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VISHRAM MASIH AND ANOTHER Vs. HARIHAR SINGH (SINCE DECEASED) BY LRS AND OTHERS

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The expression substantial error of law has been held defined by Privi Council in Raghunath Prasad Singh v. District Commissioner Pratapgarh AIR 1927 PS 110 , as well as by the Hon’ble Supreme Court in the case of Panjak Bhargava and another Vs. Mohinder Nath and another, . Applying the test laid down in those cases and in other Supreme Court decision which has been laid down that a finding of fact can be said to vitiated by error of law of substantial nature if the finding has been arrived at after Ignoring material evidence or after having considered inadmissible and irrelevant evidence.

ALLAHABAD HIGH COURT

SINGLE BENCH

( Before : Hari Nath Tilhari, J )

VISHRAM MASIH AND ANOTHER — Appellant

Vs.

HARIHAR SINGH (SINCE DECEASED) BY LRS AND OTHERS — Respondent

Second Appeal No. 38 of 1984

Decided on : 11-01-1993

Civil Procedure Code, 1908 (CPC) – Section 100, Section 92
Constitution of India, 1950 – Article 22

Cases Referred

Panjak Bhargava and another Vs. Mohinder Nath and another, AIR 1991 SC 1233 : (1990) 4 JT 628 : (1990) 2 SCALE 1251 : (1991) 1 SCC 556 : (1990) 3 SCR 508(1) Supp
Thakur Sukhpal Singh Vs. Thakur Kalyan Singh, AIR 1963 SC 146 : (1963) 2 SCR 733
Budhwanti and Another Vs. Gulab Chand Prasad, AIR 1987 SC 1484 : (1987) 1 SCALE 501 : (1987) 2 SCC 153 : (1987) 2 SCR 534 : (1987) 2 UJ 22

JUDGMENT

Hari Nath Tilhari, J.—This is Plaintiffs second appeal arising out of suit for possession over the property in dispute described in the schedule 1 attached to the plaint and for permanent injunction restraining the Defendant-Respondents 1 to 3 i.e Herihar Singh, Surendra Singh and Hira Yadav from realising rent from the Respondent 4 to 2. In the second appeal. It may be mentioned here that Harihar Singh had died during the pendancy of the second appeal and his heirs have been brought on record as Respondents 1/1 to 1/8. The injunction had been claimed by the Plaintiff-appellant in the suit against the Ist and IInd set of Respondent i.e. originally against Harihar Singh and now the heirs of Harihar Singh as well as Surendra Singh and Hire Yadav that they be restrained from realising rent from other Respondents.

2. The Plaintiff’s case has been that Mission Compound of Maunath-bhaajau along with Bunglow therein was attached to the Church of North India (CNI) and that Vishram Mashih and other Pastorate Committee Church of North India Maunathbhanjan i.e the Plaintiff-Appellant claimed to be Committee of the CNI and it was claimed that the said Committee through Vishram Meshih was in possession of the said property in dispute and that Plaintiff No. 1 Vishram Mashih as secretary of pastorate Committee used to manage the property on behalf of the pastorate Committer and had right to sue in that capacity. The Mission Compound was a public trust and no body had right to transfer it. Harihar Singh, Defendant No. 1 expressed and declared his intention of getting a sale deed of the disputed property from Dentinal and other on the basis some forged documents Thereupon the Respondent No. 1 filed a salt No. 246 of 1973 in the Court of Munshif Mahmadabad Gohna against Revision Rt. Bishop Deendayal and others. The Plaintiff asserted that in that suit an order was passed that Bishop Dentinal and others had no right to transfer the property of Mission Compound. The Plaintiff further asserted that the appellant and Respondent second set colluded with each other and took unauthorised possession of the Bunglow of the Bishap on 14-3-1976 by use of force. The Respondents third set were tenants in the room and houses of the compound on behalf of the Respondents first set. The Plaintiffs further case is that the original Defendant Respondent 1 to 3 were giving threatening to the tenants and were asking them not to pay any rent to the Plaintiff-appellant. The Plaintiffs case is that despite of requests being made by the Plaintiff neither the Respondent 10. i whose heirs are 1/1 to 1/8 nor Respondent No. 2 to 3 did deliver possession of the bungalow and nor they did stop or alestam (sic) from threatening the tenants and asking the tenants not to pay rent the Plaintiff-appellant and so according to the Plaintiffs ease, the cause of action did arise for filing the suit, the relief mentioned above.

