Kesar Devi Major v. Shri Gurbachan Singh Chabda Major
2022-07-06
SUDESH BANSAL
body2022
DigiLaw.ai
JUDGMENT 1. Both these second appeals have been preferred by defendant No.2 under Section 100 CPC assailing the judgment and decree dated 30.05.2019 deciding two first appeal Nos.30/2016 & 04/2017 by the Court of Additional District Judge No.3, Beawar whereby and whereunder while affirming the judgment and decree dated 15.02.2013 passed in Civil Suit No.35/2001 (14/1998) by the Court of Additional Civil Judge (Sr. Division) No.1, Beawar in relation to declaration of sale deed of appellant dated 19.09.1995 as null and void qua respondent-plaintiff, the appellate court held that the plaintiff is in possession of the plot in question being its registered owner and passed a decree for permanent injunction in favour of plaintiff and against the present appellant-defendant No.2. 2. Heard counsel for both parties and perused the record. 3. The relevant facts as culled out from the record are that the respondent-plaintiff instituted a civil suit on 18.08.1998 alleging inter alia that the plot in question bearing plot No.24 (which was later on alleged to be converted in plot No.13) having an area of 250 square yards situated at Village Narsinghpura Tehsil, Beawar District Ajmer was purchased through registered sale deed dated 08.07.1988 from its owner namely, Shri Sohan Lal and the possession of the plot was also transferred to the plaintiff as stipulated in the sale deed. Thereafter, the seller-Sohan Lal has executed another sale deed dated 19.09.1995 in relation to the plot of plaintiff, in favour of defendant No.2 (appellant herein) namely, Smt. Kesar Devi hence the plaintiff claimed that since the seller-Sohan Lal had already transferred his ownership rights and possession of the plot in question to the plaintiff, the execution of subsequent sale deed is of no importance and such subsequent sale deed dated 19.09.1995 made in favour of defendant No.2 be declared as null and void qua the plaintiff and further the defendant No.2 be restrained, by way of permanent injunction, not to interrupt/create hindrance in use and occupation of the plot in question by the plaintiff.
The seller-defendant No.1 submitted written statement mentioning that at the time of execution of sale deed dated 19.09.1995 in favour of appellant-defendant No.2, it was informed that the plot has already been sold to plaintiff through sale deed dated 08.07.1988 however, on persuasion of defendant No.2, the subsequent sale deed dated 19.09.1995 was executed in her favour without transfer of possession with an understanding that in case of dispute, the defendant No.2 (purchaser) would deal with the same. The defendant No.2 (appellant herein who is the contesting party in the present matter) submitted her written statement that the defendant has purchased the suit plot from defendant No.1 through registered sale deed dated 19.09.1995 and in pursuance thereof, in the revenue record, mutation has sanctioned in her name. She claims herself bonafide purchaser and in actual possession of plot in question and prayed that the suit deserves to be dismissed. The defendant though denied the sale deed of plaintiff dated 08.07.1988 however, never challenged the sale deed of plaintiff either by filing a counter claim or any independent suit. 4. In view of respective pleadings of both parties, trial court settled issues and granted opportunity to adduce evidence of both parties. The trial court has discussed the evidence on record and decreed the suit vide judgment dated 15.02.2013 to the effect that the sale deed of plaintiff is lawful and valid and the subsequent sale deed made in favour of defendant No.2 deserves to be declared as null and void qua the rights of plaintiff however, the prayer for grant of permanent injunction of the plaintiff was declined. 5. Against judgment and decree dated 15.02.2013 the defendant No.2 preferred first appeal No.04/2017 (15/2013) against the declaration of his sale deed as null and void qua the plaintiff, while the plaintiff preferred first appeal No.30/2016 (12/2013) against denial of the decree for permanent injunction in his favour. 6. The first appellate court heard and decided both first appeals vide impugned judgment dated 30.05.2019 with finding that the plaintiff has acquired ownership and possession of the plot in question through registered sale deed dated 08.07.1988. The vendor-defendant No.1 has no authority to execute subsequent sale deed dated 19.09.1995 for the plot of plaintiff, in fovour of defendant No.2. The appellant-defendant No.2 has not proved her possession over the plot in question.
