Madhya Pradesh High Court

Mangu Kha vs Moinuddin And 08 Ors. on 26 March, 2021

Author: Vivek Rusia

                                      1




      HIGH COURT OF MADHYA PRADESH: BENCH AT
                         INDORE
      (SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK
                          RUSIA)
                Second Appeal No.91 of 2011
            (Mangu Kha V/s. Moinuddin and others)
        Shri Ashok Shankar Kutumbale, learned senior counsel with
Shri H. Uday Wadnerkar, learned counsel for appellant / plaintiff
        Shri Abhinav Malhotra, learned counsel for respondent no.3.
        Non for remaining respondents / defendants
                             JUDGMENT

( 26 /03/2021) This Second Appeal has been filed against the judgment and decree dated 15.12.2007 passed by the 1 st Civil Judge, Class-I, Dhar and Judgment and decree dated 21.12.2010 passed by 1 st Addl. District Judge, Dhar whereby the civil suit, as well as the First Appeal, have been dismissed.

1. Admitted facts of the case are as under:-

(i) The suit land is survey no.226/1/2 area 1.463 hectare belonging to Moinuddin was put into in the execution case No.13/98-99 against Chhogalal s/o Chunnilal Jat (defendant no.2) and Ratanlal defendant no.3 had purchased it in the auction proceeding Rs.35,000/-. In the revenue record, the name of defendant no.3 has been mutated as owner after issuance of the sale certificate. The plaintiff: Mangu Kha and defendant no.1 Moinuddin are real brothers. The suit land was initially owned by the father of the plaintiff: Mangu Kha, the defendants: Huriya Bai, Fakir Mohammad, Gul Mohammad, Shafi Mohammad,

Moinuddin, Nuribai. In a civil suit no.60-A/2000 filed by Mangu Kha against which a second appeal No.8-A/2002 was decided to vide judgment dated 10.01.2003 in which the suit property has been declared as joint property and 1/6th share of the plaintiff: Moonga Kha had been ascertained.

(ii) Now plaintiff: Mangu Kha has filed the present civil suit against the for declaration and permanent injunction that plaintiff is having a share in the agricultural land survey no.226/1/2 area 1.463 hectare and any order passed in execution case or any judgment or decree dated 08.05.2003 in respect of the said property be declared as void. According to the plaintiff: Mangu Kha , Ratanlal had knowledge about the aforesaid decree that this suit property does not belong to exclusive owners of Moinuddin and despite that he purchased the said property in auction proceeding against the Moinuddin. The value of the property was Rs.3,00,000/- but he purchased in Rs.35,000/- hence he does not get the title over the suit property and now trying to dispossess the plaintiff. Except for Ratanlal all the defendants remained ex-parte. Ratanlal filed the written statement by submitting that the land bearing survey 226/1/2 area 1.463 hectare was exclusively owned by the Moinuddin and proceedings were initiated against Moinuddin for the execution of Judgment & Decree passed in civil suit no.1B/98-99. Since Moinuddin could not deposit the decretal amount his house and land were attached and put to auction on 08.08.2001. Notice was issued under Order 21 Rule 54 of the Code of Civil Procedure,1908 against Moinuddin. He submitted a

reply/objection under Order 28 Rule 58 and 59 of the Code of Civil Procedure,1908 which was rejected by order dated 08.04.2002 thereafter, auction notice was published. The son of the plaintiff Allauddin himself submitted a bid of Rs.29,500/- in auction proceedings but answering defendant Ratanlal submitted a bid of Rs.35,000/- hence his bid was accepted being the highest. He deposited 1/4th amount of Rs.8,000/- on 27.11.2002 and thereafter deposited the remaining amount of Rs.26,000/- on 09.12.2002. The sale was confirmed and a sale certificate dated 09.12.2002 was issued. The Tehsildar wrote a letter that possession be given to the Ratanlal and the name of the Ratanlal has been mutated. On the spot at the time of handing over the possession, the crops of Plaintiff Mangu Kha was found and he submitted an objection under Order 21 Rule 58 and 59 Code of Civil Procedure,1908 and as per the consent arrived.

