Gujarat High Court
Jhaverben Shamgar Alias Velgar Gunsai vs Velbai Ravji Bhudiya on 18 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/22/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 22 of 2017
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
NO
order made thereunder ?
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JHAVERBEN SHAMGAR ALIAS VELGAR GUNSAI
Versus
VELBAI RAVJI BHUDIYA
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Appearance:
SANJIVKUMAR T PATEL(8914) for the PETITIONER(s) No. 1,2,3,4
MR VISHAL C MEHTA(6152) for the RESPONDENT(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/06/2018
ORAL JUDGMENT
1. This matter was called out in the first session. The learned counsel appearing for the appellants was not present. In the second session also Page 1 of 32 C/SA/22/2017 JUDGMENT when the appeal is taken up for hearing, the learned counsel for the appellants is not present.
2. Mr. Mehul S. Shah, the learned senior counsel has appeared on behalf of the respondents - original defendants.
3. By this Second Appeal, under Section 100 of the Code of Civil Procedure, the appellants, original plaintiffs call in question the legality and validity of the Judgment and Order dated 30.09.2016 passed by the 3rd Additional District Judge, Bhuj - Kuchchh, in Regular Civil Appeal No. 22 of 2015, arising from the Judgment and Order dated 30.04.2015 passed by the 2nd Additional Senior Civil Judge, Bhuj - Kuchchh in Regular Civil Suit No. 149 of 2009. The Regular Civil Suit No. 149 of 2009 filed by the respondents herein came to be dismissed by the 2nd Additional Senior Civil Judge, Bhuj - Kuchchh and the Regular Civil Appeal filed by the respondents also came to be dismissed.
4. Against the concurrent findings of the two Courts below, the present Second Appeal has been filed formulating the following substantial questions of law.
"i. Whether in the facts and circumstances of the case, the Courts below are justified in dismissing the suit of the plaintiffs without properly appreciating on the aspect of possession and title of the plaintiffs supported in the City Survey Record (Revenue Record), Khedut Page 2 of 32 C/SA/22/2017 JUDGMENT Khatavahi, Tax Receipts etc.?
ii. Whether the Courts below have materially erred in appreciating the admissions made by the defendant no. 1 in her oral evidence as regards the title and possession thereof?
iii. Whether the Courts below are justified in holding that the defendants are in possession of the suit property more particularly in light of the documents produced by the plaintiffs to show their possession over the suit land and admissions made by the defendant no. 1 in her oral evidence?
iv. Whether the ld. Lower Appellate Court has erred in framing proper issues for determination and has mechanically upheld the Judgment of ld. Trial Court without appreciating the evidence on record in tis true perspective?
v. Whether the Court below have erred in law in relying upon the averments of sale-deed to infer the possession of defendants over the suit land?"
5. It appears from the materials on record that the respondents herein
- original plaintiffs filed a Regular Civil Suit No. 149 of 2009 in the Court of the 2nd Additional Senior Civil Judge, Bhuj - Kachchh for a declaration and permanent injunction in connection with the Plot No. 61(B) situated at Bhuj, known as the Lotus Trust Plots.
6. It is the case of the appellants that the property in question was owned by their father late Shamgar @ Velgar Gunsai. This property in question came to be sold by Shamgar Gunsai in favour of one Khimji Shamji. Khimji Shamji, in turn, sold the property in question by a Page 3 of 32 C/SA/22/2017 JUDGMENT registered sale deed in favour of the respondents herein - original defendants in the year 1988.
7. The suit property being Plot No. 61 (B) known as the Lotus Trust was purchased by Shamgar @ Velgar Gunsai from a partnership firm running in the name of Kuchchh Investment Corporation by way of a registered sale deed dated 06.12.1979 for a total sale consideration of Rs.
6,500/-. Shamgar passed away on 20.10.1999. The names of the plaintiffs came to be mutated in the City Survey Record on 14.06.2007.
8. The case of the appellants - original plaintiffs is that they became the owners of the suit property by inheritance on demise of Shamgar Gunsai. In 2001, as per the case of the plaintiffs, they came to know for the first time, that their father late Shamgar Gunsai had purchased the Plot No. 61(B) known as the Lotus Trust Plots.
