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2022 DIGILAW 2376 (RAJ)

Jimi v. Shri Kishna

2022-09-06

SUDESH BANSAL

body2022
JUDGMENT 1. Appellants-plaintiffs have preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 28.09.2016 passed in Civil First Appeal No.38/2013 by the Court of Additional District Judge No.1, Beawar, District Ajmer affirming the judgment and decree dated 26.10.2013 passed in Civil Suit No.1/12 (116/93) by the Court of Additional Civil Judge (Sr. Division) No.1, Beawar whereby and whereunder their civil suit for cancellation of registered sale deed dated 11.11.1991, registered on 12.11.1991 has been dismissed on merits. 2. Heard counsel for both parties and perused the record. 3. Appellants, by way of, filing the present civil suit, have assailed the registered sale deed dated 11.11.1991 executed by plaintiff No.3-Gopi, defendant Nos.1, 2 and 3 Kishna, Haira and Hajari in favour of defendant No.4-Pratap Singh. On this sale deed plaintiff No.1-Smt. Jimi put her thumb impression as witness. Plaintiff Nos.1, 2 and 3 make out a case that agricultural lands in question were ancestral and plaintiff No.3-Gopi did not make his signatures, therefore, the sale deed executed by defendant Nos.1, 2 and 3 in favour of defendant No.4 be cancelled to the extent of the share of plaintiff Nos.1, 2 and 3. 4. Appellants have moved an application under Order 41 Rule 27 CPC placing the certified copy of the registered sale deed dated 11.11.1991 on record to show some changes made in the certified copy from of the original registered sale deed in relation to age of witness Hajari and some change in presentation of the document. 5. The trial court, after recording evidence of both parties and on appreciation of evidence has observed that the agricultural lands in question was entered in the revenue record in the name of plaintiff No.3-Gopi, defendant Nos.1, 2 and 3 Kishan, Haira and Hajari and at that time plaintiff Nos.1 and 2 gave no objection (Exhibit-1) and thereafter they never challenged that mutation entry in the revenue record. The trial court observed that as far as plaintiff No.1-Smt. Jimi is concerned, she is a consenting party to the sale deed in question as she put her thumb impression on the registered sale deed dated 11.11.1991. As far as plaintiff No.2-Reshmi is concerned, plaintiff has nowhere disclosed that what was her age at the time of sale deed. The trial court observed that as far as plaintiff No.1-Smt. Jimi is concerned, she is a consenting party to the sale deed in question as she put her thumb impression on the registered sale deed dated 11.11.1991. As far as plaintiff No.2-Reshmi is concerned, plaintiff has nowhere disclosed that what was her age at the time of sale deed. The trial court further observed that plaintiff No.3 is one of the co-executants of the sale deed and the case make out by him that his signatures are forged is neither proved by his evidence nor finds support by the evidence of hand writing expert. With such fact finding, the trial court dismissed the plaintiffs’ suit. 6. The plaintiffs preferred first appeal. The first appellate court re-considered the entire material on record and on appraisal of the evidence observed that plaintiff No.1 has put her thumb impression on the sale deed in question as witness and plaintiff No.3 is one of the co-executants of the sale deed, therefore, challenge made by them is not sustainable and with such observations, the first appellate court concurred with the findings of trial court and affirmed the judgment of trial court by dismissing the first appeal on merits by its well considered and elaborate judgment dated 28.09.2016. 7. Learned counsel for appellants, by way of application Order 41 Rule 27 CPC, has placed the certified copy of the same sale deed dated 11.11.1991 which was challenged by plaintiffs in the present suit. In the suit itself, the certified copy of the sale deed was presented by plaintiffs and now plaintiffs have sought permission to produce the another certified copy of the same sale deed at the stage of second appeal. The document of registered sale deed is already on record and in question in the present litigation, there is no purpose to allow to produce the certified copy of the same sale deed again at the stage of second appeal, even if some minor changes have been pointed out with regard to the presentation of time or the age of one another witness Hajari. Such changes are not material and relevant in any manner to the controversy involved in the present second appeal. Thus, the additional documents neither fulfills the per-requisites of Order 41 Rule 27 (a) (aa) and (b) CPC nor throw any light on the germane issues involved in the present appeal. Such changes are not material and relevant in any manner to the controversy involved in the present second appeal. Thus, the additional documents neither fulfills the per-requisites of Order 41 Rule 27 (a) (aa) and (b) CPC nor throw any light on the germane issues involved in the present appeal. The Hon’ble Supreme Court in cases of Surjit Singh and Anr. vs. Gurwant Kaur and Ors. reported in [ (2015) 1 SCC 665 ] and Wadi vs. Amilal and Ors. reported in [ (2015) 1 SCC 677 ] has clearly observed that the additional evidence at the stage of appeal cannot be allowed to be produced as of right but the same is always subject to compliance of the provisions of Order 41 Rule 27 CPC. None of the essential requirements to allow the additional evidence at the stage of second appeal are fulfilled, hence the application is dismissed. 8. As far as the findings of fact recorded by both courts below is concerned, the same are based on appreciation/re-appreciation of evidence. Both courts below have concurrently held that plaintiff No.1 is one of the witnesses of the sale deed in question and her thumb impression is available on the sale deed and plaintiff No.3 is one of the executants. The theory of plaintiff No.3 that his signatures are forged has been examined and bellied. Plaintiff No.2 could not make out her case for having any individual right to the agricultural land in question. The findings of fact which are duly based on the appreciation of evidence and do not suffer from any perversity nor suffer from any misreading or non-reading of evidence are not required to be interfered with by the High Court at the stage of second appeal while exercising its jurisdiction under Section 100 CPC. The findings of fact are well within parameters of law and do not lead to any miscarriage of justice nor are against the cardinal principles of law as such do not give rise to any substantial question of law. Therefore, in absence of any substantial question of law, second appeal is not liable to be entertained and deserves to be dismissed in limine. 9. The Hon’ble Supreme Court in case of Gurnam Singh Vs. Therefore, in absence of any substantial question of law, second appeal is not liable to be entertained and deserves to be dismissed in limine. 9. The Hon’ble Supreme Court in case of Gurnam Singh Vs. Lehna Singh [ (2019) 7 SCC 641 ] has held as under:- "Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 CPC, it is not permissible for the High Court to reappreciate 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 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." 10. The Hon’ble Supreme Court in another case of C.Doddanarayana Reddy Vs. C.Jayarama Reddy [ (2020) 4 SCC 659 ], while discussing the jurisdiction of the High Court to interfere with the finding of fact under Section 100 CPC has held that though the High Court could have taken different view acting as the trial Court but once, two Courts below have returned finding which is not based upon any misreading of material documents, nor against any provision of law neither could it be said that any judge acting judicially and reasonably could have reached such a finding, then, the Court cannot be said to have erred. Relying upon the previous judgment the Supreme Court has held as under:- "Recently in another judgment reported as State of Rajasthan v. Shiv Dayal, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under: ’16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)." 11. The upshot of discussion is that the instant second appeal is not liable to succeed and the same deserves to be dismissed and is hereby dismissed. There is no order as to costs. 12. All pending application(s), if any, also stand disposed of.