(iii) Vide order dated 18.06.2003 the learned Civil Judge has rejected the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure,1908 with the finding that the plaintiff has failed to prove his possession thereafter, he preferred a miscellaneous appeal vide order dated 03.08.2004 a temporary injunction was granted in favour of the plaintiff. The learned Civil Judge framed the following issues for adjudication.

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(iv) That except Ratanlal all the defendants remained ex-parte in the suit. Ratanlal also filed a counterclaim seeking a declaration to the effect that he is in possession over the suit land w.e.f.14.02.2003 and if it is held that he is not in possession then the decree or possession be passed. The plaintiff filed the written statement to the counter claim.

(v) The plaintiff got exhibited 24 documents as Exhibit P-1 to P- 24 and defendant Ratanlal got exhibited 23 documents as Exhibit D-1 to D-23. The plaintiff Mangu Kha examined himself as PW-1. The Ratanlal examined himself as DW-1, Bherulal as DW-2, Kanhaiyalal as DW-3. After appreciating the evidence came on record the learned Civil Judge Class-1, Dhar vide judgment and decree dated 15.12.2007 has dismissed the suit and decreed the counterclaim. The learned Civil Judge has held that the plaintiff has failed to prove his share in the suit land. The auction and

possession proceeding held in case no.1B/98-99 is not void hence the plaintiff is not entitled to a decree of the permanent injunction. While deciding the counterclaim the learned Civil Judge has held that defendant no.3 is an auction purchaser and purchase the property after payment of the entire sale consideration hence entitled to get possession from the plaintiff.

2. Being aggrieved by the aforesaid judgment and decree the plaintiff : Mangu Kha preferred the First Appeal mainly on the ground that the entire area of the suit land is 4 hectares and in which the share of the Moinuddin was only 1.965 hectare and out of which he had already sold part of the land by sale deeds Exb. P- 23 and P-24 therefore, the remaining land is less than 5 acres cannot be sold into auction in view of Section 165 of M.P. Land Revenue Code,1959. He has assailed the judgment and decree on the ground that the defendant filed a counterclaim for possession on 13.07.2005 whereas the written statement had already been filed on 20.12.2004 hence the counterclaim was not maintainable being time-barred. The defendant Ratanlal purchased the property during pendency of the suit/appeal between Mangu Kha and Moinuddin therefore, such transaction is hit by Section 52 of Transfer of Property Act,1882. He has also assailed the Judgment and decree on the ground that auction had been done on a much lower price i.e. Rs.35,000/- against the market value of Rs.3,00,000/-. The sixth and last ground raised by the appellant was that in view of the judgment and decree dated 10.01.2003 passed in Civil Suit No.60-A/2000 and appeal No.8-A/2002 the

share of the plaintiff is 7/16th in each survey number therefore, the share of Moinuddin could be ascertained only after the partition of the entire suit land and thereafter, the decree against the Moinuddin ought to have been executed. The learned Addl. District Judge, has turned down all the aforesaid objections and vide judgment and decree dated 21.10.2010 has dismissed the appeal hence, the second appeal before this Court.

3. Vide order dated 23.02.2012 this Court has admitted the appeal on following two substantial questions of law:-

1.Whether the learned courts below were justified in holding that sale of the suit in favour of defendant no.3 Ratanlal was not hit by the provisions of Section 52 of the TP Act when admittedly at the time of attachment and sale of the suit property, the suit filed by the appellant against the respondent no.1 in respect of suit land was pending at the appellate stage in which 7/16 share of the appellant was declared?"

2.Whether in view of the provisions of Order VIII rule 6- A of the CPC the Courts below were right in allowing the counter claim filed by the respondent no.3 for possession of the suit land when counter claim was based on the cause of action which arose after filing of the written statement?"

I have heard Shri Kutumble, learned Senior Counsel for the plaintiff/appellant, Shri Abhinav Malhotra, learned counsel for the respondent no.3-Ratanlal and Ms. Phaye learned Government

Advocate for the respondent no.14/State, Answer to the question of law No.1

4. The appellant filed Civil suit No. 60-A/2000 for declaration of title, partition, possession and permanent injunction against Huriya Bai, Faqeer Mohammad, Gul Mohammad, Shafi Mohammad, Moinuddin and Noribai. According to him, the plaintiffs and defendants being members of one family and the joint owner of ancestral land survey No.9 area 8.897 hectare and one-story house. The original owner was Jumma and after his death, his two sons Sardar and Sultan got 1/2-1/2 share. After the death of Sultan and Sardar, the plaintiffs and defendants become joint owner under Muslim Law. The partition in the revenue record took place on 23.10.1985.

