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2006 DIGILAW 3417 (PNJ)

Arjan Singh v. Thakar Singh

2006-09-01

RANJIT SINGH

body2006
JUDGMENT RANJIT SINGH, J. 1. Concurrent findings of fact recorded by the courts below are under challenge in this second appeal pending since 1982. 2. Thakar Singh and Sadha Singh respondent-plaintiffs (in the present appeal) had filed a suit for possession of 1/2 share of land measuring 137 kanals 18 marlas as detailed in the head note of the plaint. The case set up by them was that Mukhtiar Singh and Nawab Singh (respondents No.3 and 4-and defendants No.1 and 2 in the suit respectively) were owners in possession of the land to the extent of 1/2 share each. Said Mukhtiar Singh had given general power of attorney to Piara Singh (respondent No.5- and defendant No.3 in the suit). This attorney was registered on 30.5.1968. On the basis of this attorney, Piara Singh sold 1/2 share in the suit land for a consideration of Rs.30,000/- to respondent- plaintiffs Thakar Singh etc. vide registered sale deed dated 13.6.68. It was claimed that the respondentplaintiffs thus continued to be in symbolical possession as owners. It was further claimed that Arjan Singh, Hashnak Singh and Kashmir Singh (defendants No.4, 5 and 6 respectively) along with Amrik Singh and Ajit Singh (defendants No.7 and 8 respectively) had taken forcible possession of the suit land in collusion with Mukhtiar Singh and Nawab Singh defendants and started alleging themselves to be owners of the suit land. Appellantdefendants were asked to admit the claim of the respondent-plaintiffs, which they refused and hence the suit for possession was filed. 3. The suit was contested by the appellant-defendants No.4, 5 and 7) whereas the other defendants referred to above were proceeded exparte. The appellants, who were contesting defendants, had taken a stand that they had purchased the suit land from Mukhtiar Singh (defendant No.1) through a registered sale deed dated 21.4.78 for a consideration of Rs.49,800/-. It was their case that they had purchased this land after making proper inquiry from the revenue record and, accordingly, even if there be an earlier sale in favour of the respondent-plaintiffs, the appellants were protected under Section 41 of the Transfer of Property Act. They had further averred that the sale in favour of the respondent- plaintiffs was fictitious and, accordingly, urged that they were estopped from filing the suit. After filing of replication, the trial followed on the following issues:- 1. They had further averred that the sale in favour of the respondent- plaintiffs was fictitious and, accordingly, urged that they were estopped from filing the suit. After filing of replication, the trial followed on the following issues:- 1. Whether the plaintiffs are the vendees of the suit land from defendants No.1 ?OPP. 2. Whether the defendants No.4 to 8 purchased the suit land from defendant No.1, if so, its effect ?OPD. 3. If issue No.2 is proved whether the defendants are protected under Section 41 of the Transfer of Property Act? OPD. 4. Whether the sale-deed in favour of the plaintiffs is fictitious ?OPD 5. Whether the plaintiffs are estopped from filing the present suit ?OPD 6. Relief. 4. Six witnesses were examined on behalf of the respondentplaintiffs and they were Dalip Singh (PW1), Chanchal Singh (PW2), Prem Kumar (PW3), Som Parkash (PW4), Kashmir Singh (PW5) and Dalip Singh (PW6). In addition, receipts Ex.P1 and Ex.P2 dated 7.8.68 and general power of attorney Ex.P3 and so also copy of the sale deed Ex.P4 was produced in evidence. Ex.P4/A was an endorsement of the Sub Registrar and Ex.P5 was a copy of the jamabandi. Appellant-defendants, on the other hand, examined four witnesses in their defence, namely, Harnek Singh (DW1), Mohan Singh (DW2), Amir Singh (DW3) and Satpal Gupta (DW4) besides tendering Ex.D1 and Ex.D2, which were the copies of the sale deeds and an agreement of sale Ex.D3 along with khasra girdawari etc. 5. The trial court on analysis of evidence came to the conclusion that the respondent-plaintiffs were vendees of the suit land from Mukhtiar Singh, who was defendant No.1 in the suit. It was further found by the trial Court that the sale deed in favour of the appellant-defendants was dated 17.2.76 whereas the respondent-plaintiffs had purchased the suit land from defendant No.1 Mukhtiar Singh in the year 1968. It was, accordingly, held that defendant No.1 had already sold his share of land to the respondentplaintiffs in the year 1968 and as such he could not possibly sell the same property to the appellant- defendants in the year 1976. Subsequent sale in favour of the defendant-appellants was, accordingly, found to be having no effect as the respondent-plaintiffs were the earlier vendees. Subsequent sale in favour of the defendant-appellants was, accordingly, found to be having no effect as the respondent-plaintiffs were the earlier vendees. On the issue of the appellant-defendants being protected under the provisions of Section 41 of the Transfer of Property Act, it was found by the trial court that they had not taken reasonable pre- caution or a care and hence found that they were not protected under the said provisions. Appeal was filed against the order of the trial Court, which was dismissed by the first appellate Court. First appellate Court found that there was not much challenge to the power of attorney given by Mukhtiar Singh respondent-defendant No.1 in favour of Piara Singh respondent- defendant No.3 and also the sale deed. The Court further found that execution of sale deed Ex.D2 in favour of the appellants would not give them any right as the sale deed in favour of the respondentplaintiffs was prior in time. It was further held that no evidence had been adduced to show if the appellant-defendants had made any inquiry from the office of Sub Registrar about the sale in favour of the respondent-plaintiffs and as such their plea of protection under Section 41 of the Transfer of Property Act was found to have been rightly negatived by the trial court. The appellants are in appeal against the said finding of the trial court as well as of the first appellate Court. 