Karnataka High Court
S Arumugham S/O Sundram Mudliar vs Rajshekhar S/O Veerabhadrappa Yavagal on 22 July, 2022
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RSA No. 5384 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.5384 OF 2010 (DEC/INJ)
BETWEEN:
1. S ARUMUGHAM S/O SUNDRAM MUDLIAR
AGE: 60 YEARS, OCC: SERVICE,
R/O STAFF QUARTER, GOVT. MILK DIARY,
MAHANTESH NAGAR, MALMARUTI EXTN.
BELGAUM DIST
2. IBRAHIM S/O ABDUL RAHIM JAMADAR
AGE: MAJOR,
OCC: SERVICE,
R/O AZAD GALLI,
BELGAUM DIST:
...APPELLANTS
(BY SRI. NANDEESH PATIL,
FOR SRI F V PATIL, ADVOCATE)
AND:
1. RAJSHEKHAR S/O VEERABHADRAPPA YAVAGAL
AGE: MAJOR, OCC: BUSINESSR/O H NO. 1715,
RAMDEV GALLIBELGAUM DIST:
...RESPONDENT
(BY SRI. S R AMBLI, ADVOCATE)
RSA FILED U/S. 100 CPC., AGAINST THE JUDGEMENT &
DECREE DTD:16.09.2009 PASSED IN R.A.NO.66/2004 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE BELGAUM AT
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RSA No. 5384 of 2010
BELGAUM, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT DTD:18.08.2000 AND THE DECREE PASSED IN
O.S.NO.1043/93 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN.) BELGAUM AT BELGAUM, DECREEING THE SUIT FILED
FOR DECLARATION AND PERMANENT INJUNCTION.
IN THIS APPEAL ARGUMENTS BEING HEARD, JUNDGMENT
RESERVED, COMING ON PRONOUNCEMENT OF ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the defendants, assailing the Judgment and Decree dated 16th September, 2009 in Regular Appeal No.66 of 2004 on the file of the Principal District Judge, Belgaum, confirming the Judgment and Decree dated 18th August, 2000 passed in Original Suit No.1043 of 1993 on the file of the Principal Civil Judge, (Jr. Dn.), Belgaum, decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties in this appeal are referred to with their status and rank before the trial Court.
3. The factual matrix of the case are that the plaintiff averred that he is a Member of Shree Rukmini Co-operative Housing Society, Belgaum (for short, hereinafter referred to as the "Society"), and the said Society developed land bearing -3- RSA No. 5384 of 2010 Survey No.1291/1, 1291/3 and 1032 of Belgaum; Plots were formed in the said land and allotted to the Members of the Society. Plot No.82 had been allotted to the plaintiff and thereafter, the Society executed registered Sale Deed in favour of the plaintiff on 05th May, 1986. It is the case of the plaintiff that possession of the suit schedule property was handed over to the plaintiff and thereafter, the plaintiff became the absolute owner in possession of the suit schedule property. It is the further case of the plaintiff that defendants started interfering with the suit schedule property based on the allotment letter said to have been made by the said Society, and as such, the plaintiff filed Suit in Original Suit No.1043 of 1993 before the trial Court against the defendants, seeking relief of declaration that the plaintiff is the owner of the suit schedule property and to declare the agreement dated 29th October, 1983 between the Society in favour of defendants, as null and void.
4. On service of notice, defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of defendants that, the Society has allotted the suit schedule property on 29th October, 1983 and defendants had paid the entire sale consideration -4- RSA No. 5384 of 2010 amount and further, defendants made an application to the Tahsildar, Belgaum for entering the name of defendants in the revenue records and same has been effected in the revenue records and further contended that defendants are in possession of the suit schedule property. It is also contended that suit is not maintainable in view of the bar under Sections 70 and 118 of Karnataka Co-operative Societies Act, 1959 and accordingly, defendants sought for dismissal of the suit.
