Gujarat High Court
Laljibhai Dhanjibhai VaghelaDecd. & vs Shamjibhai Dhanjibhai Vaghela & 3 on 15 February, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SA/29/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 29 of 2015
With
CIVIL APPLICATION NO. 3197 OF 2015
In
SECOND APPEAL NO. 29 of 2015
With
CIVIL APPLICATION NO. 652 OF 2016
in
CIVIL APPLICATION NO. 3197 OF 2015
=========================================================
LALJIBHAI DHANJIBHAI VAGHELADECD. & 1....Appellant(s) Versus SHAMJIBHAI DHANJIBHAI VAGHELA & 3....Respondent(s) ========================================================= Appearance:
MR NIRAD BUCH, ADVOCATE for NANAVATY ADVOCATES, ADVOCATE for the Appellant(s) No.11.4 , 2 MS ARCHANA R ACHARYA, ADVOCATE for the Respondent(s) No.1 4 ========================================================= CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 15/02/2018 ORAL COMMON ORDER
1. The present Second Appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 23.12.2003 passed by the learned Additional Civil Judge, (Senior Division) Gondal in Regular Civil Suit No. 128 of 1999 and also against the judgment and order dated 05.01.2015 passed by the learned 11 th Additional District Judge, Gondal in Regular Civil Appeal No. 31 of 2007.Page 1 of 22
HC-NIC Page 1 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER
2. The brief background of present Second Appeal is that the appellants original plaintiffs have filed a suit in the Court of learned Additional Civil Judge, (Senior Division), Gondal which was registered as Special Civil Suit No. 128 of 1999 against the defendants i.e. defendant no. 1 is the father, defendants nos. 2 and 3 are the real brothers and defendants nos. 4 and 5 are the sistersinlaw, who happened to be wives of defendants nos. 2 and 3. Essentially, the suit was filed for the purpose of seeking partition of the ancestral property of defendant no. 1 who is the father of the plaintiffs and consequential relief is sought to set aside the registered sale transaction which took place on 16.10.1999 executed by the father i.e. defendant no. 1 in favour of the sistersinlaw i.e. defendants nos. 4 and 5.
2.1. The suit was based upon a further fact that there are ancestral properties amongst the siblings of defendant no. 1. i.e. the father of the plaintiffs and as many as seven survey numbers mentioned in para 2.4 of the memo of the Second Appeal are the ancestral properties in the hands of defendant no. 1. With respect to this, the original revenue entry no. 353 was mutated on 03.09.1970. It has been submitted that out of the aforesaid survey numbers which are mentioned, vide entry no. 386 on 20.07.1972, plaintiff no. 1 had received land to the extent of 3 Acres 26 Gunthas from Survey No.56/2 which is the ancestral property and a further land out of Survey No. 95/1, which is a self acquired property of defendant no. 1 i.e. the father to the extent of 2 Acres 8 Gunthas. Similarly, plaintiff no. 2 has also received a parcel of land to the extent of 3 Acres 26 Gunthas and 2 Acres 9 Gunthas respectively. It is further the say of the plaintiffs that subsequently, in the year 1989 defendants nos. 2 and 3 received 2 Acres 16 Gunthas of land from Survey No. 45/1 on 01.04.1989 to which the entry is effected as Entry No. 721 and Entry No.722 dated 01.04.1989. Both these defendants i.e. defendants nos. 2 and 3 have share from Survey Page 2 of 22 HC-NIC Page 2 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER No.48/P. By contending that from the ancestral property in the hands of defendant father, there was no distribution taken place. Resultantly, claiming 1/5th share from the ancestral property, the suit was brought before the Court which has been registered as Regular Civil Suit No.128 of 1999.
