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2023 DIGILAW 733 (GUJ)

Jenabai Aamad Lohar v. Singhal Mahendra Mansang

2023-05-04

RAJENDRA M.SAREEN

body2023
ORDER : 1. Present Second Appeal has been preferred by the appellants – original defendants against the concurrent findings of the learned courts below arising out of the suit for getting vacant possession of the suit property from the defendants and mesne profit. The present Second Appeal has been preferred by the appellant against the judgement and decree passed by the learned 5th Additional District & Sessions Judge, Bhuj in Regular Civil Appeal No.10 of 2018 dated 11/7/2022, by which the learned first appellate court dismissed the appeal and confirmed the judgement and decree passed by the learned 2nd Additional Senior Civil Judge, Bhuj in Regular Civil Suit No.286 of 2002 dated 28/12/2017, by which the learned trial court decreed the suit in favour of the respondent plaintiff. 2. Factual matrix of the case is as under: 2.1. Non-agricultural land at Revenue Survey No. 829 in the Camp area of Central Bhuj in Jesthanagar bearing Plot No.27 admeasuring 246.9 sq.mtrs. in Ward No.30 Sheet No.204 is registered at entry no. 3636 in the City Survey office. A division of the said plot bearing no. 27/B paiki admeasuring 131.6 consists of three houses out of which House No.3 consists of two rooms, one kitchen and one veranda. The veranda consists of one latrine, bathroom and stair case towards roof. The said house was of ownership of the Appellant No.1. 2.2. As per the case of the respondent plaintiff, he was in contact with Appellant No.2, who happens to be brother of the Appellant No.1. The Appellant No.2 informed the Respondent that his sister is owning the aforesaid house and wants to sell the same, therefore, the Respondent showed his willingness to purchase the same and purchased the same vide registered sale deed dated 21.10.1997 by paying considering of Rs.55,000/-. 2.3. As per the case of the respondent plaintiff in the sale deed that the possession of the property has been handed over to the Respondent, however, the actual possession remained with the Appellants. It is alleged that when the Respondent asked the Appellants to handover the possession, the Appellants made an excuse that some of the belongings are in house and they would be handing over the possession within 10 days. However, even after passage 10 days the Appellants did not handover the possession to the Respondent and requested for one month's time. 2.4. However, even after passage 10 days the Appellants did not handover the possession to the Respondent and requested for one month's time. 2.4. As per the case of the respondent plaintiff despite repeated reminders the Appellants chose not to vacate the property, therefore, the Respondent vide registered notice dated 28.07.1998 called upon the Appellant No.1 to handover the possession of the property, however, the Appellant No.1 through its Advocate vide reply dated 19.08.1998 informed Respondent that she would handover the possession by 15.11.1998. However, the evenafter that the Appellant No.1 did not handover the possession. Therefore, the Respondent alongwith one Jayeshbhai went to the said house on 30.12.1998 to request the Appellant No.1 to handover the possession. At the said time the Appellant No.2 was present at the house and he threatened the Respondent that he will not get the possession and if he will ever try to take possession, the Appellant No.2 would finish him. 2.5. Therefore the respondent preferred Regular Civil Suit No. 286 of 2002 before the Learned Civil Court, Bhuj-Kachcch seeking relief possession of the suit property and seeking mesne profit of Rs.250/- per month from date of filing of suit till handing over of possession. 2.6. The learned 2nd Additional Senior Civil Judge, Bhuj vide judgement and decree dated 28/12/2017 decreed the Regular Civil Suit No.286 of 2002 in favour of the plaintiff – respondent herein. 2.7. Being aggrieved by and dissatisfied with the aforesaid judgement and decree passed by the learned trial court, the appellants – defendants preferred Regular Civil Appeal No.10 of 2018, which came to be dismissed by the learned 5th Additional District & Sessions Judge, Bhuj vide judgement and decree dated 11/7/2022, confirming the judgement and decree passed by the trial court. 2.8. Being aggrieved by the aforesaid both the concurrent judgement and decree passed by both the courts below, the appellants – defendants have preferred the present Second Appeal. 3. SUBMISSIONS OF THE APPELLANTS: 3.1. Mr.Manan Paneri, learned advocate for the appellants – defendants has submitted that the impugned judgement and decree passed by both the courts below are illegal, bad in law and contrary to the evidence on record. 3.2. 3. SUBMISSIONS OF THE APPELLANTS: 3.1. Mr.Manan Paneri, learned advocate for the appellants – defendants has submitted that the impugned judgement and decree passed by both the courts below are illegal, bad in law and contrary to the evidence on record. 3.2. Mr.Paneri, learned advocate for the appellants has further submitted that the judgement and decree is passed only on the ground that there is registered sale deed dated 21/10/1997 executed in favour of the plaintiff - respondent and the same is not challenged by the defendants in any court. It is submitted that this finding declaring the defendant - respondent herein, as absolute owner is erroneous. 3.3. It is submitted that the plaintiff has not sought any relief as to the ownership of the suit property and the suit is simpliciter for the possession and mesne profit, which is not maintainable. It is submitted that when the suit is prohibitory injunction relating to immovable property, cloud is raised over the plaintiff’s title and he does not have the possession, with or without a consequential injunction is the remedy. It is submitted that here in this case no injunction is sought for. 3.4. Mr.Paneri, learned advocate for the appellants has further submitted that the sale deed was disputed by the defendants and no evidence regarding payment of consideration has been brought before the trial court and the sale deed being devoid of consideration, is not legal sale deed as per the provisions of the Contract Act. 3.5. Mr.Paneri, learned advocate for the appellants has relied upon the decision of the Hon’ble Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. And others, reported in AIR 2008 SC 2033 , where in case of suit of prohibitory injunction relating to immovable property, the Hon’ble Apex Court has observed as under :- “Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.” 