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2018 DIGILAW 2069 (ALL)

JASHWANT SINGH v. GHANSHYAM DAS

2018-09-27

VIJAY LAKSHMI

body2018
JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—Learned counsel for the appellants prays for and is allowed to correct the name of the appellant No. 1 “Jaswant Singh” in place of “Jashwani Singh”. 2. This second appeal has been filed against the judgment and order dated 31.5.2018 passed by Additional District Judge, Court No. 3, Mirzapur, in Civil Appeal No. 01 of 2009 whereby dismissing the appeal and confirming the judgment dated 8.12.2008 passed by Additional Civil Judge (S.D.) Mirzapur, in original suit No. 102 of 1982 Ganga Prasad and others v. Dashrath Singh and other. 3. Heard Sri Shyam Kumar, learned counsel for the defendants/appellants and Sri. P. N. Srivastava, learned counsel for the respondents on the point of admission and perused the available record. 4. Brief facts giving rise to this appeal are that the appellants were the defendants in Original Suit No. 102 of 1982, which was instituted by the plaintiffs/respondents for partition of the disputed property, claiming that the disputed property was being purchased by their common ancestors by contributing equally their shares in the earnings of joint hindu family. 5. Defendants/appellants filed their written statements in which they pleaded that the disputed house is the exclusive property of defendants, therefore, the plaintiffs have no right to get it partitioned. The entire sale consideration was paid by the father of defendant Nos. 3 to 6 namely Late Sri Nath only, and the names of the common ancestors namely Ram Sunder, Ram Kuber and Mata Prasad who had not paid any amount either at the time of purchasing the disputed property or in construction of the disputed house, were entered only as a mark of respect towards them. The disputed property was in the shape of Khandahar, when it was purchased and the father of the defendants/appellants invested heavy amount on its repair and construction. There is no share either of plaintiff Nos. 1 to 6 or defendant No. 1 and defendant No. 7 in the house in dispute. It was also stated by the defendants/appellants that the father of defendant No. 7 namely Mata Prasad and father of plaintiffs namely Ram Sunder and defendant No. 1 have admitted this fact before the competent authority in tax assessment of the house in question that Sri Nath Singh is its sole owner in possession, and it is his personal property. Therefore, the plaintiffs and defendant Nos. Therefore, the plaintiffs and defendant Nos. 1 and 7 are now barred by principle of estoppel from making statement otherwise. 6. The plaintiffs filed replication stating again that the property in dispute was purchased by Ram Sunder, Ram Kuber and Mata Prasad contributing in equal amount. 7. Learned trial Court on the basis of the pleadings of the parties framed 11 issues on which oral as well as documentary evidence were led by the parties. After a detailed scrutiny of the evidence led by the parties partly, the trial Court decreed the suit, holding that the plaintiffs being co-owners of the disputed house are entitled for partition of its 1/3rd share. 8. Being aggrieved the defendants filed Civil Appeal before the Court of District Judge, Mirzapur. Learned lower appellate Court framed five points for determination, relating to principle of partial partition, benami transaction, the relevancy of affidavits filed by a party before another Court, application of principle of adverse possession in the suit etc. and decided all the points in wake of the settled legal position, citing the relevant legal provisions and judgments of Hon’ble Apex Court. Placing reliance on the law laid down by Hon’ble Apex Court in the case of Ambika Prasad Thakur and another v. Ram Iqbal Rai (dead) through legal heirs and another, AIR 1966 SC 605 , the learned lower appellate Court held that only on the basis of admission made by party in some other case, no right or title can be created in favour of a party. Learned lower appellate Court did not accept the plea of ‘adverse possession’ taken by the defendants/appellants on the ground that the property in dispute being ancestral property and the parties being the off-shoots of the same family and being the co-heirs, the principle of adverse possession is not applicable in this case because co-heirs cannot claim right of adverse possession against each other. 9. On the aforesaid grounds and after a detailed discussion and appreciation of evidence led by the parties, the learned lower appellate Court dismissed the appeal and confirmed the judgment dated 8.12.2008 passed by the trial Court. 10. Being aggrieved the defendants/appellants are before this Court in this second appeal. 11. 9. On the aforesaid grounds and after a detailed discussion and appreciation of evidence led by the parties, the learned lower appellate Court dismissed the appeal and confirmed the judgment dated 8.12.2008 passed by the trial Court. 10. Being aggrieved the defendants/appellants are before this Court in this second appeal. 11. Learned counsel for the appellants has contended that the learned lower appellate Court has erred in law while holding that the property in dispute is a joint family property, jointly purchased by three brothers namely, Ram Sunder, Ram Kuber and Mata Prasad from their income contributing in equal amounts, even without the availability of any cogent evidence in this regard. He has further contended that learned lower appellate Court has erred in law in dismissing the defendant’s appeal without considering the fact that the father of defendant Nos. 3 to 6 (appellants) Late Sri Nath Singh was in exclusive possession of the property in question and after his death defendant Nos. 2 to 6 were in possession of the said property. 12. Learned counsel has further contended that during life time of their grandfathers Ram Sunder, Ram Kuber and Mata Prasad, neither any possession was claimed by the plaintiffs/respondents nor share in the disputed property was claimed. Therefore, the defendants/appellants have perfected their title by adverse possession also, but the learned lower appellate Court erred in law in rejecting the plea of adverse possession of the defendants. 13. On the aforesaid grounds it has been contended by learned counsel for defendants/appellants that the second appeal be admitted and be allowed. 14. Per contra, learned counsel for the caveator/respondents has vehemently opposed the admission of the appeal by contending that there are concurrent findings on facts by both the Courts below which should not be disturbed by High Court in the second appeal and especially when the learned counsel for the appellants has failed to point out any perversity in the findings recorded by both the Courts. 