Gujarat High Court

Trivedi Kalidas Umiyashankar vs Lr Of Decd Thakor Fakirji Mafaji on 15 September, 2023

Bench: Bhargav D. Karia

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/SECOND APPEAL NO. 15 of 2023

                                      With
                   CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                        In R/SECOND APPEAL NO. 15 of 2023

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== TRIVEDI KALIDAS UMIYASHANKAR Versus LR OF DECD THAKOR FAKIRJI MAFAJI ========================================================== Appearance:

MR. BHAVIK P SHAH(6391) for the Appellant(s) No. 1,2,2.1,2.1.1,2.1.2,2.1.3,3 MR. ZALAK B PIPALIA(6161) for the Appellant(s) No. 1,2,2.1,2.1.1,2.1.2,2.1.3,3 for the Respondent(s) No. 1.1,2,3 VINAY D BAIRAGRA(8360) for the Respondent(s) No. 1,1.2,1.3,1.4,1.5,1.5.1,1.5.2,1.6,1.7 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 15/09/2023

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CAV JUDGMENT

1.Heard learned advocate Mr. Zalak B. Pipalia

for the appellants and learned Senior

Advocate Mr. Kamal B. Trivedi assisted by

learned advocate Mr. Vinay D. Bairagar for

respondent nos. 1, 1.2, 1.3, 1.4, 1.5, 1.5.1,

1.5.2, 1.6 and 1.7.

2.By this appeal, the appellants have

challenged the legality and validity of

Judgment and Order dated 13.12.2022 passed

of 2019 passed by learned Additional District

Judge, Gandhinagar at Kalol raising the

following substantial questions of law:

"(A) Whether the Ld. Lower Appellate court has erred in coming to a conclusion that the aspect of fraud as alleged by the plaintiff is not proved before the Ld. Trial Court?

(B) Whether the Ld. Lower Appellate Court has wrongly not considered the oral evidence of

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the defendant no.1 for the purpose of proving the factum of passing of consideration in lieu of execution of sale deed without appreciating the provisions of the Evidence Act?

(D) Whether the Ld. Lower Appellate Court has erred in reversing the well reasoned judgment of the Trial Court without appreciating that the burden of proof lies on the defendant to prove his defense as mentioned in his written statement?

(E) Whether the Ld. Lower appellate Court has erred in passing the impugned judgment without taking into consideration that there is no evidence produced on record by the defendants to show that they have paid the amount of consideration to the plaintiffs?"

3.Brief facts of the case are that land bearing

Survey No.809 admeasuring 40193 sq. mtrs at

Village Ranchada, Taluka Kalol, District

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Gandhinagar was under the joint ownership of

seven persons out of which the unsold portion

of 11852.8 sq. mtrs (hereinafter referred to

as "the suit property") was owned by the

appellants - original plaintiff nos. 1 to 3

(hereinafter referred to as the plaintiffs),

respondent no.2-original defendant no. 2

(hereinafter referred to as defendant no.2)

and respondent no.3-original defendant no.3

(hereinafter referred to as defendant no.3).

So far as respondent no.3 original defendant

no.3 is concerned, he had no share in the

disputed property but he was joined as party

for technical reasons but no relief was

claimed in the plaint.

3.1) On 06.06.2005, one Shri

Chandrakantbhai Ramkrushnabhai Tripathy

plaintiff no. 3 and Shri Jaydevbhai

Ramkrushnabhai Tripathy - defendant no.2

executed a Power of Attorney in favour of

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Shri Kalidas Umiyashankar Trivedi - plaintiff

no.1 to execute the Agreement to Sale/Sale

Deed on their behalf.

3.2) Plaintiffs and defendant no.2 being

the owner of the land bearing Survey No.809

admeasuring 10371.2 sq. mtrs and defendant

no.3 owning share of 1481.6 sq. mtrs executed

a Sale Deed duly registered under the

provisions of Indian Registration Act, 1908

on 13.09.2005 in favor of defendant no.1 for

a sale consideration of Rs. 9,58,500/-. The

parties to the aforesaid sale deed also

executed a notarized Declaration cum

Indemnity Bond to the effect that out of the

total land under Survey no. 809, the

remaining unsold portion of land admeasuring

11852.8 sq. mtrs is sold to one Shri

Fakirbhai Mafaji Thakore, defendant no.1 in

the suit.

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3.3) The other landowners and their legal

heirs having interest in the land bearing

survey no. 809 executed an Acceptance Deed

dated 12.08.2005 duly registered in favour of

defendant no.1 inter-alia accepting and

confirming the execution of the aforesaid

sale deed in favor of defendant no.1 in its

entirety.

3.4) It is the say of the plaintiffs that

defendant no.1 and his men met deceased

Dashrathbhai Umiyashankar who was engaged in

commission business of land property and he

assured good price for the disputed property

and obtained Power of Attorney from the

plaintiffs for want of some procedure and

documentation in respect of prospective

customers. It was also contended that the

plaintiffs did not receive any amount of

consideration from defendant no.1 in lieu of

signature in Power of Attorney or other

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documents. On the contrary, the plaintiffs

were told to wait for completion of Diwali

festival and were also assured for good

prospective amount for the suit property but

when the plaintiff inquired into Revenue

record, it was revealed that defendant no.1

has executed a registered sale deed on

13.09.2005 for consideration of Rs.9,48,500/-

The plaintiffs further contended that

plaintiff no.1 was shown as Power of Attorney

of plaintiff no.3 and defendant no.3 in the

sale deed which was registered at Sr No.2633

in the office of sub registrar. The

plaintiffs were surprised when they obtained

copy of index on 27.10.2008 and came to know

that they have been cheated by defendant no.1

by obtaining fraudulent signature in sale

deed in the name of Power of Attorney. It was

also contended that defendant no.1 has

committed criminal breach of trust by

obtaining sale deed fraudulently and mutation

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of the same in Revenue record by Entry

No.6465 without payment of consideration to

the plaintiffs.