3. The suit was contested by the Defendant No. 1 i.e. primarily and only by Harihar Singh, the original Defendant who is the Respondent No. 1 in the second appeal and whose heirs 1/1 to 1/8. The written statement, was filed by original Defendant No. 1 Harihar Singh. No written statement was filed either by Respondent No. 2 and 3 or by the tenants i.e. present Respondent 4 to 21 contesting the suit.

4. The trial court passed exparte decree against the Respondent No. 2 to 21. The suit was contested as mentioned earlier by Sri Harihar Singh, the original Defendant/Respondent No. 1. The case of Defendant/Respondent No. 1 has been that Plaintiffs suit at the instance of the Plaintiff-appellant was not maintainable. The Defendant No. 1 asserted that Plaintiff appellant No. 1 was not the secretary of the pastorate committee Church of North India Maunathbhanjan, District Azamgarh, now present district (Mau). It was further asserted by the appellant that the property in Compound was the property of Methodist Missionary society of Australia which was registered under the Companies Act. Mr. J.H. Allen took the land of the Compound on lease Company’s men for constructing house. Schools and wells etc and landed-over it to the company through a registered deed. The Defendant Respondent No. 1 asserted that the Plaintiff had no concern with them in any way. Methodist Overseas Mission (Methodist Missionary Society of Australia) Trust Association (herein-after referred as M.O.M.T.A.) was the owner of the entire compound and India it managed it through registered agent through his registered attorney.

5. The trial court framed 11 issues as under:

1. Whether Plaintiff No. 2 is the owner in possession of the disputed property. If so, its effect?

2. Whether the Defendants first set are in possession of the disputed property as alleged in the plaint and are liable to be dispossessed?

3. whether the Plaintiffs are entitled to recover rent from the Defendants second set?

4. Whether the Plaintiffs have right to file the suit?

5. Whether the suit is barred by Section 92 CPC as alleged in para 9 of the written statement?

6. Whether the suit is under valued and the court fees paid is insufficient?

7. Whether the suit is bad for non-joinder of necessary parties?

8. Whether the suit is time barred?

9. Whether the court has Jurisdiction to try the suit?

10. Whether the suit is barred by principles of estoppels?

11. To what relief, if any, are the Plaintiffs entitled?

6. The trial court held that Plaintiff No. 2 i.e. the pastorate committee church of North India was the owner of the property in dispute and was In its possession and the Defendants first set were not in possession of the disputed property The trial court further held that the Plaintiffs were entitled to recover rent from the Defendants second set i.e. Defendants 4 to 21. The trial court granted the reliefs claimed in the suit.

7. As regards, issues relating to question on court fees etc. and the question whether the suit is bad for non-joinder of necessary parties, Issue numbers 6, 7, 9 and 10 were decided in negative as not pressed. No arguments were advanced in issue numbers 3 and 8. The issue to the effect that whether the suit is barred by principles of estoppel or resjudicata were decided In negative by the trial court.

8. Feeling aggrieved from the Judgment and dacree of the trial court, original Defendant No. 1 i.e. Harihar Singh filed a Regular Civil Appeal No. 694 of 1980. The learned appellate court i.e then III Additional District Judge. Azamgarh allowed the defendant’s appeal and net aside the trial court decree and dismissed the Plaintiff’s suit with costs.

9. The learned Additional District Judge, after considering the material on record held that the Plaintiff-Appellants, who were the Respondent i.e. the present Plaintiff-Respondent No. 2 in appeal before learned lower appellate court failed to prove their title to the property in dispute, It further held that the pastorate Committee and its Secretary have not been able to prove the ownership of the property and it held that Plaintiff further failed to prove that the property belonged to Church of North India. The learned appellate court recorded the findings of fact that the record reveals that the election of Mau Pastorate Committee took place on 16-3-73 and its term and that of its Secretary came to an end on 15-3-76 while the suit had been filed on 30-4-76. So according to the learned appellate trial court, when the Committee and its Secretary were not in existence on 30-4-76 it is not known as to how they the suit at the instance of the Plaintiff-appellant was not maintainable as they had no right to file the suit. Having recorded these findings, the learned appellate trial court allowed the appeal and dismissed the suit

10. So the Plaintiff-appellants have preferred this second Civil Appeal challenging the judgment and decree of the learned III Additional District Judge dated 28-9-93.

11. I have heard Shri Rajesh Tewari, learned Counsel for the appellant as well as Shri G.N. Singh, learned Counsel for the Respondents.