2.2. Upon receipt of summons, the defendants appeared and filed a common written statement at Exhibit18, inter alia contending that Survey No. 95/1 was self acquired property of the defendant no. 1. father and Survey No. 48 was also forming part of the ancestral property, but the same was purchased by way of registered deed in the name of defendants nos. 2 and 3 since they were minor at the relevant point of time i.e. on 08.10.1975. The defendants have disputed the claim of the plaintiffs and specifically contended that the father has already partitioned the property and gave the share to both these plaintiffs way back in the year 1992 and they are enjoying the possession of the said parcel of land.
2.3. The said suit was set for adjudication in which plaintiff no. 2 has entered into witness box whose testimony was recorded at Exhibit31 and by way of application at Exhibit32 a request was made to given exhibit numbers to the entire revenue records and since there was no objection, the same was taken on record and exhibit numbers were given. Of course, there was no objection with regard to the factum of entry, but since the documents were not original, the same were requested not to exhibit on record. As a result of which, on 22.07.2003, the application was rejected. Later on after adjudication of entire trial of the suit and after considering the testimony of respondent no. 2 i.e. defendant no. 2 who entered into the witness box at Exhibit38, the learned trial Judge, considering the evidence on record found no case in favour of the plaintiffs. Resultantly, by Page 3 of 22 HC-NIC Page 3 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER judgment and order dated 23.12.2003, the suit was dismissed.
2.4. Feeling aggrieved and dissatisfied with the said judgment, the original plaintiffs i.e. the present appellants have submitted Regular Civil Appeal No. 31 of 2007 which came up for consideration before the learned Additional District Judge, Gondal, who in exercise of jurisdiction under Section 96 of the Code of Civil Procedure was pleased to dismiss the same by judgment and order dated 05.01.2015 and it is against these concurrent decisions of both the Courts below, by invoking jurisdiction of this Court under Section100 of the Code of Civil Procedure, the present Second Appeal was brought before the Court.
3. The appeal was initially entertained by this Court by issuing notice on 01.04.2015 by further directing to maintain statusquo with regard to the disputed property and thereafter, the matter has travelled till date and on 17.01.2018 the Second Appeal was taken up for hearing in which, learned advocate Mr. Nirad Buch appearing for Nanavaty Advocates has represented the present appellants - original plaintiffs and learned advocate Ms. Archana Acharya has represented respondents nos. 1 to 4 and with this background, the Second Appeal is heard at length.
4. Learned advocate Mr. Buch appearing for the appellants has submitted that no doubt, the present Second Appeal is directed against the concurrent decisions of the Courts below, nonetheless there appears to be a clear error and misconception on the part of the Courts below that the revenue entries are creating no right, title or interest in favour of the litigant and by misdirecting themselves, both the Courts below relied upon the revenue entries and pass the orders, which in no way are sustainable in the eye of law. Learned advocate Mr. Buch has contended that in the year 1972 what has been given to the original Page 4 of 22 HC-NIC Page 4 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER plaintiffs i.e. the present appellants, is the share from the property, but not by way of partition and amongst the family members the partition has never taken place of ancestral property and therefore, learned advocate Mr. Buch has contended that in absence of any partition which took place, the holding of the portion of the land by the plaintiffs cannot be treated as holding as a consequent partition. It has been contended by learned advocate Mr. Buch that it is the settled position of law that the revenue entries are merely having fiscal value and are not generating any right, title or interest in favour of the party and keeping these principles in mind, if bare perusal of the orders below are to be seen, the same would run counter to this well founded proposition of law. As a result of this, the conclusion arrived at by the Courts below is perverse and contrary to the settled position of law and since based upon this, the orders are passed, the same are suffering from vice of nonapplication of mind as well.
4.1. Learned advocate Mr. Buch has further contended that the main question which is tried to be considered by this Court in the present Second Appeal is whether partition can be presumed or inferred on the basis of the mutation entries which are reflecting in the revenue records. In this context, learned advocate Mr. Buch has relied upon two decisions delivered by this Court in the case of First Appeal No. 1188 of 2009 dated 08.04.2011 and another decision delivered by the Apex Court in the case of Yellapu Uma Maheshwari & Anr. v. Buddha Jagadheeswararao & Ors., reported in (2015) 16 SCC 787 and yet another decision is pressed into service is in the case of Ramesh Verma (Dead) Through Legal Representatives v.
