Rajasthan High Court
Smt. Kesar Devi Major W/O Kishore vs Shri Gurbachan Singh Chabda Major ... on 6 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 439/2019
Smt. Kesar Devi Major W/o Kishore, R/o Ghosi Mohalla, Chawani,
Beawar District Ajmer (Raj)
----Appellant
Versus
1. Shri Gurbachan Singh Chabda Major S/o Sardar Shri
Jaimal Singh, R/o Mahaveerganj, Beawar District Ajmer
(Raj). (deceased)
1/1. Smt. Basant Kaur W/o late Shri Gurbachan Singh Chabda
aged about 62 year
1/2. Jaswant Singh @ Moni S/o late Shri Gurbachan Singh
Chabda aged about 40 years.
1/3. Rimpi D/o late Shri Gurbachan Singh Chabda aged about
38 yeas.
1/4. Simmpi D/o late Shri Gurbachan Singh Chabda aged
about 36 years.
2. Shri Sohan Lal Major S/o Fatta Ram, R/o Village Post
Nimbaj District Pali (Raj) Through His Legal Heirs
2/1. Smt. Kankudi Major Widow W/o Late Shri Sohan Lal
Kumawat,
2/2. Shri Manakchand Major S/o Late Shri Sohan Lal Kumawat
2/3. Shri Poosaram Major S/o Late Shri Sohan Lal Kumawat,
2/4. Shri Mahendra Major S/o Late Shri Sohan Lal Kumawat,
2/5. Shri Ganpat Lal Major S/o Late Shri Sohan Lal Kumawat,
2/6. Shri Moti Lal Major S/o Late Shri Sohan Lal Kumawat,
2/7. Smt. Dakhu Devi Major Widow W/o Fatta Ram (As
Mother),
All R/o Thikkana Village Nimbaj, Bera Sugaliya Tehsil
Jaitaran, District Pali (Raj)
----Respondents
Connected With
S.B. Civil Second Appeal No. 438/2019
Smt. Kesar Devi Major W/o Kishore, R/o Ghosi Mohalla, Chawani,
Beawar District Ajmer (Raj)
----Appellant
Versus
(2 of 9) [CSA-439/2019]
1. Shri Sohan Lal Major S/o Fatta Ram, R/o Village Post
Nimbaj District Pali (Raj) Through His Legal Heirs
1/1. Smt. Kankudi Major Widow W/o Late Shri Sohan Lal
Kumawat,
1/2. Shri Manakchand Major S/o Late Shri Sohan Lal Kumawat
1/3. Shri Poosaram Major S/o Late Shri Sohan Lal Kumawat,
1/4. Shri Mahendra Major S/o Late Shri Sohan Lal Kumawat,
1/5. Shri Ganpat Lal Major S/o Late Shri Sohan Lal Kumawat,
1/6. Shri Moti Lal Major S/o Late Shri Sohan Lal Kumawat,
1/7. Smt. Dakhu Devi Major Widow W/o Fatta Ram (As
Mother),
All R/o Thikkana Village Nimbaj, Bera Sugaliya Tehsil
Jaitaran, District Pali (Raj)
2. Shri Gurbachan Singh Chabda Major S/o Sardar Shri
Jaimal Singh, R/o Mahaveerganj, Beawar District Ajmer
(Raj). (deceased)
2/1. Smt. Basant Kaur W/o late Shri Gurbachan Singh Chabda
aged about 62 year
2/2. Jaswant Singh @ Moni S/o late Shri Gurbachan Singh
Chabda aged about 40 years.
2/3. Rimpi D/o late Shri Gurbachan Singh Chabda aged about
38 yeas.
2/4. Simmpi D/o late Shri Gurbachan Singh Chabda aged
about 36 years.
