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2019 DIGILAW 1674 (HP)

Pushpa Devi v. Ravinder Singh

2019-11-07

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. With the consent of learned counsel for the parties, the matter is taken up today for final disposal at the admission stage. Civil Suit filed by the respondents was decreed by the learned Trial Court. The judgment and decree has been affirmed by the learned First Appellate Court. Hence, instant second appeal has been preferred by the defendants. Parties are being referred hereinafter as they were before the learned Trial Court. 2. Facts relevant for the purpose of adjudication of this appeal may be noticed hereinafter:- 2(i) Plaintiffs and defendants No. 2 & 3 are real brothers. Defendant No.1 is wife of defendant No.2. 2(ii) Plaintiffs and defendants No. 2 & 3 are sons of Sh. Dile Ram, who died on 17.06.1994. 2(iii) After death of Sh. Dile Ram, plaintiffs, defendant No.3, their mother Smt. Sapurani Devi and sister Smt. Bimla, executed a General Power of Attorney No. 382, dated 22.10.1996 (Ext. D-1), appointing defendant No.2 as their General Power of Attorney (hereinafter referred to as GPA for short). 2(iv) Suit property consisting of various parcels of land was purchased after the execution of GPA in the following manner:- (a) vide sale deed dated 03.10.1998 (Ext. D-7); (b) vide sale deed dated 09.11.2000 (Ext. D-8); (c) vide sale deed dated 27.02.2003 (Ext. D-9). The above mentioned sale deeds were executed and property was purchased in the name of all the four brothers. 2(v) The suit property so purchased after the execution of the GPA was sold by defendant No.2 in favour of his wife/defendant No.1 vide two separate sale deeds, i.e. sale deeds No. 970 (Ext. D-X) & 971 (Ext. D-Y) dated 21.05.2009. On the basis of these sale deeds, mutations Nos. 70 & 79 were entered and attested in the revenue record vide Exts. P-5 & P-6. 2(vi) Challenging the sale deeds Exts. D-X & D-Y executed on 21.05.2009 by defendant No.2 in favour of his wife/defendant No.1 and subsequent mutations entered in the revenue record evidencing such sale, civil suit was preferred by the respondents/plaintiffs for declaration to the effect that they are co-owners to the extent of half share in the suit property along with defendants No. 2 & 3. Consequential relief of injunction was also prayed for. 2(vii) The civil suit was decreed by the learned Trial Court vide judgment dated 28.02.2018. Consequential relief of injunction was also prayed for. 2(vii) The civil suit was decreed by the learned Trial Court vide judgment dated 28.02.2018. The appeal preferred by the defendants was dismissed by the learned First Appellate Court on 05.09.2018. Aggrieved, defendants have preferred present second appeal. 3. I have heard Mr. Raman Jamalta, learned counsel, for the appellants and Mr. R.K. Sharma, learned Sr. Counsel for the respondents and with their assistance gone through the record. Observations:- 4. (i) I am of the considered view that there is no question of law much less any substantial question of law involved in this appeal. The findings returned by both the learned Courts below are well reasoned, based upon proper appreciation of pleadings and the evidence adduced by the parties and, therefore, cannot be said to be perverse in any manner, whatsoever. 4 (ii) The entire appeal basically hinges around interpretation of Ext.D-1. The only question that arises for determination is :- Whether the GPA dated 22.10.1996 (Ext. D-1) authorized defendant No.2 to sell the joint property in the name of four brothers, purchased by plaintiffs and defendants No. 2 & 3 after 22.10.1996? 4 (iii) The execution of GPA (Ext. D-1) and its contents are not in dispute. A bare perusal of the GPA along with its clear handwritten copy at page 66 of learned Trial Court's record (brought on record pursuant to order of learned Trial Court) clearly reveals that GPA authorized defendant No.2 to mortgage/gift/sale/exchange/release the property of the executants as it existed on the day of execution of deed, i.e. 22.10.1996. The property which was not available with the executants on 22.10.1996 cannot be said to be falling within the ambit of the GPA. Defendant No.2, thus, had no authorization to sell the property, which was jointly purchased by or in the name of the plaintiffs, defendants No. 2 & 3, after the execution of GPA. It is the admitted case of the parties that suit property was purchased in the name of four brothers vide three separate sale deeds dated 03.10.1998, 09.11.2000 & 27.02.2003. The suit property having been purchased after the execution of GPA dated 22.10.1996 was, thus, not covered by the GPA and defendant No.2 had no authority to sell the same in favour of anyone including his wife- defendant No.1. The suit property having been purchased after the execution of GPA dated 22.10.1996 was, thus, not covered by the GPA and defendant No.2 had no authority to sell the same in favour of anyone including his wife- defendant No.1. 4(iv) Learned counsel for the appellants/defendants, while referring to the statement of defendant No.2, contended that :- suit land was purchased by defendant No.2 with his own funds; amount received by defendant No.2 from his wife/defendant No.1, in lieu of sale of suit land to her, was paid by him to the plaintiffs; having received the sale consideration, plaintiffs were estopped from challenging the sale deeds executed by defendant No.2 in favour of his wife-defendant No.1; neither the plaintiffs produced their mother and sister in the witness box nor they were arrayed as parties to the civil suit, therefore, civil suit was liable to be dismissed. The above contentions are without any merit whatsoever. 4(iv)(a) The defendants did not lead any evidence to prove that the suit land in the name of four brothers was purchased only with the funds of defendants No. 1 & 2. While appearing in the witness box as DW-1, defendant No.2 stated that suit land was purchased from his own funds as well as funds provided by his wife and income from the orchard. It is the defendants' admitted case that defendant No.1 was not working anywhere. As per DW-1, his wife had taken the money from her mother and sister, however, no cogent and reliable evidence to this effect was produced. The orchard's income stated to be utilized in purchasing the suit land is admittedly in the joint ownership of four brothers. Thus, it cannot be said that defendant No.2 has been able to establish that suit property was purchased by him out of his own funds. In any case, the suit property so purchased is in the name of all the four brothers. Sale deeds (Ext. D-7 to D-9) in respect of suit property have also been executed in favour of all the four brothers. 