5. According to the plaintiff in the month of January 1985, his brother Moinuddin without the knowledge of the plaintiff had got mutated part of joint family land in his name based on the so- called partition. Moinuddin had sold survey No.226/1 area 0.029 to Totaram vide registered sale deed dated 01.05.1997 (Ex.P/16) and further sold 0.418 hectares of survey No.226/1 to Satyanarayan vide registered sale deed dated 28.10.1985 (Ex.23). thereafter he stopped appearing in the Civil Suit. The plaintiff challenged the partition dated 23.10.1985. After the dismissal of the suit vide judgment dated 06.04.2000, Mangu Kha/ appellant filed a civil appeal No.8-A/2002 which was decreed vide judgment dated 10.01.2003 declaring partition dated 23.03.1985 as void. The plaintiff has been held entitled to get possession after partition

and the defendants were restrained to alienate or transfer the 7/16th share of the plaintiff. During the pendency of the aforesaid appeal, respondent No.3 Ratanlal purchased the part of the suit property by way of the auction sale. According to the plaintiff, Moinuddin had already sold the land of his share in the ancestral property, therefore, there was no other land available of his share for sale by way of auction. In execution case No.1-B/1998-99 (Chhogalal Vs. Moinuddin). Ratanlal purchased the land survey No.226/2 area 1.463 hectare by way of auction proceedings.

6. In the said auction proceeding, the son of the appellant i.e. Allaudddin S/o Mangu participated by submitting his bid of Rs. 29,500/- for the auction land . In execution proceeding on 30.02.2003 Moinuddin appeared and filed an application under Order, 21 Rule 58, 59 read with section 151 of C.P.C. Mangu Kha appeared on 14.02.2003 and submitted an objection and compromised with the Ratanlal to the effect that he be permitted to cut the crops, therefore, the physical possession could not be given to Ratanlal. Vide order dated 23.02.2003, the learned executing court has rejected objection submitted that Mangu Kha and Moinuddin on the ground that they are real brother and there is collusion between them in order to defeat the execution proceeding and the case is pending before the higher court and as per the order of the higher court the further proceeding would be drawn. During the pendency of First Appeal No.8-A/2002, the son of the appellant was participating in the execution proceedings but the sale in favour of Ratanlal became final on 27.11.2002. rattan

lal was declared owner of the land survey No.226/1/2 area 1.463 hectare vide order dated 09.12.2002 and thereafter First Appeal was decided on 10.01.2003. The appellant: Mangu Kha ought to have filed an appropriate application for impleading Ratanlal in the pending First Appeal , he even did not file any application for bringing purchaser, of the land of Moinuddin i.e. Ratanlal as defendants. When he challenged the partition that took place in the year 1985 and sought partition of the entire ancestral land, then he ought to have been challenged two sale deeds executed by Moinuddin. It means he was in collusion with Moiuddin which is the reason for not challenging his two sale deed.

7. The only question of law is whether the transfer of the land survey No.226/2 area 1.463 hectare by way of the auction sale in favour of Ratanlal is hit by the principal of pendente lite under the provision of Section 52 of the Transfer Property Act. For ready reference section, 52 is reproduced as :-

"Transfer of property pending suit relating thereto.--During the pendency in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court

and on such terms as it may impose.

[Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

8. Section 52 say that during the pendency of suit or proceeding in any court in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings to affect the right to any other party. This Section prevents any party to a suit or proceeding from making any assignment/ sale /transfer with the right which may be established in the suit and which might require a further party to be impleaded in the court to make effectual the course decree. The transferee pendente lite is bound by the decree just as much as he was a party to the suit with the property constituting the subject-matter of the suit. The pendency of a suit does prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The sale made by the third party during the pendency of the suit is not invalid as held by the High Court of Delhi in the Case of S.N. Arora and others V/s Brokers & Brokers Pvt. Ltd. and others

reported in AIR 2011 Delhi 89 and in case of Mangal Singh and others V/s Hadial Singh and Others reported in AIR 2007 P&H

203. A sale by a court in the execution of the decree or even though not involuntary is also outside of the ambit of Section 52 of the TP Act . In the present case, Chhoga lal obtained a money decree against Moinuddin before filling the suit by the Mangu kha for partition and the realization of the aforesaid money decree the property in the name of Moinunddin was put to auction and sale was conducted by the court for recovery of the amount payable to Chhoga, therefore, during the pendency of the appeal No.8-A2002 in which Manghu Kha and Moinuddin both were parties no voluntary alienation or assignment was made by Moinuddin.

