Gujarat High Court
Ramabhai Becharbhai Baraiya vs Legal Heirs Vishnuprasad Manibhaigaur on 4 March, 2024
NEUTRAL CITATION
C/SA/386/2018 ORDER DATED: 04/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 386 of 2018
With
R/SECOND APPEAL NO. 387 of 2018
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RAMABHAI BECHARBHAI BARAIYA
Versus
LEGAL HEIRS VISHNUPRASAD MANIBHAIGAUR & ORS.
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Appearance:
MR P P KASVALA(2404) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
MR KV SHELAT(834) for the Respondent(s) No. 1.1,1.2
MR. SHYAM K SHELAT(6552) for the Respondent(s) No. 1.1,1.2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/03/2024
COMMON ORAL ORDER
1. Since the parties and subject matter of the suit involved in the present appeals are identical in nature, hence, at the request of learned advocates for the parties, the matters are taken up for final consideration and Second Appeal No. 386 of 2018 is considered as lead matter and all the matters are heard together. 2.1 The present Second Appeal No.386 of 2018 is filed under Section 100 of the Civil Procedure Code, 1908 (hereinafter referred to as the "Code") by the present appellant - original plaintiff challenging the impugned Page 1 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined judgment and decree dated 30.06.2018 passed in Regular th Civil Appeal No.19 of 2016 by the learned 8 Addl. District Judge, Ahmedabad (Rural), by which the judgment and decree dated 06.04.2016 passed in Regular Civil Suit No.209 of 2009 has been confirmed, which was th dismissed by the learned 4 Addl. Civil Judge, Ahmedabad (Rural), which was filed for specific performance of a writing dated 02.02.1994. 2.2 The present Second Appeal No.387 of 2018 is filed under Section 100 of the Code, by the present appellant
- original defendant challenging the impugned judgment and decree dated 30.06.2018 passed in Regular Civil th Appeal No.20 of 2016 by the learned 8 Addl. District Judge, Ahmedabad (Rural), by which the judgment and decree dated 06.04.2016 passed in Regular Civil Suit No.112 of 2009 has been dismissed, which was allowed th by the learned 4 Addl. Civil Judge, Ahmedabad (Rural), which was filed for declaration and injunction.
3. Brief facts of the case as per the case of the appellant in Second Appeal No.386 of 2018 are as such that the appellant original plaintiff has filed Regular Page 2 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined Civil Suit No. 209/2009 in the Court of Ld. 4th Additional Civil Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad for specific performance of a writing dated 2/2/1994. The Ld. 4th Additional Civil Judge, Ahmedabad (Rural) by his judgment and decree dated 6/4/2016, dismissed the said suit. That against the said judgment and decree dated 6/4/2016, the appellant original plaintiff has preferred Regular Civil Appeal No. 19/2016 in the Court of Ld. 9th Additional District Judge, Ahmedabad (Rural) and the Ld. 8th Additional District Judge, Ahmedabad (Rural) by his judgment and decree dated 30/6/2018, dismissed the said appeal. Being aggrieved and dissatisfied with both the judgments and decree passed by the Ld. Trial Judge and the Appellate Judge, the appellant original plaintiff preferred this appeal.
4. Heard Mr. P.P. Kasvala, the learned counsel for the appellant and Mr. K.V. Shelat, the learned counsel for the respondents.
5. The suggested substantial questions of law as as framed in paragraph 5 of memo of the present appeal are as under:
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NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined "(a) Whether in the facts and circumstances of the case, both the Lower Courts have substantially erred in not believing and holding that the possession of the appellant-plaintiff in the suit property was since the year 1960 and therefore, he has become owner of the suit land by virtue of adverse possession?
(b) Whether in the facts and circumstances of the case, both the lower courts have substantially erred in holding that the document of writings in question are the forged documents in absence of any substantial evidence?
(c) That both substantially the erred courts lower in holding have that defendants are in possession of the suit property by virtue of the revenue record?"
