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2013 Supreme(All) 698
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
BABU (DECEASED) BY HIS LRS. .....Appellant
Versus
KHUDIAL QAYUM AND ANOTHER ....Respondents
(Second Appeal No. 421 of 1978, decided on 5th March, 2013)
G.D. Srivastava, C.M. Shukla, H.S. Srivastava, G.Khan, J.D. Mishra, J.H. Khan, K.S. Chaudhary and R.J.D. Mishra for the Appellant; M.A. Qadeer, Shameem Ahmad and M. Islam for the Respondents.
Headnote:(A) Code of Civil Procedure, 1908—Section 100—Second appeal—Maintainability of—Substantial question of law—A second appeal could be entertained by the Court only if it involved substantial question of law—It does not confer any jurisdiction of the Court to interfere with pure question of fact, which had been considered and adjudicated by Courts below after appreciation of evidence recording well considered findings. [Para 5]
(B) Adverse possession—Proof of—Mere long possession could not satisfy the requirement of adverse possession—The person claiming adverse possession, must prove as to how and when the adverse possession commenced and whether fact of adverse possession was known to real owner. [Para 147]
(C) Adverse possession—Plea of—Whenever the plea of adverse possession raised, it pre-supposes that owner was someone else and person taking the plea of adverse possession was not the actual owner but perfected his title by prescription—In present case, the plea of adverse possession had been taken in the written statement—Defendant himself not aware as to against whom he or his ancestors, were holding property in dispute—Appellant had not make out the case of adverse possession either in pleadings or by evidence or even otherwise—The Courts below rightly non-suited appellant by rejecting his plea of maturing right over property in dispute so as to confer upon him title on account of adverse possession. [Paras 158, 168 and 169]
(D) Wakf Act, 1995—Section 85—Applicability of—Wakf property—Registeration of Property in dispute not registered—Provision of Section 87 would not be applicable. [Para 174]
Hon’ble Sudhir Agarwal, J.—The appeal has been restored to original number vide order of date passed on restoration application, as requested by learned counsel for the parties, I proceed to decide finally at this stage.
2. Heard Sri J.H.Khan, learned counsel for the appellant and Sri M.A.Qadeer, Senior Advocate, assisted by Sri Shamim Ahmad, Advocate for respondents 1 and 2.
3. This is defendant’s second appeal. This appeal was presented in this Court on 2.2.1978. No substantial question of law have been set out in memo of appeal and while admitting it on 2nd February, 1978, this Court also did not formulate any substantial question of law.
4. In view of express provision, appeal, as available on record, is not in accordance with Section 100 C.P.C. and hence not maintainable.
5. Under Section 100 of Code, a second appeal can be entertained by this Court only if it involves substantial question of law. In other words it does not confer any jurisdiction on this Court to interfere with pure questions of fact, which have been considered and adjudicated by Courts below after appreciation of evidence recording well considered findings. If there is a finding of fact, based on proper appreciation of evidence, and, material on record, and no perversity, illegality or irregularity in those findings are found, the second appeal is not at all entertainable by this Court under Section 100 of the Code. Even mere illegality or irregularity in findings would not permit interference. They require something more.
6. There are two situations in which, ordinarily, interference with findings of fact is permissible, namely, (a) when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion, and (b) where a finding has been arrived at by Court below by placing reliance on inadmissible evidence, which if would have been omitted, an opposite conclusion would have been possible. I derive these principles from some of the authorities of Apex Court and, briefly, it would be appropriate to refer the same.
7. In Dilbagrai Punjabi v. Sharad Chandra, AIR 1988 SC 1858, the Court affirmed the observations of High Court that First Appellate Court is under a duty to examine entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue, and the error which arises is of magnitude that it gives birth to a substantial question of law, the High Court would be entitled to set aside the finding.
8. In Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604, it was said, where finding by Court of facts is vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper finding.
9. In Sri Chand Gupta v. Gulzar Singh, AIR 1992 SC 123, the Court upheld interference by High Court in second appeal where the Lower Appellate Court relied an admission of third party treating it as binding on the defendant though it was inadmissible against the said defendant.
10. In Sundra Naicka Vadiyar v. Ramaswami Ayyar, AIR 1994 SC 532, the Court said where certain vital documents for deciding the question of possession were ignored, such as compromise, an order of revenue Court relying on oral evidence was unjustified.
11. In Ishwar Dass Jain (Dead) through Lrs. v. Sohan Lal (Dead) through Lrs., 2000(1) SCC 434, the Court in paras 11 and 13 of the judgment clearly mentioned two situations in which inference with findings of fact is permissible. It is said:
“11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. . . . .”
“13. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if i
