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2018 DIGILAW 276 (HP)

Bhandaru Ram v. Kishan Lal

2018-03-08

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - This appeal at the instance of the plaintiff is directed against the concurrent findings of fact recorded by the learned Courts below. 2. The plaintiff filed a suit for declaration and permanent prohibitory injunction wherein it was claimed that the parties i. e. plaintiff, defendants and proforma defendants are sons, daughters and widow of late Sukh Ram, who expired on 12. 04. 2001. It was pleaded that late Sukh Ram was owner in possession of the land comprised in Khasra No. 222/204, Khewat-Khatauni No. 67/74, measuring 3-14 bighas to the extent of 3 shares out of total share in Village Behal Kandela. The land comprised in Khasra Nos. 169/91, 241/95 and Khewat-Khatauni No. 82/94, measuring 3-14 bighas was exclusively owned and possessed by late Sukh Ram in Village Bamta and land comprised in Khasra No. 136 (plot No. 24 A), Khewat-Khatauni No. 31min/409, measuring 84-84 (Sq. Mtrs. ), situated in Up-Muhal, main market Bilaspur, H. P. It was further pleaded that after the death of Sukh Ram, the plaintiff along with defendants and proforma defendants inherited his property in equal shares and the same was divided between the parties in presence of respectable persons of the area and thereafter both the parties are in possession of their respective shares. It was also averred that in May, 2001, the defendants interfered in the possession of the plaintiff and threatened that defendant No. 1 had become owner thereof on the basis of the Will alleged to have been executed by late Sukh Ram in her favour. It was further averred that late Sukh Ram was an old man and not enjoying good health. Moreover, relations between late Sukh Ram and defendant No. 1 Rameshwaru Devi (deceased) were not good, therefore, there was no occasion for him to have executed the Will in her favour, more particularly, when throughout his life he had been residing with the plaintiff. The Will presented by defendant No. 1 was false one and had been executed under undue influence and misrepresentation. Therefore, the mutation attested in favour of defendant No. 1 on the basis of said Will was null and void and not binding on the rights of the plaintiff. The Will presented by defendant No. 1 was false one and had been executed under undue influence and misrepresentation. Therefore, the mutation attested in favour of defendant No. 1 on the basis of said Will was null and void and not binding on the rights of the plaintiff. It was further averred that the property comprised in Khasra No. 222/204, measuring 3-14 bighas, was not the self acquired property of late Sukh Ram and, therefore, he had no right to transfer the same by way of Will. It was lastly claimed that the plaintiff and proforma defendants were in possession of the suit land to the extent of their shares and therefore, the respondents/defendants be restrained from interfering with such possession and the Will alleged to have been executed by Sukh Ram in favour of defendant No. 1 be declared null and void and not binding on the rights of the plaintiff and proforma defendants. 3. The suit was contested by the defendants by filing written statement wherein preliminary objections regarding maintainability, locusstandi and collusion of plaintiff with defendant No. 3, were raised. On merits, the contents of the plaint were admitted only to the extent that late Sukh Ram was owner in possession of the suit property. However, it was denied that plaintiff is son of late Sukh Ram. It was submitted that even though Sukh Ram, defendant No. 1 were natural father and mother of the plaintiff, but Sukh Ram along with his wife had given him (plaintiff) by way of family adoption to late Sihnu and his wife Smt. Chando when the plaintiff was hardly 20 days old. Therefore, the plaintiff being adopted son of Sihnu Ram had no right, title or interest over the property left behind by Sukh Ram of which defendant No. 1 was the sole owner in possession on the basis of the last and valid Will dated 16. 11. 1989 executed by late Sukh Ram. It was further averred that she transferred property in favour of her sons i. e. defendants No. 1 and 2. 4. Out of the pleadings of the parties framed, the learned trial Court framed certain issues and the same were re cast in appeal by the learned Additional District Judge and read thus:- "1. Whether the plaintiff is entitled for the relief of declaration, as prayed? OPP. 2. 4. Out of the pleadings of the parties framed, the learned trial Court framed certain issues and the same were re cast in appeal by the learned Additional District Judge and read thus:- "1. Whether the plaintiff is entitled for the relief of declaration, as prayed? OPP. 2. Whether the plaintiff is in possession of a part of the suit property on the basis of partition/family settlement, as claimed? OPP. 3. Whether the plaintiff is entitled for permanent prohibitory injunction, as prayed? OPP. 4. Whether the plaintiff was adopted by Chando and Sihanoo, as claimed? OPD 1 and 3. 5. Whether Sukh Ram has executed a legal and valid Will dated 16. 11. 1989 in favour of Rameshwaru Devi? OPD 1 and 3. 6. Whether Smt. Rameshwaru Devi had executed legal and valid Will dated 06. 12. 2003 in favour of the defendants? OPD 1 and 3. 7. Relief. " 5. After recording evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiff and the appeal filed against the judgment and decree passed by the learned trial Court has also been dismissed by the learned Additional District Judge, Ghumarwin vide his judgment and decree dated 31. 08. 2017 constraining the plaintiff to file the instant appeal. 6. The only contention put forth by Shri Naveen K. Bhardwaj, learned counsel for the plaintiff is that once the property in the hands of late Sukh Ram was coparcenary and ancestral, then he could not have willed away the entire property except his share in favour of defendant No. 1 and, therefore, the findings recorded by the learned Courts below are perverse and liable to be set aside. 7. In order to appreciate the aforesaid submissions, it would be necessary to first understand the exact meaning of ''perverse''. 8. What is ''perverse'' was considered by the Hon''ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another , 2009 10 SCC 206 , wherein it was held as under:- "26. In M. S. Narayanagouda v. Girijamma & Another , 1977 AIR(Kar) 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In M. S. Narayanagouda v. Girijamma & Another , 1977 AIR(Kar) 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, 1878 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey, 106 NW 814, the Court defined ''perverse'' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. 