6. The learned counsel for the appellant has submitted that both the judgments and decree passed by the both Page 4 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined the courts below are contrary to the law and evidence on record, and have not properly appreciated the evidence on record and that has resulted into miscarriage of justice. Furthermore, he has submitted that both the lower courts ought to have seen that the appellant was in possession of the suit land since 1960 and thereafter, the deceased - Vishnuprasad Manibhai Gor had executed a writing dated 2.2.1994 in favour of the appellant and an amount of Rs.1,40,000/- was paid by the appellant. Furthermore, he has submitted that both the lower courts ought to have seen that the respondent-defendants have never cultivated the suit land and throughout all these years, the appellant was in possession of the suit land and was cultivating the suit land. Furthermore, he has submitted that both the lower courts ought to have seen that possession, even by virtue of adverse the appellant-plaintiff has become the owner of the suit land and the defendants have no right or title over the suit land. Furthermore, he has submitted that the findings arrived at by both the lower court are not only perverse but also contrary to the evidence on record and therefore, the same has resulted into miscarriage of justice and therefore the same are also required to be Page 5 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined quashed and set aside. Furthermore, he has submitted that both the lower courts ought to have seen that the documents produced by the appellant-plaintiff are the genuine documents and by no stretch of imagination, it can be said that the said documents are forged documents. Furthermore, he has submitted that both the lower courts ought to have seen that the suit filed by the appellant- plaintiff was for specific performance of a writing and also not to take possession of the suit land from the appellant-plaintiff and inspite of the two distinct relief, the suit has been decided only on writing and thereby committed gross error of law and the fact. Furthermore, he has submitted that both the lower courts ought to have seen that the room which was existing on the suit land was from the very beginning and the defendants have not proved that the said room is constructed after filing of the suit. Furthermore, he has submitted that both the lower courts ought to have seen that from the evidence of witness of Babubhai Shakrabhai Ex. 63, the suit writing was proved by him and therefore, ought to have allowed the prayer 13 (A) of the suit. Furthermore, he has submitted that both the lower courts ought not to have relied on the evidence of Page 6 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined handwriting expert in view of the fact that in his evidence Ex. 89, he has specifically averred that he has given opinion on xerox copy and the original documents are required to be verified. Therefore, he has submitted that both the judgment and decree of the lower courts are even otherwise erroneous and bad in law. Hence, the present Second Appeal is required to be allowed.
7. The learned counsel for the respondents has submitted that the order passed by both the courts below are just and proper and no error is committed by both the courts below while deciding the impugned orders. Furthermore, he has submitted that there is no substantial question of law is involved in the present Second Appeal and therefore, there has prayed for dismissal of the present appeals.
8.1 I have considered the rival submissions made at the bar by the respective parties. It transpires from the record that both the courts below have concurrently found against the present appellant on the factual as well as legal aspects of the matter. The courts below have come to the conclusion that the suit land bearing Page 7 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined survey nos.755, 771 and 774 are situated at Kuha village, Ta Dascroi, Dist. Ahmedabad, which was originally running in the revenue record in the name of Vishnuprasad Gaur and as he died on 12/01/2001, name of respondents are running in the revenue record. That the said lands have been purchased by the appellant on 02.02.1994 by paying sale consideration of Rs.1,40,000/- in cash, but they are in possession of the suit lands since 1960 from the time of their forefathers and they are cultivating the suit land and taking yields from the lands. That deceased Vishnuprasad Gaur or the respondents have never cultivated the suit lands and they never obtained physical possession of the suit lands. But, the appellant has good relation with the father of the respondent and, therefore, sale-deed has not been executed. It also transpires that it is the case of the appellant that when the appellant asked for execution of sale-deed to the respondents, the respondents denied and demanded more money as the price is rising and by getting disadvantage of their names in revenue records, they are trying to sale the suit land to other person and, therefore, they filed one frivolous suit for declaration and permanent injunction bearing RCS No. Page 8 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined 112 of 2009 and they have also filed criminal complaint complaint. It is furthe the case of the appelalnt that the appellant was field RCS No.209/2009 for specific performance of contract of agreement to sale dated 02.02.1994. It is also contended by the appellant that the respondents have never cultivated the land and they are not in possession and in spite of that they had made false statements in their suit. Thereafter, both the suits were tried and decided together and the learned 4th Additional Civil Judge has decreed the suit of the Respondent bearing RCS No.112 of 2009 and also RCS No.209 of 2009 is also challenged by way of present Second Appeal. Therefore, both the appeals are considered together as by and large, as the subject matter of the suit is similar as well as parties of the suit are also similar and therefore, both the appeals are decided by this common judgment. After hereinafter the parties, this Court is of the opinion that there is no substantial question of law emerges in any of the appeal, and, therefore, after hearing both the parties at the admission stage, the matter is taken up for final disposal.