9. The Moinuddin did not challenge the decree in favour of Chhoga Lal and remained silent spectator in the execution proceeding and permitted to continue execution proceeding in favour of Ratanlal therefore there was no assignment or sale by the Moinuddin during the pendency of the appeal, therefore the principle of pendente lite would not apply as per Section 52 of Transfer of Property Act, which only prohibits any party to the suit of pending proceeding to transfer the property in question directly or specifically. Hence, both the court below have not committed any error in dismissing the suit.

10. Even otherwise the collusion between the plaintiff and Moinuddin is apparent as they are real brother. Moinuddin did not contest the execution proceeding initiated by Chhogalal and did not contest suit filed by the Mangu Kha and in fact, he is also not

contesting these present suit, appeal and second appeal, therefore, the collusive suit or appeal is not a real proceeding but sham. A suit which is collusive in its very inception or a decree obtained by collusion, therefore, Section 52 would not apply.

11. Shri A.S. Kutumbale, learned senior counsel has placed reliance over the judgment passed by the Apex Court passed in the case of N. Krishnaih Setty vs Gopalakrishna & Ors: AIR 1974 SC 1911 in which it has been held that the sale in execution of a decree obtained by the appellant confers no title on auction purchaser and therefore, the joint family to which the property belongs continue to be the owners of that property and did not lose their title thereto. He has also placed reliance over the judgment passed in Samarendra Nath Sinha & Another vs. Krishna Kumar Nag, :AIR 1967 SC 1440 in respect of applicability of Section 52 of the Transfer Property Act, it has been held that under Section 52 of the Act which incorporates the doctrine of lis pendens, during the pendency of the suit in which any immovable property is directly or separately in question such as property cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party thereto. The purchaser of pendent lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it, so must it bind the person deriving his right, title and interest from him. In this case, the Apex Court has also held that it is true that Section 52 of the Transfer of Property Act strictly speaking does not apply to involuntarily alienations such as court

sale but it is well established that the principle of lis pendens applies to such alienations. The purchaser steps in the shoe of his predecessor-in-title and has therefore the same rights which he predecessor-in-title had before the purchase.

12. Shri Kutumbale has also placed reliance over the judgment passed by the Apex Court in Ameena Bi vs Kuppuswami Naidu And Others: AIR 1993 SC 1628 in which has been held that where money decree was passed in earlier suit personally against the brother of the plaintiff and also against Receiver only to the extent of his family properties in the hands of the Receiver and no decree was passed against the estate of the Plaintiff's deceased father, to which the plaintiff had inherited, and the plaintiff was not a party to the earlier suit and plaintiff's property was sold in execution of the decree without notice to the plaintiff, the suit by the plaintiff the attachment and sale would not be binding on the plaintiff, and the suit would not be barred by S.47 of Civil Procedure Code .

13. In the present case, the Chhogalal had advanced loan to respondent no.1 Moinuddin and on default of payment he filed a civil suit no.1B/91 and thereafter, initiated an execution proceeding in 1B/98-99 for the execution of the money decree. In the said execution proceeding the land bearing survey no.226/1/1 area 1.463 hectares already mutated in the name of Moinuddin was attached on 08.08.2020 for realization of the money. The civil court conducted an auction sale in which the son of the plaintiff Allauddin participated by submitting his bid of Rs.29,500/- but the

