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2020 DIGILAW 194 (HP)

Jagdish Chand v. Mehar Singh

2020-03-02

TARLOK SINGH CHAUHAN

body2020
JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the judgments and decrees passed by the learned courts below, both the parties have filed separate appeals. RSA No. 611/2012 has been filed by the plaintiffs, whereas RSA No. 76/2015 has been filed by the defendants. 2. Since common questions of law and facts arise for consideration in these appeals, the same are taken up together for hearing and are being disposed of by a common judgment. The parties shall be referred to as the “plaintiffs” and “defendants”. 3. Briefly stated, the facts of the case are that the plaintiffs filed suit seeking separate possession of their 1/3rd share each and 1/3rd share to defendant Mehar Singh by way of partition of rice-husking machine, oil expeller, grinding machine, cotton-ginning machine, sawmill and thrasher, comprised of three shops, four rooms and a corridor, as reflected in site plan as PABCDEFGHIJKLMNOPQRS, situated over suit land as also rendition of accounts w.e.f. 1990 till date. It was pleaded that deceased Hari Singh (plaintiff No.2) and defendant Mehar Singh were born from the loins of Chuhru and after the death of Chuhru, his wife married Mangat Ram, from whose loins plaintiff No.1 was born and, therefore, plaintiffs and defendant were brothers. It was further pleaded that the suit land was in possession of the parties and from income of the family, they installed various machines in a building as shown in the site plan. Initially, the parties had contributed equally and thereafter rice husking machine, grinder and oil expeller were got installed in one room and the income from said machinery was kept in common pool, and later on other rooms and corridor were constructed, where sawmill was also installed and all the three rooms were being run as shops by the defendant. According to the plaintiffs, the defendant had agreed to pay Rs.500/- and Rs.250/- each to both the plaintiffs for use & occupation of three rooms. It was averred that earlier, in the year 1979, a dispute arose between the parties and it was amicably settled inter se them vide written agreement dated 8.11.1979 that each and every party would be entitled to 1/3d share in machinery and thereafter defendant was given permissive possession of three shops. It was averred that earlier, in the year 1979, a dispute arose between the parties and it was amicably settled inter se them vide written agreement dated 8.11.1979 that each and every party would be entitled to 1/3d share in machinery and thereafter defendant was given permissive possession of three shops. It was further averred that defendant never paid any amount to plaintiffs for use and occupation and in the month of December 1991, defendant refused to give even a single penny to plaintiffs. Lastly, it was pleaded that plaintiffs through respectable of the area tried to settle the matter, but all in vain, hence the suit. 4. The defendant contested the suit by filing written statement inter alia taking preliminary objections regarding maintainability, non-joinder of necessary parties, cause of action, estoppel and valuation of suit. On merits, it was pleaded that defendant being son of Chuhru was living separately since many years and was owner of the land, which he purchased from his own income so also by mortgaging his land, whereas plaintiffs had taken undue advantage of faith of defendant and got their names inserted in sale deed executed on 30.5.1970 in connivance with officials and without knowledge of defendant. It was averred that one Smt. Makhani Devi was the owner of machines and industry and plaintiff did not spend even a penny for purchasing machinery, whereas she had arranged money from different persons as well as by mortgaging his land and, therefore, the plaintiffs had no right, title and interest over machines. It was further averred that the defendant had gone to purchase land on 8.11.1979 in Tehsil Office, Kangra, where he had to sign papers and documents as a purchaser and was not aware that he would be cheated by the plaintiffs in future by taking undue advantage of his language problem, because defendant could not read or write Hindi and could only sign in Urdu. According to the defendant, by way of misrepresentation, the plaintiffs obtained his signatures on stamp papers and fabricated the documents in their favour in connivance with others. The alleged agreement was never executed inter se parties and the plaintiffs had no concern with the machinery and as such, prayer for dismissal of suit was sought. 5. According to the defendant, by way of misrepresentation, the plaintiffs obtained his signatures on stamp papers and fabricated the documents in their favour in connivance with others. The alleged agreement was never executed inter se parties and the plaintiffs had no concern with the machinery and as such, prayer for dismissal of suit was sought. 5. The Defendant also filed counterclaim averring therein that the entry in revenue record in favour of plaintiffs was based upon wrong description as well as on misrepresentation of facts in sale-deed, and therefore, defendant was not bound by the same. It was averred that said entries were liable to be corrected in favour of defendant. Lastly, it was pleaded that agreement dated 8.11.1979 was result of misrepresentation, collusion and cheating and defendant was not bound by the same, which was also sought to be set aside. 