Himachal Pradesh High Court
Sh.Sanjay Sood vs Smt.Inderjit Kaur ... on 25 August, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No.145 of 2017.
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Judgment reserved on: 22.08.2017.
Date of decision: 25th August, 2017.
Sh.Sanjay Sood ..... Defendant/Appellant.
Versus Smt.Inderjit Kaur ....Plaintiff/Respondent.
Coram r The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr.Ajay Kumar, Senior Advocate with Mr.Dheeraj K.Vashisht, Advocate.
For the Respondent : Mr.Sumeet Raj Sharma, Advocate.
Tarlok Singh Chauhan, Judge.
The defendant is the appellant, who having lost before the learned Courts below, has filed this regular second appeal. The parties shall be referred to as the plaintiff and defendant.
2. Briefly stated, the facts of the case are that the plaintiff filed a suit for declaration to the effect that the agreement to sell dated 24.12.1997 purportedly executed by defendant No.2 in favour of defendant No.1, whereby defendant No.2 is shown to have undertaken to execute the sale deed in favour of defendant No.1 of Set No.5, in the Second Floor of Khera Niwas Building, situated over the land comprised in Khewat No.80, Khatauni No.84, Khasra Nos. 225 and 226, Sanjauli, Shimla (hereinafter referred to as the suit land), is illegal and void. A 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 2 consequential relief by way of a decree of possession of suit premises had also been sought and a decree for the recovery of `1500/- i.e. use .
and occupation charges of the suit premises with effect from 08.01.1998 to 31.03.1998, with future user and occupation charges thereof at the same rate on the ground that Khera Niwas Building housing the suit premises was initially owned by Trilok Singh. It was averred that Trilok Singh died leaving behind plaintiff Sh. Pritam Singh (now deceased) and daughters. to Uttam Singh as his sons and Harbhajan Kaur and Pritam Kaur as his Pritam Kaur died and her share was succeeded to by Jaswant Singh and Kamaljeet Kaur. It was further averred that in fact plaintiff, his brother Uttam Singh and the successor of his sister Pritam Kaur were not residing at Shimla and it is only Smt.Harbhajan Kaur, the wife of defendant No.2, who has been permanently residing at Shimla in the Upper Storey of Khera Niwas Building and she was managing the property on behalf of the plaintiff and other co-sharer. Plaintiff had appointed Smt. Harbhajan Kaur as his Power of Attorney vide deed dated 16.02.1993 for managing his share in the property and she had been authorized to let out the property and receive the rent thereof.
3. It was also averred that by way of family arrangement all the co-sharers had partitioned the Khera Niwas Building and as per partition, Set No.1 and 2 of Ground Floor had been given to Smt.Kamaljeet Kaur and Jaswant Singh, respectively, Set No.3 and 4 to Uttam Singh, Set No.7 and 8 and three shops with attic shop to Smt.Harbhajan Kaur and Set No.5 and 6 had fallen to the share of the plaintiff. Smt. Harbhajan Kuar during her lifetime disposed of the aforesaid three shops fallen to her share. After her death, in the month of August, 1997, defendant No.2 ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 3 came into possession of Set No.7 and 8 which had been allotted to his wife. One Shri. A.R.Chauhan was a tenant in the suit premises. His sister .
Smt.Harbhajan Kaur during her lifetime filed eviction petition No.213/2 of 1998 against the above named tenant before the Rent Controller (3), Shimla and the same was allowed vide order dated 25.11.1991. Appeal preferred by the tenant before the learned Appellate Authority (1), Shimla was dismissed vide order dated 06.05.1995. Revision petition preferred
4.
r to by him before this Court also entailed into dismissal vide order dated 04.04.1996.