5. Based on the pleadings on record, the trial Court framed issues for its consideration. In order to establish their case, plaintiff got examined himself as PW1 and produced ten documents as Exhibits P1 to P10; Defendants examined two witnesses as DW1 and DW2 and produced twenty documents and same were marked as Exhibits D1 to D20. The trial Court, after considering the material on record, by its Judgment and Decree dated 18th August, 2000, decreed the suit, holding that the plaintiff is the absolute owner of Plot No.82 by virtue of the registered sale deed dated 05th May, 1986 and further declared that the agreement dated 29th October, 1983 is null and void and as such, restrained defendants from interfering with the suit schedule property. Feeling aggrieved by the same, -5- RSA No. 5384 of 2010 defendants preferred Regular Appeal No.66 of 2004 before the First Appellate Court and the appeal was resisted by the plaintiff. The First Appellate Court, after considering the material on record, by its Judgment and Decree dated 16th September, 2009, dismissed the appeal; and being aggrieved by the same, defendants have presented this Regular Second Appeal under Section 100 of Code of Civil Procedure.
6. This Court by order dated 27th March, 2014 formulated the following substantial questions of law for consideration:
(a) Whether both the courts have committed a serious error in ignoring the material aspect of executing the sale deed by the President of the Society instead of Secretary to too without cancelling the earlier allotment/agreement of construction vide Exhibit D1?
(b) Whether the sale deed relied upon by the plaintiff without possession being handed over is no sale within the purview of Section 54 of Transfer of Property Act?
7. Heard Sri Nandeesh Patil, learned counsel appearing on behalf of Sri F.V. Patil, for appellants; and Sri -6- RSA No. 5384 of 2010 Mallikarjunaswamy B. Hiremath, learned counsel appearing for the respondent.
8. Sri Nandeesh Patil, learned counsel appearing for the appellants contended that both the Courts below ought to have dismissed the suit as not maintainable in view of bar under Sections 70 and 118 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as 'Act' for short). In this regard, he places reliance on the judgment of the this Court in the case of NARASEGOWDA v. H.M.T. EMPLOYEES HOUSING BUILIDNG CO-OPERATIVE SOCIETY LTD. reported in ILR 1992 KAR 3564. Nextly, Sri Nandeesh Patil, while referring to Agreement-Exhibit D1, argued that the Society has executed Agreement relating to Plot Allotment and Building Construction Thereon on 29th October, 1983, and the said document is a Registered document and unless the said document produced at Exhibit D1 is nullified by the Society, the Society has no authority to convey the suit schedule property in favour of the plaintiff, much less, execution of registered sale deed dated 05th May, 1986 in favour of the plaintiff. He also refers to the terms and conditions stipulated in the agreement. He further contended that appellants are in possession of the suit schedule -7- RSA No. 5384 of 2010 property from the date of execution of the Agreement produced at Exhibit D1 and therefore, the finding recorded by both the Courts below requires to be interfered with in this appeal. He further contended that the sale deed-Exhibit P1 cannot be construed as Sale Deed in terms of Sections 54 and 55 of the Transfer of Property Act, 1982 and in this regard, he placed reliance on the judgment of the Hon'ble Apex Court in the case of VIDHYADHAR v. MANIKRAO AND ANOTHER reported in (1999)3 SCC 573. Arguing on the interpretation of language employed in the deed in question, he placed reliance on the judgments of the Hon'ble Apex Court in the case of PANDIT CHUNCHUN JHA v. SHEIKH EBADAT ALI AND ANOTHER reported in AIR 1954 SC 345; and in the case of SHRI BHASKAR WAMAN JOSHI v. SHRI NARAYAN RAMBILAS AGARWAL reported in AIR 1960 SC 301 and accordingly, sought for interference of this Court under Section 100 of Code of Civil Procedure.