3.6. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.” 3.6. Mr.Paneri, learned advocate for the appellants has also relied upon the decision of the Hon’ble Apex Court in the case of Kewal Krishan Vs. Rajesh Kumar and others, reported in AIR 2022 SC 564 , wherein the Hon’ble Apex Court has observed as under :- “Section 54 of the Transfer of Property Act, 1882, reads thus : “54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by Section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property.” 4. SUBMISSIONS OF THE RESPONDENT: 4.1. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property.” 4. SUBMISSIONS OF THE RESPONDENT: 4.1. Mr.Thakkar, learned advocate, who has appeared on Caveat has submitted that no infirmity, illegality, perversity or impropriety is found in the judgement and decree passed by both the courts below and the same are on appreciation of evidence on record and not perverse and no substantial question of law arise in the present Second Appeal and hence he has prayed to dismiss the present appeal at the admission stage. 5. FINDINGS: 5.1 I have examined the findings of both the courts on the issue raised in the suit. Upon examination of the judgement and order of both the courts below, no infirmity, illegality, perversity or impropriety is pointed out in the concurrent findings of the facts rendered by the courts below by the learned advocate for the appellants. Not only that, the learned advocate for the appellants – defendants is unable to show to this court any finding recorded by the learned courts is without any evidence or there is any illegality in the findings. 5.2. The grievance is raised by the appellants – defendants with regard to the sale deed being fraudulent, sham, bogus and without consideration and cloud is raised over the title of the plaintiff. On perusal of the material on record and judgements of both the courts below, it appears and it is undisputed fact that after service of the summons upon the appellants defendants, the defendants did not turn up and did not remain present in the Court. Ultimately on account of continuous absence of the defendants – appellants herein, the right of the defendants of filing Written Statement was closed. However, at the instance of the defendants, the rights of the defendants to adduce the evidence was opened in the year 2009 and the appellant No.2 adduced evidence at Ex.74 but thereafter, the defendants again did not remain present before the trial court and on account of absence, ultimately again, the evidence was closed. Under the circumstances, mere filing of examination-in-chief by way of Affidavit cannot be considered. Under the circumstances, mere filing of examination-in-chief by way of Affidavit cannot be considered. Thereafter, the trial court was kind enough and taking lenient view, again the right of the defendants was opened in the year 2011 but thereafter also the appellant No.2 did not remain present and even in the year 2014 also last opportunity was granted to the appellants defendants, but the appellants had not remained present and thereafter the evidence was closed and arguments were heard and the judgement was pronounced. From the evidence on record and findings of both the courts below, it is clear that the there was sheer negligence on the part of the appellants and the appellants – defendants were not vigilant and it appears that the defendants were not interested or they did not try to bring their case before the court and lead evidence in support of their case to the with respect to the sale deed being sham, bogus or fraudulent, as alleged, though more than sufficient opportunities were granted to the appellants defendants. No evidence contrary to the evidence of the respondent plaintiff has been adduced by the the defendants. It is relevant to note that though the sale deed was executed in the year 1997 till 2002, the defendants – appellants never challenged the sale deed on the ground of being fraudulent, without consideration etc. It is also to be noted that the sale deed has been executed by the appellant No.1 in favour of the respondent plaintiff and if it is in fact the case the sale deed is fraudulent, void and/or without consideration and not as per the provisions of section 54 of the Transfer of Property Act, the appellant No.1 could have entered into the witness box and could have adduced evidence, but the appellant No.1 has opted not to do so and no iota of evidence has been adduced in support of their case. 5.3. It has also come on record that the notice was served upon the defendants for getting possession of the property and in that notice also the defendants – appellants herein have not taken contention that the sale deed is fraudulent, bogus or without consideration. 5.3. It has also come on record that the notice was served upon the defendants for getting possession of the property and in that notice also the defendants – appellants herein have not taken contention that the sale deed is fraudulent, bogus or without consideration. It is relevant to note that for the first time as per the submission of the learned advocate for the appellants, question regarding non-consideration for the sale deed was asked in the cross examination by the plaintiff. Except this, no evidence has been given by the defendants from which the court can believe the sale deed is fraudulent, bogus or without consideration. Even from the inception, no contention was raised by the defendants – appellants herein in the Written Statement that the sale deed is bogus, fraudulent and without consideration. Had there been such was the case of the defendants, they could have raised such a contention in the Written Statement itself from the beginning. The courts below have relied upon the registered sale deed and on the basis of the evidence on record passed the impugned the judgement decree on appreciation of evidence and the same cannot be said be erroneous and no error has been committed by the courts below in passing the impugned judgement and decree in favour of the plaintiff – respondent. This court does not find any error in the concurrent findings of both the courts below and no interference of this Court is called for. 6. So far as the decision relied upon by the learned advocate for the appellant in the case of Athula Sudhakar (supra) is concerned, in the said case, the defendants resisted the suit right from the beginning and filed objections against the suit itself and based upon the pleadings, the court framed the issues. Here in this case, as observed above, neither any contention was raised by the defendants in the Written Statement nor any evidence was adduced by the defendants with respect the sale deed being fraudulent, bogus and without consideration. In the facts of the case on hand, the said decision would not come to rescue the appellants herein – original defendants. 