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Madhya Pradesh High Court · body

2017 DIGILAW 118 (MP)

Lakhvindar Kaur v. Gurudwara Prabandhak Committee

2017-01-23

S.K.AWASTHI

body2017
JUDGMENT 1. Appellant/defendant is aggrieved by rejection of appeal preferred under section 96 of Code of Civil Procedure (hereinafter referred to as 'CPC') vide judgment dated 12.5.2016 passed by Additional District Judge, Sheopur in Civil Suit No.35-A/2015 whereby the judgment and decree dated 9.12.2009 pronounced by Civil Judge Class 1, Sheopur in Civil Suit No.8A-/2006 has been affirmed. 2. The subject matter of instant second appeal is the validity of the sale deed dated 23.1.1999 by which the land bearing Survey No.389/1 in village Premsar, District Sheopur has been conveyed in favour of appellant/defendant. 3. The facts leading to filing of instant appeal are that the respondents/plaintiffs resolved in the year 1979 to constitute a committee named as “Jai Sikh Samaj and Gurudwara Prabandhak Committee”, Premsar and it was decided by the committee to construct a Gurudwara. In order to achieve such objective, the land in question was gifted by its owners namely Manjeet Singh and others vide registered deed dated 27.2.1980, in the name of Gurudwara Prabandhak Samitti, in which the name of defendant-Santosh Singh is reflecting as a manager of the said committee. It is further born out from the record that from 23.1.1999, defendant No.1-Santosh Singh executed a sale deed to transfer the land in question in favour of his wife/appellant. The committee upon gathering knowledge about such transfer of land, passed a resolution on 25.8.2002 and authorized the plaintiffs to file a suit seeking declaration that the sale deed dated 21.1.1999, is null and void with consequential reliefs of permanent injunction and possession. 4. The suit preferred by the members of the committee was allowed and a decree was drawn in favour of the committee while declaring the sale deed dated 21.1.1999 as null and void. Further, it was directed to handover the possession of the land in question. Such judgment and decree was challenged by filing an appeal under section 96 of CPC, although the first appellate Court did not find any illegality in the judgment and decree and thereby affirmed the same. Having suffered the adverse orders passed by Courts below, the appellant came before this Court for setting aside of the judgment and decree pronounced by the Courts below. 5. Having suffered the adverse orders passed by Courts below, the appellant came before this Court for setting aside of the judgment and decree pronounced by the Courts below. 5. Learned counsel for the appellant addressed this Court on the substantial questions of law emerging from the facts of the case regarding which it is submitted that the judgment and decree passed by the Courts below are contrary to law for which much emphasize has been laid down on the non-registration of the committee. It is submitted that the suit itself was not maintainable at the behest of the unregistered society/committee. This submission has lead to another submission that the plaintiffs were not authorized to file the suit. In order to bring home these submissions, the learned counsel for the appellant has placed reliance on the judgments Illachi Devi (dead) by Lrs. and others v. Jain Society, Protection of Orphans India and others, reported in (2003)8 SCC 413 and Kalyani Mitra v. Hindu Milan Mandir and others, reported in 1988 MPLJ 284 . 6. In the context of the submissions addressed by the appellant and proposed substantial questions of law, this Court perused the record and is of the opinion that this appeal does not give rise to any substantial question of law on which the appeal could be admitted and taken forward. Before adverting to the reason for this observation, it is appropriate to refer the judgment of Hon'ble apex Court in the case of Syeda Rahimunnisa v. Malan Bi (dead) by legal representatives, reported in (2016) 10 SCC 315 , in which the apex Court has explained the scope of interference and has indicated the distinction between question of law and a substantial question of law. 25. A three-Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari, speaking through R.C. Lahoti J (as His Lordship then was) examined the scope of section 100 of CPC in detail and laid down the following propositions in paras 9, 10, 12 and 14 as under: (SCC pp. 185-88) “9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. 185-88) “9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, Panchugopal Barua v. Umesh Chandra Goswami and Kondiba Dagadu Kadam v. Savitribai Sopan Gurjar). 10. At the very outset we may point out that the memo of second appeal filed by the appellant-plaintiff before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on “substantial question of law involved in the case”. An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction. 12. The phrase “substantial question of law”, as occurring in the amended section 100 is not defined in the Code. 12. The phrase “substantial question of law”, as occurring in the amended section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as section 109 of the Code or Article 133 (1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase “substantial question of law” as it was employed in the last clause of the then existing section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju : (Chunilal V. Mehta case, AIR 1962 SC p.1318, para 5). 5. .....When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.' And laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (AIR 1962 SC p.1318, para 6) 6. .....The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.' 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial” a 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 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”. 26. Again in the case of Thiagarajan and others v. Sri Venugopal-aswamy B. Koil, a two Judge Bench of this Court in paras 17, 24, 25 and 26 observed as under: (SCC pp. 768 and 771-72) “17. 26. Again in the case of Thiagarajan and others v. Sri Venugopal-aswamy B. Koil, a two Judge Bench of this Court in paras 17, 24, 25 and 26 observed as under: (SCC pp. 768 and 771-72) “17. Sub-section (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 sub-section 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 re-appreciate 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 re-appreciate 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, re-appreciating 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 re-appreciation 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. 26. Even assuming that another view is possible on a re-appreciation 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. 26. To say the least the approach of the High Court was not proper. It 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”. 7. In light of the reproduced portion of the judgment of Hon'ble Supreme Court what is to be examined is that whether the substantial questions of law proposed in the instant case is of general public importance and whether the law in this respect has been settled. The contention which has been advanced for satisfying the above mentioned criterion is whether an unregistered committee can file a suit in its name for seeking any relief before the civil Court. In order to substantiate this contention, the learned counsel for the appellant has referred to the judgment of the Hon'ble apex Court in the case of Illachi Devi (dead) by LRs. and others (supra), and Kalyani Mitra (supra). However, in the opinion of this Court it would be appropriate to examine pleadings of the instant case decipher whether the question of maintainability of the suit was raised before the trial Court or the first appellate Court. On a careful consideration of the record, I am unable to hold that the question of maintainability in the context of the unregistered committee was not raised before the Courts below and an attempt is being made to raise such question for the first time in this pending appeal. Therefore, this substantial question of law cannot be examined in this matter. Therefore, this substantial question of law cannot be examined in this matter. In this regard, it would be appropriate to refer the judgment of Hon'ble Supreme Court in the case of Gurucharan Koeri and others v. Bibi Shamsunissa, reported in (1993)4 SCC 68 , in which the Hon'ble Supreme Court has categorically held that the question of maintainability of suit is a mixed question of fact and law, and this plea has to be taken at the very first instance. 8. Taking this view of the matter, it is clear that the judgment relied upon by the learned counsel for the appellant are distinguishable on the facts and due to the fact that such plea was not taken before the Courts below, the question of maintainability cannot be permitted to be raised at the stage of second appeal. The other question that the plaintiff did not have authorization from the committee to file the suit is a pure question of fact, in view of the judgment of Hon'ble Supreme Court in the case of Syeda Rahimmunnisa (supra), and on this issue, the Courts below have concurrently held that the plaintiffs had authorization from the committee to prosecute the suit in order to seek declaration that the sale deed dated 21.1.1999, is null and void. In this regard Exhibit P-7 is to be highlighted which is the authorization of the committee in favour of the plaintiffs. 9. On cumulative consideration of above mentioned facts, the instant second appeal does not deserve to be admitted, and therefore, the same is hereby dismissed at the motion stage itself. However, the question whether unauthorized committee can file a suit or not, is left open.