9. Per contra, Sri Mallikarjunaswamy B. Hiremath, learned counsel appearing for the respondent/plaintiff argued that both the Courts below, on facts, concurrently held that the plaintiff is the absolute owner of the suit schedule property and -8- RSA No. 5384 of 2010 same cannot be disturbed in this appeal. He further contended that the plaintiff has proved his title over the suit schedule property based on the registered Sale Deed dated 05th May, 1986 and possession was handed over by the Society in favour of the plaintiff and as such, countered the submission of the learned counsel appearing for the appellants. Nextly, with regard to maintainability of the Suit, as urged by the learned counsel for the appellants, Sri Mallikarjunaswamy Hiremath argued that language employed in Sections 118 and 70(1) of the Act has to be read along with Section 70(2) of the Act, which is conclusive in nature and therefore, he contended that the trial Court, after considering the factual aspects on record, has rightly held that the suit is maintainable and accordingly answered Additional Issues 4 and 5. To buttress his submission, learned counsel for the respondent places reliance on the judgment of this Court in the case of SMT. SIDDAMMA v. BHAVANI HOUSING CO-OPERATIVE SOCIETY LIMITED BANGALORE AND OTHERS reported in 2016(4) Kar.L.J. 302 and argued that, since the appellants herein have not questioned the registered Sale Deed dated 05th May, 1986, the finding -9- RSA No. 5384 of 2010 recorded by both the Courts below is just and proper and same does not call for interference.
10. In the light of the submission made by the learned counsel for the parties, I have given my anxious consideration to the contentions raised in this appeal and perused the original records. The principal argument advanced by the learned counsel appearing for appellants is with regard to the maintainability of the Suit as per Sections 70 and 118 of the Act. In this regard, it is relevant to deduce the relevant provisions of the Act. The same read as under:
"Section 70: - Disputes which may be referred to Registrar for decision.-
(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society arises,
(a) among members, past members and persons claiming through members, past members and deceased members, or 105
(b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society, or
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(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representative of any deceased officer, deceased agent, or deceased employee of the society, or
(d) between the society and any other co-
operative society [or a credit agency] such dispute shall be referred to the Registrar for decision and no Civil or Labour or Revenue Court or Industrial Tribunal shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.
(2) For the purpose of sub-section (1), the following shall be deemed to be disputes touching the constitution, management or the business of a co-operative society, namely,-
(a) a claim by the society, for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by a society against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor, as a result of the default of the principal debtor whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of a President, Vice-President, Chairman, Vice-Chairman, secretary, Treasurer or any other office bearer or Member of Committee of the Society;
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RSA No. 5384 of 2010
(d) any dispute between a co-operative society and its employees or past employees or heirsor legal representatives of a deceased employee, including a dispute regarding the terms of employment, working conditions and disciplinary action taken by a co-
operative society notwithstanding anything contrary contained in the Industrial Disputes Act, 1947;
(e) a claim by a co-operative society for any deficiency caused in the assets of the co- operative society by a member, past member, deceased member or deceased officer, past agent or deceased agent or by any servant, past servant or deceased servant or by its committee, past or present whether such loss be admitted or not.
(3) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a co- operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court.
Section 118 - Bar of jurisdiction of courts:
(1) Save as provided in this Act, No Civil, Labor or Revenue Court or Industrial Tribunal shall have any jurisdiction in respect of:
(a) the registration of a co-operative society or bye-laws or of an amendment of a bye-law;
(b) the removal of a committee or member thereof;
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RSA No. 5384 of 2010
(c) any surcharge application required under Section 69 or any dispute required under Section 70 to be referred to the Registrar or the recovery of moneys under Section 100 or the execution of any award or order referred to the Registrar for execution under Section 101;
(d) any matter concerning the winding up and the dissolution of a co-operative society. (2) While co-operative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against the Liquidator as such or against the society or any other member thereof, except by leave of the Registrar and subject to such terms as he may impose.
(3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever."