4(iv)(b) In respect of alleged payments of sale consideration amount to the plaintiffs, major contradictions in the evidence led by the defendants are apparent. DW-1/defendant No.2 stated that:- he had paid money to plaintiff No.1 on the day of execution of the sale deeds (Ext. 4(iv)(b) In respect of alleged payments of sale consideration amount to the plaintiffs, major contradictions in the evidence led by the defendants are apparent. DW-1/defendant No.2 stated that:- he had paid money to plaintiff No.1 on the day of execution of the sale deeds (Ext. D-X & D-Y) in favour of his wife; plaintiff No.2 was not present in the house on that day; the sale consideration was paid to plaintiff No.2 after 4-5 days. Whereas, the document writer Sh. Bhuvneshwar Dutt, while appearing as DW-2, stated that:- He (DW-2) was informed that all the sellers had received sale consideration before the execution of sale deeds Ext. D-X and D-Y. Thus, even the factum of alleged receipt of sale consideration by the plaintiffs had not been proved on record. 4(iv)(c) In respect of contention of learned counsel for the appellants for dismissal of civil suit on account of non-impleadment of mother and sister by the plaintiffs, it may be noticed that the plaintiffs had filed the instant suit for declaration of their title qua the suit land, which was purchased in the name of plaintiffs and defendants No. 3 & 4, therefore, there was no necessity for them to implead their mother Smt. Sapurani Devi and sister Smt. Bimla Devi as parties to the case. 4(iv)(d) Learned counsel for the appellants/defendants referred to legal notice dated 09.06.2009 (Ext. D-2) issued by the plaintiffs to defendant No.2, whereby the GPA dated 22.10.1996 was cancelled, to contend that plaintiffs having issued the legal notice with respect to cancellation of the GPA on 09.06.2009, have impliedly consented to the sale deeds in question effected by defendant No.2 in favour of his wife-defendant No.1 prior to 09.06.2009. This argument has no force. Ext. D-2 is only a document intimating defendant No.2 that GPA dated 22.10.1996 executed in favour of the plaintiffs stands cancelled. Nothing more can be read into it. It is not even the case of the defendants that suit filed by the plaintiffs was barred by limitation. 4(v) The contentions advanced by learned counsel for the appellants/defendants become irrelevant in the facts and circumstances of the case. It is proved and established on record that the GPA dated 22.10.1996 (Ext. Nothing more can be read into it. It is not even the case of the defendants that suit filed by the plaintiffs was barred by limitation. 4(v) The contentions advanced by learned counsel for the appellants/defendants become irrelevant in the facts and circumstances of the case. It is proved and established on record that the GPA dated 22.10.1996 (Ext. D-1), executed in favour of defendant No.2 did not pertain to suit property, which was jointly purchased in the name of plaintiffs, defendants No. 2 & 3 after 22.10.1996, therefore, defendant No.2 had no authority under this GPA to sell the suit land belonging to the plaintiffs, defendants No. 3 & 4 in favour of anyone including his wife-defendant No.1. 5. Learned counsel for the appellants has relied upon titled as Vidhyadhar vs. Manikrao & another, (1999) 3 SCC 573 and titled as Durgi Devi (since deceased) through her LRs. Jagdish Guleria & others vs. Jaswant Singh & others,2017 HLR 336. However, these judgments have no applicability to the dispute involved in the facts and circumstances of instant case. No other point has been urged. 6. In respect of exercise of jurisdiction under Section 100 of Code of Civil Procedure, Hon'ble Apex Court in Gurnam Singh and Others vs. Lehna Singh, 2019 7 SCC 641 , held as under:- 13.1 The suspicious circumstances which were considered by the learned Trial Court are narrated/stated hereinabove. On re-appreciation of evidence on record and after dealing with each alleged suspicious circumstances, which were dealt with by the learned Trial Court, the First Appellate Court by giving cogent reasons held the Will genuine and consequently did not 15 agree with the findings recorded by the learned Trial Court. However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on inadmissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal. 14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held : "Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. In the aforesaid decision, this Court has specifically observed and held : "Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise." 15. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re-appreciating the evidence on record in the second appeal under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on re-appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC. Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion 18 that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC. 15.1 As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. 15.1 As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as under : "(i) Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court? (ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading of evidence?" The aforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside. At this stage, decision of this Court in the case of Madamanchi Ramappa v. Muthaluru Bojappa, is required to be referred to. 19. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264 , despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law." 7. Applying the ratio of above judgment to the facts of instant case, I find no infirmity in the concurrent findings of facts recorded by both the learned Courts below. As already observed, there is no question of law much less any substantial question of law which arises for adjudication in instant appeal. The appeal is accordingly dismissed along with pending applications, if any.