27. The expression "perverse" has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner''s Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. New Webster''s Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud''s Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 28. In Shailendra Pratap & Another v. State of U. P. , 2003 1 SCC 761 , the Court observed thus: (SCC p. 766, para 8 "8. . . We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity. " 29. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity. " 29. In Kuldeep Singh v. The Commissioner of Police & Others , 1999 2 SCC 10 , the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p. 14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. " 30. The meaning of ''perverse'' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others , 1992 Supp2 SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. " 9. What is ''perverse'' has further been considered by this Court in RSA No. 436 of 2000, titled ''Rubi Sood and another vs. Major (Retd. ) Vijay Kumar Sud and others, decided on 28. 05. 2015 in the following manner:- "25. . . . . A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law. 26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. 27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse. 28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated. " 10. 28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated. " 10. What is ''perversity'' recently came up for consideration before the Hon''ble Supreme Court in Damodar Lal vs. Sohan Devi and others , 2016 3 SCC 78 , wherein it was held as under:- "8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. 9. In Krishnan v. Backiam , 2007 12 SCC 190 , it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. " 10. In Gurvachan Kaur v. Salikram , 2010 15 SCC 530 , at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent. " 11. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent. " 11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes. 12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man''s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. 13. In Kulwant Kaur v. Gurdial Singh Mann , 2001 4 SCC 262 , this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp. 278-79) "34. 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 that 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--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: ''103. Power of High Court to determine issues of fact. 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: ''103. Power of High Court to determine issues of fact. - In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100. " The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with. " 14. In S. R. Tiwari v. Union of India , 2013 6 SCC 602 , after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration , 1984 4 SCC 635 , it was held at para 30: (S. R. Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. , 1984 4 SCC 635 , Kuldeep Singh v. Commr. of Police , 1999 2 SCC 10 , Gamini Bala Koteswara Rao v. State of A. P. , 2009 10 SCC 636 and Babu v. State of Kerala , 2010 9 SCC 189 . )" This Court has also dealt with other aspects of perversity. 15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court. " 11. Adverting to the facts of the instant case, it would be noticed that the ground as urged by the plaintiff is not available to the plaintiff for the simple reason that it has been duly proved on record that the plaintiff was given after 20 days of his birth in adoption to Sihnu and his wife Smt. Chando. Once, it is so, then obviously the consequences of valid adoption have to follow consequent to the plaintiff being the legally adopted son severed all ties with the natural family and became part of the adopted family. Once, it is so, then obviously the consequences of valid adoption have to follow consequent to the plaintiff being the legally adopted son severed all ties with the natural family and became part of the adopted family. Apart from that, even if, it is assumed for a moment, though not conceded, that the plaintiff is the son of late Sukh Ram, even then no law debarred him from making a Will in respect of the coparcenary and ancestral property and this power to execute the Will was not confined only to the extent of interest of deceased in the property. This was so held by a Co-ordinate Bench of this Court in Kartari Devi and others versus Tota Ram , 1992 1 ShimLC 402 , and thereafter the ratio laid down therein was upheld and approved by a learned Division Bench of this Court in Tek Chand versus Mool Raj,1997 2 HinduLR 306, and both these judgments, in turn, have been approved by the Hon''ble Supreme Court in Sham Lal alias Kuldip versus Sanjeev Kumar and others , 2009 12 SCC 454 , wherein it was observed as under:- "26. There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same form his father. In so far as the question whether under the custom governing the parties, a Will could be executed in respect of ancestral property is concerned, the same is no more res integra. 27. A learned Single Judge of the High Court in Kartari Devi and Ors. v. Tota Ram , 1992 1 ShimLC 402 , has held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. The above view of the learned Single Judge was upheld and approved by a Division Bench of the High Court in Tek Chand v. Mool Raj,1997 2 HinduLR 306. (Hindu LR p. 310, para 14). In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1-A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside. 28. There is yet another significant aspect of the case. In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1-A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside. 28. There is yet another significant aspect of the case. The present suit was filed by the plaintiff for a declaration that the mutation of inheritance bearing No. 1313 sanctioned on 20. 2. 1988 was wrong, illegal, null and void and not binding on his rights and that the land property in dispute was jointly owned and possessed by him and defendant nos. 3 to 6 in equal shares. Further that the Will dated 4. 12. 1978 was null and void and inoperative beyond the competency of the deceased and also being the result of fraud, misrepresentation etc. Such suit was filed on 21. 5. 1991. " 12. In view of the aforesaid discussion, no question of law much less substantial question of law arises for consideration. 13. Accordingly, there is no merit in this appeal and the same is dismissed in limine. Pending application, if any, also stands disposed of.