----Respondents
For Appellant(s) : Mr. R B Sharma Ganthola
Mr. Rakesh Kumar Trivedi
For Respondent(s) : Mr. Jai Prakash Gupta
Mr. Prashant Sharma
Mr. Ravi Singh
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
06/07/2022
1. Both these second appeals have been preferred by defendant
No.2 under Section 100 CPC assailing the judgment and decree
(3 of 9) [CSA-439/2019]
dated 30.05.2019 deciding two first appeal Nos.30/2016 &
04/2017 by the Court of Additional District Judge No.3, Beawar
whereby and whereunder while affirming the judgment and decree
dated 15.02.2013 passed in Civil Suit No.35/2001 (14/1998) by
the Court of Additional Civil Judge (Sr. Division) No.1, Beawar in
relation to declaration of sale deed of appellant dated 19.09.1995
as null and void qua respondent-plaintiff, the appellate court held
that the plaintiff is in possession of the plot in question being its
registered owner and passed a decree for permanent injunction in
favour of plaintiff and against the present appellant-defendant
No.2.
2. Heard counsel for both parties and perused the record.
3. The relevant facts as culled out from the record are that the
respondent-plaintiff instituted a civil suit on 18.08.1998 alleging
inter alia that the plot in question bearing plot No.24 (which was
later on alleged to be converted in plot No.13) having an area of
250 square yards situated at Village Narsinghpura Tehsil, Beawar
District Ajmer was purchased through registered sale deed dated
08.07.1988 from its owner namely, Shri Sohan Lal and the
possession of the plot was also transferred to the plaintiff as
stipulated in the sale deed. Thereafter, the seller-Sohan Lal has
executed another sale deed dated 19.09.1995 in relation to the
plot of plaintiff, in favour of defendant No.2 (appellant herein)
namely, Smt. Kesar Devi hence the plaintiff claimed that since the
seller-Sohan Lal had already transferred his ownership rights and
possession of the plot in question to the plaintiff, the execution of
subsequent sale deed is of no importance and such subsequent
sale deed dated 19.09.1995 made in favour of defendant No.2 be
declared as null and void qua the plaintiff and further the
(4 of 9) [CSA-439/2019]
defendant No.2 be restrained, by way of permanent injunction,
not to interrupt/create hindrance in use and occupation of the plot
in question by the plaintiff.
The seller-defendant No.1 submitted written statement
mentioning that at the time of execution of sale deed dated
19.09.1995 in favour of appellant-defendant No.2, it was informed
that the plot has already been sold to plaintiff through sale deed
dated 08.07.1988 however, on persuasion of defendant No.2, the
subsequent sale deed dated 19.09.1995 was executed in her
favour without transfer of possession with an understanding that
in case of dispute, the defendant No.2 (purchaser) would deal with
the same.
The defendant No.2 (appellant herein who is the contesting
party in the present matter) submitted her written statement that
the defendant has purchased the suit plot from defendant No.1
through registered sale deed dated 19.09.1995 and in pursuance
thereof, in the revenue record, mutation has sanctioned in her
name. She claims herself bonafide purchaser and in actual
possession of plot in question and prayed that the suit deserves to
be dismissed. The defendant though denied the sale deed of
plaintiff dated 08.07.1988 however, never challenged the sale
deed of plaintiff either by filing a counter claim or any independent
suit.
4. In view of respective pleadings of both parties, trial court
settled issues and granted opportunity to adduce evidence of both
parties. The trial court has discussed the evidence on record and
decreed the suit vide judgment dated 15.02.2013 to the effect
that the sale deed of plaintiff is lawful and valid and the
subsequent sale deed made in favour of defendant No.2 deserves
(5 of 9) [CSA-439/2019]
to be declared as null and void qua the rights of plaintiff however,
the prayer for grant of permanent injunction of the plaintiff was
declined.
5. Against judgment and decree dated 15.02.2013 the
defendant No.2 preferred first appeal No.04/2017 (15/2013)
against the declaration of his sale deed as null and void qua the
plaintiff, while the plaintiff preferred first appeal No.30/2016
(12/2013) against denial of the decree for permanent injunction in
his favour.
6. The first appellate court heard and decided both first
appeals vide impugned judgment dated 30.05.2019 with finding
that the plaintiff has acquired ownership and possession of the
plot in question through registered sale deed dated 08.07.1988.