6. The Plaintiffs also filed replication-cum-written statement to counterclaim and reasserted the allegations made in the plaint and denied those contained in written statement and counterclaim. It was pleaded that Makhani Devi had no right, title or interest over industry in dispute nor defendant had arranged any amount and the agreement was written on the instructions of defendant. Thus, prayer for dismissal of counterclaim and decree of suit was sought. 7. On the pleadings of the parties, the learned trial court on 17.7.1997 framed the following issues : 1. Whether the parties are in joint ownership an possession of the suit land as alleged? OPP 2. Whether the parties have jointly installed machine etc over the suit land ? If so, its effect ? OPP 3. Whether the room shown in the attached site plan as ADRQPA, POPQNPO and Varamdah QRSMHQ and another room CDKLSC were added out of the joint income of the parties as alleged ? OPP 4. Whether the defendant has agreed to pay a sum of Rs.250/to the plaintiffs for the use and occupation of the said three shops as alleged? If so, its effect ? OPP 5. Whether the plaintiffs are entitled to get the possession of disputed property, as alleged? OPP 6. Whether the defendant is liable for the rendition of account, as alleged ? If so, to what extent? OPD 7. Whether suit is not maintainable ? OPD 8. Whether the suit is bad for non-joinder of necessary parties ? OPD 9. Whether the plaintiffs have no cause of action ? OPP 6. Whether the defendant is liable for the rendition of account, as alleged ? If so, to what extent? OPD 7. Whether suit is not maintainable ? OPD 8. Whether the suit is bad for non-joinder of necessary parties ? OPD 9. Whether the plaintiffs have no cause of action ? OPD 10. Whether the suit is time barred ? OPD 11. Whether the plaintiffs are estopped by their act & conduct to file the suit ? OPD 12. Whether the suit is not properly valued for the purposes of court fee and jurisdiction ? OPD 13. Whether the sale-deed dated 30.5.1970 is a result of fraud, misrepresentation and collusion, as alleged ? OPD (counter claimant). 14. Whether the alleged agreement dated 8.11.79 is the result of collusion and misrepresentation and fraud as alleged? OPD (counter-claimant). 15. Whether Smt. Makhani Devi is the owner of the suit property and machine, as alleged? OPD 16. Whether the counterclaim maintainable? OPP 17. Whether the defendant has got no cause of action to file the counterclaim ? OPP 18. Whether the defendant is estopped to file counter claim by his act and conduct ?OPP 19. Whether the counterclaim is not within time ? OPP 20. Relief. 8. After recording the evidence and evaluating the same, the learned trial court vide judgment and decree, dated 16.5.2006, partly decreed the suit qua suit land and disputed house and passed preliminary decree for separate possession of 1/3rd share in the suit land as per site plan Ex.PW1A, and remaining claim of plaintiffs as well as counterclaim of defendant came to be dismissed. 9. Feeling aggrieved by the judgment and decree so passed by the learned trial court, the plaintiffs as well a defendant preferred separate appeals before the learned first appellate court, which came to be dismissed vide common judgment dated 22.8.2012, constraining both the parties to file the instant appeals. 10. On 6.11.2013, RSA No. 611/2012 was admitted on the following substantial question of law: Whether there is mis-appreciation of the pleadings of the parties and misreading of the oral as well as documentary evidence available on record by both the courts below and on that account the judgment and decree impugned in this appeal being perverse in not legally sustainable? On 6.11.2013, RSA No. 611/2012 was admitted on the following substantial question of law: Whether there is mis-appreciation of the pleadings of the parties and misreading of the oral as well as documentary evidence available on record by both the courts below and on that account the judgment and decree impugned in this appeal being perverse in not legally sustainable? Whereas, on 27.2.2015, RSA No. 76/2015 came to be admitted on the following similar substantial question of law: Whether on account of mis-appreciation of the pleadings of the parties and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable? 11. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. Substantial questions of law in RSA No. 611/2012 & 76/2015 12. Since both substantial questions of law in these appeals are intrinsically interlinked and interconnected, therefore, they were taken up together for consideration and are being answered by common reasoning. 13. 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 AIR 1977 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. 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 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 910) "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. 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 Supp (2) SCC 312, this Court observed as under: (SCC pp. 31617, 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. 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." 14. 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….. 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.” 15. 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 paragraph11 that : (SCC pp. 19293) “11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. 9. In Krishnan v. Backiam (2007) 12 SCC 190 , it has been held at paragraph11 that : (SCC pp. 19293) “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. 