3.5) The plaintiffs filed Special Civil

Suit No. 124 of 2008 before the learned

Principal Civil Judge, Kalol seeking

cancellation of Registered Deed dated

13.09.2005.

3.6) The defendant no.1 filed its written

statement on 08.07.2009 raising various

grounds including the aspect of limitation as

well as categorically stating that there is

no fraud on part of the original defendant

no.1 and that sale consideration was duly

paid to the plaintiffs.

3.7) The plaintiffs thereafter sought

amendment of the plaint on 25.01.2012 which

was allowed. Thereafter suit was dismissed

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for non prosecution vide order dated

27.10.2015 under Order IX Rule 3 of the Code

of Civil Procedure, 1908 (For short "the

Code") which was restored vide order dated

03.02.2018 by the trial Court on an

application filed by the plaintiffs.

3.8) The plaintiffs filed examination in

chief on 11.12.2018 and plaintiff no. 1 was

cross examined on 08.01.2019. Defendant

No.1/2 and one Shri Thakore Ranchodji Buaji,

who was watchman of the suit property, filed

their respective affidavits on 18.03.2019 and

24.06.2019 and the said witnesses were cross

examined on 15.04.2019.

3.9) Learned trial Court passed the

Judgment and Decree dated 05.11.2019 in

favour of the plaintiffs setting aside the

registered Sale Deed dated 13.09.2005 and

Acceptance Deed dated 12.08.2005.

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3.10) Being aggrieved and dissatisfied by

the Judgment and Decree, defendant no.1 filed

First Appeal being Regular Civil Appeal No.87

of 2019 before the learned Additional

District Court, Gandhinagar.

3.11) Learned Appellate Court by Judgment

and Order dated 13.12.2022 allowed the appeal

filed by defendant no.1 quashing and setting

aside Judgment and Decree dated 19.12.2019

passed by the trial Court.

3.12) The appellants being aggrieved by

the Judgment and order dated 13.12.2022 have

preferred this Second Appeal raising the

substantial questions of law stated

hereinabove.

4.Learned advocate Mr. Zalak B. Pipalia for

the appellants submitted that learned

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Appellate Judge did not deal with the

evidence on record and has given weightage to

the aspect that the appellants did not

institute any criminal proceedings against

defendant no.1 and did not challenge the

entry of the registered sale deed before the

revenue authority without considering the

fact that the genuineness of the sale

transaction was challenged before the trial

Court and the plaintiffs have been successful

on the basis of evidence on record in the

said challenge before the trial Court. It was

submitted that the Appellate Court ignored

the aspect of non payment of consideration

during the execution of the sale deed, more

particularly, when the defendants have failed

to prove contrary that the sale consideration

was received by the plaintiffs by adducing

any evidence to that effect.

4.1) It was submitted that the Appellate

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Court committed an error by holding that

plaintiffs did not claim any relief for

recovery of possession and therefore, sale

deed could not have been cancelled by the

trial Court. It was submitted that as per the

provisions of the Evidence Act, oral evidence

is admissible to show that the document

executed was never intended to operate but

that some other agreement, not recorded into

the document was entered into between the

parties. It was submitted that the Appellate

Court has not taken into consideration the

material provisions of the Evidence Act while

arriving at the finding that the judgment of

the trial Court is only based upon cross

examination of the defendant.

4.2) It was submitted that suit was

instituted only on the basis that plaintiffs

were made to understand that they were

signing Power of Attorney and not sale deed,

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but sale deed was executed in favour of

defendant no.1 by misrepresentation without

payment of any consideration to the

plaintiffs. It was therefore, submitted that

the Appellate Court failed to appreciate that

the factum of payment of sale consideration

as well as the financial capacity and

requisite proof with regard to passing of the

sale consideration has not been produced and

not even proved by the defendants and

therefore, well reasoned judgment passed by

the trial Court could not have been reversed

on assumption and presumption without

assigning any cogent reason in support

thereof.

4.3) Learned advocate Mr. Pipalia invited

the attention of the Court to the cross

examination of plaintiff no.1 to submit that

when the plaintiff has specifically denied

receiving of amount of sale consideration, no

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questions/suggestions were put to the

plaintiff asking what was the full amount of

consideration to be paid to the plaintiff and

other legal heirs prior to or on the date of

execution of the sale deed nor any question

was asked about the amount of consideration

that was paid at the time of execution of the

sale deed.

4.4) Learned advocate Mr. Pipaliya

referred to and relied upon to the conclusion

arrived at by the trial Court that defendant

no.1 has failed to prove that payment of full

consideration to the plaintiffs by adducing

cogent evidence. It was therefore, submitted

that the Appellate Court failed to appreciate

the evidence led before the trial Court in

its true perspective inspite of the fact that

it was specifically the case of the

plaintiffs that sale deed was executed

fraudulently.

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4.5) It was submitted that the Appellate

Court was also required to check the minute

details with regard to the signatures,

measurement etc. of the suit property in the

sale deed, more particularly, when defendant

no. 1.2 Shaileshbhai Fakirbhai Thakor had

deposed on oath that he was present at the

time of execution of the sale deed with his

deceased father and had signed the sale deed

as witness. It was submitted that on

consideration of signature of witness of the

sale deed, it appears that one Bharat F.

Thakore has signed the same and not

defendant No.1.2 Shaileshbhai Thakor. Though

defendant no. 1.2 during his cross

examination stated that his second name is

Bharat Thakor, he failed to clarify the same

in his affidavit of examination in chief. It

was therefore pointed out that the learned

Appellate Court has missed all such minute

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details while appreciating the evidence on

record.