12. The learned Counsel for the appellant has urged that the learned lower appellate court was wrong in holding that the Plaintiff-Appellant was not entitled to file the instant suit. Learned Counsel for the appellant submitted that pastorate committee was entitled as of right to sue for the relief claimed as the constitution of Church of North India in which M.O.M.T.A. stood merged and in view of the provisions of the constitution of the Church, the Plaintiffs were entitled as of right to sue.

13. He urged that the court below was wrong in holding that the committee came to an end on 15-3-76 and its Secretary ceased to have any right to file the suit till the new election of Committee under the constitution the old Committee was entitled to function.

14. Learned Counsel for the appellant further submitted that there is no evidence on record to establish the property in suit belonged to Methodist Overseas Trust of Australia He further submitted that appeal filed by the Mission was in-competent as Respondent No. 1 the appellant in court below failed to bring on record the legal heirs of deceased Munni Prasad in the appeal before the learned court below and Sri Ram Surat who according to learned Counsel for the appellant was a necessary party.

15. Shri G.N. Singh, learned Counsel for the Respondent contended that the finding on the question of title that the Plaintiff bad no right and title to the property in dispute is based on consideration of all material and relevant evidence on record and this is a finding of fact which cannot be interfered with unless it is shown to be vitiated by substantial error of law. Learned Counsel for the Respondent further stated that Munni Prasad and Ram Surat Gupta were tenants and they were proforma Respondents and real dispute was between the Plaintiff-appellant and the Defendant Respondent 1 to 3. The other Respondents were only the tenants so they were not necessary party. So the first appeal was not incompetent one because if the decree for injunction as passed it was against the Defendant Respondents 1 to 3 and injunction would have been binding on Defendant i to 3 directing them not to realize the rent from ether Respondents.

16. Learned Counsel for the Respondent submitted that Plaintiff’s title having not been established as held by the learned lower appellate court, the Plaintiffs suit was not maintainable and Defendant cannot in suit for possession or injunction rely on the weakness of the defendant’s case.

17. In a suit for possession or one seeking the relief or for injunction, it is well settled principles of law as laid down that Plaintiff has to stand on his legs is to succeed on hit strength and not the weakness of defendants’ case In Moran Mar. Bascellos Caibolicos v. Most Rev. Mar Doulose Athanasium AIR 1954 SC 526, it has been clearly laid down that the, Plaintiff in ejectment suit must succeed on the strength of his own title. Their Lordships further observed that “A mere destruction of the defendant’s title, in the absence of establishment of his own title carries the Plaintiff nowhere”.

18. Thus the Plaintiff has to stand on his own legs and has to establish his owner rights and title. Simply on the basis of the weakness Defendant in bringing evidence or failure to prove his right or title, the Plaintiff cannot claim himself to be entitled to get the decree for possession or injunction The learned lower appellate court has observed in his judgment “It has been admitted before me by the contesting parties’s counsel that property in suit originally belonged to MOMTA.”

19. After considering the documentary evidence on record the learned lower appellate court observed “it means Respondent No. 2 i.e. Plaintiff No. 2 is not owner of the property and some body else is its owner of the property. He further admitted that the property of Mau jurisdiction is not entered in papers in the name of the Committee. This is a admission that records of property of the Mau Committee are with him i.e. Plaintiff but it is not known as to why those papers have not been filed. In circumstances adverse inference to be drawn against the Respondent No. 2 i.e. the Plaintiff. The appellate court further referred evidence and recorded a rending that Plaintiff-Respondent, the present Plaintiffs appellant, failed to prove their title by documentary evidence this is a finding of fact arrived at on the basis of consideration of material evidence on record.

20. Learned Counsel for the appellant failed to point out any evidence which may be said to have been ignored by the learned lower appellate court while recording the findings to the effect that Plaintiffs failed to prove their right or title of CNI. This is pure rinding of fact. As regards, finding of fact, in exercise of second appeal jurisdiction, this Court does not interfere with a finding of fact howsoever erroneous it may be, until and unless it is shown that the finding has been arrived at after having taken into consideration relied on any material which is inadmissible and irrelevant. As no such error has been shown which may be termed as error or law substantial nature but the finding of fact cannot be interfered with. The said finding is binding on the parties.

21. Learned Counsel for the appellant in connection with the Plaintiffs right to file the suit invited my attention to Clause 22 of the constitution of Church of North India. Firstly, it having been found that the suit property did not belong to Church of North India then even if it be taken that pastorate committee continued on the date of suit but as the property did not belong to Church of India, the Committee had no right to file the suit. Secondly, Article 22 of the constitution of Church of North India which reads as under Is of no help to appellant.