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NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined 8.2 Accordingly, I have gone through the records available with the Court and also paper-book produced by the parties. I have also considered the submissions made at the bar. It transpires from the record that essentially, both the courts below have concurrently found that in Regular Civil Suit No.209 of 2009 filed by the appellant (Ramabhai Becharbhai Baraiya) against the respondents Sudhaben Vshnuprasad Gaur and Jigneshbhai Vishnuprasad Gaur is rejected, and Regular Civil Suit No.112 of 2009 filed by Sudhaben Vshnuprasad Gaur and Jigneshbhai Vishnuprasad Gaur against Ramabhai Becharbhai Baraiya is decreed. The document with respect to the suit property presented by the plaintiff of RCS No.209 of 2009 Vide exhibit 48 is cancelled by the impugned judgment and decree passed in RCS No.209 of 2009. The Court has rightly directed that while allowing the suit i.e. RCS No.112 of 2009 to demolish the illegal construction made by him on the suit property within one month from the date of the decree and he is further prohibited from raising any other construction or gaining any other undue benefits from the suit property and he is further injuncted from interfering in the suit property. This finding of the trial Page 10 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined court is also confirmed by the Appellate Court in both the appeals. Furthermore, it transpires that after completing pleadings of the parties i.e. plaint and written statement, the issues are framed at Exh.38 in paragraph 5 of the judgment of the trial court in the respective suits and findings are given. After recording evidence of the parties, the courts have come to the conclusion and accordingly, the final judgment and decree is passed, whereby one suit is dismissed and another suit is allowed. Thereafter, the two appeals i.e. Regular Civil Appeal Nos.19 of 2016 and 20 of 2016 are filed, which are also decided by the Appellate Court by the separate judgment dated 30.06.2018. It also transpires from the record that the in the respective appeal, the Appellate Court has framed the point of determination. 8.3.1 The points of determination as framed in paragraph nos.8 and 9 in Regular Civil Appeal No.19 of 2016 are as under:
"8. In view of the above facts and pleadings, following points emerges for the determination of this appeal.
(1) Whether the appellant proves that the judgment and Page 11 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined decree passed by the Ld. 4th Additional Civil Judge.
Ahmedabad (Rural) Mirzapur on 06/04/2016 in Regular Civil Suit No. 209/2009, is not within the purview of law? (2) Whether the appellant proves that the judgment and decree passed by the Ld. 4th Additional Civil Judge. Ahmedabad (Rural) Mirzapur on 06/04/2016 in Regular Civil Suit No. 209/2009, is perverse, capricious or erroneous? (3) Whether there is any requirement to interfere by this Court under Order-41, Rule-1 of Code of Civil Procedure ? (4) What order?
9. Reply of the above points for the reasons recorded herein are as under.
(1) In Negative.
(2) In Negative.
(3) In Negative.
(4) As per final order."
8.3.2 The points of determination as framed in paragraph nos.8 and 9 in Regular Civil Appeal No.20 of 2016 are as under:
"8. In view of the above facts and pleadings, following points emerges for the determination of this appeal.
(1) Whether the appellant proves that the judgment and decree passed by the Ld. 4th Additional Civil Judge, Ahmedabad (Rural) Mirzapur on 06/04/2016 in Regular Civil Suit No. 112/2009, is not within the purview of law?Page 12 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024
NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined (2) Whether the appellant proves that the judgment and decree passed by the Ld. 4th Additional Civil Judge, Ahmedabad (Rural) Mirzapur on 06/04/2016 in Regular Civil Suit No. 112/2009, is perverse, capricious or erroneous? (3) Whether there is any requirement to interfere by this Court under Order-41. Rule-1 of Code of Civil Procedure ? (4) What order?
9. Reply of the above points for the reasons recorded herein are as under.
(1) In Negative.
(2) In Negative.
(3) In Negative.
(4) As per final order."