4.6) Learned advocate Mr. Pipaliya would

submit that the learned Appellate Court has

missed out the most relevant part that the

plaintiffs' signature is also not present on

each and every page of the registered sale

deed which is considered in detail by the

trial Court. Learned Appellate Court

therefore, could not have quashed and set

aside the detailed judgment rendered by the

trial Court without taking into consideration

all the infirmities in the sale deed sought

to be cancelled by the plaintiffs.

4.7) It was submitted that learned

Appellate Judge has given a finding that the

burden of proving certain averments made in

the plaint with regard to fraud and non

receipt of consideration is upon the

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plaintiffs, but at the same time learned

Judge did not take into consideration that

when it is a case of fraud, even oral

evidence is admissible to show that the

document in question was never intended to be

executed and the same has been sufficiently

proved by the plaintiffs relying upon the

oral evidence of the defendant No.1.

4.8) It was submitted that learned

Appellate Court has erroneously come to the

conclusion since the plaintiffs no.1 was

working with the office of the Ahmedabad

Municipal Corporation, he was an educated

person and therefore, he was well aware of

the difference between power of attorney.

agreement to sale and a sale deed ignoring

the fact that the plaintiff no.1 in his cross

examination has stated that he has studied

till 7th Standard and in fact he was employed

with the corporation as a peon, and therefore

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a person who is educated till class 7 can

hardly make out any difference between the

documents such as power of attorney, sale

deed and agreement to sale. It was therefore,

submitted by learned advocate Mr. Pipaliya

that the learned Appellate Judge has arrived

at such findings only on the basis of

inferences and learned Judge was not right in

holding that since person is serving in the

office of Municipal Corporation, he is bound

to know about the difference in the

documents.

4.9) It was submitted by learned advocate

Mr. Pipaliya that heavy reliance was placed

by learned Appellate Judge upon the cross

examination of plaintiff no.1 wherein he has

stated that he is not in possession of the

subject land, to reach to a conclusion that

without execution of sale deed in favor of

defendant No.1, they could not have been put

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in possession of the land in dispute.

4.10) It was therefore submitted that such

findings arrived at by learned Appellate

Judge is erroneous because it cannot be

presumed that when a person is in possession

then documents upon which he claims

possession is legal and valid.

4.11) Learned advocate Mr. Pipaliya

submitted that the findings arrived at by

learned Judge that the suit is time barred is

also erroneous as no such issue of limitation

was ever raised before the trial Court while

framing the issues and therefore, learned

Appellate Judge could not have given any

finding with regard to the said aspect. It

was submitted that suit being filed within

law of limitation is a mixed question of law

and fact and the same was required to be

raised before the trial Court and such issue

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could not have been considered by the

Appellate Judge in the First Appeal and

therefore, it is to be presumed that the

parties have waived the same. It was pointed

out that the cause of action mentioned in the

suit itself is clear to show that the suit

was filed within the limitation prescribed in

Article 56 of the Law of Limitation Act. It

was also pointed out that learned Judge has

misinterpreted the provisions of Section 54

of the Transfer of Property Act.

4.12) Learned advocate Mr. Pipaliya in

support of his submissions referred to and

relied upon the decision of this Court in

case of Bhupendra Shantilal Shah v. Fanny

Rustomji Contractor (Judgment dated

06.05.2022 passed in First Appeal

No.2592/2019), wherein after referring to the

decision of Apex Court in case of Subhra

Mukherjee v. Bharat Coking Coal Ltd.,

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reported in (2000) 3 SCC 312, it was held

that though the burden of proving fraud lies

on the persons alleging it, fraud is not

capable of being established by positive and

tangible proof. It is therefore, sufficient

if the evidence given is such as may lead to

an inference that fraud must have been

committed. It was submitted that in facts of

the said case it was observed that defendants

nos. 2 and 3 could not have remained silent

spectators to have waited for defendant no.1

to produce the original documents on his own

and law is clear on the point that if a

party calls upon other to produce a document

as evidence and on being produced, inspects

them, the document should be taken as

evidence by both the parties without proof

and should be admitted in toto.

4.13) Learned advocate Mr. Pipaliya also

referred to and relied upon the decision of

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in case of Gangabai v. Chhabubai reported in

(1982) 1 SCC 4, wherein the Apex Court while

interpreting sections 92(1) and 92 of the

Evidence Act, 1872 held that bar imposed by

sub-section (1) of section 92 applies only

when a party seeks to rely upon the

document embodying the terms of the

transaction and in that event, the law

declares that the nature and intent of the

transaction must be gathered from the terms

of the document itself and no evidence of

any oral agreement or statement can be

admitted as between the parties to such

document for the purpose of contradicting

or modifying its terms. It was further held

that sub-section is not attracted when the

case of a party is that the transaction

recorded in the document was never intended

to be acted upon at all between the parties

and that the document is a sham. Such a

question arises when the party asserts that

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there was a different transaction

altogether and what is recorded in the

document was intended to be of no consequence

whatever. For that purpose oral evidence is

admissible to show that the document

executed was never intended to operate as

an agreement but that some other agreement

altogether, not recorded in the document,

was entered into between the parties. The

Apex Court referred to and relied upon the

decision in case of Tyagaraja Mudaliyar v.

Vedathanni reported in AIR 1936 PC 70 wherein

it was held that the trial Court was right in

permitting the respondent to lead oral

evidence in support of her plea that the sale

deed dated January 7, 1953 was a sham

document and never intended to be acted upon.

It was not disputed that if the oral evidence

is admissible, the finding of the Court below

in favour of the respondent must be accepted.

It was therefore, submitted that in facts of

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the case, the Appellate Court has failed to

consider the oral evidence as admissible in

favour of the appellants-plaintiffs.