11. Chapter IX of the Act provides for settlement of dispute and the language employed under Section 70 of the Act provides for jurisdiction of the Registrar to accept the petition filed by the aggrieved parties. Section 70(1) of the Act provides for entertaining the dispute by the Registrar under the Act relating to touching the constitution, management or the business of a Co-operative Society. The Co-operative Society ought to be one of the parties to the dispute, in terms of Section 70 of the Act. Clause (2) of Section 70 of the Act
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RSA No. 5384 of 2010 provides for species touching the constitution, management or the business of the Co-operative Society. The words "for the purposes of sub-section (1)" under Section 70(2) of the Act, provides for supplementing the general provision contemplated under Section 70(1) of the Act. Section 118 of the Act provides for bar of jurisdiction of Courts. The conjoint reading of Sections 70 and 118 of the Act, would pave way for dispute touching the constitution, management or business of the Co- operative Society and as such, Co-operative Society must be a predominant party to determine the rights of the parties. In the instant case, the grievance raised by the defendants before the trial Court and the arguments advanced by the learned counsel appearing for the appellants herein would not constitute "dispute touching the constitution, management or business of the Co-operative Society". Suffice to say, Shree Rukmini Co-operative Housing Society, Belgaum is not a party to the proceedings and the dispute is inter-se between the plaintiff and defendants claiming ownership insofar as the suit schedule property is concerned and further, the relief sought for by the plaintiff is declaratory in nature and therefore, Civil Court is having jurisdiction to entertain the Suit and thereby,
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RSA No. 5384 of 2010 the argument advanced by the learned counsel appearing for the appellants with regard to maintainability, cannot be accepted. Be that as it may, appellants/defendants have not questioned the registered Sale Deed dated 05th May 1986 (Exhibit P1) executed by Shree Rukmini Co-operative Housing Society, Belgaum in favour of the plaintiff and that apart, the authorities under the Act have no jurisdiction to decide the title of the parties and therefore, the dispute, as to validity of registered Sale Deed, cannot be gone into under Sections 70 and 118 of the Act by the competent authority and therefore, I find force in the arguments advanced by the learned counsel appearing for the respondent/plaintiff. In this regard, it is useful to refer to the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of DHULABHAI ETC. V. STATE OF M.P AND ANOTHER reported AIR 1969 SC 78. The observation made in the course of the judgment, reads thus:
"Neither of the two cases of Firm of Illuri Subayya(1) or Kamla Mills(2) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows :-
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(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all ques- tions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by
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RSA No. 5384 of 2010 the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for. the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
Following the law declared by the Hon'ble Apex Court in the aforementioned case, I am of the view that the finding recorded by the trial Court on Additional Issues 4 and 5 is just and proper and same does not call for interference in this appeal.
12. Yet another ground for affirming the Judgments and Decree of the courts below is that, the suit filed by the plaintiff is seeking for declaratory relief and that the said Shree Rukmini Co-operative Housing Society, Belgaum conveyed the plot in question to the plaintiff as per Exhibit P1 and thereafter, the possession has been delivered to the plaintiff as per Exhibit P6 vide Possession Deed dated 06th May, 1986 and therefore, the plaintiff has proved his title and possession in respect of the suit schedule plot. On the contrary, the defendant is relying
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RSA No. 5384 of 2010 upon the allotment letter said to have been issued by Shree Rukmini Co-operative Housing Society, Belgaum as per the agreement dated 29th October, 1983 vide Exhibit D1. It is well settled principle in law that agreement of sale does not confer title to the executants of the agreement unless it is converted into registered Sale Deed and therefore, in view of execution of the registered sale deed dated 05th May, 1986 by Shree Rukmini Co-operative Housing Society, Belgaum in favour of the plaintiff, the plaintiff has established his ownership insofar as the suit schedule property. It is well established principle in law that, in a declaratory suit, the courts have to trace the title based on the registered documents in terms of the provisions contained under the Transfer of Property Act and in the present case, absolute registered sale deed has been executed by the Society in favour of the plaintiff and thereby, plaintiff, thus, exercising right of ownership in respect of the suit schedule property. In this regard, it is pertinent to refer to the law declared by this Court in the case of BHIMAPPA AND OTHERS v. ALLISAB AND OTHERS reported in ILR 2006 KAR 3129, wherein the observation made at paragraph 15 of the judgment, reads thus:
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"15. Therefore, the contention that the evidence on record cannot be taken into consideration to declare the title of the plaintiff has no substance. The suit is one for declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established by his personal knowledge. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of the plaintiff has no role to play. In those circumstances it is open to the plaintiff to examine the Power of Attorney
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Holder, produce the documents through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in the aforesaid judgment. In the instant case, the registered sale deed is produced and the same is proved by examining the executant of the said document, and it is on the basis of the said evidence the suit is decreed, which cannot be found fault with. "
(emphasis supplied)
13. Establishing the title through relevant documents has been discussed by the Hon'ble Apex Court in the case of SHYAM SUNDER PRASAD AND OTHERS v. RAJPAL SINGH AND ANOTHER reported in (1995)1 SCC 311, wherein it is held that the plaintiff shall prove that he had title and has been in possession of the same and such proof has to be laid on the basis of title documents.