Article 22 of C.N.I’s Constitution:

The pastorate Committee shall be responsible to the Diocesan council for the right use of the Church property, be movable and Immovable. This Committee shall also try to protest the property from encroachment and or from any other kind of misuse. It shall also be responsible for the repair and upkeep of all Church property within the pastorate.

Sub-clause 3 of Article 22 is not relevant.

Placing reliance on this clause, the learned Counsel for the appellant contended that tight to sue is also involved and Inherent under this provision which entitled, the Committee to take all steps to protect the property from encroachment or misuse, even if, there is no specific provision dealing with the right to sue but that there Is most substance in the contention of the learned Counsel for the appellant that right to sue is included and Inherent in the right to protect the property from misuse or encroachment and the pastorate Committee may be entitled to file the suit to save and protect the Church property from encroachment thereof or from Its misuse. In the present case, as the property is not proved to Church of North India, Article 22 of the constitution of Church of North India is not to any help to the learned Counsel for the appellant.

22. The terms of the Committee and the members elected can be for a period of one year to three years as per constitution. The learned lower appellate court has found that election of Mau Pastorate Committee had taken place on 16-3-73 and It had to work for three years and that term of three years of the Committee and Its secretary came to an end on 15-3-76 and on 15-3-76, the Plaintiff appellant ceased to be the secretary or members of Pastorate Committee. That being so and that being a finding arrived at after consideration on record and material on record is a binding on this Court in second appeal. The suit giving rise to this second appeal had been filed on 30th April, 1976 I.e. at a time when the Committee of which the Plaintiff No. 1 claims to be the member of Secretary ceased to exist and so the suit could not be filed by the Plaintiffs. In this connection, the court below made reference to a Resolution 26-6-76 as well.

23. The right to sue has to be determined with reference to the date on which the suit is filed so if on the date of the suit, Plaintiff Vishram Mashih had no right to file the suit tune and on the date it was filed then by subsequent grant of any power of attorney, on a date subsequent date of filing of suit, could not validate for filing of the suit filed earlier without any right.

24. In this view of the matter, the learned lower appellate court Justified in allowing defendant’s appeal and in dismissing the Plaintiffs suit after having held that Plaintiff had no right to file the suit. The admitted position had been that the suit (sic) been in possession of the Defendant-Respondent in the possession of Respondent No. 1 and M.O.M.T.A i.e. the entire Bunglow and land appurtenant and the Plaintiff was not in actual possession thereof. This being the position Plaintiff having failed to prove his right or title to the suit property and they having failed to prove their possession or that of C.N.I. on the date of suit, the Plaintiff was not entitled to be granted the decree for possession or injunction and, as such, the learned lower appellate court did not commit any error of law or of jurisdiction in setting aside the trial court decree and in dismissing the suit. In an appeal when the first appeal or second appeal as laid down in Thakur Sukhpal Singh Vs. Thakur Kalyan Singh, , that It is the duty of the appellant to show that the judgment under appeal is erroneous for certain reasons and it is only after the appellant has shown this, that the appellate court would call upon the Respondent to reply to the contention.

25. In a second appeal it is the duty of the appellant to show that the decision of the court below suffered from substantial error of law within four corners of the provisions of Section 100 of the Code of Civil Procedure.

26. The expression substantial error of law has been held defined by Privi Council in Raghunath Prasad Singh v. District Commissioner Pratapgarh AIR 1927 PS 110 , as well as by the Hon’ble Supreme Court in the case of Panjak Bhargava and another Vs. Mohinder Nath and another, . Applying the test laid down in those cases and in other Supreme Court decision which has been laid down that a finding of fact can be said to vitiated by error of law of substantial nature if the finding has been arrived at after Ignoring material evidence or after having considered inadmissible and irrelevant evidence. I find that in the present case, no such error of law or of jurisdiction has been shown or established by the learned Counsel for the appellant and as such, the present appeal appears to be concluded by pure and simple finding of fact which cannot be interfered with in view of principles of law laid down in Budhwanti and Another Vs. Gulab Chand Prasad, , in which their Lordships have laid down the law as under.

It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding In order to render justice to the party affected by the erroneous finding.

27. Thus considered I find that the present appeal has got no merits and is dismissed.

28. The costs of this Court are made easy,


(1993) 2 AllWC 830

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