4.14) Reliance was placed on decision of

Division Bench of this Court in case of

Veljibhai Mavjibhai Mistry v. Joitiben Wd/o

Bababhai Jaitabhai Patel Through Legal Heirs

and others (Judgment dated 18.09.2017 passed

in First Appeal Nos.2254 and 2255 of 2015),

wherein it is held as under:

"6. In light of the provisions of Order VI Rule 4 read with the provisions of Section 100 of the Evidence Act, once, the plaintiff asserted that no consideration was received, the burden of proof to prove the contrary was on the defendants 1 and 2. Apart from the fallacy of the consideration having being paid on the same day, being exposed through their cross- examination itself, no receipts of proof that actual consideration has been paid is brought forth by them.

Payment of consideration in cash and cheque was within the special knowledge of the defendant no. 2 which burden both, the defendant No.

discharge. If it was their case that

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in fact, cash amount of Rs.29,00,000/- plus a cheque for an amount of Rs. 4,00,000/- was paid on the date of the Power Of Attorney, the primary responsibility to prove such fact was upon them. In fact, when a suggestion is made in the cross-examination, the defendant no. 1 categorically admits that he did

insisted for receipts."

5.On the other hand, learned Senior Advocate

Mr. Kamal Trivedi with learned advocate Mr.

Vinay Bairagar for the respondents original

defendants submitted that learned Appellate

Judge having appreciated the evidence on

record has rightly arrived at conclusion that

registered sale deed could not have been

cancelled by the trial Court when fraud and

non payment of consideration were not proved.

It was submitted that assuming that entire

sale consideration had not in fact being

paid, it could definitely not be a ground for

cancellation of the registered sale deed. It

was submitted that no question of law much-

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less any substantial question of law arises

from the impugned judgment and order passed

by the Appellate Court inasmuch as the

appellants-plaintiffs have failed to prove

the aspect of fraud, non payment of sale

consideration to the defendant no.1.

5.1) Learned Senior Advocate Mr. Trivedi

invited the attention of the Court that

defendant no.3 was shown as a confirming

party to the registered sale deed and he has

never challenged the said registered sale

deed. It was submitted that as per section

32(a) of the Registration Act, all the

parties who have executed the aforesaid said

deed, have signed and put their thumb

impressions in front of Sub-Registrar Kalol.

Therefore, the plaintiffs who have already

signed the sale deed cannot now say that they

have signed the sale deed as a Power of

Attorney. It was also pointed out that in the

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suit filed by the appellants-plaintiffs, the

contents of the aforesaid registered sale

deed have not been disputed on any count, but

the sale deed is sought to be challenged only

on the ground that the said document has been

made to be signed by the plaintiffs under the

guise of Power of Attorney and without

consideration. It was submitted that

Declaration cum Indemnity Bond which are

containing identical contents to those

mentioned in the sale deed have never been

challenged by the plaintiffs, more

particularly, paragraph no.32 of the said

document refers to the aspect of sale of the

suit property by the sale deed in favour of

the defendant no.1.

5.2) It was submitted that none of the

signatures to the Acceptance Deed which was

sought to be cancelled in the plaint has

never been questioned by any one before any

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Court except by plaintiffs in the suit.

5.3) It was submitted that the Appellate

Court after re-appreciating the evidence has

come to the conclusion that the trial Court

committed an error by allowing the suit by

holding that Sale Deed dated 13.09.2005 was

without consideration and therefore, null and

void.

5.4) It was submitted that the trial

Court did not appreciate the evidence

properly as trial Court has given unnecessary

importance to negligent and irrelevant

description recorded in the cross examination

of defendant nos. 1 and 2 to hold that sale

deed was without consideration and was

executed fraudulently by shifting onus upon

defendant no.1 to prove the legality of the

registered sale deed in question instead of

the plaintiffs who are supposed to prove that

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defendant no.1 got the sale deed executed in

his favour fraudulently. It was submitted

that the scope in Second Appeal is very

narrow as per the settled legal position and

only substantial questions of law can be

considered without appreciating the evidence

on record. It was submitted that the

plaintiffs have not raised any question of

perversity with regard to the impugned

Judgment and Order passed by the Appellate

Court.

5.5) In support of his submissions,

reliance was placed in case of Dahiben v.

Arvindbhai Kalyanji Bhanusali (Gajra) Dead

Through Legal Representatives and others

reported in (2020) 7 Supreme Court Cases 366,

wherein it is held by the Apex Court that if

the plaintiffs had a genuine grievance of non

payment of sale consideration then action

could have been taken by the plaintiffs to

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recover but same could not be a ground for

cancellation of the sale deed as the

plaintiffs may have other remedies in law for

recovery of sale consideration but could not

be granted relief of cancellation of

registered sale deed. The Apex Court found

that the suit filed by the plaintiffs was

vexatious, meritless and does not disclose a

right to sue.

5.6) Reliance was also placed on the

decision in case of Rattan Singh and others

v. Nirmal Gill and others reported in 2020

SCC OnLine SC 936, wherein the Apex Court in

similar facts held that proof beyond

reasonable doubt is not a requirement of law

and when registered sale deed was not in

dispute, the burden was on the party denying

the receipt of sale price and onus to prove

that the sale consideration was not paid,

could not be placed on the defendants. The

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Apex Court while considering the aspect of

fraud in respect of documents i.e. General

Power of Attorney and Sale Deed executed in

the year 1990 held that even assuming that

the burden had shifted upon the defendants,

the witness identifying signatures of the

dead when attesting witness was

examined by the defendants then, the

documents stood proved and the burden was

duly discharged by the defendants. The Apex

Court therefore, held that the plaintiff was

obliged to rebut the positive evidence

produced by the defendants regarding payment

of consideration amount to the plaintiff; but

also ought to have independently proved

her case of non-receipt of the

consideration amount. It was therefore

submitted that in facts of the case, the

plaintiffs did not prove non receipt of

consideration and mere assertion in the oral

evidence is not sufficient as sought to be

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canvassed on behalf of the plaintiffs. It was

submitted that learned Appellate Judge has

therefore, rightly come to the conclusion

after re-appreciating the evidence by

negating the say of the plaintiffs in view of

provisions of section 54 of Transfer of

Property Act which defines "Sale" as transfer

or ownership in exchange for a price paid or

promised or part paid and part promised. The

Appellate Court therefore, considering para

24 of the registered sale deed at Exh. 101

and 126 came to the conclusion that sale

price of the subject land was received in

piece-meal by the plaintiffs from defendant

no.1 and thereafter the defendant no.1 was

put in possession.