8.4 Thereafter, the court has re-appreciated the evidence in totality and had come the conclusion that the appellants before the Appellate Court have no valid case on merits and therefore, both the appeals are dismissed. The Appellate Court and the trial court have discussed in detail; the evidence as well as pleadings of the parties. The documentary as well as oral evidence produced on the record of the parties are also discussed in paragraph 11 of the judgment given by the trial court. It transpires that the deposition of plaintiff No.2 is recorded at Exh.63 and the examination-in-chief of Page 13 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined handwriting expert - Vmakant Vallabhbhai Upadhyay at Exh.88 in RCS No.112 of 2009. There are several documentary evidence such as revenue record, etc. are also produced on record by way of documentary evidence from Exh.42 onward. The oral evidence on behalf of defendant in RCS No.112 of 2009 of Ramabhai Becharbhai Baraiya is exhibited at Exh.100. It also transpires that in RCS No.209 of 2009, the deposition of Ramabhai Becharbhai Baraiya at Exh.39, the deposition of witness - Babubhai Sakrabhai Baraiya at Exh.63. It also transpires that revenue record as well as documentary evidence such as copy of the agreement to sale, and reply given to concerned Police Station, are produced by way of documentary evidence by the parties in that suit. Thereafter, appreciating the pleadings of the parties, and appreciating the oral evidence, more particularly, Ramabhai Becharbhai Baraiya during his cross examination in RCS No.209 of 2009 at Exh.39 deposed that the plaintiffs are the owners of the suit property. The documents presented by the plaintiffs vide exhibit 42-46 show the name of the plaintiffs or the father of plaintiff no.2, which are sufficient enough to believe the case of the plaintiffs. The defendant in his Page 14 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined cross-examination(exhibit 39) in RCS 209 of 2009 deposed the land revenue of the suit property was paid by Vishnubhai Manilal Gaur till he was alive and after his death by his son Jigneshbhai Vishnubhai Gaur. During his cross-examination, he supported the case of the plaintiffs of RCS No.209 of 2009, but he failed to convince the court that how in the revenue record, the name of the plaintiff was continued if the property was purchased. It also transpires that Ramabhai Becharbhai Baraiya i.e. the defendant of RCS No.112 of 2009 deposed that the father of plaintiff no. 2 never cultivated the land by himself and he used to get it done through agricultural labourers. The whole record of the case and as issue No.1 is decided in favour of the plaintiffs in RCS No.112 of 2009 and issued No.1 of RCS No.112 of 2009 is decided against the plaintiff of RCS No.209 of 2009. It also transpires that Issue No.3, 5 of RCS 112 of 2009 (and issue no. 4 of RCS 209 of 2009), and issue no. 2 and 3 of RCS 209 of 2009, the court has dealt with the contention of the defendant that Late Vishnubhai Manilal Gaur father of plaintiff no. 2 transferred the whole of the suit property through a notarized agreement on a stamp paper of Rs.60 is not Page 15 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined maintainable as the document presented by the defendant Ramabhai Becharbhai Baraiya in RCS 209 of 2009 vide exhibit 48 is not genuine in itself. The defendant has failed to prove its genuineness to the satisfaction of the court and when the claim of one person is solely based on a document of, which authenticity is questionable then such issue can not be decided in favour of such person. The record of the case shows that there are two agreements to sale in favour of the defendant one on stamp of Rs.60 and another one on stamp of Rs.20, but the defendant did not bring on record original agreement to sale which was made on stamp paper of Rs. 20. The photocopy of such agreement to sale was presented by the plaintiff vide exhibit 54 in RCS 209 of 2009. The plaintiffs questioned the validity of document presented vide exhibit 48 in RCS 209 of 2009 and submitted that the father of plaintiff no.2 never performed such a contract with the defendant. The court below has considered the opinion of the hand writing expert Mr. U. V. Upadhyay, who was called as a witness by the plaintiffs and examined-in-chief of that witness for the plaintiffs vide exhibit 88 in RCS 112/2009. Page 16 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024
NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined 8.5 The advocate for the defendant did not prefer to cross-examine the above named expert and proceeded with the case. Further, The chief-examination (exhibit
88), opinion (exhibit 89), opinion subject to verification of the original documents (exhibit 90), reasons behind the opinion(exhibit 91) is produced, clearly supports the case of the plaintiffs in fulfledged.