14. The Hon'ble Apex Court in the case of SURAJ LAMP AND INDUTRIES PRIVATE LIMITED (2) THROUGH DIRECTOR v. STATE OF HARYANA AND ANOTHER reported in (2012)1 SCC 656, at paragraphs 16 to 19, has observed thus:
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"Scope of an Agreement of sale
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S.A. Iamtam and Anr., observed:
"32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad V.Ram Mohit Hazra.). The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
33. In India, the word `transfer' is defined with reference to the word `convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership...
*** *** ***
37. ...that only on execution of conveyance ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra this Court held:
"Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance
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to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
18. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter."
(emphasis supplied)
15. It is also relevant to cite the law declared by the Hon'ble Apex Court in the case of T.K. MOHAMMED ABUBUCKER v. P.S.M. AHMED ABDUL KHADER reported in AIR 2009 SC
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RSA No. 5384 of 2010 2966, wherein the Hon'ble Apex Court held that in a suit for declaration of title, the onus lies on the plaintiff to place reliance on the registered documents to prove his title and possession in respect of the suit schedule property. In the present case, the plaintiff produced Exhibit P1-registered sale deed dated 05th May, 1986 executed by the Society and Exhibit P6-Possession Deed dated 06th May, 1986 and therefore, both the courts below were justified in declaring that the plaintiff is the owner in possession of the suit schedule property and therefore, I do not find any acceptable ground as urged by the learned counsel appearing for the appellants.
16. Nextly, as regards the arguments advanced by the learned counsel appearing for the appellants with regard to claiming right by the plaintiff without seeking cancellation of the agreement dated 29th October, 1983 executed by Shree Rukmini Co-operative Housing Society, Belgaum in favour of the defendants, admittedly, the plaintiff is not an executant to the said Agreement and therefore, suit for declaration is maintainable before the trial Court. In this regard, it is relevant to refer to the dictum of the Hon'ble Apex Court in the case of SUHRID SINGH ALIAS SARDOOL SINGH v. RANDHIR
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RSA No. 5384 of 2010 SINGH AND OTHERS reported in (2010)12 SCC 112, wherein at paragraph 7 of the judgment, the Hon'ble Apex Court observed thus:
"Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a
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declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad- valorem court fee as provided under Section 7(iv)(c) of the Act."
