Civil Procedure – Appeal – Second Appeal – Suit filed for declaration, injunction and possession alleging encroachment on land by the defendants – Suit dismissed by trial Court – Decree affirmed by first appellate court – Second appeal by plaintiff – On direction of High Court, a surveyor/ Court Commissioner was appointed to measure the suit property; and on conclusion of the survey exercise, the first appellate court was ordered by the High Court to certify the findings on encroachment as recorded by the trial court, in terms of Rule 470 of the Civil Manual – First Appellate Court reversed the findings of trial court and held that, as per the map prepared by the Court Commissioner, the defendants had committed encroachment – In view of such development, the High Court framed a substantial question of law for decision in the Second Appeal – Plaintiff ’s second appeal was however dismissed – Held: While concurrent findings of Courts below are not to be routinely interfered, on facts, there was a second round in the litigation and another substantial question of law was formulated by the High Court for adjudication of the second appeal – However, no specific finding on such question of law was ever recorded in the impugned judgment – The High Court skirted the issue and instead endorsed the findings of the courts below to the effect that the defendants had not made any encroachment – The High Court erred in not recording a finding on the question of law formulated later, to account for the Court Surveyor’s report, vis-à-vis the legal battle over the suit land – Without the decision on the relevant aspect which goes to the root of the dispute, the impugned judgment fails the scrutiny of law – Matter remanded back to the High Court to consider and render a finding on the substantial question of law framed by the High Court itself. Allowing the appeal, the Court
HELD: 1.1. While concurrent findings of Courts below are not to be routinely interfered, it is seen that there was a second round in the litigation and another substantial question of law was formulated by the High Court for adjudication of the second appeal. However, no specific finding on such question of law was ever recorded in the impugned judgment. The High Court skirted the issue and instead endorsed the findings of the courts below to the effect that the defendants had not made any encroachment, after the plaintiff purchased the land on 28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the second appeal was therefore devoid of any independent finding on the substantial question of law formulated by the Court itself on 2.5.2018. With the required finding on the additional issue, a contrary conclusion favouring the other side, can’t entirely be ruled out in the second appeal. This is particularly possible because of the mismatch between the area under occupation of the defendants and the smaller area covered in their two sale deeds. The aspect of defendants occupation of certain lands, being mentioned in the plaintiff’s sale deed, must also weigh with the Court, in view of the fresh evidence generated by the court appointed surveyor. [Para 10][237-E-H]
1.2. The High Court erred in not recording a finding on the question of law formulated later, to account for the Court Surveyor’s report, vis-à-vis the legal battle over the suit land. Without the decision on the relevant aspect which goes to the root of the dispute, the impugned judgment fails the scrutiny of law. [Para 11][238-A-B]
2. The matter is remanded back to the High Court to consider and render a finding on the substantial question of law framed by the High Court itself. Regard being had for the long pendency for the case and the restricted remand, the High Court is requested to decide the second appeal expeditiously.[Para 12][238-C]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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