Himachal Pradesh High Court
Suresh Kumar vs Nabita Kumari And Ors on 29 August, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 325 of 2017
Date of decision: 29 th August, 2017
.
Suresh Kumar .....Appellant
Versus
Nabita Kumari and ors. .....Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? 1 No
For the appellant: Mr.Naveen K. Bhardwaj,
Advocate.
For the respondents: Nemo
Tarlok Singh Chauhan, Judge (Oral)
The plaintiff is the appellant, who has lost in both the courts below, and aggrieved by the impugned judgments and decrees so concurrently passed against him has preferred the instant appeal primarily on the ground that the findings recorded by the learned courts below are perverse inasmuch as the pleadings as also the evidence have not been appreciated in its right perspective.
1Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 2
2. However, before adverting to such submission, it would be necessary to consider the case of the parties.
3. The plaintiff filed a suit for declaration to the .
effect that the sale deed dated 8.7.2013 executed by defendant No.4 in favour of defendant No.1 be declared null and void with consequential relief for permanent prohibitory injunction against the defendants. It was claimed that the land comprised in Khasra No.1131/443, Khewat No.70/70, Khatauni No. 75/77 measuring 00-00-30 hectare, situated in Village Darkalag, III Bhadrota, Tehsil Sarkaghat, District Mandi was in the joint ownership and possession of the plaintiff and defendant No.4. The defendant No.4 without any legal necessity, consent and permission of the plaintiff executed a sale deed of his share from the suit land in favour of defendant No.1 vide registered sale deed dated 8.7.2013. It was further averred that there was a joint shop -cum-house of the plaintiff over the suit land and the plaintiff built the shop and three storeyed house and also built up another room, the construction of which was not complete and pillars as well as two side walls were also constructed by the plaintiff and the back wall was also half built which was also in the possession of the plaintiff and adjoining to this room one ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 3 Smt. Shakuntla Devi had also constructed one room of the house -cum-shop over the adjoining of this portion of the suit land. The defendants without the right, title and interest .
under the ownership and possession of the plaintiff over the suit land as well as also in the possession of Smt. Shankuntla Devi, who was the sister of the plaintiff and wante d to take forcible possession of the suit land and raise construction over the suit land, which has been made by the plaintiff for which the defendants had got no right, title and interest and sale deed was wrong illegal and void.
4 It is further averred that the suit land is joint Hindu coparcenary and ancestral property of the plaintiff and defendant No.4 has got no right to dispose of the suit land without the consent and permission of the plaintiff.
Defendants No. 1 to 3 are nowhere related to the plaintiff nor they belong to the same kinship and they are strangers to the suit land. The plaintiff made several request to the defendants to desist from their wrongful course of activities and not to interfere in the joint possession of the suit land, but the defendants paid no heed to the request of the plaintiff and started interfering over the suit land. It is further submitted that on 12.11.2013 defendants finally refused to ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 4 admit the claim of the plaintiff and made attempt to dispossess him from the suit land by arranging number of persons to take forcible possession of the suit land. Hence, .
the suit.
5. The defendants contested the suit by filing written statement taking therein preliminary objections regarding maintainability, cause of action, court fees, jurisdiction and suppression of material facts. On merits, it was submitted that defendant No.4 has rightly executed the sale deed in favour of the defendant No.1 and since then defendant No.1 is owner in possession of the house constructed on the portion of the suit land. It was denied that defendant No.1 has purchased the house consisting of single storey and defendant No.1 is residing in that house right from the date of purchase of that house. Defendant No.4 has rightly executed the sale deed in favour of the defendant No.1 and the mutation of the sale deed has been attested in favour of defendant No.1 and since then defendant No.1 is residing in that house. Defendant No.4 has rightly sold the suit land to the extent of his share allotted to him in a family arrangement, whereupon he had constructed his house and this fact was in the knowledge of the plaintiff. The possession ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 5 of the house constructed over the suit land has rightly been delivered to defendant No.1 and defendant No.4 has rightly put defendant No.1 in possession of that house which was .
allotted to defendant No.4 in family arrangement.
