Prahlad Singh S/O Shubhkaran vs Ram Kumar S/O Shri Surjaram
2022 Latest Caselaw 5644 Raj/2

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

               S.B. Civil Second Appeal No. 8/2022

1.        Prahlad Singh S/o Shubhkaran, R/o Shyampura Tan Nua,
          Tehsil And District Jhunjhunu (Rajasthan)
2.        Vinod Kumar S/o Shubhkaran, R/o Shyampura Tan Nua,
          Tehsil And District Jhunjhunu (Rajasthan)
                                                                   ----Appellants
                                    Versus
1.        Ram Kumar S/o Shri Surjaram, R/o Shyampura Tan Nua,
          Tehsil And District Jhunjhunu (Rajasthan)
2.        Sub Registrar, Jhunjhunu
                                                                 ----Respondents

For Appellant(s)          :     Mr. H V Nandwana
For Respondent(s)         :



             HON'BLE MR. JUSTICE SUDESH BANSAL

                                 Judgment

18/08/2022

1. Appellants-plaintiff have preferred this second appeal under

Section 100 of Code of Civil Procedure, assailing the judgment and

decree dated 18.09.2021 passed in Civil First Appeal No.11/2021

by the Court District Judge, Jhunjhunu (Raj.), affirming the

judgment and decree dated 11.09.2020 passed in Civil Suit

No.53/2019 by the Court of Civil Judge, Jhunjhunu (Raj.) whereby

and whereunder the civil suit for cancellation of the sale deed

dated 8.1.1981 and permanent injunction has been dismissed on

merits.

2. Heard learned counsel for appellant & perused the impugned

judgments.

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3. It appears from record that in relation to lands in question,

one sale deed dated 8.1.1981, was executed by Shubhkaran,

father of plaintiffs in favour of defendant No.1 Ram Kumar.

Shubhkaran passed away in the year 2003 and thereafter plaintiffs

have instituted the present civil suit for cancellation of that sale

deed on 22.5.2019. Plaintiffs have pleaded that sale deed dated

8.1.1981 is a forged document & signature of their father

thereupon is also forged and further the sale deed is void in view

of Section 42(a) of the Rajasthan Tenancy Act, 1955 (hereinafter

referred as 'the act of 1955'). Plaintiffs pleaded that after death of

their father, the lands in question were mutated in their favour

and they are in possession of lands in question.

4. Both courts below have considered plaintiffs' case on merits

and have concurrently held that plaintiffs could not prove their

possession over the lands in question. In relation to Section 42(a)

of the act of 1955, it has been observed that such provision has

been deleted from the statue w.e.f 11.11.1992. The courts below

have also considered the aim and object of framing the provision

and for deleting the provision subsequently. In relation to the

allegation of plaintiffs that signature of their father Shubhkaran on

the sale deed in question, is forged, it has been observed that no

evidence has been produced to prove such allegations. Merely, on

account of fact that stamp papers of the sale deed, were not

purchased by the vendor Shubhkaran, the sale deed cannot be

declared as illegal and forged.

5. Learned counsel for appellants has vehemently argued that

since the provision of Section 42(a) of the act of 1955 has been

deleted w.e.f 11.11.1992 and at the time of execution of the sale

deed in question dated 8.1.1981, this provision was in operation,

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therefore, the sale deed stands void being executed in violation of

such provision.

6. Though, there is no evidence on record to show the fact that

the sale deed was executed in violation to the provision of Section

42(a) of the act of 1955, the first appellate court has further

placed reliance upon judgment of Hon'ble the Supreme Court in

case of Prem Singh Vs. Birbal [2006 (5) SCC 353], wherein it

has been held that in relation to registered documents, there is a

presumption in law that the registered document was executed in

accordance with law. The first appellate court has observed that

initially burden to prove the sale deed as void, was on plaintiffs,

who could not discharge their burden.

7. This Court, having heard counsel for appellants, is of

considered opinion that both courts below have appreciated/re-

appreciated the grounds to challenge the sale deed dated

8.1.1981 and on merits, grounds have not been found proved. As

per Section 101 of the Evidence Act, it is a fundamental principle

of law that the burden of prove is lies upon the person, who

asserts the fact and in absence of his evidence, that fact be held

to be non-proved. Thus, the principle of burden of prove is

inflexible. Once, plaintiffs came out with a specific case that the

sale deed is forged document as the signature of their father is

forged one, it was for plaintiffs to prove such allegation of forgery.

Both courts below have concurrently observed that there is no

evidence on record to prove such allegations.

8. As far as the claim of plaintiffs to declare the document of

sale deed as void, plaintiffs have nowhere clarified that in what

manner, fragmentation of the agricultural land was to be done and

how the sale deed in question should be treated as void by

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applying the provision of Section 42(a) of the act of 1955. That

apart, the provision itself has been deleted from the statue w.e.f

11.11.1992. At that point of time, the father of appellants-plaintiff

was alive. The father of appellants-plaintiff has died in the year

2003. The present suit for cancellation of the sale deed has been

instituted on 22.05.2019. Plaintiffs miserably failed to prove their

possession over the lands in question after execution of the sale

deed in question.

9. The Hon'ble Supreme Court in case of C. Doddanarayan

Reddy and Ors. Vs. C. Jayarama Reddy and ors. Reported in

[(2020) 4 SCC 659] has observed as under:

"26.In a judgment reported as Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722], this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under: "5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is

(5 of 7) [CSA-8/2022]

binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

"27. In another judgment reported as Santosh Hazari vs Purushottam Tiwari [(2001) 3 SCC 179], this Court held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question 10 (2001) 3SCC 179 of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

"28. Recently in another judgment reported as State of Rajasthan vs.Shiv Dayal [(2019) 8 SCC 637], it was held that a concurrent

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finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

The Hon'ble Supreme Court in another Case of Umerkhan

Vs. Bismillabi & Ors. [(2011) 9 SCC 684] has held as under:-

"11.In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of

(7 of 7) [CSA-8/2022]

hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question.

12. This Court has been bringing to the notice of the High Courts the constraints of Section 100 of the Code and the mandate of the law contained in Section 101 that no second appeal shall lie except on the ground mentioned in Section 100, yet it appears that the fundamental legal position concerning jurisdiction of the High Court in second appeal is ignored and overlooked time and again. The present appeal is unfortunately one of such matters where High Court interfered with the judgment and decree of the first appellate court in total disregard of the above legal position."

10. After aforesaid discussion, since no substantial question of

law arises in the present second appeal, the same cannot be

entertained. It is settled proposition of law that

involvement/formation of substantial question of law is sine quo

non to entertain the second appeal. Hence, the present second

appeal is devoid of merits and the same is hereby dismissed.

11. All other pending application(s), if any, also stand(s)

disposed of.

(SUDESH BANSAL),J

SACHIN/20

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