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1976 Supreme(Pat) 82
PATNA HIGH COURT
B.D.Singh, J.
Chela Meri And Another
Versus
Mohammad Abul Khair Khan
Appeal From Appellate Decree No. 492 of 1970 ;
Decided On : MARCH 29, 1976
In a 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 reappreciate the evidence.
Headnote:
COMMON WALL - OWNERSHIP - INTERPRETATION OF SALE DEED - FACTUAL FINDINGS - SECOND APPEAL - SCOPE OF INTERFERENCE - INTERPRETATION OF DOCUMENT - QUESTION OF FACT - EVIDENCE - ADMISSIBILITY - RELEVANCE.
Fact of the Case:
A dispute arose regarding the ownership of a common wall between two adjacent houses. The plaintiff claimed that the wall was common and sought a declaration to that effect, while the defendants claimed that the wall was exclusively theirs. The trial court found that the wall was not common, but the appellate court reversed this decision and held that the wall was common.
Finding of the Court:
The High Court held that the appellate court had erred in granting more relief than sought by the plaintiff, as the plaintiff had not claimed any relief with regard to a different wall in the plaint. The High Court also held that the appellate court had erred in relying upon inadmissible evidence, but that even if this evidence was excluded, the finding of the appellate court regarding the common wall could be sustained on other evidence on the record. The High Court further held that the appellate court had not erred in interpreting the sale deed, as the interpretation of the document was a question of fact and not a question of law.
Issues: 1. Whether the appellate court erred in granting more relief than sought by the plaintiff in the plaint? 2. Whether the appellate court erred in relying upon inadmissible evidence as binding on the parties? 3. Whether the appellate court erred in setting aside the judgment and the decree of the trial court which were based on solid evidence on the record? 4. Whether the appellate court erred in not correctly interpreting the contents of Exhibit 1?
Ratio Decidendi: 1. The appellate court erred in granting more relief than sought by the plaintiff, as the plaintiff had not claimed any relief with regard to a different wall in the plaint. 2. The appellate court erred in relying upon inadmissible evidence, but even if this evidence was excluded, the finding of the appellate court regarding the common wall could be sustained on other evidence on the record. 3. The appellate court did not err in interpreting the sale deed, as the interpretation of the document was a question of fact and not a question of law.
Final Decision: The High Court allowed the appeal in part and modified the judgment and decree of the appellate court to the extent that the finding of the appellate court regarding the common wall was upheld, but the finding regarding a different wall was set aside.
1. This appeal under Sec.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 Sheikh Lal Mohammed was the owner of Survey Plots Nos. 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 Ralb (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 I of the plaint are the common walls and both parties had 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 wall as described in Schedule I 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 no 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 term 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 all.
6. trial court, after considering 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 I 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