9. The case of the appellants is that, in 2009 as the other side tried to interfere with their possession so far as the plot in question is concerned, they had to file a civil suit for declaration and permanent injunction. The cause of action, as pleaded in the plaint, is that as the defendant no. 1 asserted her right, title and interest in the suit property and as the defendant no. 1 also published a Public Notice dated 18.06.2009 with regard to the suit property, a Regular Civil Suit had to be filed.
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10. The trial Court framed the following issues:-
1. "Whether the Plaintiffs prove that they are the owners and in possession of the suit property?
2. Whether the Plaintiffs prove that the Defendants are illegally interfering or obstructing in the said property?
3. Whether the Plaintiffs prove that the Defendants have no rights or authority to sell, transfer or mortgage or transfer in any other manner the suit property?
4. Whether the Defendants prove that they have legally purchased the suit property by registered sale - deed?
5. Whether the suit is barred by limitation?
6. Whether the suit is barred by non-joinder of necessary party?
7. Whether the Plaintiffs are entitled to get the reliefs as prayed for?
8. What order and decree?"
11. The issues framed by the trial Court noted above came to be answered as under:-
1. In the negative
2. In the negative
3. In the negative
4. In the affirmative
5. In the affirmative
6. In the affirmative
7. In the negative Page 5 of 32 C/SA/22/2017 JUDGMENT
12. Thus, on the overall appreciation of the evidence, the trial Court recorded a finding that the plaintiffs had failed to establish that they were the true and lawful owners of the property. The trial Court also came to the conclusion that the plaintiffs had failed to establish their possession of the suit property. The trial Court, on appreciation of the evidence also recorded a finding that the plaintiffs failed to establish that the defendants were trying to interfere with the possession and use of the property.
13. On the contrary, according to the trial Court, it is the defendants who were able to establish, by leading cogent evidence, that they were the true and lawful owners of the property in question. The defendants have been able to prove that they had purchased the suit property by a registered sale deed. The trial Court also thought fit to dismiss the civil suit filed by the appellants herein on the point of limitation. The findings recorded by the trial Court so far as the issue no. 4 is concerned, is extracted hereunder:-
"Whether the Defendants prove that they have legally purchased the property by a registered sale
- deed?
Looking to the particulars of Issue Nos. 1, 2 and 3, it is the fact on record that the father of the present Plaintiffs had sold the suit property by Registered Sale - Deed, Exh. 90, Rupees seven thousand to Khimji Shamji Bhudiya and Khimji Shamji Bhudiya had sold the suit property for Rupees forty-five Page 6 of 32 C/SA/22/2017 JUDGMENT thousand to Velbai Ravji Bhudiya by Registered Sale - Deed, Exh. 91. Therefore, it is revealed from the record that the Defendant had legally purchased the said property by Registered Sale - Deed and, accordingly, the Issue No. 4 is answered in Affirmative."
14. The findings recorded by the trial Court with regard to the issue no.
5 is extracted hereunder:-
"Is the suit barred by limitation?
The present suit preferred by the Plaintiffs is instituted before this Court on date 19-6-2009. The father of the Plaintiffs expired on date 27-10-1999 as per the Death Certificate at Exh. 49. Their father had purchased the suit property on date 6- 12-1979 by a Registered Sale - Deed and he had sold the said property on date 7-7-1980 by document, Exh. 90, being Registered Sale - Deed No. 1289 for Rupees seven thousand to Khimji Shamji Bhudiya. Thereafter, Khimji Shamji Bhudiya, on date 13-9-1988, had sold the suit property to Velbai Ravji Bhudiya by Registered Sale - Deed No. 2515. Thus, since the father of the Plaintiffs had sold the suit property on date 7-7- 1980 and the present suit in respect of the said property is instituted on date 19-6-2009, therefore, the suit of the Plaintiffs has been instituted after a period of 29 years from the execution of the first Sale-Deed. Thus, the present suit which is instituted by the Plaintiffs is filed after a period of 29 years, and, therefore, the suit of the Plaintiffs is barred by limitation. Therefore, the Issue No. 5 is answered in Affirmative."
15. Thus, as the appellants herein - original plaintiffs failed to establish their case, the trial Court, by Judgment and Order dated Page 7 of 32 C/SA/22/2017 JUDGMENT 30.04.2015, dismissed the suit.