5.7) Learned Senior Advocate Mr. Kamal

Trivedi also referred to the deposition of

the witness of the defendant Thakor

Ranchhodji Budaji at Exh.140, wherein he has

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specifically stated that the subject land is

in possession of the defendant No.1 and he is

working as watchman for about last seven

years. It was submitted that defendant no.1

was put in possession after execution of the

sale deed on payment of sale consideration to

the plaintiffs. Reference was also made to

the evidence of plaintiff no.1 Trivedi

Kalidas Umiyashankar at Exh.90, wherein he

has also admitted that defendant No.1 and his

legal heirs are in possession of the subject

land and he has not challenged mutation entry

no.6465 wherein names of Defendant No.1

wherein names of legal heirs have been

entered since 13.01.2006 and running till

today.

5.8) With regard to issue of limitation,

it was submitted by learned Senior Advocate

Mr. Trivedi that the Appellate Judge after

scrutiny of the record and the impugned

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judgment referred to the written statement at

Exh.33 filed by the defendants raising bar of

limitation which was not considered by the

trial Court in view of allegation of fraud

pleaded by the plaintiffs that they came to

know about the alleged fraud in the year 2008

on receipt of index of sale deed. It was

submitted that the Appellate Judge taking

note of such issue examined the question on

law and facts and held that trial Court has

ignored the same resulting into miscarriage

of justice. It was in this context that the

Appellate Court held that suit filed by the

plaintiffs was barred by limitation reversing

the findings of the trial Court in light of

facts on record. It was submitted that the

learned Appellate Court has not decided the

issue of limitation but has specifically

referred to the same being lacuna in the

Judgment and Decree passed by the trial

Court.

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5.9) Learned Senior Advocate Mr. Kamal

Trivedi submitted that the Appellate Court

after re-appreciating the evidence has come

to the conclusion that it was not proved by

the plaintiffs that no consideration was paid

and it is the case of the defendants that the

amount of consideration was paid in piece-

meal to the plaintiffs by the defendant no.1

and even if some amount remained unpaid then

in that case also as per the settled legal

position, registered sale deed could not have

been declared as null and void and the

appellants-plaintiffs could have filed the

suit for recovery of unpaid amount of

consideration.

6.Heard the learned advocates for the

respective parties and considered the paper

book filed on behalf of the respondents

containing all the documents on record, copy

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of plaint, written statement, oral evidence

of the plaintiff, oral evidence of the

defendants, copy of Sale Deed, Acceptance

Deed, Power of Attorney and Declaration cum

Indemnity Bond etc.

7.Considering the impugned Judgment and Decree

passed by the trial Court which is reversed

by the impugned Judgment and order passed by

the Appellate Court as well as the oral and

documentary evidence placed on record, it

emerges that in the suit filed by the

appellants-plaintiffs for cancellation of

sale deed on the ground of fraud and non

receipt of Rs. 9,48,500/-, onus to prove that

sale deed was fraudulent and without

consideration was upon the appellants -

plaintiffs by adducing clinching and cogent

evidence.

8.It is well settled that when allegation of

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fraud is levelled, it must be pleaded in no

uncertain terms supported by evidence to be

proved by the party alleging such fraud to

demonstrate as to the manner in which fraud

was played upon the plaintiffs.

9.On perusal of the Judgment and Decree passed

by the trial Court, it appears that the trial

Court relied upon the deposition and cross

examination of defendant no.1/2 Shaileshbhai

Fakirbhai Thakore at Exh.113 wherein he has

denied the allegation of fraud and stated

that the amount of consideration of

Rs.9,48,500/- was paid in piece-meal.

Ignoring such evidence trial Court unduly

gave importance to the fact that defendant

no.1 did not specifically submit how the

amount of consideration was given, on which

date and to whom it was so given and where it

was given. Whereas on the other hand, the

deposition and cross examination of the

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plaintiff at Exh.90 was ignored wherein it is

admitted by the plaintiff that defendant no.1

is in possession of the suit property and

there was no evidence on record to prove the

allegation of fraud and cheating in respect

of execution of registered sale deed

No.2633/2005. Learned Appellate Judge has

therefore, rightly held that trial court

could not have shifted the burden of proof

upon defendant no.1 to prove the legality of

the registered sale deed in question as it is

not in dispute that the sale deed was

registered before the office of Sub-Registrar

and the mutation entry to that effect was

made in revenue record in the year 2006 which

is not challenged by the plaintiffs.