Lajesh Saxena (Dead) by Legal Representatives & Anr., reported in (2017) 1 SCC 257. To these decisions, the Court will deal with at appropriate time and at appropriate stage in the present order and by referring to these decisions, learned advocate Mr. Buch has contended Page 5 of 22 HC-NIC Page 5 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER that the orders passed by the Courts below are required to be set aside.
4.2. Learned advocate Mr. Buch has further contended that the entire dispute is of Entry No. 386 which is mutated on 20.02.1972 in which there is no word 'partition' which is reflecting and, therefore, simply because the father at the relevant point of time has entrusted the portion of the land, the same cannot be treated as by way of partition and, therefore, this misconception of effect of the entry is also a serious error committed by both the Courts below in exercising jurisdiction. Resultantly, the present Second Appeal deserves consideration, hence requested to entertain and the reliefs prayed for may kindly be granted. No other submissions have been made.
5. To meet with the stand taken by learned advocate Mr. Buch, learned advocate Ms. Archana Acharya has vehemently contended that the father during his lifetime has distributed the portion of the lands including the ancestral land as far as possible equally and that again after his partition in fact. It has been contended by learned advocate Ms. Acharya that there is no conversion of partition in the hindu law as a result of which, once the partition has taken place, the parties have acted upon it, enjoyed the benefit of such distribution of lands, now cannot reagitate the claim of further partition and, therefore, both the Courts below have rightly appreciated the case of the applicants and having found no substance, the orders are justifiably passed.
5.1. Learned advocate Ms. Acharya has further contended that here is a case wherein there is no writing nor any agreement has taken place and as such there can be oral partition which is not unknown for the litigant who are Hindus and it has further been contended that to interfere and to ascertain whether partition has taken place or not, these revenue entries are relevant for consideration for such Page 6 of 22 HC-NIC Page 6 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER ascertainment and, therefore, there is no error committed by the learned trial Judge in considering the revenue record which is pressed into service. Learned advocate Ms. Acharya has further contended that right from the year 1992, after securing a parcel of land, not only from the self acquired property of the defendant father, but from the ancestral property as well, after enjoying such size of big land to the extent of 5 Acres approximately, now the plaintiffs have come forward to seek further partition of land from the respondents i.e. the original defendants and this conduct itself is rightly considered by the Courts below and no case is made out by the appellant - plaintiffs.
5.2. It has also been contended that a bare look at the revenue entries which are to be considered with respect to Entry No. 386 dated 20.02.1972 when the portion of land is given to both the plaintiffs from Survey No. 95/1, (self acquired) and from Survey No. 56/2 (ancestral), even the family members have also not resisted and so much so that the sisters consent have also been accepted and thereafter, the entry came to be certified, which is very much reflecting from paper book compilation, which has been submitted and pressed by learned advocate Ms. Acharya. By referring to this, it has been contended that simply because the word 'partition' is not reflecting in the said revenue entry, it cannot be presumed that no partition has taken place. On the contrary, the very fact that the sisters agreement is taken down and reflecting of revenue entries, the same is presupposes that the land has been partitioned by the father which fact is not possible to be denied by the present appellants, as a result of this, the Second Appeal being devoid of merit, the same deserves to be dismissed.