6 In the replication, the plaintiff controverted the contentions of the defendants and reiterated his stand taken in the plaint. Besides, it was averred that the house was constructed by the plaintiff and the house was never sold to the defendants and no such arrangement as alleged by the defendants was made.
7 On the pleadings of the parties, the learned trial court on 10.7.2014 framed the following issues:-
1. Whether the sale deed dated 8.7.2013 is liable to be declared as null and void and not binding on the right of the plaintiff, as prayed for?
2. Whether the plaintiff is entitled for the possession of suit land, in case defendants take forcibly possession during the pendency of the suit, it addition to above relief, as prayed for?
3. If plaintiff proved above mentioned issues then whether the plaintiff is entitled for relief of permanent prohibitory injunction against the defendants as prayed for?
4. Whether the plaintiff has no cause of action to file the pre sent suit, as alleged?
5. Whether the plaintiff is guilty of suppresso veri, if so its effect, as alleged?
6. Whether the suit of the plaintiff has not been properly valued for the purpose of Court fees and jurisdiction, as alleged?::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 6
7. Whether the suit of the plaintiff is bad for mis joinder and non -joinder of necessary parties, as alleged?
8. Relief.
.
8. After recording the evidence and evaluating the same, the learned trial court dismissed the suit so filed by the plaintiff vide judgment and decree dated 1.4.2016 and the appeal preferred against the said judgment and decree also came to be dismissed by the learned first appellate court vide judgment and decree dated 18.4.2017 constraining the plaintiff to file the instant appeal.
9. It r is vehemently argued by Mr. Naveen K. Bhardwaj, Advocate, that the findings recorded by the learned courts below being perverse cannot be sustained and thereafter deserve to be quashed and set aside.
10. I have heard the learned counsel for the plaintiff and have also gone through the impugned judgments and decrees passed by the learned courts below.
11. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 7"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed .
that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English -
International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New We bster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 8 PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 .
SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal can not be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with th e order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
(SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 9 "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the .
respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re -appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant r material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
12 What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 10 to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
13 What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph -11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 11 doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has .
to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent- defendants to establish otherwise has been found to be totally non -acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement.
::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 12PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact.
Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278 -79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 13 a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are .
not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a su bstantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section
100."::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 14
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law .
as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case 6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] ,Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 :
::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 15AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of .
perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
14 Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court's entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it ::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 16 is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
.
15. Judged in the light of aforesaid exposition of law, it would be noticed that the plaintiff has sought declaration assailing therein the sale deed executed by defendant No.4 in favour of defendant No.1 to be null and void with consequential relief of permanent injunction against the defendants, but the moot question is as to how and under what provisions of law the suit could have been filed by the plaintiff. As admittedly defendant No.4 being co-sharer was entitled and had right to sell the suit land so long as he did not exceed his share therein. It has specifically come in the evidence that there was a family arrangement, wherein the land in dispute fell to the share of defendant No.4 who had constructed the house over the same and if that be so, then obviously, no fault can be found in the impugned judgments and decrees rendered by the learned courts below whereby they dismissed the suit of the plaintiff questioning his right and locus to file the suit as the plaintiff has no legal right to institute the suit.
::: Downloaded on - 01/09/2017 23:25:57 :::HCHP 1716. On a pointed query by this Court, the plaintiff was not in a position to justify his legal right that entitled or furnished a valid and justifiable cause of action to file the .
suit, obviously therefore, the suit was not maintainable and the same has rightly been dismissed by the learned courts below.
17. Having said so, no question of law much less substantial question of law arises for consideration in this appeal and the same is accordingly dismissed in limin e, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
August 29, 2017 (Tarlok Singh Chauhan)
(pankaj) Judge
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