16. Being dissatisfied with the Judgment and Order passed by the trial Court, the appellants herein preferred the Regular Civil Appeal No. 22 of 2015 in the Court of the 3rd Additional District Judge, Bhuj - Kuchchh.
By Judgment and Order dated 30.09.2016, the First Appeal filed by the appellants herein came to be dismissed.
17. The relevant findings recorded by the first appellate Court are extracted hereunder:-
"11. Considering the pleadings of the parties, the suit property, being Plot No. 61/B of Bhuj, known as Lotus Trust Plots, as per the say of the Plaintiffs, is of their ownership. In connection thereof, if the documentary evidence is produced before the Trial Court by the Defendant are looked into, then the evidence produced at Exh. 90 is a Registered Document No. 1279 dated 3-7-1980 and looking to the details and facts of the said document, the seller is Shamgar Shambhugar Shankhe Goswami, Hindu, aged about 47 years, occupation : Taxi Driver, residing at Bhuj City, and the purchaser of the said property is Kanbi Khimji Shamji Shankhe, occupation : Agriculture, Residing at Sukhpar and looking to the details and facts of the said document, the description of the property, which is sold, is Gujarat State Registration, District Kutch, Sub-Registration City Bhuj, General Hospital, S. No. 245, City Survey Ward No. 5, City Survey No. 1052(A), 1052(B), 1052(C), 1052(D) Paiki, Plot Nos. 1 61/B admeasuring 268.83 sqmt., and it is revealed from the documentary evidences that the said property sold by the seller to the purchaser for Rupees seven thousand.Page 8 of 32
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12. If the aforesaid facts are considered, present suit is for suit property of Plot No. 61/B and the said Plot No. 61/B was sold by Shamgar Shambhugar on date 03-07-1980. The present Plaintiffs are heirs of Shamgar Shambhugar. Looking to the records produced before the Trial Court, the fact of death of Shamgar Shambhugar on date 20-10-1999 is established vide Exh. 49. If the said fact is taken into consideration, then Shamgar Shambhugar had sold the suit property in the year 1980 and he expired in the year 1999, and, during his life-time of 19 years, no dispute in respect of selling of the suit property by fraud was raised by him. It is pertinent to note here that, at the time of selling of any property, the possession thereof also is being transferred. Thus, after the year 1980, the father of the Plaintiffs was not the owner of the suit property. Moreover, in view of the Examination-In-Chief of Maheshgar Shamgar alias Velgar Gunsai at Exh. 42 before the Trial Court and in view of the cross-examination thereof, it is admitted by him that his father, during his life-time, had not intimated anything in respect of the sale of the plot. He has also admitted that, prior to the death of my father, the suit property had been sold to Kanbi Khimji Shamji and, therefore, we were not instructed to take any action.
13. Thus, looking to the particulars and facts of the oral as well as documentary evidences produced before the Trial Court, the suit Plot No. 61/B was originally owned by Shamgar Shambhugar Gunsai and, in the year 1980, he sold the suit plot during his life-time to Kanbi Khimji Shamji, therefore, it can be said that, it is not revealed that from the year 1980, Shamgar Shambhugar Gunsai or his heirs have right, interest over the suit property and, looking to the said fact and looking to the findings given by the Trial Court, this Court is of the opinion that the judgment passed by the Learned 2nd Additional Page 9 of 32 C/SA/22/2017 JUDGMENT Senior Civil Judge, Bhuj, is not illegal and, therefore, no interference is required to be made, and, thus, the Issue No. 1 is accordingly answered in Negative, and the final order of Issue No. 2 is passed as under :
FINAL ORDER
1. The present appeal of the Appellants is rejected/dismissed.
2. The judgment passed by the Learned 2nd Additional Senior Civil Judge, Bhuj-Kutch in Regular Civil Suit No. 149/2009 dated 30-4-2015 is hereby confirmed.
3. The parties to bear the respective cost of the present appeal.
4. The certified copy of the present judgment along with the records of the Lower Court to be sent back.
5. Decree to be drawn accordingly."
18. Being dissatisfied with the concurrent findings recorded by the two Courts below, the appellants are here before this Court with this Second Appeal under Section 100 of the Civil Procedure Code, formulating the substantial questions of law referred to above.