5.3. In addition to this, learned advocate Ms. Acharya has vehemently submitted that the conduct of the party is also very much relevant to presume the partition. In fact defendant no. 1 has entrusted the parcel Page 7 of 22 HC-NIC Page 7 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER of land to both these plaintiffs way back in the year 1972 and all throughout till filing of the suit, there was no resistance on the contrary, they enjoyed their portion of land, which came in their hands rather, some part of the land is sold away in cash and thereafter has come forward to claim further right from the land which is no longer in existence, on the contrary, by accepting the portion of land from the self acquired as well as ancestral property in the hands of the father, they have relinquished their right of partition and further as such here is a case in which both the Courts below have examined the case of the appellants in detail and there is no reason for making any further inquiry of fact. It has been contended by learned advocate Ms. Acharya that the questions of law which have been tried to be formulated cannot be said to be the questions of law and as a result of this, the Second Appeal deserves to be dismissed. In fact, it has been contended that what has come in the hands of defendants nos. 3 and 4 is by way of the registered sale transaction and that is also with respect to self acquired property of defendant no. 1 and as such there is no irregularity of any nature reflecting from a bare reading of the orders.
5.4. To substantiate her contention, learned advocate Ms. Acharya has further drawn attention of the Court to the relevant portion of chart which is reflecting at page 16, internal page 11 of the order, which indicates that practically equal portion of land as far as possible is distributed by defendant no. 1 father. By drawing attention to the said chart, learned advocate Ms. Acharya has submitted that both these plaintiffs i.e. plaintiffs nos. 1 and 2 have got 5 Acres 34 Gunthas and 5 Acres 35 Gunthas of lands respectively, out of, not only self acquired property of defendant no. 1 and from the ancestral property as well. Resultantly, when equal distribution as far as possible is reflecting, there is no earthly reason why the plaintiffs have come forward to seek further partition. In fact, after indicating their portion of land, the Page 8 of 22 HC-NIC Page 8 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER plaintiffs have made an attempt to excavate something more, which is otherwise not possible. It has been contended by learned advocate Ms. Acharya that both the Courts below have assigned adequate reasons, and there is no infirmity nor any perversity reflecting from the orders passed by the Courts below as a result of this, looking to the scope of Section 100 of the Code of Civil Procedure, this is not a case in which any interference is possible. Hence, requested the Court not to entertain this Second Appeal.
5.5. To strengthen her case further, learned advocate Ms. Acharya has relied upon the following decisions which at appropriate stage will be dealt with in case of necessity. The said decisions are ; In the case of E. Mahbood Saheb v. N. Sabbarayan Chowdhary & Ors., reported in AIR 1982 SC 679.
In the case of Krishnand (Dead) Through Legal Representatives & Ors., v. Deputy Director of Consolidation and Ors., reported in (2005) 1 SCC 553.
In the case of AzeezSait dead by Lrs., & Ors. v. Aman Bai & Ors., reported in (2003) 12 SCC 419.
In the case of Chauhan Dajiji Baldevji v. Pithuji Galabji Chauhan reported in 2011 (1) GLR 870 In the case of Ajambi (Dead) by Legal Representatives v. Roshanbi & Ors., reported in (2017) 11 SCC 544.
In the case of Ramchandra Pandurang Sonar (Deceased) Through his Heirs and Legal Representatives & Ors. v. Murlidhar Ramchandra Sonar & Ors., reported in (1990) 4 SCC 45.
In the case of Bhagwati Prasad Sah & Ors. v. Dulhin Page 9 of 22 HC-NIC Page 9 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER Rameshwari Kuer & Anr., reported in AIR 1952 SC 72.
In the case of Narendra Gopal Vidyarthi v. Rajat Vidyarthi reported in (2009) 3 SCC 287 In the case of Om Prakash v. Shanti Lal & Ors., reported in 2014 SCC Online P&H 2858 In the case of Jagir Singh v. Amarjit Singh & Anr., reported in AIR 2004 P&H 51.
In the case of Kesharbai alias Pushpabai Eknathrao Nalawade (D) by L.Rs & Anr., v. Tarabai Prabhakarrao Nalawade & Anr., reported in AIR 2014 SC 1830.
In the case of Parminder Singh v. Gurpreet Singh reported in AIR 2017 SC 3601.
