Concurrent Finding Of Fact Can't Be Overturned In Second Appeal U/S 100 CPC Merely Because 'Alternative View' Is Possible: Patna HC Reiterates

The Patna High Court, while dismissing an appeal under Section 100 of the Code of Civil Procedure challenging the judgement of the Additional District Judge which had upheld the decision of the Munsif in a title suit, held that a concurrent finding of fact based on evidence cannot be overturned in a second appeal merely because an alternative view could be drawn from the same evidence.

Justice Sunil Dutta Mishra observed,

“There is concurrent finding of fact stated above by the courts below and no perversity in the findings of the courts below could be established on behalf of the defendant/appellant. A concurrent finding of fact based on evidence cannot be disturbed in an appeal under Section 100 of the Civil Procedure Code on the ground that other view is also possible on the basis of same set of evidence. It is not the case of the appellant that findings of the courts below are contrary to the evidence available on record or without any evidence on record.”

As per the factual matrix of the present case, the suit property was originally purchased by Ganga Devi through a registered sale deed, who subsequently sold it to the plaintiff via another registered sale deed. The plaintiff then initiated a suit seeking a declaration of title and recovery of possession, aiming to evict the defendant from the property.

The trial court observed that the award presented by the defendant was forged and fabricated, and, thus, the defendant couldn't claim any rights to the suit property. Consequently, the trial court decreed in favour of the plaintiff. The first appellate court dismissed the defendant's title appeal, affirming the judgement and decree of the trial court. Aggrieved by these decisions, the defendant has now filed this Second Appeal.

The Appellant's Counsel contended that both the trial court as well as the appellate court failed to identify that the plaintiff/respondent's suit, filed for declaration of title and recovery of possession under the guise of an eviction suit, was not maintainable under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. According to the Act, an eviction suit can only be initiated by a landlord on specific grounds outlined in Section 11. He further contended that neither court addressed the key issue of determining the landlord-tenant relationship, which should have been framed as the central issue for granting the eviction decree.

The High Court in its order pointed out that both courts below i.e. trial court and first appellate court held that the plaintiff is absolute owner of the suit premises and has got title and defendant's possession thereof is merely permissive out of grace and sympathy and she has no right, title and interest.

The Court further observed, “The trial court held that the plaintiff has brought the instant suit against the defendant because she is residing in the suit premises, except defendant no other third person is required to be evicted from the suit premises. Ganga Devi, the vendor of plaintiff, is not a necessary party and suit is not bad for nonjoinder of Smt. Ganga Devi which has been reaffirmed in the appeal. It is also held that the alleged award is a forged and fabricated document and have no force in law. The appellate court also held that the panchnama is doubtful document regarding signature of panches and date.”

The Court emphasised that a Second Appeal cannot be entertained unless it involves a substantial question of law, a term that has been clearly defined in numerous judicial pronouncements.

The Court stated that both lower courts, after scrutinising the pleadings and evidence, had concluded that the plaintiff had established title over the suit property, while the defendant's possession was merely permissive, lacking any legal right, title, or interest. The Court held that this finding was factual and did not warrant re-evaluation in the Second Appeal.

Accordingly, the High Court dismissed the appeal, while ruling that no substantial question of law arose for consideration in this Second Appeal.

Case Title: Most. Panchola vs Sri Krishna Kumar

LL Citation: 2024 LiveLaw (Pat) 90

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