8.6 The Court has believed that the plaintiff of RCS 209 of 2009 has failed to bring anything on record about the payment of consideration of Rs. 1,40,000 to vishnubhai Manilal Gaur with respect to the suit property. When the payment of sale consideration is alleged to have been paid by the cash then it is incumbent on the part of the party to satisfy the aspect of payment of such a huge amount by cash by producing necessary documentary evidence like passbook of the bank or the source of the said amount and, therefore, the trial court has rightly referred the decisions in cases of Dineshchandra Dhirajlal Gandhi V. Manubhai Kanjibhai Jhalavadia and Anr. reported in [2009] 20 G.H.J. (414) and Khimjibhai Harjivanbhai Patadia V. Patel Govindbhai Bhagvanbhai and Ors. reorted in [2006] Page 17 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined 4 G.L.R. 3058 that where the fact of payment of sale consideration paid by cash is seriously disputed by the one party and the other party has not produced anything to show that whether he has withdrawn the said amount from any bank account or he has borrowed any amount from anyone and no corresponding documentary evidence in form of income tax return is finding place on record in connection with the said payment. The similar view is also taken by this Court in the case of Harshadkumar Kantilal Bhalodwala and Anr. V. Ishwarbhai Chandubhai Patel and Ors. reported in 2010 (1) G.L.H. 131. Therefore, the Court has after considering the documentary evidence vide Exh.54 and 48 found that it do not mention about the room at the suit property. The Court has considered the other issues like issue No.6; the plaintiffs' suit is proved by the contentions of the plaintiffs and also by the documents produced on record by the plaintiffs. Therefore, the Court has after considering the preponderance of probabilities, has come to the conclusion that suit property belongs to the plaintiffs only and on which the defendant has no legal right, title and interest. The defendant used to work as an agricultural labourer in the property of the plaintiffs. Page 18 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024
NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined There was no contract of sale between the deceased late Vishnubhai Manilal Gaur and the defendant Mr. Ramabhai Becharbhai Baraiya as the defendant failed to prove the same to the satisfaction of this court. The Court has relied on the decision of the Hon'ble Supreme court in case of Narayan Ganesh Dastane V. Sucheta Narayan Dastane reported in AIR 1975 SC 1534. It is observed in that decision that the normal rule, which governs the civil proceeding is that it is proved by preponderance of probabilities. The Appellate Court after scanning the judgment of the trial court in detail and after re-appreciating the entire evidence had come to the conclusion that there are certain admissions which are made by the contesting respondent - Mr. Ramabhai Becharbhai Baraiya, who is plaintiff of RCS 209 of 2005 also. The Appellate Court has also discussed in detail about the stamp papers and also handwriting, which is submitted to the Kanabha Police Station, which are exhibited at Exh.53 and 54.
8.7 The Appellate Court, after careful analysis of the contents of documents at Exh.54, opines that it contains identical and similar facts regarding sale of land bearing Page 19 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined Survey No.755 and Block No.602 and the sale amount is of Rs.1,40,000/- and the said writing has been executed on 13/12/1998. The contents of writing at Exh.54 itself negatived the execution or writing of the document at Exh.48. If such writing at Exh.48 could have been executed on 02.02.1994, then there would be no question to execute such similar subsequent writing on 13.12.1998 for same part of the land. The original plaintiff has also admitted that writing executed on 02.02.1994 is on stamp paper of Rs.60/- while writing executed on 13.12.1998 is on stamp paper of Rs.20/-. He has also admitted that he has not produced such writing made on stamp paper of Rs.20/- in the suit. Therefore, the authenticity of writing produced at Exh.48 is certainly doubtful and on the basis of such suspicious and doubtful document at Exh.48, the facts of settled peaceful and legal possession of the original plaintiff cannot be believed. The Court has also scrutinized the deposition of the witness - Babubhai Shakarabhai at Exh.63 wherein he has supported the case of the original plaintiff through his examination-in-chief, but in his cross- examination he has deposed that he has no idea about who is original owner and he has admitted that deceased Page 20 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined Vishnuprasad Manilal Gaur was owner and he does not know where the said writing was typed. He has further stated on oath that the said writing was made at the house and it was not executed in other place. From such admission it is established that the same has not been duly executed before the Notary Public and possibility cannot be ruled out that the witness signed the said writing not before the Notary Public. From the deposition of the said witness, it clarly creates serious doubt and suspicion emerges regarding genuineness of writing at Exh.48.