In the case of Dagadabai (Dead) v. Abbas @Gulab Rustum Pinjari reported in 2017 (5) Scale 22.
5.6. By referring to these decisions, learned advocate Ms. Acharya has requested to dismiss the Second Appeal at the outset.
6. Having heard the learned advocates appearing for the respective parties to the proceedings and having gone through the reasons which are assigned by the Courts below and in consideration of the decisions which have been cited, the following circumstances are not possible to be unnoticed by this Court.
6.1. The case which has been pleaded by the original plaintiffs in the trial Court has been examined throughly as it is clearly visible from the order and by framing issues, the evidence at length has also been discussed and examined and based upon such a categorical finding is arrived at that the plaintiffs herein have secured the lands not only Page 10 of 22 HC-NIC Page 10 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER from the ancestors but self acquired property of defendant no. 1. The learned trial Judge has disbelieved the case of the plaintiffs and has submitted that the grievance raised with respect to partition is not possible to be accepted.
6.2. Further, a specific contention is derived from the revenue record that on 20.02.1972 lands admeasuring 5 Acres 34 Gunthas and 5 Acres and 35 Gunthas respectively have been given to defendants nos. 1 and 2 and thereafter the left out portion, defendant no. 1 has dis invested and right from February, 1972 the plaintiffs are enjoying their portion of land which has been given.
6.3. It has also been found from the testimony of the relevant witnesses that on account of sudden ailment, there was a huge outstanding loan on the lands in question and with a view to come out from the debt, the wives of defendants nos. 2 and 3 have given the lands by way of sale agreement which is a registered sale document. Th said lands have been given by way of registered sale document dated 16.10.1999 and by virtue of the said registered sale transaction, the portion which has been sold is in occupation by defendants nos. 4 and
5. The overall evidence which has been mentioned is leading to the conclusion by the learned trial Court that the original plaintiffs have been given the portion of the lands not only from the ancestral, but from the self acquired property as well.
6.4. The learned trial Court based upon such examination and conclusion have also found that since there was a deemed opposition by the plaintiffs that since the sisters have relinquished their right they have not been examined, as a result of this, no case was found by the learned trial Court in favour of the appellants.
Page 11 of 22HC-NIC Page 11 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER 6.5. On the basis of the said conclusion, the appellants - plaintiffs have filed Regular Civil Appeal No. 31 of 2007 in which also, appeal under Section 96 of the Code of Civil Procedure has been dealt with by the learned appellate Judge in the manner in which the First Appeal is required to be dealt with. Even independent issues have been framed for consideration by the learned appellate Judge and the said appeal Court being the final Court of fact has also independently examined the evidence at length. It has also been categorically observed by the learned appellate Judge that in the Hindu Undivided Family the coparceners have accepted their portion of land of the original plaintiffs in the year 1972, and other defendants nos. 2 and 3 in the year 1989 their remains no Hindu Undivided family and with respect to the possession of land which came in the share of male members and they have become independent owners with respect to that property and after analyzing the entire evidence and after considering the concept of partition prevailing under the hindu law, keeping in view the decisions delivered by the Apex Court even the learned appellate Judge has found no case in favour of the plaintiffs.
6.6. It appears from the order passed by the learned appellate Judge that in addition to the documentary evidence, even the testimony of the plaintiffs at Exhibit31 is considered and when it has been found that when the land has been entrusted to the original plaintiffs, defendants nos. 2 and 3 were minor and when after accepting their portion of land, when the plaintiffs have disassociated themselves from the family with respect to the property in question, there is no other reason where different conclusion can be derived.
6.7. It has also been found by the learned appellate Judge that by virtue of Entry No. 386 the factum of partition is very much possible to be interfered with and it was found that there is no error committed by Page 12 of 22 HC-NIC Page 12 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER the learned trial Judge.