6. It is noticed that no substantial question of law has been formulated by the appellants in this appeal, which is pending since 1982. The sole submission made before me by the counsel for the appellants was that the appellants were protected under the provisions of Section 41 of the Transfer of Property Act as before buying the land, they had made reasonable inquiries by checking the revenue record where Mukhtiar Singh (respondent- defendant No.1) was shown to be owner of the land. Counsel would further contend that the finding of the first appellate Court that the appellants should have made inquiries from the office of Sub Registrar amounts to stretching the things too far. In essence, the counsel wants this Court to re-appreciate the evidence and hold that the appellants had taken sufficient precaution before buying the property. Counsel has not been able to point out any substantial question of law that would arise in the present appeal. In essence, the counsel wants this Court to re-appreciate the evidence and hold that the appellants had taken sufficient precaution before buying the property. Counsel has not been able to point out any substantial question of law that would arise in the present appeal. This appeal, as such, is liable to be dismissed on this short ground. It has been consistently held by the Hon’ble Supreme Court in various cases that interference by High court under section 100 CPC is permissible in cases involving substantial question of law. Findings of facts arrived at by the trial Court and affirmed by the first appellate Court can not be interfered by the High court in second appeal. In a recent decision in the case of Gurdev Kaur and ors Vs. Kaki and Ors. J.T. 2006 (5) S.C.72. The Hon’ble Supreme Court has analysed the position of law in this regard and has held:- “The analysis of cases decided by the Privy Council and this court prior to 1976 clearly indicated the scope of interference under Section 100 CPC by this court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of fact.” Supreme Court also held:- “Now after 1976 amendment, the scope of Section 100 CPC has been drastically curtailed and narrowed down. The High Court would have jurisdiction to interfere under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended Section specifically incorporates the words “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that the legislature never wanted second appeal to become ‘third trial on facts’ or one more dice in the gamble. The language used in the amended Section specifically incorporates the words “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that the legislature never wanted second appeal to become ‘third trial on facts’ or one more dice in the gamble. The effect of the amendment mainly according to the amended Section was:- (i)The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii)The substantial question of law to precisely state such question; (iii)A duty has been cast on the High court to formulate substantial question of law before hearing the appeal; (iv)Another part of the Section is that the appeal shall be heard only on that question.” 7. No submission has been made in regard to substantial questions of law that would arise in the present case. Counsel has not made any submission before me if any evidence was on record or it was misread by the courts below or that the finding in this regard is in any manner perverse. The only submission made by the counsel was that expecting the appellants to make inquiries from the office of Sub Registrar was not called for to see if they were protected under the provisions of Section 41 of the Transfer of Property Act. That would be a question of fact required to be appreciated on the basis of evidence led on record. It is in essence a prayer for reappreciation of evidence by this Court. Otherwise also, I do not find any question of law that would arise in this case. Accordingly, the present appeal deserved to be dismissed on this ground alone. Otherwise also, the trial court as well as first appellate court had returned a positive finding of fact that the present appellants had not taken any precaution or due care and had not acted in good faith while getting the sale deed registered as they had made no inquiries from the office of Sub Registrar about the earlier sale. The Courts had rightly found that the sanctioning of mutation was the function of the revenue authorities on the basis of the sale deed and as such would not be an evidence of the ownership. The Courts had rightly found that the sanctioning of mutation was the function of the revenue authorities on the basis of the sale deed and as such would not be an evidence of the ownership. It was also found as a matter of fact that the appellants had led no evidence to show if they had made any inquiries from the office of Sub Registrar about the sale. Thus, this aspect virtually remains a matter relating to appreciation or re-appreciation of evidence and does not require any interpretation in regard to the provisions of Section 41 of the Transfer of Property Act. Nothing was argued in any manner before me in regard to the manner and the requirement that would be essential to see the applicability of the provisions of Section 41 of the Transfer of Property Act. To repeat, it may be stated that the counsel had only argued that the appellants were not required to make inquiries from the office of Sub Registrar to seek protection under the provisions of Section 41 of the Transfer of Property Act. To my mind, there is no legal infirmity in the finding of fact recorded by the Courts below and, accordingly, I would dismiss this appeal even otherwise also. The present appeal is, accordingly, dismissed leaving the parties to bear their own costs.