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Allahbad High Court
M.P.MEHROTRA
Sidh Nath Shukla - Appellant
Versus
Roop Rani - Respondent
Decided On : 01/18/1977
SECOND APPEAL - FACTUAL FINDINGS - SCOPE OF INTERFERENCE - ERRONEOUS FINDINGS OF FACT - NO JURISDICTION TO ENTERTAIN SECOND APPEAL - S.100, C.P.C.
Fact of the Case:
Plaintiffs filed a suit for possession of certain pieces of land alleging that the defendants had made unauthorized constructions on a common Sehan. The trial court decreed the suit against all the defendants. The lower appellate court, however, allowed the appeal filed by some of the defendants and modified the decree. The suit remained decreed against some of the defendants but was dismissed against the other defendants.
Finding of the Court:
The court held that it had no jurisdiction to interfere in the findings recorded by the lower appellate court which were undoubtedly pure findings of fact and no question of law or even mixed questions of law and fact were involved.
Issues: Whether the court can interfere in the findings recorded by the lower appellate court which are undoubtedly pure findings of fact and no question of law or even mixed questions of law and fact are involved.
Ratio Decidendi: The court held that it had no jurisdiction to interfere in the findings recorded by the lower appellate court which were undoubtedly pure findings of fact and no question of law or even mixed questions of law and fact were involved. The court relied on the following principles: * The High Court in second appeal cannot reappreciate the evidence and interfere with findings of fact reached by the lower appellate court. * The lower appellate court is final so far as findings of fact are concerned. * The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate court is contrary to law. * It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal.
Final Decision: The second appeal was dismissed with costs.
2. The brief facts are these:-
3. The plaintiffs alleged that in between the two lines shown by letters AB and MN in the site plan annexed to the plaint and to the north of K L and A G there had always been an open Sehan which was used by them and other residents of the Mohalla as a common Sehan for holding Panchayats, for the stay of the Barats and for feeding marriage parties and for various other purposes. It was further alleged that the defendants No. 8 Budh Sen had his house in the locality shown at figure X in the site plan. The houses of Ram Nath Shukla and Budha Nai were situated at the places shown by letters Z and Y in the above site plan. It was alleged that Smt Roop Rani, the defendant No. 1, who was the wife of Budh Sens son Natthi Lal, had, without right, title or interest, made constructions on the portion of the common Sehan shown by letters A E F G. It was alleged that defendants Nos. 6 and 7 Lekh Raj and Smt. Chandrawati had also constructed a Kachcha Chabutra with a Pucca embankment at the place D H I J in the Central portion of the common Sehan. The other defendants Nos. 2, 3 and 4, Ghafoor, Munshi and Babu Khan, also illegally constructed a Kachcha wall at the place C F and thus included B C F E, the portion of the common Sehan inside their own house. It was alleged that the above unauthorised constructions had been made by the aforesaid defendants at the instigation of defendant No. 8 Budh Sen; hence he had also been impleaded in the suit. It was further alleged that defendant No. 5 Bal Kishan had obtained a sale deed from defendants Nos. 6 and 7, Lekh Raj and Smt. Chandrawati with respect to the Chabutra D H I J and hence Bal Kishan also had been impleaded in the suit. It was suggested that on account of the above unauthorised constructions, there had been a great obstruction in the common Sehan and passage owing to which the plaintiffs-appellants were driven to file the suit in question in a representative capacity under O. 1, R. 8. C.P.C. A decree for possession was claimed over the pieces of land marked by letters A E F G, B C F E and D H I J after removal of the unauthorised constructions made by the defendants.
4. It will be seen that the eight defendants impleaded in the suit fell into three sets. The first set consisted of Smt. Roop Rani, the defendant No. 1, Bal Kishan, the defendant No. 5 and Budh Sen, defendant No. 8. They filed one joint written statement. The second set consisted of the defendants Nos. 2, 3 and 4, Ghafoor, Munshi and Babu Khan respectively. The third set consisted of the defendants Nos. 6 and 7, namely, Lekh Raj and Smt. Chandrawati. The first set mainly contested the suit. The second set supported the plaint allegations and the third set did not file any written statement and the suit proceeded ex parte against them. The first set denied that the disputed land had been a part of any common Sehan. It was pleaded that Budh Sen, the defendant No. 8, was owner of his house No. 4741 and of the land lying in front of it towards its East. The suit was alleged to have been instigated by one Ram Nath who was the brother of Sidh Nath, plaintiff No. 1. Ram Nath was alleged to have lost in several litigations with Budh Sen and hence he bore animosity against Budh Sen and his family. The judgments of the earlier litigations were also said to be res judicata in the instant suit. The plea of estoppel was also taken.
5. The trial court frame
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