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. PW1 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. PW2 has also supported the case of the plaintiff. PW1 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. PW2 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. 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.27879) “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. To quote para 34 : (SCC pp.27879) “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-à-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. 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. 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 case, 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. 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 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805 ], Kuldeep Singh v. Commr. of Police [ (1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677 ], Gamini Bala Koteswara Rao v. State of A.P. [ (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589 ] and Babu v. State of Kerala[ (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179].)” 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. 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.” 16. Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court’s entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse. 17. Bearing in mind the aforesaid exposition of law, it needs to be observed that as many as nineteen issues were framed by the learned trial court and after recording findings on each issue, learned trial court vide a detailed judgment running into 37 pages partly decreed the suit, as aforesaid. The judgment and decree passed by the learned trial court was then affirmed by the learned first appellate court. 18. It is not in dispute that the suit land, recorded in Ext. P1 is classified as 'Gair Mumkin Machine' and is shown to be jointly owned by the parties to the lis. Ext.P4 is the mutation, which shows the ownership upon the parties to the lis in pursuance to the sale deed executed in favour of the vendee by one Birbal. 19. P1 is classified as 'Gair Mumkin Machine' and is shown to be jointly owned by the parties to the lis. Ext.P4 is the mutation, which shows the ownership upon the parties to the lis in pursuance to the sale deed executed in favour of the vendee by one Birbal. 19. Even though, the defendant/counterclaimant tried to dispute the sale deed on the ground that the same was result of fraud and collusion, yet the learned courts below repelled such contention by giving cogent and convincing reasons being based on the correct appreciation of the pleadings and evidence. 20. The sale deed is registered one and, therefore, it carries some presumption of truth. The plaintiffs have miserably failed to establish that they along with defendant had installed the machines. 21. The plaintiffs in their pleadings have alleged that they and defendant are brothers and were residing under the same roof. It was also averred that the suit land is in possession of the parties, whereas the defendant alleged that he is the owner of the suit land and had purchased the same by arranging money from his own income and also mortgaging his other land. It has been alleged that the plaintiffs by taking undue advantage of the faith of the defendant had got their names inserted in the sale deed, dated 30.5.1970 illegally and wrongly by conniving with officials that too behind the back and without his knowledge. Therefore, the onus was solely upon the defendant to prove that he alone had purchased the property in question more particularly when, the same is shown to be jointly recorded in the revenue record to which presumption of truth is attached. 22. Intriguingly, the defendant even has failed to place on record sale deed and in absence thereof, the learned courts below have rightly placed reliance on the revenue record to conclude that the land in question was jointly purchased by the plaintiff and defendant. 23. As regards plea of misrepresentation and fraud, the same is necessarily required to be rejected as there is no foundation for such a plea in the pleadings of the defendant. 24. 23. As regards plea of misrepresentation and fraud, the same is necessarily required to be rejected as there is no foundation for such a plea in the pleadings of the defendant. 24. No doubt, the defendant stepped into the witness box as DW1 and deposed that one Saligram had got the sale deed executed in his name of the land of Birbal, for which they had collected money, but since the defendant has withheld the best evidence i.e. copy of sale deed, therefore, the courts below have correctly not placed any reliance on such statement. Even otherwise, an adverse inference is required to be drawn against the defendant for withdrawing the best evidence. 25. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure findings of fact, which are immune from challenge in second appeal. 26. Both the substantial questions of law are answered by holding that there is no perversity in the impugned judgments and decrees rendered by both the learned courts below. Moreover, both the parties have otherwise failed to point out any material facts or evidence that was required to be taken into consideration or was ignored. 27. In view of aforesaid discussion, I find no merit in these appeals and the same are accordingly dismissed, so also the pending applications, if any. The parties are left to bear their own costs.