6.8. In addition thereto, it has also been noticed by the learned appellate Judge that with respect to Survey No. 53/2 even an application was also given for converting the agricultural land into non agricultural on 18.06.2011 and on that day, the Taluka Development Officer has also passed an order of conversion. By virtue of such exercise of power and in view of the other relevant documents, the learned appellate Judge found that there is no violation of any order passed by the Court and, therefore, the application for breach of order at Exhibit10 was also not accepted. The overall consideration and the examination of the material led to a situation where even the learned appellate Judge has also specifically found that with respect to the lands in question, segregation has taken place and there is no infirmity of any nature in the order passed by the Courts below.
6.9. The overall conclusion as stated herein above appears to have been based upon not only on the sound reasons but also based upon the material on record including the documentary evidence and the conclusion arrived at by both the Courts below is based upon such analysis of evidence and also in consonance with the proposition of law laid down by the Apex Court in this regard. As a result of this, exfacie, there appears to be no perversity or any irregularity in the orders passed by the Courts below.
7. The Court has taken up this Second Appeal as found no merit as a result of that, since no other independent substantial questions of law are framed, except one which has been stated herein above, in view of the decisions delivered by the Apex Court in the case of - reported in Hari Narayan Bansal vs. Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Palam reported in (2015) 16 SCC 540, the Court has Page 13 of 22 HC-NIC Page 13 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER not framed any other independent substantial questions of law since apparently, the Second Appeal found to have no substance and, therefore, without framing substantial questions of law independently, the Second Appeal is examined by the Court. Such proposition as observed by the Apex Court in the aforesaid decision is reproduced hereinafter :
"3. In our opinion, a substantial question of law is not required to be framed if the High Court decides to dismiss the second appeal at an admission stage. Only in a case where the second appeal is admitted or is decided finally by allowing the same, a substantial question of law is required to be framed by the High Court. In the instant case, no substantial question of law was involved in the second appeal and therefore, the High Court had rightly dismissed the second appeal at the admission stage by passing the impugned order. We, therefore, see no reason to entertain this petition."
7.1. Now, in the context of the aforesaid situation which is prevailing on record, when it is emerging clearly that both the Courts below have arrived at a conclusion concurrently looking to the scope contained under Section 100 of the Code of Civil Procedure, this Court is not in a position to make any rowing inquiry of fact which is not permissible and as such keeping in view the well founded decision delivered by the Apex Court in the case of Syeda Rahimunnisha vs. Malan Bi (dead) by Lrs. and Anr., reported in (2016) 10 SCC 315, the Second Appeal found to be devoid of merit. The relevant observations which are kept in mind by the Court are reproduced hereinafter, more particularly para 26 :
"26. Again in the case of Thiagarajan And Others vs. 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:Page 14 of 22
HC-NIC Page 14 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER "17. Subsection (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 subsection 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 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. To say the least the approach of the High Court was not proper. It Page 15 of 22 HC-NIC Page 15 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER 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". (emphasis supplied)".
7.2. A further fact is also taken note of by this Court that the present Second Appeal is directed against the concurrent decisions of both the Courts below and has held by the Apex Court in the case of Syeda Rahimunnisha (supra), this Court under Section 100 of the Code of Civil Procedure, is not in a position to dwell much into the factual findings arrived at by the Courts below. Even the Court found that the law which has been indicated in the order passed by the learned trial Court is sufficient enough to indicate that there appears to be no substantial questions of law and hence, in absence of any perversity or material irregularity, this Court is not in a position to set at naught the concurrent findings of fact.
7.3. What is substantial question of law is well spelt out by the Apex Court in the case of Kashmir Singh v. Harmam Singh and Anr., reported in AIR 2008 SC 1749. The extract of the said decision is reproduced herein after.
"15. To be substantial 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 Page 16 of 22 HC-NIC Page 16 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER 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."
8. Considering the aforesaid situation which is prevailing on record of the present case, this Court is of the considered opinion that no case is reflecting in favour of the appellants and the Second Appeal found to be devoid of merit.
