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2014 DIGILAW 81 (CHH)

ARJUNLAL THROUGH v. SHIV GOVIND

2014-02-21

SANJAY K.AGRAWAL

body2014
JUDGMENT 1. For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit. 2. This is an appeal by the legal representatives of defendant No.1 Budhram under Section 100 of the Code of Civil Procedure, 1908 (henceforth 'the Code, 1908') questioning the legality and validity of judgment and decree dated 30-8-1997 passed by 1st Additional District Judge, Bilaspur in Civil Appeal No.28-A/96 partly modifying the judgment and decree dated 19-12-1990 passed by 2nd Additional Civil Judge Class-II, Bilaspur in Civil Suit No.II-A/90. 3. Original plaintiff Jhaduram, who died during pendency of the first appeal, filed the civil suit for possession of the scheduled suit land and for mesne profits stating inter alia that he purchased the suit property by a registered sale-deed dated 14-3-1960 (Ex.P-1) on payment of a consideration for Rs. 1,000/- and obtained possession of the scheduled suit land. It was further pleaded that original defendant No.1 Budhram dispossessed him from the suit property leading to filing of the suit. 4. Original defendant No.2 Ramsanehi obtained a loan of Rs. 1,000/- from original plaintiff Jhaduram and executed the sale-deed dated 14-3-1960 (Ex.P1) as a security for the loan. Whereas, the case of original defendant No.1 Budhram is that he pm-chased the scheduled suit property from original defendant No.2 Ramsanehi upon payment of a consideration of Rs. 5,000/- on 23-3-1965 (Ex.D-1) and obtained possession over the scheduled suit property and, therefore, the suit deserved to be dismissed. Original defendant No.2 Ramsanehi filed written statement stating inter alia that he had obtained a loan from the plaintiff Jhaduram as he was in need of money and had executed the sale-deed dated 14-3-1960 (Ex.P-1) in favour of Jhaduram and he also questioned the alleged sale-deed dated 23-3-1965 (Ex.D-1) executed by him in favour of defendant No.1 Budhram. 5. The trial Court, by its judgment and decree dated 19-12-1990, decreed the suit of the plaintiff finding inter alia that defendant No.2 Ramsanehi had sold the suit land to plaintiff Jhaduram by the registered sale-deed dated 14-3-1960 (Ex.P-1) and the sale-deed dated 23-3-1965 (Ex.D-1) was not a sale-deed executed for the loan. Defendant No.2 Ramsanehi had not sold the suit property in favour of Budhram on 23-3-1965 (Ex.D-1). Defendant No.2 Ramsanehi had not sold the suit property in favour of Budhram on 23-3-1965 (Ex.D-1). The trial Court found that the plaintiff was entitled for a decree for possession and mesne profits from the year 1970 and that an inquiry was required to be conducted in respect of rent/mesne profits which the plaintiff was entitled for. 6. Original defendant No.1 Budhram preferred the appeal under Section 96 of the Code, 1908 challenging the judgment and decree passed by the trial Court. He died during pendency of the first appeal and his legal representatives were brought on record. The first appellate Court, by the impugned judgment and decree dated 30-8-1997, partly allowed the appeal finding inter alia that the sale-deed dated 14-3-1960 (Ex.P-1) executed by Ramsanehi in favour of Jhaduram is a real sale-deed and not executed for security of the alleged loan. However, the first appellate Court held that the plaintiff would be entitled for mesne profits from the date of institution of the suit till the delivery of possession. 7. Feeling dissatisfied with the judgment and decree of the first appellate Court affirming the judgment and decree of possession and mesne profits from the date of institution of the suit, the legal representatives of defendant No.1 Budhram has filed the instant appeal under Section 100 of the Code, 1908. 8. This Court, by the order dated 3-2-1998, has framed the following substantial questions of law: "(1) Whether under the facts and circumstances of the case the finding recorded by the Courts below that the disputed property was sold by Ramsanehi to Jhaduram, is perverse? (2) Whether the respondents/plaintiffs were entitled to claim mesne profits from the date of filing of the suit?" 9. Shri Rajeev Shrivastava, learned counsel appearing for the appellants/ legal representatives of defendant No.1 Budhram would submit that the concurrent finding recorded by the two Courts below holding that the scheduled suit land was sold by original defendant No.2 Ramsanehi to original plaintiff Jhaduram is perverse and based on no evidence. He would further submit that the finding of the first appellate Court that the plaintiff is entitled for mesne profits from the date of institution of the suit is bad in law. 10. He would further submit that the finding of the first appellate Court that the plaintiff is entitled for mesne profits from the date of institution of the suit is bad in law. 10. Shri B.L. Dembra, learned counsel appearing for respondents No.1 to 5/1egal representatives of original plaintiff Jhaduram would submit that the finding recorded by the two Courts below that the scheduled suit land was sold by defendant No.2 Ramsanehi to original plaintiff Jhaduram is a concurrent finding of fact based on the evidence on record. He would further submit that though the relief claiming mesne profits was inserted by amendment dated 10-1-1989, the said amendment would relate back to the date of institution of the suit, i.e., 11-1-1971 and, therefore, the plaintiff would be entitled for the mesne profits from the date of institution of the suit and thus, both the substantial questions of law be answered in favour of the plaintiff. 