10. It is also not in dispute that the

registered sale deed No.2633/2005 contained

signature of plaintiff no.1 Shri Kalidas

Umiyashankar Trivedi who was working as a

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peon in Ahmedabad Municipal Corporation as

admitted by him in his cross examination at

Exh.90. Plaintiff no.1 would have been well

aware about the difference between Power of

Attorney, Agreement to Sale and Sale Deed and

could not have signed the sale deed in guise

of Power of Attorney without verifying the

contents of the Power of Attorney. The

Appellate Court therefore, came to the

conclusion that it could not have been

inferred that signature of plaintiff no.1 was

obtained under guise of Power of Attorney or

Agreement to Sale. Moreover, the plaintiffs

have not initiated any other proceedings

except filing the suit for cancellation of

the sale deed. The Appellate Court has

therefore, rightly held that in view of the

deposition and cross examination of plaintiff

no.1 at Exh.90, if the fraud and cheating

were played by defendant no.1 and others,

then plaintiff no.1 would have definitely

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filed a criminal complaint. The glaring fact

that defendant no.1 is in possession of the

suit property is also considered by the

Appellate Court as a relevant factor to hold

that if no registered sale deed was executed

in favour of the defendant no.1-deceased

Fakirji Mafaji, he would not have been put

into possession of the subject land.

11. The learned Appellate Judge after

appreciating the deposition of plaintiff no.1

also analysed the cross examination wherein

he has stated that Umiyashankar had five

sons and two daughters and all seven heirs

were having their shares in the properties of

Umiyashankar and all the heirs are not joined

in the suit and therefore, it was rightly

held that suit was suffering from bar of non

joinder of parties. Similarly names of legal

heirs of late Fakirji are reflected in

village Form 7 and 12 of the subject land

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till date which is never challenged by the

plaintiffs.

12. On perusal of the sale deed produced on

record at Exh.101 it appears that late

Fakirji had signed as purchaser whereas late

Dashrathbhai Umiyashankar Trivedi and Shri

Kalidas Umiyashankar Trivedi had signed as

sellers of the subject land whereas

Pravinchandra Umiyashankar Trivedi signed as

confirming party. Moreover, with regard to

sale consideration stated in the sale deed

the same is referred to payment made in

piece-meal.

13. Moreover on perusal of the sale deed it

appears that Kalidas Umiyashankar Trivedi

signed on his behalf as well as Power of

Attorney Holder of Chandrakant Ramkrushna

Tripathy and Jaydev Ramkrushna Tripathy.

However only Chandrakant Ramkrushna Tripathy

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has been joined as plaintiff no.3 herein,

whereas Jaydev Ramkrushna Tripathi was joined

as defendant no.2 and confirming party

Pravinchandra Umiyashankar Trivedi was joined

as defendant no.3.

14. Thus, all the sellers who have signed

the sale deed are not aggrieved by the

registered sale deed and only plaintiff no.1

and legal heirs of late Dashrathbhai

Umiyashankar Trivedi and Chandrakant

Ramkrushna Tripathi are aggrieved by alleged

fraud and cheating and non receipt of sale

consideration without there being anything on

record as to why other signatories to the

sale deed have not joined the plaintiffs in

making such allegations.

15. In view of above facts, it cannot be

said that Appellate Court has committed any

error while reversing the Judgment and Decree

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passed by the trial Court holding that

plaintiff no.1 and other signatories had

executed sale deed No.2633/2005 in favour of

defendant no.1 late Thakor Fakirji Mafaji and

since then he was handed over the possession

of the subject land in which after his demise

his legal heirs are having uninterrupted

possession.

16. The Appellate Court has also considered

the fact that the plaintiff no.3

Chandrakantbhai Ramkrushna Tripathy and

defendant no.3 Pravinchandra Umiyashnakar

Trivedi did not step into the witness box in

support of claim made by the plaintiffs in

the plaint together with averments made in

para 24 of the sale deed to the effect that

entire sale consideration of Rs. 9,48,500/-

is paid in piece-meal and the signatories to

the sale deed have acknowledged the payment

of full sale consideration received from

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defendant no.1.

17. Section 54 of the Transfer of Property

Act defines sale as under:

"54. "Sale" is a transfer or ownership in exchange for a price paid or promised or part-paid and part-promised."

18. In view of above definition of sale and

considering para no.24 of the sale deed at

Exh.101 and Deed of Acceptance at Exh. 127

which is also a registered deed with the

office of Registrar at Serial No. 2364,

wherein similar fact is stated about the sale

and consideration paid by the defendant no.1

and accepted by all the legal heirs of the

persons who have signed the sale deed,

clearly shows that registered sale deed was

executed for transfer of suit property in

exchange of price paid.

19. The Appellate court after re-

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appreciating the evidence has held as under :

"22. On the basis of above discussion and after re- appreciating the factual matrix and the evidence on record, Ld. Trial Court appears to have committed manifest error and has misapplied the settled legal position. Again, It is required to be noted that the plaintiff pleaded fraud in very vague manner in the plaint but in the evidence, they were not able to prove the same. When the registered sale deed was executed and brothers of the plaintiffs were also there and did not join the plaintiffs in the suit and thus joining them as proforma defendants by the plaintiffs, is self-speaking about the intentions of the plaintiffs. Therefore, it can safely be said that after execution of registered sale deed, plaintiff remained silent and did not ask anything about the sale deed or even mutation entries and on one fine morning, they seem to have thought of filing the suit in name of fraud in which they miserably failed.