bid of respondent no.3 Ratanlal was accepted, he deposited an amount of Rs.35,000/- and sale certificate dated 09.12.2002 was issued in his favour, therefore, he became an owner land bearing survey no.226/1/1 area 1.463 hectares in place of Moinuddin. The present plaintiff also applied in the pending execution proceeding, therefore, he knew that the property belongs to Moinuddin or share of the Moinuddin in family property was being sold in the execution proceeding to Ratanlal but in the first appeal, he did not implead Ratanlal as respondent/defendant. By virtue of provisions under Order 22 Rule 10 of the C.P.C. or Section 47 of the C.P.C. rattan lal ought to have been substituted in place of Moinuddin. This fact was also not brought to the knowledge to the appellate Court that in auction proceeding Ratanlal had purchased some part of the suit property which was recorded in the name of Moinuddin. When the Maangu Kha has appeared in the execution proceeding then under Section 47 of the C.P.C. and under Order 21 Rule 97 to 101 of Civil Procedure Code he ought to have objected to the execution of decree but instead of doing so, he continued to pursue his First Appeal.

14. Even after obtaining the partition decree by the appellate Court vide judgment dated 10.01.2003 Mangu Kha did not take any step for partition of the family property by meets and bound. After getting the partition he ought to have filed present suit with a specific pleading that the property more than the share of the Moinuddin had been sold in the auction proceeding. But he has simply filed the suit seeking a declaration that the sale deed is void

executed in favour of Ratanlal in auction sale because it was executed during the pendency of the appeal. As held above, Section 52 of the Transfer of Property Act only prohibits the parties to the suit to alienate or transfer the subject property. The Moinuddin did not execute any sale deed or alienated the property. His share was put into the auction in execution of some other decree which he did not resist and the land has been transferred in favour of Ratanlal therefore, as held by the Apex Court in case of Samarendra (supra) the Section 52 of the Transfer of Property Act strictly speaking does not apply to involuntarily alienations such as court sales. Since Moinuddin did not directly alienate or sold his share during the pendency of the first appeal, therefore, the lis pendent would not apply in this case and such sale is not bound by Section 52 of the Transfer of Property Act. The plaintiff's share has been ascertained 7/16th in the entire property till today actual partition by metes and bound has not been undertaken between the plaintiff, brothers and sisters. Therefore it cannot be said that property more than the share of the Moinuddin has been sold to Ratanlal. The burden was on the plaintiff to prove that his share has already been sold in auction proceeding then only he can claim that the sale in favour of Ratanlal was hit by Section 52 of the Transfer of Property Act therefore, both the Courts below have not committed any error while dismissing the suit of the plaintiff. Hence, the question of law No1 is answered against the appellant that the courts below were justified in holding that the sale of the suit land in favour of defendant No.3

Ratanlal was not hit by provision of Section 52 even during the pendency of civil appeal No.8-A/2000.

Answer to question No. 2. -

15. Admittedly, defendant No.3 Ratanlal filed a written statement first and thereafter filed a counterclaim dated 13.07.2005. According to the appellant, such counterclaim is time- barred and the court below has committed the error of law while allowing the counterclaim. This objection was not raised by the appellant in the civil suit and the first time it was raised at the stage of the first appeal. Hence, accordingly, he was not permitted to object by the appellate court but this court has found worth considering as the substantial question of law and accordingly framed it. This issue has recently come before the Apex Court in the case of Ashok Kumar Kalra Vs.Wing Cdr Surendra Agnihotri 2020 (2) SCC 394 in which the three judges bench unanimously held that as under:

" We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to

entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

i. Period of delay.

ii. Prescribed limitation period for the cause of action pleaded.

iii. Reason for the delay.

iv. Defendant's assertion of his right.

v. Similarity of cause of action between the main suit and the counterclaim.

vi. Cost of fresh litigation.

vii. Injustice and abuse of process.

viii. Prejudice to the opposite party.

ix. and facts and circumstances of each case.

x. In any case, not after framing of the issues."

In view of the above, the question of law No 2 is also answered against the appellant.

16. It is settled law that the scope of interference by the High Court under Section 100 of the CPC in Second Appeal is very limited. Both the Courts below have concurrently recorded the findings in favour of the plaintiffs and decreed the suit in their favour. Hon'ble the Apex Court in the catena of judgments has decided the scope of interference by the High Court in Second Appeal with the concurrent findings recorded by both the Courts below.

17. Even otherwise, the apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as under:

5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. 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 lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

6. If the question of law termed as a substantial ques- tion stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed

jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR 1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

18. In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the apex court has held as under:

16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.

19. Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others : (2017) 9 SCC 586 has held as under:

"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a

conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.

18.It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."