It was further averred that on the basis of the eviction order, the above named tenant was ultimately evicted from the suit premises and possession of the premises was delivered to his sister. After her demise, the possession of the suit premises was delivered to him and keys etc. thereof were also handed over to him. However, Rajeev Si ngh, defendant No.2, behind her back in the first week of January, 1998, unlawfully took possession of the suit premises by breaking open the lock. Having come to know about this fact, plaintiff lodged FIR dated 23.01.1998 against defendant No.1 and thereafter it was transpired that defendant No.1 in collusion with defendant No.2 had prepared the impugned document despite having the knowledge that defendant No.2 had no authority to pass any title in favour of defendant No.1. Hence, the possession of defendant No.1 over the suit premises is unlawful. The agreement so executed is illegal, null and void. Hence, the suit was filed.
5. A perusal of the record shows that defendant No.2 before his name was deleted vide order dated 19.06.2009 had not put in ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 4 appearance in the Court despite service, hence he was proceeded against ex parte.
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6. The suit was resisted and contested by defendant No.1 by filing written statement wherein preliminary objections regarding maintainability, locus-standi, estoppel, pecuniary jurisdiction etc. were taken. On merits, it was denied for want of knowledge that the pleadings raised by the plaintiff with respect to the facts that initially Khera Niwas Building housing the suit premises was owned by Trilok Singh and that it had devolved upon the plaintiff, his sister, his brother and successors of his another sister and that thereafter the above referred successors had partitioned the property amongst them by way of a family arrangement.
7. It was averred that late Smt. Harbhajan Kaur was holding herself to be the exclusive owner of the suit property and being a owner, she had also got the suit premises vacated from Sh. A.R.Chauhan, a tenant, by filing rent petition before the Rent Controller (3), Shimla. It was also averred that the eviction order passed by the learned Rent Controller (3), Shimla was affirmed in appeal by the Appellate Authority and thereafter even in revision petition before this Court. Defendant No.1 denied the allegations regarding breaking of lock of the suit premises and acquisition of possession by unlawful means by him. According to him, after the demise of Smt.Harbhajan Kaur, defendant No.2 had become absolute owner of the suit premises and defendant No.2 after having acquired title in the suit premises had agreed to sell the suit property in his favour for a sum of `3.5 lacs and in this regard an agreement dated 24.12.1997 had been executed by him whereby he had acknowledged the receipt of ` one lakh as an earnest money and had undertaken to ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 5 execute the necessary sale deed thereafter. It was further averred that in pursuance of the agreement, defendant No.2 had also handed over the .
possession of the suit premises to him and thereafter he continued in possession thereof and he has been and is still ready and willing to perform his part of agreement. Defendant No.1 averred that the plaintiff had filed the suit in connivance with defendant No.2 with a view to defeat his right, title and interest in the suit land. Rest of the averments of the
8.
r to plaint were denied by the defendant and prayed for the dismissal of the suit.
No replication was filed by the plaintiff to the written statement filed by the defendant.
9. On 08.07.1999, the following issues were framed by the learned trial Court:-
"1. Whether the plaintiff is exclusive owner of Set No.5, as alleged? OPP.
2. Whether the plaintiff is entitled for the possession of the said Set No.5? OPP.
3. Whether the agreement of sale dated 24.12.1994 entered in between defendants No.1 and 2 is null and void as alleged? OPP.
4. Whether the present suit has been filed by a competent and authorized person as alleged? OPP.
5. Whether the plaintiff is estopped by his act and conduct etc.?
OPD.
6. Whether the suit is collusive in between the plaintiff and defendant No.2? OPD.
7. Whether this Court has no pecuniary jurisdiction to entertain and try the present suit? OPD.
8. Relief."::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 6
10. The learned trial after recording the evidence and evaluating .
the same partly decreed the suit against defendant No.1 holding the agreement Ex.DW1/B dated 24.12.1997 to be null and void. By way of consequential relief a decree for possession was passed in favour of the plaintiffs.
11. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant filed an appeal before the learned first appellate Court and the same was dismissed vide judgment and decree dated 31.12.2016.
