Shivnarayan vs Shakuntalabai
2021 Latest Caselaw 519 MP

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        HIGH COURT OF MADHYA PRADESH,
                     BENCH AT INDORE
               SECOND APPEAL NO.301/2019
              Shivnarayan s/o Ramsingh Dhakad
                              vs.
             Shakuntalabai wd/o Bhagirath & others
08.03.2021: (INDORE):
      Shri     K.C.Kaushal,    learned     counsel   for    the
appellant/defendant No.1.
      Heard on the question of admission and interim relief
with the aid of record.
                          ORDER

This is an appeal filed by the defendant No.1 against the judgment and decree dated 29.11.2014 passed by Civil Judge, Class-II, Nalkheda, district Shajapur whereby the civil suit filed by respondents No.1 & 2 has been decreed and affirmed by the first appellate Court, Susner vide judgment dated 17.12.2018.

Facts of the case in short are as under:

2. Respondent No.1 is a widow of late Bhagirath and respondents No.2 & 3 are the daughters of Bhagirath. Late Bhagirath was the owner of land bearing survey Nos.207/1 & 208/4, total area 0.627 hectares, situated at Gram Semli, Tahsil Nalkheda which is commonly known as "Seva Ba Vala Kheth" (hereinafter referred to as 'the suit land'). After the death of Bhagirath the name of respondents No.1 to 3 were mutated in the revenue record. According to the

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plaintiff the appellant has illegally encroached over the suit land without any right and title on it. He has not permitted the plaintiff to cultivate the land on 08.05.2008 and threatened to kill her. Since the children were minor, therefore, respondent No.1 did not take any legal action at the relevant point of time. The appellant used to give the assurance that he will remove his encroachment but when finally he disputed the title of the plaintiff on 10.04.2010 the plaintiffs' filed the suit for declaration of title and permanent injunction.

3. After receipt of the summons the appellant being the defendant No.1 preferred a written statement. By way of special pleading he has stated that the plaintiff No.1 had already sold the suit land on 25.03.2000 to him for Rs.60,000/- and the possession was also given and since then he is continuously in possession and doing farming in it. Now dishonesty has come in the mind of the plaintiffs and filed the written statement. The defendant No.1 filed a counter claim also seeking declaration of title of the suit land.

4. On the basis of the pleading learned trial Court framed 9 issues for adjudication which are as under:

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5. In support of the suit, plaintiff No.1 examined herself as PW/1 and got exhibited Kishtbandi Khatouni of the year 2011-12 as Ex.P/1. The defendant/appellant examined himself as DW/1 and got exhibited sale deed dated 25.03.2000 as Ex.D/1. He has also examined Bhawarlal as DW/2, Ramkaran DW/3, Shivsingh DW/4, Jagdish DW/5 & Chandarsingh DW/6. After appreciating the evidence came on record vide judgment and decree dated 29.11.2014 learned Civil Judge, Class-II has decreed the suit in favour of the plaintiff to the effect that the suit land is in the ownership of plaintiffs and defendant No.2 i.e. respondents No.1 to 3

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and directed the defendant No.1 i.e. the appellant to hand over the possession within two months. Being aggrieved by the aforesaid judgment and decree, the defendant No.1 preferred a first appeal but remained unsuccessful, hence the present second appeal before this Court.

I have heard learned counsel for the appellant and perused the record.

6. Learned counsel appearing for the appellant submits that learned Courts below have failed to appreciate Ex.D/1 by which the plaintiff No.1 herself had sold the suit land to him but she declined to execute the sale deed. He further submits that the defendant filed an application before the appellate Court seeking amendment in the counter claim to the effect that Ex.D/1 is an agreement to sell and he may be permitted to claim the relief of specific performance of contract but the first appellate Court has wrongly dismissed the application. He further submits that due to the ill-advice given by the counsel he took a plea that the plaintiff had sold the land to him by way of Ex.D/1 but, in fact, it was an agreement to sell for which he was always ready and willing to execute the sale deed. In support of his contention learned counsel has proposed the following substantial questions of law:

(i) Whether the courts below have erred in holding the document Ex.P/1 in admissible in evidence?

(ii) Whether the judgments and decrees of the courts below stand vitiated on account of the fact that appellant

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was never afforded any opportunity to remove a technical objection which was initially waived off by the plaintiffs?

(iii) Whether the learned Courts below have erred in not dismissing the suit as time barred?

(iv) Whether the learned Judge of the first appellate Court erred in dismissing the application filed by the appellant under Order VI Rule 17 of the CPC?

(v) Whether the findings recorded by the Courts below stand vitiated on account of misreading of material evidence and therefore are illegal and perverse?

7. Plaintiffs came up with the plea that late Bhagirath was the exclusive owner of the suit land and after his death 15 years ago their names were recorded in the revenue record but the defendant No.1 is in possession illegally. The defendant No.1 came up with the specific plea that the plaintiff No.1 had sold the land by way of hand written sale deed dated 25.03.2000 after accepting the sale consideration of Rs.60,000/-. He also filed a counter claim seeking declaration of the ownership by virtue of Ex.D/1. He gave evidence to that effect that he purchased the land from the plaintiff No.1. Since the defendant No.1 did not dispute the ownership of plaintiff No.1, therefore, both the Courts below have rightly came to the conclusion that the plaintiffs and defendant No.2 are the joint owners of the suit land. Thereafter, the burden was on the defendant No.1 to prove the sale deed in his favour. It is settled law that if the value

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of the property is more than Rs.100/- then it can be transferred by way of conveyance under section 70 of the Registration Act and such a sale deed is compulsorily liable to be registered and without the registration no title is said to have been passed on. Admittedly, Ex.D/1 is nothing but a hand written note in the daily diary which is not a registered sale deed, therefore, both the Courts below have rightly declined to consider such sale deed for want of registration. Learned counsel for the appellant has argued that an agreement to sell executed prior to 2010 was not liable to be registered mandatorily, therefore, the application for amendment ought to have been allowed. Once the defendant No.1 contested the suit and his counter claim with a plea of sale deed then at the appellate stage he cannot be permitted to take a somersault and claimed that an agreement to sell was executed and he was ready and willing to get the sale deed executed, therefore, the appellate Court has not committed any error while declining amendment in the written statement as well as in the counter claim. The defendant No.1 is neither a registered owner of the suit land nor having an agreement to sell, hence he has no right to remain in possession. Even otherwise, the concurrent findings are not liable to be interfered in second appeal as held by the Apex Court in catena of decisions.

8. In second appeal the High Court can interfere with the judgment and decree passed by the subordinate Courts only on a question of law much less substantial question of law.

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The finding of fact recorded by the Courts below are not liable to be interfered with unless the same are perverse.

9. 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

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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.

10. 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.

11. 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.

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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."

12. In view of the above, this appeal does not involve any question of law much less substantial question of law. Accordingly, the appeal fails and is hereby dismissed.

No order as to costs.

                                       (VIVEK RUSIA)
                                             JUDGE

        Digitally signed by Hari Kumar
hk/     Nair
        Date: 2021.03.09 18:31:12 +05'30'