19. In my view, having regard to the proposed substantial questions of law framed in the memo of the Second Appeal, none of those could be termed as questions of law. The "substantial" question of law must be debatable, not previously settled by law of the land or a binding precedent Page 10 of 32 C/SA/22/2017 JUDGMENT and the answer to the same should have a material bearing on the rights of the properties. Considering the proposed substantial questions of law, the appellants want this Court to reappreciate the entire evidence on record and arrive at a fresh conclusion as regards the right, title and interest of the appellants so far as the property in question is concerned.
20. Whether the appellants are the true and lawful owners of the property in question is a question of fact.
21. Both the Courts below, on the overall appreciation of the evidence, have come to the conclusion that the appellants are not the lawful owners of the property in question. The issue with regard to possession is also a question of fact. Both the Courts below have recorded the concurrent findings that the appellants are not in possession of the property in question. On the contrary, both the Courts have arrived at a conclusion that the defendants are the lawful owners of the suit property and are in possession of the same. There is oral evidence as well as documentary on record to indicate that the plot in question was sold by late Shamgar in favour of one Khimji Shamji and, thereafter, Khimji Shamji transferred the plot by a registered sale deed in the year 1988 in favour of the defendants. These are all questions of fact. It cannot be said that the findings recorded by the two Courts below are perverse or erroneous.
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22. In the case of Govindaraju Vs. Mariamman [AIR 2005 SC 1008], the Supreme Court has explained what constitutes a substantial question of law. The relevant observations are extracted hereunder:-
"11. A perusal of Section 100 of the Code makes it clear that the High Court cannot proceed to hear a Second Appeal without formulating the substantial questions of law involved in the appeal. It reads:-
"100. Second Appeal-
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case Page 12 of 32 C/SA/22/2017 JUDGMENT involves such question."
12. Section 100 provides that the second appeal would lie to the High Court from a decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case "involves a substantial question of law". It further provides that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved in a case formulate the said question.
Sub-section (5) provides that the "appeal shall be heard on the question so formulated". It reserves the liberty with the respondent against whom the appeal was admitted ex-parte and the questions of law had been framed in his absence to argue that the case did not involve the questions of law framed. Proviso to sub-section (5) states that the questions of law framed at the time of admission would not take away or abridge the power of the court to frame any other substantial question of law which was not formulated earlier, if the court is satisfied that the case involved such additional questions after recording reasons for doing so. It is abundantly clear from the analysis of Section 100 that if the appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. The existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code. { Refer to Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. [(1997) 5 SCC 438], Panchugopal Barua v.
Umesh Chandra Goswami [(1997) 4 SCC 413], Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722] }
13. A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) By LRs. [(2001) 3 SCC 179] after tracing the history of Section 100, the purpose which Page 13 of 32 C/SA/22/2017 JUDGMENT necessitated and persuaded the Law Commission of India to recommend for amendment of Section 100, concluded that scope of hearing of Second Appeal by the High Court is circumscribed by the questions formulated by the High Court at the time of admission of the appeal and the High Court has to hear the appeal on substantial questions of law involved in the case only. That the High Court would be at liberty to hear the appeal on any other substantial question of law, not earlier formulated by it, if the court is satisfied of two conditions i.e.
(i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction." It was observed in para 10 as under :-
"At the very outset we may point out that the memo of second appeal filed by the plaintiff- appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any Page 14 of 32 C/SA/22/2017 JUDGMENT other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied : (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction."
14. As to which would constitute a substantial question of law, it was observed :-
"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, insofar 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."
15. This judgment has been followed in a number of decisions including the latest on the point Thiagarajan & Ors. v. Sri Venugopalaswamay B. Koil & Ors. [(2004) 5 SCC 762].
16. As per settled law, the scope of exercise of Page 15 of 32 C/SA/22/2017 JUDGMENT the jurisdiction by the High Court in Second Appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari's case (supra) that 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 a 'substantial' question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law "involving in the case", it was observed that 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 the court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties."