12. The defendant has now come up in appeal assailing both the judgments and decrees passed by the learned Courts below on the ground that the findings rendered by them are perverse inasmuch as they are based on complete misreading and misappreciation of pleadings and evidence on record and, therefore, deserve to be set aside.
I have heard the learned counsel for the parties and gone through records of the case carefully.
13. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 7 Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. .
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition r PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 8 Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) .
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
14. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 9"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no .
evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
15. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 10 "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under .
Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it r must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 11 successfully discharged by the plaintiff by examining PWs-1 and
2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants .
themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 12'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the .
disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate r however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt wi th other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 13 the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different .
finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
16. Reverti ng back to the facts, it would be noticed that the defendant is trying to claim his title based upon agreement dated 24.12.1997 Ex.DW1/B. However, a close perusal of the agreement would reveal that nowhere in the agreement has the defendant No.2 been described as the owner of the property and has only been described as the seller of the property. Therefore, in such circumstances, it can conveniently be held that the agreement Ex.DW1/B was nothing, but a sham transaction or else the least that was required to be incorporated in the agreement was the title and ownership of defendant No.2. After all, defendant No.2 could only sell what he owned and not property belonging to the others.
17. That apart, the possession of defendant No.2 at best could be that of a co-sharer and there is nothing on record to indicate that defendant No.2 in the capacity of a co-owner was also in possession of Set No.5. If that be so, obviously, he could not have sold the same in light of the ratio as laid down by this Court in Baldev Singh versus Smt.Darshani Devi and another AIR 1993 HP 141 wherein it was held as under:-
"7. It is not in dispute that the suit land, along with other property, was jointly owned by two brothers, namely, Kanwar Narbir Singh ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 14 and Ramesh Kumar. The defendant's case has been that they were put in possession of the property by Ramesh Kumar, during his lifetime. The plaintiff's case has been that he was duly put in .
possession of the property in pursuance to the deed of sale executed by Kanwar Narbir Singh. Kanwar Narbir Singh, while appearing as witness, in clear and unequivocal terms admitted that prior to the execution of deed of sale, the defendants had already occupied the property and raised the construction. Thus on the date of sale, Kanwar Narbir Singh was not in actual possession of the property. In view of this statement, finding of fact recorded by the lower appellate Court that the construction had been raised by the defendants is not capable of interference.
There is one more reason for upholding the findings of fact. Plaintiff claims to have acquired title through sale deed Ex. PA dated 24th April, 1981 (though scribed on 27th April, 1981) and registered on 12th May, 1981, which recites delivery of possession through this deed of sale. It is neither recited that possession had been delivered earlier, nor that the actual possession was delivered. The suit was filed on 5th June, 1981, in which it was alleged that defendants had occupied the property about 1 1/2 years ago. In his statement, plaintiff Baldev Singh also admitted that as on the date of sale in his favour, defendants were in occupation. In case Kanwar Narbir Singh, a co-owner was not in actual physical and exclusive possession of the disputed property, it was not permissible for him to have conferred a valid title upon this parcel of joint land on the plaintiff. A Division Bench of Punjab High Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punj 528, after considering a catena of judgments evolved certain principles relating to and in respect of the rights of co-owners in joint property. In para 78 of the judgment, the principles have been culled out as under:--
"The weight of the authorities and the principles which have been discussed above, give rise to the following propositions-
(1) A co-owner has an interest in the whole property and also in every parcel of it.::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 15
(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
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(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as when a co-owner openly asserts his own title and denies that of the other.
(5) Passage of time does not extinguish the right of the co- owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co- owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.
(8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.
(9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 16 user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to .
show that special damage has been suffered."