7. In the facts of the case on hand, the said decision would not come to rescue the appellants herein – original defendants. 7. So far as the decision in the case of Kewal Kishan (supra) relied upon by the learned advocate for the appellants is concerned, in the said case, it was the suit in which based upon the particular facts the respondent had failed to adduce any evidence to prove that the minor son had any source of income and they have paid the sale consideration and based upon the facts of the case, the Hon’ble Apex Court found that the sale deed was devoid of consideration and void enough. Here in this case, no iota of evidence has been adduced by the defendants, as stated hereinabove regarding non-payment of sale consideration. Considering the facts of the case on hand, the said decision would not be helpful to the appellants defendants. 8. Under the circumstances, as stated above, this court does not find any error or law in the concurrent findings of the learned courts below. In exercise of powers under section 100 of the Code of Civil Procedure, jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised so as to enable this Court to admit the present appeal. 9. The scope of Second Appeal under section 100 is limited. Second Appeal is competent only if it involves, at the stage of admission, substantial question of law. High Court can interfere with the concurrent findings of fact, if the findings are perverse but the perversity should be apparent on the face of record. 10. Here in this appeal, the question of law raised cannot be said to be substantial question of law and there are question of law but not the substantial question of law. 11. In the case of Easwari Versus Parvathi and others,. reported in (2014) 15 SCC 255 , it is held that High Court can entertain a Second Appeal on a substantial question of law and it has absolutely no jurisdiction to entertain the Second Appeal on the ground of erroneous findings of fact, however, gross error seems to be looked into. High Court can interfere in the concurrent findings of facts in the Second Appeal if the appellate court has not properly appreciated the evidence on record. 12. High Court can interfere in the concurrent findings of facts in the Second Appeal if the appellate court has not properly appreciated the evidence on record. 12. In the case of Samina Khatun, AIR 1995 Gauhati 104, also it is held that High Court can only entertain Second Appeal only on substantial question of law. High Court has absolutely no jurisdiction to entertain Second Appeal on the ground of erroneous findings of fact. 13. As laid down in the case of State of Haryana Versus Khalsa Motors Limited, reported in (1990) 4 SCC 659 , on the basis of evidence on record it is held that the trial court and first appellate court has given concurrent findings of facts and the High Court cannot reverse the said findings under ordinary circumstances. 14. In the case of C.Doddanarayana Reddy & Ors. Vs. C. Jayarama Reddy & Ors., reported in (2020) 4 SCC 659 , the Hon’ble Apex Court has observed and held as under :- “25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan (1999) 6 SCC 343 , it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: “12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. In Ramanuja Naidu v. V. Kanniah Naidu ( 1996 3 SCC 392 ), this Court held: "It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did." 14. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did." 14. In Navaneethammal v. Arjuna Chetty ( 1996 6 SCC 166 ), this Court held : "Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material." 15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. ( 1997 4 SCC 484 ), this Court held: (SCC p. 486, para 5) "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible." 26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., (1999) 3 SCC 722 , this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under: “5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. This Court held as under: “5. It is not within the domain of the High Court to investigate the grounds on which 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 had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.” 27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, (2001) 3SCC 179, this Court held as under: “14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637 , it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors 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: “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).” 29. The learned High Court has not satisfied the tests laid down in the aforesaid judgements. Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court. 15. In the recent decision in the Case of Kapil Kumar Vs. Raj Kumar reported in (2022) 10 SCC 281 , the Hon’ble Apex Court has observed and held as under :- “10. At the outset, it is required to be noted that as such there were concurrent findings of facts recorded by the learned trial court as well as the learned first appellate court on execution of pronote by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the findings recorded by the courts below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under section 100 CPC. 11. Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law. From the impugned judgement and order passed by the High Court, it appears that as such no specific substantial question of law seems to have been framed by the High Court. However, it appears that what was considered by the High Court was whether the plaintiff proves the execution of pronote and the receipt by leading cogent evidence.” 16. This appeal, as stated above, is devoid of any substantial question of law. Both the courts have rightly decided the issue between the parties in the right perspective. No cogent and convincing evidence has been brought on record to justify the claim of the appellants. The defendants has failed to prove his case before the trial court as well as the appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merits both on facts and law and hence the same is dismissed at admission stage. Notice is discharged. On dismissal of the main Second Appeal, the Civil Application No.1 of 2022 stands rejected.