23. In the case of Union of India Vs. Ibrahim Uddin and Another [(2012) 8 SCC 148], the Supreme Court has discussed at length the scope of Section 100 of the Civil Procedure Code. I may quote the relevant observations:-
"59. The pleading taken in the plaint dated 25.7.1995 clearly revealed that the land in dispute belonged to Hafiz Ahmad Bux and Hafiz Kareem Bux who were the ancestors of the plaintiff and they were the owners of the same in the year 1800. The property was partitioned between ancestors of the plaintiff in the year 1819. There had been succession of the property by various documents of Hafiz Kareem Bux and Hafiz Ahmad Bux. The plaintiff claims to be heir and successor of one Smt. Hasin Begum wife of Zafaruddin and Page 16 of 32 C/SA/22/2017 JUDGMENT daughter of Sri Hazim Ali. He had inherited the suit property being a lone heir of Shri Hafiz Ahmed Bux after the death of his mother Smt. Hasin Begum.
In case, the plaint does not make any reference that the property had been given to the plaintiff/respondent no.1 by way of Will, and pleadings had not been amended at the stage of first appeal, the question does arise as to whether, the Will could be taken into consideration, while deciding the case.
The trial court had considered as many as seven issues and does not make any reference that the property had been gifted to the ancestors of the plaintiff by the Maratha rulers. Further finding has been recorded that in respect of documents, the plaintiff/respondent no. 1 had given paper to defendant no. 1 for inspection of the record but he did not make any inspection. However, a passing reference had been made by the trial court that no record had been produced by the plaintiff to show that the Maratha Government had given the land to the forefathers of the plaintiff.
So far as the First Appellate Court is concerned, it placed a very heavy reliance on the Will and further recorded a finding that in spite of the fact that the plaintiff filed an application for inspection before the appellant/defendant no.1, he was not permitted to have the inspection. Nor the said revenue record was presented by the present appellant and, therefore, an adverse inference was drawn against it. So far as the Will is concerned, it is evident that it was taken on the record as an additional evidence without any pleading anywhere. There is nothing on record that the plaintiff/defendant no. 1 made any attempt to make an amendment in the plaint even at the appellate stage by moving an application under Order VI Rule 17 CPC.Page 17 of 32
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60. Relevant part of the application under Order XLI Rule 27 CPC, reads as under:
2. That the property in suit belongs to the ancestors of the plaintiff. The grand father of the plaintiff/appellant had made the Will in favour of the plaintiff regarding the property in suit inter alia other properties in year 1929.
3. That at the time of trial of the suit the said will was not in possession of the plaintiff and the same was misplaced in the other lot of old papers of the plaintiff kept in store.
4. That even after best effort, and due diligence the aforesaid Will could not be available at the time of trial of the suit and now after due diligence and best effort it has been available and traced our.
5. That the papers were not available earlier so it could not be filed in the lower court.
6. That the said paper is very much relevant to establish the right, title or interest in the disputed property of the plaintiff so the same is very necessary to be taken on record.
7. That if the said paper is not taken on record the plaintiff will be deprived from getting justice.
61. The first Appellate Court allowed the application filed by the plaintiff under Order XLI Rule 27 CPC vide order dated 28.4.1999 which reads as under:
The Will in question is necessary for the disposal of the appeal because the applicant/appellant obtains right in the disputed property from this Will. The respondent/defendants have neither opposed it that as to why it was not produced in the subordinate court, there is no any relevancy of it. The applicant has given reason of not producing the Will in the subordinate court that this will was lost. In my opinion, the will appears to be necessary for the disposal of the appeal for the property which was obtained to the appellant earlier by this Will. Proper reason has been given for not producing this Will in the subordinate court.Page 18 of 32
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62. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127, after placing reliance on a very large number of its earlier judgments including Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar, AIR 1953 SC 235; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC 3165; and State of Maharashtra v. M/s. Hindustan Construction Company Ltd., AIR 2010 SC 1299, held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of the pleadings in that respect. No party can he permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon.