The vendor-defendant No.1 has no authority to execute subsequent sale deed dated 19.09.1995 for the plot of plaintiff, in fovour of defendant No.2. The appellant-defendant No.2 has not proved her possession over the plot in question. The first appellate court has taken into consideration the evidence of appellant-defendant No.2, to show her possession over the plot in question and has observed that merely tethering the cattle and put the fodder on the plot in question may not be held sufficient to prove that the plot in question is in actual and established possession of defendant No.2. The first appellate court has taken into consideration that the witness of defendant DW-3 namely, Sohan Lal admits that defendant No.2 never resided on the plot in question and there is no construction. The temporary structure of thatched roof, if so found in the Commissioner Report, the same was not treated as a settled possession in context to the fact that the plaintiff has already acquired ownership and possession of the plot on the basis of sale deed dated 08.07.1988. 7. On overall re-appreciation and re-consideration of the material on record, the first appellate court vide judgment dated 30.05.2019 affirmed the decree of trial court declaring the sale deed of appellant-defendant No.2 as null and void and reverse the order of trial court for denial of permanent injunction rather granted a decree of permanent injunction in favour of respondent-plaintiff holding the plot in question in his possession only. Hence against this judgment and decree, the appellant-defendant No.2 has preferred these two second appeals. 8. As far as issue with regard to declaration of the sale deed of appellant as null and void is concerned, there is concurrent findings of fact and both courts below have observed that the plot in question has already been sold by the owner (defendant No.1) to the plaintiff through registered sale deed dated 08.07.1988 hence the execution of subsequent sale deed dated 19.09.1995 by the vendor-defendant No.1 in favour of appellant defendant No.2 is without authority and law as such has been declared as null and void qua the plaintiff. This Court does not find any illegality or perversity in such findings of the two courts below. 9.
This Court does not find any illegality or perversity in such findings of the two courts below. 9. As far as issue with regard to possession of the plot in question is concerned, the first appellate court has recorded a fact finding on appreciation of evidence that the appellant-defendant No.2 is not in actual, established and settled possession. Appellant's case to claim possession over the plot in question on the basis of having a thatched hut, tethering few cattle and keeping the fodder has been considered and disbelieved. The plot in question is in the form of open plot for which possession would follow the title. The title of plot in question has already been vested to the respondents-plaintiff on the basis of registered sale deed, the respondent-plaintiff has rightly been held to be in possession and a decree for permanent injunction has been passed in his favour accordingly. This Court does not find any illegality or jurisdictional error in such findings and decree passed by the first appellate court. 10. In such situation, the fact findings recorded by the first appellate court do not suffer from any perversity or jurisdictional error, and the same are well within jurisdiction. The reversal of findings, in relation to possession and permanent injunction, are based on due appreciation of evidence recorded by first appellate court. 11. Hon'ble the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3SCC 722] has held as under :- 'It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so.' 12. In relation to declaration of sale deed dated 19.09.1995 of appellant as null and void qua plaintiff, there is concurrent finding by both courts below. In backdrop of factual matrix of the case, the appellant's sale deed is subsequent to plaintiff's sale deed dated 08.07.1988, and both sale deeds were executed by respondent-defendant No.1.
In relation to declaration of sale deed dated 19.09.1995 of appellant as null and void qua plaintiff, there is concurrent finding by both courts below. In backdrop of factual matrix of the case, the appellant's sale deed is subsequent to plaintiff's sale deed dated 08.07.1988, and both sale deeds were executed by respondent-defendant No.1. Once it is proved that defendant No.1-seller has already sold the plot in question through registered sale deed dated 08.07.1988 and transferred the ownership and possession in favour of plaintiff, he had no right to execute the subsequent sale deed dated 19.09.1995 in favour of appellant for the plot in question. Thus, subsequent sale deed dated 19.09.1995 has rightly been declared null and void. In cases of Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [ (2001)9 SCC 521 ], Thulasidhara & Anr. Vs. Narayanappa & Ors., [ (2019) 6 SCC 409 ], Bholaram Vs. Ameerchand, [ (1981)2 SCC 414 ], Ishwar Das Jain Vs. Sohan Lal, [ (2000)1 SCC 434 ] and State of Madhya Pradesh Vs. SabaL Singh & Ors, [ (2019)10 SCC 595 ], C. Doddanrayana Reddy and Ors. Vs. C. Jayarama Reddy and ors. [ (2020)4 SCC 659 ], has categorically held that at the stage of second appeal, fact findings recorded by two Courts below, based on appreciation of evidence, should be honoured and must not be interfered with unless and until there is some perversity, illegality or jurisdictional error which leads manifest injustice. Once findings of fact recorded by two Courts below are justified and based on due appreciation of evidence, re-appreciation of evidence at the stage of second appeal in order to draw a different conclusion is not warranted. 13. The substantial questions of law as proposed by appellant-plaintiff are essentially questions of fact requiring re-appreciation of evidence, which is not permissible within the scope of Section 100 of CPC, unless and until there is some illegality or perversity in findings. None of the question of law, falls within the purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non. 14. Learned counsel for appellant also could not point out that the findings of first appellate court suffer from any infirmity/illegality or misreading/non-reading of evidence. In such circumstances, no substantial question of law arises in this second appeal.
In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non. 14. Learned counsel for appellant also could not point out that the findings of first appellate court suffer from any infirmity/illegality or misreading/non-reading of evidence. In such circumstances, no substantial question of law arises in this second appeal. Subsequently is sine qua non for exercising the jurisdiction under Section 100 CPC and to entertain the second appeal. Hence, the second appeal is found to be devoid of merits and the same is dismissed. 15. There is no order as to cost. 16. All other pending application(s), if any, also stand(s) disposed of. 17. Record be sent back forthwith.