8.8 The Appellate Court has also discussed the pleadings of the parties in detail and has come to the conclusion that the genuineness of the document at Exh.48 is really doubtful. The Appellate Court has also perused the deposition of the handwriting expert - Mr. U.V. Upadhyay at Exh.88 and the opinion, which is produced with other documentary evidence. 8.9 It is noted by both the courts below that the learned advocate for the defendant did not prefer to cross-examination the above-named handwriting expert Page 21 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined and proceeded with the case.
8.10 The Appellate Court has also not believed the story of the appellant that the deceased - deceased Vishnuprasad Manilal Gaur he was in need of money and therefore he agreed to sale the suit lands to him. But, after examining the oral as well as documentary evidences adduced and produced by the parties, it becomes clear that the appellant before the Appellate Court has not produced any substantial evidence which can substantiate his story that the original owner of the deceased Vishnuprasad Manilal Gaur was in need of money for performing the marriage of his daughter. 8.11 All the issues are discussed in detail by the lower Appellate Court, and the lower Appellate Court has rightly come to the conclusion after appreciating the evidence in detail and after considering various aspects of the mater by considering the pleadings of the parties. 8.12 The lower Appellate Court has also come to the conclusion that there are several admissions made by the witnesses, which go against the case of the Page 22 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined appellants and the appellants have failed to prove his case, more particularly, the respondents have successfully established their case by leading cogent evidence. the lower Appellate Court has rightly dismissed both the appeals filed by the appellants.
8.13 In view of above-mentioned discussions, I found that there is no error committed by the courts below. The courts below have rightly appreciated the pleading of the parties, and rightly construed the provisions of law in view of the material available on the record. The court has rightly given the cogent and convincing findings. The trail court has rightly framed the issues involved in the suit proceeding by giving cogent and convincing findings on such issues. The Appellate Court has also framed proper points of determination by considering the provisions of Order 41 Rule 31 of the C.P.C. and also re-appreciating the material and evidence in detail in the judgment. Therefore, the view which is taken by the courts below are possible view and also in accordance with the provisions of law and also in consonance with the material available on the record. Therefore, I found no perversity or illegality in any of Page 23 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined the findings given by Appellate Court, neither of the said finding can be said to be baseless or illegality and therefore, no question of law is involved, more particularly, substantial question of law emerges. 8.14 The scope of Section 100 of the Civil Procedure Code is fruitful to refer, which is as under:
"Section 100.
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 Page 24 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined 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.
STATE AMENDMENT Kerala.
In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely:
(d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question."
8.15 I am of the view that both the courts below have found concurrently against the present appellant and the concurrent findings of fact are not required to be disturbed, more particularly, where there is no apparent error, which is pointed out by the appellant, which requires any further consideration under Section 100 of the C.P.C.
8.16 It is also required to refer the recent judgment of the Hon'ble Apex Court in the case of Gurbachan Singh (Dead) Through Lrs. vs. Gurcharan Singh (Dead) Through Lrs and Others reported in (2023) SCC OnLine Page 25 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined SC 875, more specifically, paragraph 7, 14 & 15 are relevant, as under:
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala6( 2 Judge Bench), it was observed:
"27. In HeroVinoth v. Seshammal [HeroVinoth v. S eshammal, (2006) 5 SCC 545] , this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para
21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not Page 26 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined 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. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (192728) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 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. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v.
Century Spg. & 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 [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : Page 27 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024
NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] , AIR p. 1318, para 5) '
5. ... 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 law.'
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)
14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgement entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised Page 28 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024 NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:
" (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
15. A Bench of three learned Judges, recently in Balasubramanian and Anr. v. M. Arockiasamy (Dead) Through LRs., had referred to, with approval judgement rendered in Ramathal v. Maruthathal & Ors (twoJudge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity" the court will be justified in interfering with such findings."
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NEUTRAL CITATION C/SA/386/2018 ORDER DATED: 04/03/2024 undefined 8.17 In view of the above judgment, and taking into account the above-mentioned discussions, I am of the opinion that the present Second Appeal is not require to be considered as from the materials, no substantial question of law is emerging and, therefore, I am of the view that the present Second Appeal is required to be dismissed as the learned advocate for the appellant has failed to established his case, which requires any consideration under Section 100 of the C.P.C. Therefore, the present Second Appeal is found meritless.
9. Resultanlty, the present Second Appeal is dismissed.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 30 of 30 Downloaded on : Thu Mar 07 20:38:26 IST 2024