63. In Bachhaj Nahar v. Nilima Mandal & Ors., AIR 2009 SC 1103, this court held that a case not specifically pleaded can be considered by the court unless the pleadings in substance contain the necessary averments to make out a particular case and issue has been framed on the point. In absence of pleadings, the court cannot make out a case not pleaded, suo motu. Therefore, in view of the above, there is nothing on record to show that Maratha Government had made a gift to the ancestors of the plaintiff. The claim of the plaintiff to get a title by virtue of the Will cannot be taken note of being not based on pleadings. Even this Will is dated 1.3.1929, affidavits filed by the plaintiff/respondent no.1 before this Court reveal that on 26.3.2012 he was 80 years of age. The date of Will is 1.3.1929. So, it appears that the Will had been executed prior to the birth of the plaintiff/respondent no.1. In such a fact-situation, it could not have been taken into consideration without proper scrutiny of facts and, that too, without any pleading. In the plaint, the plaintiff for the reasons, best known to him, did not even make reference to the Will. In absence of any factual foundation of the case, based on Page 19 of 32 C/SA/22/2017 JUDGMENT Will, the first appellate Court committed a grave error taking into consideration the said Will. More so, the Will had not been proved as required under Section 68 of the Evidence Act.
64. The High Court had placed a very heavy reliance on the rent note allegedly executed by the fore-fathers of the plaintiff/ respondent no.1. The same reads as under:
Applicant caretaker masque noori darwaza which was constructed by Hafiz Ahmed is of our ancestor and who received cash payment which has been deposited register board no.38 treasury collectorate agra situated namner cantt., Agra, questioner is entitled to which is following mentioned money which has been stated after enquiry it be given to me, and if govt. has any objection to pay to me the information about the same given to us that condition govt. will be liable for the expenses of court I hafiz ahmed is receiver of rent of this land which has been situated at namner the rent which is rupees 22. The said rent note does not provide any description of the property nor does it bear any date, so it cannot be determined as on what date it was executed; what was the duration of the lease; in whose favour the lease had been executed; and what was the lease rent because it simply mentions that the rent to be Rs.22/-. It is not evident whether it was a rent for a month, or a year or for a total indefinite period. The rent note does not provide any period at all. In fact, such a vague document could not be linked in the circumstances proving the title.
65. Appellant/defendant No.1 produced the certified copies of the Extract from General Land Register prepared on 15.3.1948 in support of its case and denying title of the plaintiff/respondent No.1. The relevant part thereof reads as under:
|Sl.No|Survey No.5 |Existing Entry | |. | | | |1. | ------ | ------ | |2. | ------ | ------ | Page 20 of 32 C/SA/22/2017 JUDGMENT |3. | ------ | ------ | |4. |Area in acres |9.447 acres | |5. |Description |Agricultural land | |6. |Class |B-4 | |7. |By whom managed |Military Estate | | | |Officer | |8. |Landlord |Govt. of India | |9. | ------ | ------- | |10. | ------ | ------- | Similarly, another land had also been shown in Survey No.6 in the same manner and showing the similar entries.
The High Court has considered the said entries and rejected the same on the ground that the partition among the ancestors of the plaintiff/respondent No.1 had taken place prior to enactment of the Cantonment Land Administration Rules, 1925, though there is nothing on record to prove the said partition. More so, the partition made among the ancestors of plaintiff/respondent No.1 in 1819 would not be a conclusive factor to determine the title of ownership in favour of the plaintiff/respondent No.1. The High Court dealt with the issue in an unwarranted manner as it observed as under:
Clause B-1, B-2, B-3, B-4 and B-5 Classification of land was first time introduced by enactment of Cantonment Land Administration Rule 1925. The General Land Register was prepared near about in the year 1928, whereas the partition is in the year 1819. The appellant also failed to file the notification in the official gazette regarding survey Nos. 5 and 6 which are situated outside the notified area and to establish that such area was declared under Section 43A of the Cantonment Act, 1924. In the circumstances, I do not find that it is a case where this court in exercise of jurisdiction under Section 100 CPC can set aside the findings of fact arrived at by the court below.Page 21 of 32
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66. The General Land Register and other documents maintained by the Cantonment Board under the Cantonment Act, 1924 and the Rules made thereunder are public documents and the certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act. It is settled legal position that the entries made in General Land Register maintained under Cantonment Land Administration Rules is conclusive evidence of title.
(Vide: Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294; and Union of India & Ors. v. Kamla Verma, (2010) 13 SCC 511).
67. In view of the above, we are of the considered opinion that the appellate courts dealt with the case in an unwarranted manner giving a complete go-by to the procedure prescribed by law.