8. One of the principles is that a co-owner, in case he is in possession of separate parcel of joint land, under an arrangement, consented to by the other co-owners, it is not open to anyone to disturb the arrangement without the consent of the others, except by filing a suit for partition. Another principle is that the remedy available to a co-owner, not in possession of any part of the joint property or not in possession of a share of joint property is only by way of a suit for partition or for a decree for joint possession but not for ejectment. This principle would equally be applicable where a co-owner sets up an exclusive title in himself.
9. A single Judge of the Delhi High Court (Himachal Bench) in Smt. Murtu v. Smt. Giari, (1972) 2 Sim LJ 209, also, after noticing a few judgments held that a member of the joint family, whose share has been defined is in possession of a specific portion of the landed property than the said portion of the property has to be allotted to him during partition being effected by metes and bounds.
10. In view of the aforementioned two decisions and the principles laid down therein, the question posed has to be answered by holding that a co-owner, who is not in actual physical or exclusive occupation over a parcel of land cannot transfer a valid title to that portion of the property. The remedy of the transferee, in case the transfer is made, would be to get a share from out of the property to be allotted to that co-sharer in partition or to get a decree for joint possession or claim compensation from the co-sharer, as the case may be.
11. In the instant case also, when it is the defendant's case, which has also been supported by the heirs of Ramesh Kumar that defendants were permitted by them to occupy the property, ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 17 possession will be deemed to be that of Ramesh Kumar, co- sharer and not that of Kanwar Narbir Singh. It has also to be held that Kanwar Narbir Singh was out of possession of the suit .
property as on the date of sale in favour of the plaintiff. Thus, Kanwar Narbir Singh could not have transferred a valid title with respect to the specific portion of the property, which was in exclusive occupation of Ramesh Kumar or his heirs through the defendants."
18. That apart, it is more than settled that a co-sharer cannot claim his possession adverse to the interest of other co-sharers as the enjoyment of the property by one of the co-sharers to the exclusion of the other cannot be said to be adverse unless ouster of the other co-sharer is pleaded and proved. Reference in this regard can conveniently be made to the judgment rendered by this Court in Mool Raj versus Shambhu Ram and others, Latest HLJ 2001 (HP) (2) 888.
19. It is vehemently argued by Shri Ajay Kumar, Senior Advocate assisted by Shri Dheeraj K.Vashisht, Advocate that the appellant is entitled to protect his possession under Section 53-A of the Transfer of Property Act (for short 'Act') which reads thus:-
"1[53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 18 and the transferee has performed or is willing to perform his part of the contract, .2
then, notwithstanding that [***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]"
20. In order to succeed in the plea of part performance, it was incumbent upon the defendant to show that he was a bonafide purchaser for consideration or that he had made due inquiry and thereafter satisfied himself regarding defendant No.2 being an absolute owner of the property in dispute. That apart, a person setting up a plea of part performa nce has to prove that he was ready and willing to perform his part of the agreement. However, a perusal of the written statement would reveal that no such plea has been raised by the defendant. On the contrary, the statement of the defendant as DW-1 goes to show that after the expiry of the stipulated period in the agreement Ex.DW1/B, he had not taken necessary steps which may indicate that he was ready and willing to perform his part of the agreement i.e. to pay the balance consideration amount. The defendant admitted that he had not served any notice upon defendant No.2 or his legal representatives, if any, ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 19 calling upon them to execute necessary sale deed in pursuance to the agreement.
.
21. As observed above, there is nothing on record to indicate that defendant No.2 was the owner or at least ostensible owner of the property in dispute and, therefore, the defendant/appellant is not even entitled to the benefit of provisions of Section 41 of the Act.
22. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:
"15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
23. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:
"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word ::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 20 substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in .
contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "'substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 21"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it .
directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that r the plea raised is palpably absurd the question would not be a substantial question of law."
24. Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."::: Downloaded on - 26/08/2017 22:56:23 :::HCHP 22
25. No question of law much less substantial question of law arises for consideration in this appeal.
.
26. Accordingly, I find no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
( Tarlok Singh Chauhan ) 25th August, 2017. Judge.
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