not elaborate and that some reasons given by trial Court are not expressly reversed. This High Court in the case of Badri Barai v. Vishwanath Bajpai & Ors., AIR 1976 Alld. 180, held that the conclusion on facts arrived at by the Lower Court is a cumulative effect of the approval of the evidence on record. Such findings cannot be assailed in Second Appeal except on the ground of the existence of a legal error. The Apex Court, in the case of P.C. Purusothamma Reddiar v. S. Perumal, AIR 1972 SC 608, held that once a document properly admitted, the contents of that documents are also admitted in evidence.

13. The Apex Court in the case of Rajeshwari v. Puran Indoria., 2006(1) JCLR 353 (SC) : (2005) 7 SCC 60, has elucidated and explained the term “Substantial question of law” it was held that the proper test for determination whether question of law raised in a case is substantial and would affect rights of the parties, if so whether it is either an open question in the sense it was not finally settled by Hon'ble Supreme Court or Privy Council or federal Court, or is not free from difficulty or calls for discussion or alternative views. Similar view was expressed by the Apex Court in the case of Govindaraju v. Mariamman., 2005(3) JCLR 336 (SC) : (2005) 2 SCC page 500, as well as Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs., 2001(2) JCLR 434 (SC) : (2001) 3 SCC page 179. The question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have material bearing as to the rights of the parties before the Court.

14. In view of the foregoing discussion, substantial question of law raised in the instant second appeal are not worth consideration. Objection of the plaintiff/appellant was without any substance. The second appeal lacks merit and is accordingly dismissed. Cost on parties.

Appeal dismissed.