68. The appellate courts examined the title of government instead of the plaintiff/respondent no.1. Such a course was not warranted. The title of government cannot be disputed. In any event possession of government for decades is not disputed. The plaintiff shifted the case from time to time but failed to prove his title.
69. To sum up: In view of the above discussion, we reach the following conclusion:
(i) The first appellate court as well as the High Court committed grave error in shifting the burden of proof on the Union of India, appellant/defendant No.1, though it could have been exclusively on the plaintiff/respondent No.1 to prove his case.
(ii) There is nothing on record to prove the grant/gift by the Maratha Government in favour of ancestors of plaintiff/respondent No.1 in the year 1800.
(iii) Plaintiff/Respondent No. 1 miserably failed to prove the pedigree produced by him.Page 22 of 32
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(iv) The alleged partition in the year 1819 among the ancestors of plaintiff/respondent No.1 even if had taken place, cannot be a proof of title of the plaintiff/respondent No.1 over the suit property as the pedigree has not been proved. Presumption under Section 90 of the Evidence Act in respect of 30 years old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact.
More so, in case the Will is ignored, there is nothing on record to show as how the plaintiff/respondent no. 1 could claim the title.
(v) The rent note produced by the appellant/defendant No.1 before the court below does not prove anything in favour of the plaintiff/respondent. The same being a vague document is incapable of furnishing any information and, thus, is liable to be rejected. The said document does not make it clear as who has executed it and in whose favour the same stood executed. It does not bear any date as it cannot be ascertained when it was executed. The lease deed cannot be executed without the signature/thumb impression of the lessee. The said lease does not contain any signature/thumb impression of any lessee and also the tenure of the lease has not been mentioned therein. The rent has been mentioned as Rs.22/- without giving any detail as to whether it was per day, fortnightly, monthly, quarterly or yearly or for ever. More so, there is no reference to the said rent note in the pleadings contained in the plaint, therefore, it is just to be ignored.
(vi) Had there been any Will in existence and not available with the plaintiff/respondent No.1 for any reason whatsoever at the time of institution of the suit, the plaintiff/respondent No.1 could have definitely mentioned that Will had been executed Page 23 of 32 C/SA/22/2017 JUDGMENT in his favour by his maternal grand-father which could not be traced. Therefore, the application under Order XLI Rule 27 CPC was liable to be rejected. Even otherwise, the Will in absence of any pleading either in the plaint or first appeal could not be taken on record. More so, the Will was not proved in accordance with law i.e. Section 68 of the Evidence Act.
(vii) The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it.
(viii) The first appellate court committed a grave error in deciding the application under Order XLI Rule 27 CPC much prior to the hearing of the appeal. Thus, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement.
(ix) The documents produced by the Union of India have not been properly appreciated by the first appellate court and the High Court.
(x) The courts below further committed an error holding that in case the document is taken on record, the document as well as the content thereof would be deemed to have been proved.
(xi) The appellate courts have also wrongly rejected the certified copies of the documents prepared by the Cantonment Board which were admissible in evidence.
(xii) The High Court committed a grave error in not addressing itself to the substantial questions of Page 24 of 32 C/SA/22/2017 JUDGMENT law framed at the time of admission of the appeal and it ought to have decided the same or after discussing the same a finding could have been recorded that none of them was substantial question of law.
(xiii) The suit was barred by the proviso to Section 34 of the Specific Relief Act, for the reason that plaintiff/respondent No.1, admittedly, had not been in possession and he did not ask for restoration of possession or any other consequential relief.
(xiv) The first appellate court as well as the High Court recorded a finding that the Union of India failed to prove its title over the suit land. The said courts did not realise that this was not the issue to be determined, rather the issue had been as to whether the plaintiff/respondent No.1 was the owner Union Of India vs Ibrahim Uddin & Anr on 17 July, 2012 Indian Kanoon -
http://indiankanoon.org/doc/61939581/ 21 of the suit land.
(xv) The first appellate court has not decided the issue of admission of documents in correct perspective and recorded a perverse finding.
(xvi) Question of filing a document in rebuttal of a Will could not arise. The other party has to admit or deny the document as required under Order XII CPC. There could be no Will in favour of the Union of India by the predecessors of the plaintiff, on the basis of which it could also claim title.