9. In the context of the aforesaid situation which is reflecting from the record as found by the Court, now to deal with the decisions which have been pressed into service by the learned advocates for the respective parties, the Court is bound to consider, as a result of this, the same are dealt with hereinafter.
9.1. Learned advocate Mr. Buch has submitted that the decision dated 08.04.2011 passed in First Appeal No. 1188 of 1999 with a view to overcome that the revenue entries can never be said to be conclusive proof of title of ownership as stated above that it is the settled position of law that the revenue entries are not creating absolute title or is a conclusive proof to this proposition, there can be no dispute at all and in respectful agreement to this proposition, however, this Court is of the opinion that for the purpose of determining and ascertaining the possession of some right, the said revenue entries will have a guiding effect as well. Herein in this case, which has been cited, a controversy with regard to the suit in which permanent injunction was sought and Page 17 of 22 HC-NIC Page 17 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER declaration to the effect that the sale transaction which has taken place on 29.04.2002 to be held as illegal and devoid. Now in the context of that circumstance and the relief, the Apex Court has examined the case of the respective sides in that proceedings and as observed that the revenue entries can never be set to be conclusive proof of title or ownership and as such the background of fact of that case and the case on hand is quite different from what has been stated and reflected here.
9.2. A further decision which has been relied upon is the decision in the case of Yellapu Uma Maheshwari (supra) and by referring to this, the contention is tried to be strengthen that the revenue entries would not confirm any title. The said proposition as stated is not rather debatable at all, but it is the settled position of law that if there is slight change in the fact, even one change of fact will make a world of difference in applying the precedent. On the basis of this proposition if the facts of this which has been referred to be take note of, it appears that the controversy was relating to the document whether to be taken in evidence is admissible if such is requiring compulsory registration and therefore, by formulating two issues, the Apex Court was examining the case which was pressed, the following are the questions which have been formulated by the Apex Court :
"The issues that fall for consideration by the Supreme Court in the present appeal are : (i) Whether the Courts below were right in holding that Exts. B21 and B22 are not admissible in evidence as they are compulsorily registrable documents? And (ii) Whether Exts. B21 and B22 are admissible in evidence for collateral purpose?"
9.3. Now in this background of fact, the ambit of Section 17(1) (b) of the Registration Act was analyzed by the Apex Court and ultimately it has been held that the documents which were center of controversy in the said litigation since are compulsorily registrable documents and Page 18 of 22 HC-NIC Page 18 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties as a result of this, the Apex Court has clearly opined that these documents which were not registered documents cannot form or admissible for the purpose of proving primary purpose of partition. However, it has been stated in para 16 of the said decision that if the appellant defendants want to make those documents for collateral purpose it is open for them to pay stamp duty together with penalty and for collateral purpose those documents can be relied upon. Now if this proposition of law laid down by the Apex Court in the said decision, how far this can substitute the say of the learned advocate appearing for the appellants, as a result of this, with respectful agreement of said proposition laid down in the case of Yellapu Uma Maheshwari (supra) the Court is of the considered opinion that the same cannot apply in the case on hand where the controversy is altogether different and such ratio cannot be applied as straightjacket formula as a result of this, the decision which has been pressed into service by the learned advocate for the appellants is not amenable.
9.4. Yet another decision is tried to be pressed into service is in the case of Ramesh Verma (supra). However, as stated earlier, the background of the said facts are also quite different as a result of which, if that agreement of principles with the proposition, it is not possible for this Court to apply in the background of the present case. Hence, the decisions pressed into service are of no avail to the learned advocate for the appellants.