15. Learned counsel for caveator/respondents has further contended that no arguable substantial question of law is involved in this appeal and all the proposed questions framed by learned counsel for the appellants in the present appeal are pure questions of fact. Therefore, the appeal is liable to be dismissed at the admission stage and be dismissed. 16. 15. Learned counsel for caveator/respondents has further contended that no arguable substantial question of law is involved in this appeal and all the proposed questions framed by learned counsel for the appellants in the present appeal are pure questions of fact. Therefore, the appeal is liable to be dismissed at the admission stage and be dismissed. 16. Having considered the rival contentions raised by learned counsel for the parties and after perusing the record, this Court is of the considered view that this second appeal is liable to be dismissed at the admission stage itself in view of the well-settled legal position. 17. In this case, there are concurrent findings on facts by both the Courts below. The Hon’ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two Courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse. 18. In a recent case of Shivah Balram Haibatti v. Avinash Maruthi Pawar, (2018)11 SCC 652 , the Apex Court has held as under : “...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law.” 19. In another recent case of Narendra and others v. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564, the Hon’ble Apex Court held as under : “...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal.” 20. In one more recent case Dalip Singh v. Bhupinder Kaur, (2018) 3 SCC 677 , the Hon’ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible. 21. In the memo of appeal, learned counsel for the appellants has framed as many as 16 proposed substantial questions of law however, none of these questions can be said to be a substantial question of law. 21. In the memo of appeal, learned counsel for the appellants has framed as many as 16 proposed substantial questions of law however, none of these questions can be said to be a substantial question of law. All these proposed questions are pure questions of facts on which both the Courts below have already recorded clear and concurrent findings. All the legal issues involved in this case like principle of adverse possession, benami transaction, estoppel on admission etc. have been very well discussed in detail and have been rightly decided by learned lower appellate Court, by formulating 5 points for determination, covering each and every aspect of the matter, placing reliance on relevant legal provisions and the judgments rendered by Hon’ble Apex Court. A perusal of the impugned judgment shows that the learned lower appellate Court has tried not to leave any stone unturned, while deciding the points for determination. Hence, no arguable legal issue now remains in this matter, left to be discussed and to be adjudicated in this second appeal. 22. Two inconsistent alternative pleas have been taken by the defendants/appellants in this appeal which are mutually destructive. 23. The defendants/appellants on one hand are claiming their exclusive right and title over the disputed property by inheritance, claiming that their father had purchased the disputed house from his own income. At the same time they are claiming their right on the basis of adverse possession. Both these pleas cannot be taken together because the adverse possession is always claimed against the true owner and if the appellants are claiming themselves as the owner of the disputed house on the basis of fact that it was purchased by their father Sri Nath, how can they claim adverse possession against themselves? 24. In Gautam Sarup v. Leela Jetly and others, (2008) 7 SCC 85 , the Apex Court held that a party is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other. 25. The scope of exercise of the jurisdiction by the High Court in second appeal under Section 100 CPC is limited and it can be admitted only on a substantial question of law. Such alternative pleas, however, cannot be mutually destructive of each other. 25. The scope of exercise of the jurisdiction by the High Court in second appeal under Section 100 CPC is limited and it can be admitted only on a substantial question of law. The substantial question of law must be debatable, not previously determined by law of the land as a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. 26. The Supreme Court in the case of Kehar Singh v. Yashpal, AIR 1990 SC 2212 , has held that in absence of substantial questions of law on concurrent findings of facts, the High Court cannot interfere in second appeal. 27. The term “substantial question of law” has been interpreted by Hon’ble Supreme Court in a catena of judgments. 28. In State Bank of India and others v. S.N. Goyal; (2008) 8 SCC 92 , the Hon’ble Supreme Court has held as under : “Second appeals would lie in cases which involve substantial questions of law. The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ‘Substantial questions of law’ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law.” 29. In Santosh Hazari v. Purushottam Tiwari, 2001(3) SCC 179 , the Supreme Court considered what the phrase “substantial question of law” means as under : “The phrase 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. In Santosh Hazari v. Purushottam Tiwari, 2001(3) SCC 179 , the Supreme Court considered what the phrase “substantial question of law” means as under : “The phrase 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 substances or consequence, or academic merely.” 30. A Full Bench of Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, AIR 1951 Madras 969, considered this term and observed: “when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well-settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law.” 31. The above observations were affirmed and concurred by a Constitution Bench of Hon’ble Supreme Court in Sir Chunilal Mehta and Sons Ltd. v. The Century Spinning and Manufacturing Company Ltd., AIR 1962 SC 1314 . Referring to above authorities, the Court in Santosh Hazari (supra) said: “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, in so far 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. 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.” 32. In Dharmabiri Rana v. Mramod Kumar Sharma (dead) through Legal Representatives and others, (2018)11 SCC 554 , the Hon’ble Apex Court has observed as under : “12.In view of the above findings recorded by the First Appellate Court, the suit was rightly dismissed. The High Court has also rightly dismissed the Regular Second Appeal holding that it does not contain any substantial question of law. We do not find any substance in the submissions of the learned counsel for the appellant. With the result, the Civil Appeal is dismissed.” 33. In view of the above cited legal position and in absence of any arguable substantial question of law, this Second Appeal is liable to be dismissed at the admission stage itself and is accordingly dismissed.