11. I have heard and considered the rival submissions and have perused the record of the two Courts below with utmost circumspection. Answer to First Substantial Question of Law : 12. The trial Court has clearly recorded a finding that defendant No.2 Ramsanehi had executed the sale-deed in favour of plaintiff Jhaduram on payment of the consideration of Rs. 1,000/- on 14-3-1960 (Ex.P-1). It has further been held that defendant No.2 Ramsanehi did not clearly state as to the pm1iculars of the loan before the trial Court and, therefore, the sale-deed dated 14-3-1960 (Ex.P-1) is not a sale-deed but is a document executed for security of the loan has not been found established. 13. On the appeal being preferred, the first appellate Court has also, considering the nature of transaction between the parties, held that the sale-deed dated 14-3-1960 (Ex.P-1) is a real and real sale-deed executed by defendant No.2 Ramsanehi in favour of plaintiff Jhaduram. The concurrent finding recorded by the two Courts below cannot, by any stretch of imagination, be said to be based on no evidence as the sale-deed dated 14-3-1960 (Ex.P-1) is a document duly registered and proved by the plaintiff and as such, I do not find any infirmity or perversity requiring interference by this Court. 14. Moreover, recently, in Vishwanath Agrawal, S/o Sitaram Agrawal Vs. 14. Moreover, recently, in Vishwanath Agrawal, S/o Sitaram Agrawal Vs. Sarla Vishwanath Agrawal , (2012) 7 SCC 288 , the Supreme Court held that the High Court should not disturb a concurrent finding of fact unless the finding recorded is perverse being based on no evidence. Paragraphs 36 and 37 of the report read thus: "36. In Major Singh Vs. Rattan Singh, (1997) 3 SCC 546 : AIR 1997 SC 1906 , it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhan Vs. Manikrao, (1999) 3 SCC 573 , it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem Vs. Karnataka Electricity Board, (2007) 14 SCC 138 : AIR 2008 SC 956 ." 15. In view of the foregoing, I hereby affirm the concurrent finding recorded by the two Courts below and the first substantial question of law is accordingly answered in favour of the plaintiff. Answer to Second Substantial Question of Law : 16. Original Plaintiff Jhaduram filed the suit only for possession before the trial Court on 11-1-1971. Later on, the suit was amended and the relief of mesne profits was inserted by order of the trial Court dated 10-1-1989. The trial Court by its judgment and decree dated 19-12-1990 granted the decree for possession and held that the possession of original defendant No.1 Budhram being illegal, the plaintiff is entitled for the mesne profits till the restoration of possession after due inquiry under clause (c) of sub-rule (1) of Rule 12 of Order 20 of the Code, 1908. The trial Court by its judgment and decree dated 19-12-1990 granted the decree for possession and held that the possession of original defendant No.1 Budhram being illegal, the plaintiff is entitled for the mesne profits till the restoration of possession after due inquiry under clause (c) of sub-rule (1) of Rule 12 of Order 20 of the Code, 1908. On appeal by defendant No.1 Budhram, the first appellate Court set aside the judgment and decree of the trial Court making part modification and holding that the plaintiff would not be entitled for a decree of mesne profits prior to the date of institution of the suit and he would be entitled for mesne profits from the date of institution of the suit. It is this decree granting mesne profits is challenged by defendant No.1 Budhram stating that the plaintiff is not entitled for any mesne profits. 17. Clause (c) of sub-rule (1) of Rule 12 of Order 20 of the Code, 1908 runs thus: "12. Decree for possession and mesne profits.-(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree- xxxxx xxxxx xxxxx (c) directing an inquiry as to rent or mesne profits from the institution of the suit until- (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs." 18. The aforesaid provision would show that the period for which the rule permits a decree for mesne profits to be passed commences on the date the suit is instituted. The question which remains to be answered is as to when this period comes to an end, that is what is the meaning of the expression 'the date of the decree'. It is firmly established that a decree passed by the trial Court merges in the decree of the appellate Court and it is only the decree of the appellate Court which is operative. 19. Hence, in the case at hand, the decree to be operative shall be the decree to be drawn-up in terms of the judgment in the second appeal. 19. Hence, in the case at hand, the decree to be operative shall be the decree to be drawn-up in terms of the judgment in the second appeal. Thus, as provided under clause (c) of sub-rule (1) of Rule 12 of Order 20 of the Code, 1908, the plaintiff would be entitled for mesne profits from the date of the institution of the suit and (i) till the delivery of possession to him or (ii) till the relinquishment of possession by the judgment-debtor with a notice to him through the Court or (iii) till the expiration of three years from the date of the appellate decree, i.e., the decree to be drawn-up in terms of the judgment in the instant appeal, whichever event out of the three occurs first. As the decree of the trial Court merges in the decree of the appellate Court, the meaning of the expression 'the date of the decree' would be 'the date of the decree of this Court'. The second substantial question of law is accordingly answered and in favour of the plaintiff. 20. Consequently, the appeal deserves to be and is hereby dismissed. No order as to costs. 21. A decree be drawn-up in terms of the above judgment. Appeal Dismissed.