(xvii) The courts below had wrongly drawn adverse inference against the appellant/defendant No.1 for not producing the documents as there was no direction of the court to produce the same. Neither the plaintiff/respondent No.1 had ever made any application in this respect nor he filed any application under Order XI CPC submitting any interrogation or for inspection or production of document.
Page 25 of 32C/SA/22/2017 JUDGMENT (xviii) The appellate courts have decided the appeals in unwarranted manner in complete derogation of the statutory requirements. Provisions of CPC and Evidence Act have been flagrantly violated.
70. In view of above, appeal succeeds and is allowed, judgments and decrees of the first and second appellate courts are set aside and the judgment and decree dated 20.1.1998 passed by Civil Court in Original Suit No.442 of 1995 is restored. No costs."
24. In the case of Syeda Rahimunnisa Versus Malan Bi, [(2016) 10 SCC 315], the Supreme Court while explaining scope of Section 100, held that the High Court, while deciding the second appeal, is obliged to confine its decision only to the substantial question of law so framed.
Any finding without framing of the substantial question of law amounts to a decision without jurisdiction. I may quote the relevant observations of the Supreme Court thus:-
"24 A three-judge Bench of this Court in the case of Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs. reported in (2001) 3 SCC 179 speaking through R.C. Lahoti J (as His Lordship then was) examined the scope of Section 100 of CPC in detail and laid down the following propositions in paragraphs 9, 10, 12 and 14 as under:
"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non Page 26 of 32 C/SA/22/2017 JUDGMENT for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438, Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722)
10. At the very outset we may point out that the memo of second appeal filed by the plaintiff- appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case".
An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction.
12. The phrase "substantial question of law", as Page 27 of 32 C/SA/22/2017 JUDGMENT occurring in the amended Section 100 is not defined in the Code. The word 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 v. T. Ram Ditta (AIR 1928 PC
172), the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (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. v. Century Spg. and Mfg. Co. Ltd.(AIR 1962 SC 1314) the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad 969):
"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 views, 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 facts of the case it would not be a substantial question of Page 28 of 32 C/SA/22/2017 JUDGMENT law." and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
"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 the plea raised is palpably absurd the question would not be a substantial question of law."
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, insofar 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 Page 29 of 32 C/SA/22/2017 JUDGMENT the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis".
25 Again in the case of Thiagarajan And Others v. Sri Venugopalaswamy B. Koil And Others reported in 2004 (5) SCC 762, a two Judge Bench of this Court in paragraphs 17, 24, 25 and 26 observed as under:
"17. Sub-section (5) of Section 100 CPC says that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such a question. The proviso states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it if it is satisfied that the case involves such question. In the instant case, the High Court at the time of final hearing formulated five more questions of law as extracted above after hearing the counsel for both sides having miserably failed to record the reasons for formulating the other substantial questions of law.
24. In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of Page 30 of 32 C/SA/22/2017 JUDGMENT jurisdiction of a second appeal under Section 100 CPC.
25. In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation 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.
26. To say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible"."
25. Applying the principles of law as discussed above, in my considered opinion, the aforementioned questions cannot be regarded as satisfying the test of being "substantial question of law" within the meaning of Section 100 of the Civil Procedure Code. These questions, in my view, are essential questions of fact. When the trial Court and the first appellate Court, on appreciation of the evidence, concurrently held that the appellants - original plaintiffs have failed to prove their title over the suit property and, on the other, hand the defendants were able to prove their title, such findings, in my opinion, being concurrent in nature should Page 31 of 32 C/SA/22/2017 JUDGMENT not be disturbed once again by reappreciating the evidence. I am saying so, because none of the findings of the two Courts below are perverse to the extent that no judicial person could ever come to such conclusion and the findings are not in context with any provision of law governing the issue that the findings are also not against the pleadings or evidence.
26. In this view of the matter, the findings which are not capable of being set aside by this Court in exercise of second appellate jurisdiction under Section 100 of the Civil Procedure Code, should be accepted as bindings.
27. The questions formulated are neither debatable nor arguable and nor do they involve any question of law which can be said to have arisen in the case.
28. In the aforesaid view of the matter, this Second Appeal fails and is hereby dismissed.
29. As the Second Appeal has been dismissed, the Civil Application would not survive and the same is also disposed of.
(J.B.PARDIWALA, J) Bhoomi Page 32 of 32