However, the Ed. Trial Court unfortunately relied upon the evidence and more particularly cross examination of Defendant No.1 /2 who is son of original Defendant No.1. It is true that in his cross examination certain discrepancies, more particularly

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In respect to measurement of certain portions of lands is recorded but when the document was very much there on record only that would have prevailed and as such not believing the same having been executed genuinely, Ld. Trial Court has definitely erred in arriving at final conclusion. The findings arrived at by Ld. Trial Court are lacking proper application of law of evidence where it was necessary to see that on whom the onus of proof lies. Since, the registered document having been signed by the plaintiff was very much there the Ld. Trial Court ought not to have been influenced under concocted story produced by the plaintiff that his entire family was called at the office of Sub Registrar, Kalol and were made to sign dubious document. This could never have happened in light of the evidence as discussed earlier. Therefore, the Ld. Trial Court ought to have guided itself by the certain settled legal principles that a document is presumed to be genuine if the same is registered. In catena of case-law Hon. The Apex Court has time and again reiterated that there is a presumption that the registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who

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leads evidence to rebut the presumption. Hence, in light of this settled law the plaintiffs were not able to rebut the said presumption and as such the initial onus was on them as they challenged the registered document and failure on their side to prove that is not considered by the Ld. Trial Court. It is crystal clear on record that the plaintiff did not discharge that onus and shifted it on the defendants and as has been discussed earlier, on the principle of preponderance of probability, the plaintiffs though miserably failed to bring home their case. Ld. Trial Court definitely erred in arrival at final conclusion. In this regard, section 101 of the Indian Evidence Act is also clear which casts initial burden on the plaintiff. In light of this provision also, the burden of proving the fact was on the plaintiff but the Ld. Trial Court proposed to decide the suit on the basis of the evidence of the Defendant and more particularly on his cross examination. At this juncture, on having perused the case-law cited by Ld. Advocate of the appellants from Dahiben V/s Arvindbhal Kalyanji Bhanushali (Gajra) (D) through LRs and others (Supra). It must be noted that looking to the order portion para 2 passed by the Ld.

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Trial Court. It is stated that "It is hereby declared that the registered sale-deed no.2633 which is registered in office of Sub-Registrar, Kalol on dt.13.09.2005, is without consideration and therefore null and void". This order of the Ld.

               Trial       Court       is      also
               unfortunately     in    gross   mis-

interpretation of the evidence as discussed above. It seems that the said order makes it clear that the registered sale deed is declared null and void in name of the same being without consideration. Hence in this regard, the case-law from Dahlben V/s Arvindbhal Kalyanji Bhanushall (Gajra) (D) through LRs and others (Supra) is very much clear and perfectly applicable to the case of the appellant. At this Juncture, it would be appropriate to note that in the said case-law, the plaintiffs had made out a case of alleged non-payment of a part of the sale consideration in the plaint, and prayed for relief of cancellation of the sale deed on that ground. In the case on hand. It was clear that plaintiffs alleged fraud and clubbed that plea with non-

payment of consideration also. However, fact remains that fraud was definitely not proved and as discussed earlier amount of consideration in piece-meal was definitely paid. Assuming that

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some amount remained unpaid, then in that case also, as per the said case-law, the Ld. Trial Court ought not to have declared the registered sale deed null and void. In this regard, it would be appropriate to reproduce specific portion of the case-law at page 17 which is as under:

"......In Vidyadhar V/s Manukrao & Anr (1999)3-SCC-573, this court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the sale deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass onto the trespasser under the transaction. The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the same could not be invalidated on this ground. In order to constitute a "sale", the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in present or in future.

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The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record."

The case-law, thus, makes it amply clear that in case of non-

payment of consideration, plaintiffs were supposed to file a suit for recovery of that amount, but declaration about the said registered sale deed as passed by Ld. Trial Court was not in consonance with the law and thus in mis-interpretation of the facts and law. At the cost of repetition, it must be noted that when fraud and non- payment of consideration were not proved, assuming that the entire sale consideration had not in fact been paid, it could definitely not a ground for cancellation of the registered sale deed. At this juncture, it may also be noted that the arguments advanced by Ld.

Advocate of the appellant in light of the above case-law is very much convincing to believe that the impugned judgment and decree requires interference in this appeal. The argument of Ld. Advocate of the Defendants as mentioned earlier is found general in nature and no specific argument is canvassed as to why the impugned judgment is sustainable in the law.

Therefore, after having gone

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through the complete re-

appreciation of the evidence in light of the settled law, points of determination No.1 to 3 are replied in affirmative and in reply to point no.4 following is the final order."

20. In view of above findings arrived at by

the Appellate Court decision relied upon by

learned advocate for the appellant in case of

Gangabai v. Chhabubai (supra) would not be

applicable as in the said case, issue was

with regard to applicability of section 92 of

the Evidence Act for admission of oral

evidence in absence of documentary evidence.

In facts of the case, oral evidence of

plaintiff no.1 is required to be looked into

as onus to prove that sale deed was by fraud

and cheating, could not have been shifted

upon the defendants. Similarly decision in

case of Bhupendra Shantilal Shah (supra) is

also not applicable in facts of the case as

the appellants plaintiffs have failed to

prove that transaction was not bona fide and

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genuine more particularly, when intrinsic

evidence on record clearly points out that

transaction was bona fide. In view of

findings of fact recorded by the Appellate

Court, in Second Appeal, no further

appreciation of the evidence is required in

absence of any pleading or issue raised with

regard to perversity of such findings. Even

independently findings arrived at by learned

Appellate Judge cannot be said to be perverse

in any manner on perusal of the documentary

and oral evidence on record.

21. Reliance placed on decision of Veljibhai

Mavjibhai Mistry (supra) by the learned

advocate for the appellants is also without

any basis inasmuch as in light of the

provisions of Order VI Rule 4 read with

provisions of section 100 of the Evidence

Act, in the deposition and cross examination

of plaintiff no.1 clearly admits with regard

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to signature on the sale deed as well handing

over the possession coupled with Exh.127 of

the Acceptance Deed registered by plaintiff

no.1 and other plaintiffs and therefore, mere

oral assertion of fraud and cheating in

absence of any further corroborative evidence

cannot be considered by shifting the burden

of proof upon the defendants to prove the

contrary without other signatories to the

sale deed having stepped into witness box in

support of the plaintiffs.