10. Now in the context of these decisions which are pressed into service by learned advocate Ms. Acharya appearing for the opponents, she has first relied upon the decision of the Apex Court and contended that this is an appeal against the concurrent decisions of findings of Page 19 of 22 HC-NIC Page 19 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER fact and in view of the decision delivered by the Apex Court in the case of E. Mahbood Saheb (supra) and in the case of Krishnanand (Dead) Through Lrs. (supra), the Court may not exercise the jurisdiction under Section 100 of the Code of Civil Procedure. Having gone through the said decisions pressed into service by learned advocate Ms. Acharya, the Court is in respectful agreement with the said proposition of law and would also like to rely upon yet another decision of the recent time in the case of Dagadabhai (Dead) (supra) and in the case of Parminder Singh (supra) and considering this law laid down by the Apex Court, the Court is also of the opinion that here is also a almost a similar circumstance that the Second Appeal is running against the concurrent decision of findings of fact and it has not appeared to this Court that the first appellate Court not acted as a final Court of fact. In fact, the first appellate Court has also examined the merit of the case of the appellant and has come to the conclusion that no case is made out. As a result of this, in complete agreement with the proposition of law laid down by the Apex Court in the aforesaid decisions, the Court deemed it proper not to dislodge the findings arrived at by the Courts below.
10.1. In addition thereto, a further contention is raised with regard to onus and thereby has contended that the burden to prove that the suit property as not self acquired is on the plaintiffs independently to be discharged and the said burden cannot be shifted upon the defendants and here also, whether the property is self acquired or joint family property is basically a question of finding of fact which cannot be interfered with once the appellate Court has also independently examined the issue. Detailed analysis of these decisions which are in bunch supplied to the Court are not dealt with in detail as the proposition of law laid down by the Apex Court is not in conflict at all.
As a result of this, the binding effect of the said decisions will not have Page 20 of 22 HC-NIC Page 20 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER to be reconsidered by this Court and accordingly, in respectful agreement the said proposition of law laid down by various decisions, bunch of which is supplied to the Court, the Court is of the opinion that here on case on hand, the findings arrived at by the Courts below are not possible to be dislodged and as per the discussion made herein above, the case is not such in which any interference is possible. While coming to this conclusion that the first appellate Court has applied its mind, the Court is recollecting one another proposition of law laid down by the Apex Court on the issue of Section 100 of the Code of Civil Procedure that the findings of fact of first appellate Court being the last Court of fact, normally no interference is to be made and the said proposition is reflecting in the decision in the case of Ganeshi v.
Ashok reported in 2011 (15) SCC 417. The relevant extract of the said decision is reproduced hereinafter since is relied upon : "11. In second appeal, the High Court has set aside the judgment of the first appellate court and restored the judgment of the trial court. In our opinion, the judgment of the High Court cannot be sustained. It is well settled that the High Court in second appeal cannot interfere with the findings of fact of the first appellate court.
13. We have carefully perused the judgment of the first appellate court which was of the last court of facts and we are of the opinion that the findings of fact given by it are based on relevant evidence. Hence, the High Court was not justified in interfering with those findings."
11. Resultant effect of the aforesaid discussion would lead this Court to a conclusion that this is not a fit case in which Section 100 of the Code of Civil Procedure is to be invoked, in absence of any perversity or manifest error. Accordingly, the Second Appeal found to be devoid of Page 21 of 22 HC-NIC Page 21 of 22 Created On Thu Feb 15 23:59:31 IST 2018 C/SA/29/2015 ORDER merit, the same is dismissed with no order as to costs.
12. Since the Second Appeal is disposed of, the Civil Applications for stay as well as for vacating interim relief does not survive and the same stand disposed of accordingly.
13. At this stage, learned advocate for the appellants requests the Court to grant some time by keeping the present order under suspension for some time, however, in view of the peculiar set of circumstance and in view of the fact that since the Second Appeal is found to be devoid of merits, the Court is not inclined to accede to such request. Hence, the request is rejected.
(A.J. SHASTRI, J.) /phalguni/ Page 22 of 22 HC-NIC Page 22 of 22 Created On Thu Feb 15 23:59:31 IST 2018