Punjab-Haryana High Court
Kishori Lal vs Babu Ram And Ors. on 22 November, 2002
Equivalent citations: (2003)134PLR54
Author: Vijey Mittal
Bench: Viney Mittal
JUDGMENT Vijey Mittal, J.
1. The present appeal has been filed by Kishori Lal-Plaintiff appellant (hereinafter referred to as 'the plaintiff) against the judgment and decree dated January 28, 1980 passed by the learned Additional District Judge, Patiala and whereby the appeal filed by the defendant Babu Ram was partly accepted.
Certain facts may be noticed.
2. A suit for permanent injunction was filed by Kishori Lal plaintiff for restraining defendant No.1 from alienating or transferring or interfering in the possession and use of the Pahi one Karam wide and Khal 112 Karam wide shown in the heading of the plaint. The plaintiff pleaded that he and defendants No.1 and 2 were real brothers and Nanti Devi defendant No.3 was the wife of the plaintiff. The plaintiff and defendant No.1 were separately cultivating their land as per their share. The parties had executed an agreement dated December 24, 1974, whereby Babu Ram defendant No.1 had agreed to allow the Khal and Pahi to the plaintiff and defendants No.2 and 3. Plaintiff and defendant No.2 and 3 had already been using the Pahi and Khal even prior to the agreement. Vide the aforesaid agreement, they had put the aforesaid arrangement into writing. Since defendant No.1 was bent upon to alienate the Khal and Pahi and enter in possession of the land, therefore the present suit was filed.
3. The defendant Babu Ram appeared upon notice of the suit having been issued to him. He contested the claim of the plaintiff. As per the defendant, the plaintiff and defendant No.1 and 3 were cultivating the land separately, but the execution of the aforesaid agreement was denied. Although it was denied that he wanted to alienate the land but, still, he maintained that he has every right to use the Pahi and Khal. The maintainability of the suit was also contested. The defendant even took the stand that the land under the Pahi and Khal was owned exclusively by him.
4. The learned trial Court decreed the suit filed by the plaintiff. The defendant Babu Ram felt aggrieved. He filed an appeal before the learned First Appellate Court. The aforesaid appeal was partly accepted by the learned Additional District Judge, Patiala, vide judgment and decree dated January 29, 1980. The learned First Appellate Court modified the judgment and decree passed by the learned trial Court and restrained the defendant from interfering in the use of Pahi and Khal in dispute by the plaintiff-respondent otherwise than in due course of law. Now the plaintiff has felt aggrieved and approached this Court through the present Regular Second Appeal.
5. At the outset Shri C.B. Goel, learned counsel for the appellant, has pointed out that judgment of the First Appellate Court is legally perverse in as much as, it had misread and mis-interpreted the document Exhibit P-1, and therefore, following substantial question of law was involved in the present Regular Second Appeal:-
"Whether the findings recorded by the Lower Appellate Court, are legally sustainable or can be termed perverse in view of the fact that there is a mis-reading and mis-interpretation of the document Exhibit P-1 ?"
6. Shri C.B. Goel, learned counsel for the appellant has argued that the learned First Appellate Court has mainly based its findings on the interpretation of the document Exhibit P-1, by holding that the said deed was an exchange deed and therefore, required compulsory registration and since it was not registered, therefore, as per Shri Goel, it was only after ruling out of the consideration of the aforesaid document, the learned First Appellate Court has reversed the judgment of the learned trial court. Shri Goel maintains that in fact the said document Exhibit P-l dated December 24, 1974 was not an exchange deed but was merely a memorandum of exchange and therefore, the same was not required to be compulsorily registered. Shri Goel further pointed out that in Punjab even an oral exchange was permissible in as much as the provisions of Section 118 of the Transfer of Property Act had not been made applicable and as has been held by a Division Bench of this Court in 1974 P.L.J. 341 Sardara Singh and Anr. v. Harbhajan Singh and Ors., that since the aforesaid provision has not been extended to the State of Punjab, therefore, even an oral exchange was permissible and as such the question of registration of any such document did not arise.
7. I have given my thoughtful consideration to the entire matter and have also perused the record of the case. I have also perused the document Exhibit P-1, the agreement, which is bone of contention between the parties. Although the Courts below have also held it as a fact that the said document was duly executed between the parties, however, the Lower Appellate Court has completely mis-read the aforesaid document and held it to be an exchange deed. As a matter of fact the said document was only a memorandum of exchange, which was entered into between the parties. The aforesaid misreading of the document and consequential mis-interpretation thereof has clearly resulted in the findings, which cannot be legally sustained and can be termed as judicially perverse, necessitating interference by this Court in the present Regular Second Appeal.
8. Even otherwise as has been noticed by a Division Bench of this Court in Sardara Singh's case (supra), the provisions of Section 118 of the Transfer of Property Act have not been extended to the State of Punjab. In these circumstances, oral exchange is permissible in Punjab, Thus even if it be taken that the aforesaid document Exhibit P-1 was an exchange deed, therefore, still the same did not require any compulsory registration in as much as when the oral exchange was permitted in the State of Punjab then the aforesaid document could not be required to be compulsorily registerable. In these circumstances, ruling out of consideration of the aforesaid document on the ground of its non-registration by the learned First Appellate Court has resulted in findings which are completely vitiated.
9. The Hon'ble Supreme Court of India in the case of Kulwant Kaur and Ors. v. Gurdial Singh Mann and Ors., (2001-2)128 P.L.R. 492 (S.C.), has observed as follows :-
"Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record at 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-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial 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:
Since I have already come to the conclusion that the findings recorded by the learned First Appellate Court are judicially perverse, therefore, the same cannot be legally sustained and call for interference by this Court in the present regular Second Appeal."
10. In this view of the matter, I have no hesitation in accepting the present appeal and while setting aside the judgment and decree of the First Appellate Court, I restore that of trial Court and decree the suit filed by the plaintiff. No costs.