22. The Hon'ble Supreme Court in case of

Dahiben(supra) with regard to issue of

cancellation of registered sale deed has held

as under:

"29.1 On a reading of the plaint and the documents relied upon, it is clear that the Plaintiffs have admitted the execution of the registered Sale Deed dated 02.07.2009 in favour of Defendant

of the plaint reads as :

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"(5) ...Thus, subject of the aforesaid terms the plaintiffs had executed sale deed selling the suit property to the opponent no.1 vide sale deed dated 02/07/2009 bearing Sr.No. 5158..."

29.2 The case made out in the Plaint is that even though they had executed the registered Sale Deed dated 02.07.2009 for a sale consideration of Rs.1,74,02,000, an amount of only Rs.40,000 was paid to them. The remaining 31 cheques mentioned in the Sale Deed, which covered the balance amount of Rs.1,73,62,000 were alleged to be "bogus" or "false", and allegedly remained unpaid. We find the averments in the Plaint completely contrary to the recitals in the Sale Deed dated 02.07.2009, which was admittedly executed by the Plaintiffs in favour of Respondent No.1. In the Sale Deed, the Plaintiffs have expressly and unequivocally acknowledged that the entire sale consideration was "paid" by Defendant No.1/Respondent No.1 herein to the Plaintiffs.

xxxx 29.6 The Plaintiffs have made out a case of alleged nonpayment of a part of the sale consideration in the Plaint, and prayed for the relief of cancellation of the Sale Deed on this ground.

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29.7 Section 54 of the Transfer of Property Act, 1882 provides as under:

"54. 'Sale' defined.-'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised."

The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale.

29.8 In Vidyadhar v. Manikrao & Anr., (1999) 3 SCC 573, this Court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale

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would be complete, and the title would pass on to the transferee under the transaction. The non- payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a "sale", the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in present, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.

29.9 In view of the law laid down by this Court, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed. We find that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order VII Rule 11

(a).

xxxx 29.12 On a reading of the plaint, it is clear that the cause of action

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arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the Plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth.

29.13 The conduct of the Plaintiffs in not taking recourse to legal action for over a period of 5 and years from the execution of the Sale Deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an after-thought. The Plaintiffs apparently filed the suit after the property was further sold by Respondent No.1 to Respondent Nos. 2 and 3, to cast a doubt on the title of Respondent No.1 to the suit property.

xxxx 29.15 If the Plaintiffs had a genuine grievance of nonpayment of the balance sale consideration, the Plaintiffs could have moved for revocation of the permission granted by the Collector on 19.06.2009. Clause 6 of the Order provided that :

"(6) On making violation of any of the aforesaid terms, the permission shall automatically be treated as cancelled and, separate proceeding shall be

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taken up for the violation of the terms and conditions."

The Plaintiffs did not make any complaint whatsoever to the Collector at any point of time. The conduct of the Plaintiffs is reflective of lack of bona fide."

23. The Apex Court in case of Rattan Singh

and others (supra)has held as under:

"42. The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and more so because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants.

66. The plaintiff also asserted that she had not received the consideration in relation to the stated transactions and that the defendants had no means to pay the

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consideration. It has come on record that the defendants had mortgaged the joint lands several times as they were in need of money. Further, the defendant No. 4 after admitting to have mortgaged the land had said that he used that money to install tubewells and buy tractors. The said fact does not conclusively prove that they did not possess funds as the said loans were obtained to make investments on the joint lands and not on the personal property of the defendant No. 4.

                   had deposed        that      the        sale
                   consideration        was    paid        from
                   the       sale proceeds received by

selling the land of their mother in the village Ashrafpur. Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of nonreceipt of the consideration amount."

24. It is a trite law that while considering

the decision of the Appellate Court as per

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provisions of section 100 of the Code, no

further appreciation of oral and documentary

evidence can be made in second appeal and

only substantial questions of law can be

considered and as such there is a very narrow

scope while considering second appeal as held

by the Apex Court in the following decisions:

(i) Afsar Sheikh v. Soleman Bibi reported in

(1976) 2 SCC 142, wherein it is held as

under:

"19. The scope of the powers of the High Court to interfere in second appeal with judgments and decrees of courts below is indicated in Sections 100, 101, and 103 of the Code of Civil Procedure. Broadly, the effect of Sections 100 and 101, read together, is that a second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a second appeal on the "ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be" (Durga Choudhrani v. Jawahar Singh [17 IA

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122 : ILR 18 Cal 23 (PC)] ). Section 103 enables the High Court in second appeal, where the evidence on the record is sufficient, to determine an issue of fact necessary for the disposal of the appeal only--

(a) if the lower appellate Court has not determined that issue of fact, or

(b) if it has determined that issue wrongly by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of Section 100."

(ii) Hero Vinoth v. Seshammal, reported

in (2006) 5 SCC 545, wherein it is held as

under:

"18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the

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findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] held that : (SCR pp.

557-58)

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the

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Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.

If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

xxxx

21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general

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importance. In Guran Ditta v. Ram Ditta [(1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557)

"[When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the

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particular fact of the case it would not be a substantial question of law."

This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR pp. 557-

58)

22. In Dy. Commr. v. Rama Krishna Narain [1954 SCR 506 : AIR 1953 SC

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521] also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 CPC.

23. 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, insofar 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. 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. (See Santosh

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Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] .)

24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has

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decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

(iii) Gurvachan Kaur v. Salikram, reported in

(2010) 15 SCC 530, wherein it is held as un-

der:

"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the

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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."

25. In view of above conspectus of law and facts

emerging from record, the registered sale deed

could not have been set aside by the trial Court

as null and void and therefore, the impugned

Judgment and order passed by the Appellate Court

is just and proper and requires no interference

in view of provisions of section 100 of the Code.

No question of law much-less any substantial

question of law arises from the impugned Judgment

and Order passed by the Appellate Court in

Regular Civil Appeal No. 87 of 2019.

26. The appeal therefore, being devoid of any