(emphasis supplied)
17. Though the learned counsel places reliance on the judgment of this Court in the case of NARASEGOWDA (supra) however, in the said case, the Society is a party to the proceedings and cancellation of allotment of site by the Society was questioned in the said case and therefore, the said judgment cannot be made applicable to the facts of the present case. Reliance was also placed by the learned counsel for the appellant on the judgment of the Hon'ble Apex Court in the case of VIDHYADHAR (supra). The said decision, also, would not render assistance to the appellants, since the appellants herein/defendants are only agreement holders and not the absolute purchasers of the suit schedule property as per the registered Sale Deed and therefore, the appellants/defendants has no grievance against the plaintiff/respondent herein who is having a better title over the suit schedule property in view of the registered sale deed dated 05th May, 1986 (Exhibit P1.) The decisions in the case of PANDIT CHUNCHUN JHA and in the
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RSA No. 5384 of 2010 case of BHASKAR WAMAN JOSHI (supra) would assist the case of the plaintiff/respondent herein, since the recitals in the registered sale deed dated 05th May, 1986 (Exhibit P1) is very clear and unambiguous, as Shree Rukmini Co-operative Housing Society, Belgaum had executed absolute sale deed in favour of the plaintiff/respondent herein by way of registered document and therefore, the trial Court after considering the entire material on record, had rightly decreed the suit in favour of the plaintiff. The First Appellate Court, after re-appreciating the entire material on record and taking into account the documents produced by the parties, rightly affirmed the Judgment and Decree passed by the trial Court, and therefore, I do not find any illegality or perversity in the Judgments and Decree passed by both the Courts below.
18. At this juncture, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of LAXMIDEVAMMA AND OTHERS v. RANGANATH AND OTHERS reported in (2015)4 SCC 264, whereunder at paragraphs 13 and 16 of the judgment, it is observed as under:
"13. Based upon oral and documentary evidences, the courts below have recorded concurrent findings that
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the plaintiffs are the owners of 'A' schedule property. While so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact. ...
14 and 15. xxx xxx xxx
16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re- appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
19. In the case of THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERS reported in (2019) 6 SCC 409, at paragraphs 7.2 and 7.3 of the judgment, the Hon'ble Supreme Court has observed thus:
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"7.2 As observed and held by this Court in the case of Kondiba Dagadu Kadam V. Savitribai Sopan Gujar, (1999)3 SCC 722, in the Second Appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.
7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain V. Sohan Lal, (2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held:
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10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.
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.
12. 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 it was omitted, an opposite conclusion was possible.
13. In either of the above situations, a substantial question of law can arise."
20. The Hon'ble Supreme Court in the case of S. SUBRAMANIAN v S RAMASAMY ETC. reported in AIR 2019 SCC 3056, at paragraphs 8.1, 8.2 and 8.5 of the judgment, has observed thus:
"8.1. ...As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re- appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts
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RSA No. 5384 of 2010 below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.
8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous.... 8.3. and 8.4. xxx xxx xxx 8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re- appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as
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RSA No. 5384 of 2010 the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of Code of Civil Procedure. High Court to re-appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC."
21. It is also settled principle of law that, even if two inferences are possible in a given set of circumstances, the finding recorded by the lower appellate court is binding on the High Court. In this connection, it is relevant to deduce the observation made by the Hon'ble Supreme Court in the case of
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RSA No. 5384 of 2010 DODDANARAYANA REDDY (DEAD) BY LRs AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LRs AND OTHERS reported in (2020)4 SCC 649, wherein at paragraphs 25 and 26 of the judgment the Hon'ble Supreme Court has observed thus:
"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf V. Anjuman-E-Ismail Madris- Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:
"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:
"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally
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misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."
14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :
"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
15. Again in Secy., Taliparamba Education Society V. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:
"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."
26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the
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RSA No. 5384 of 2010 conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:
"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal.
Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
22. For the aforestated reasons, the substantial questions of law framed by this Court favours the plaintiff/respondent herein. For the aforestated reasons, I pass the following:
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ORDER
1. Appeal is dismissed;
2. Judgment and Decree dated 16th September, 2009 in Regular Appeal No.66 of 2004 on the file of the Principal District Judge, Belgaum, confirming the Judgment and Decree dated 18th August, 2000 passed in Original Suit No.1043 of 1993 on the file of the Principal Civil Judge, (Jr. Dn.), Belgaum, decreeing the suit of the plaintiff, is affirmed.
Sd/-
JUDGE LNN