The vendor-defendant No.1 has no authority to execute
subsequent sale deed dated 19.09.1995 for the plot of plaintiff, in
fovour of defendant No.2. The appellant-defendant No.2 has not
proved her possession over the plot in question. The first appellate
court has taken into consideration the evidence of appellant-
defendant No.2, to show her possession over the plot in question
and has observed that merely tethering the cattle and put the
fodder on the plot in question may not be held sufficient to prove
that the plot in question is in actual and established possession of
defendant No.2. The first appellate court has taken into
consideration that the witness of defendant DW-3 namely, Sohan
Lal admits that defendant No.2 never resided on the plot in
question and there is no construction. The temporary structure of
thatched roof, if so found in the Commissioner Report, the same
was not treated as a settled possession in context to the fact that
(6 of 9) [CSA-439/2019]
the plaintiff has already acquired ownership and possession of the
plot on the basis of sale deed dated 08.07.1988.
7. On overall re-appreciation and re-consideration of the
material on record, the first appellate court vide judgment dated
30.05.2019 affirmed the decree of trial court declaring the sale
deed of appellant-defendant No.2 as null and void and reverse the
order of trial court for denial of permanent injunction rather
granted a decree of permanent injunction in favour of respondent-
plaintiff holding the plot in question in his possession only. Hence
against this judgment and decree, the appellant-defendant No.2
has preferred these two second appeals.
8. As far as issue with regard to declaration of the sale deed of
appellant as null and void is concerned, there is concurrent
findings of fact and both courts below have observed that the plot
in question has already been sold by the owner (defendant No.1)
to the plaintiff through registered sale deed dated 08.07.1988
hence the execution of subsequent sale deed dated 19.09.1995 by
the vendor-defendant No.1 in favour of appellant defendant No.2
is without authority and law as such has been declared as null and
void qua the plaintiff.
This Court does not find any illegality or perversity in such
findings of the two courts below.
9. As far as issue with regard to possession of the plot in
question is concerned, the first appellate court has recorded a fact
finding on appreciation of evidence that the appellant-defendant
No.2 is not in actual, established and settled possession.
Appellant's case to claim possession over the plot in question on
the basis of having a thatched hut, tethering few cattle and
keeping the fodder has been considered and disbelieved. The plot
(7 of 9) [CSA-439/2019]
in question is in the form of open plot for which possession would
follow the title. The title of plot in question has already been
vested to the respondents-plaintiff on the basis of registered sale
deed, the respondent-plaintiff has rightly been held to be in
possession and a decree for permanent injunction has been
passed in his favour accordingly.
This Court does not find any illegality or jurisdictional error in
such findings and decree passed by the first appellate court.
10. In such situation, the fact findings recorded by the first
appellate court do not suffer from any perversity or jurisdictional
error, and the same are well within jurisdiction. The reversal of
findings, in relation to possession and permanent injunction, are
based on due appreciation of evidence recorded by first appellate
court.
11. Hon'ble the Supreme Court in case of Kondiba Dagadu
Kadam Vs. Savitribai Sopan Gujar [(1999) 3SCC 722] has
held as under :-
"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."
12. In relation to declaration of sale deed dated 19.09.1995 of
appellant as null and void qua plaintiff, there is concurrent finding
by both courts below. In backdrop of factual matrix of the case,
the appellant's sale deed is subsequent to plaintiff's sale deed
(8 of 9) [CSA-439/2019]
dated 08.07.1988, and both sale deeds were executed by
respondent-defendant No.1. Once it is proved that defendant
No.1-seller has already sold the plot in question through
registered sale deed dated 08.07.1988 and transferred the
ownership and possession in favour of plaintiff, he had no right to
execute the subsequent sale deed dated 19.09.1995 in favour of
appellant for the plot in question. Thus, subsequent sale deed
dated 19.09.1995 has rightly been declared null and void. In cases
of Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [(2001)9
SCC 521], Thulasidhara & Anr. Vs. Narayanappa & Ors.,
[(2019) 6 SCC 409], Bholaram Vs. Ameerchand, [(1981)2
SCC 414], Ishwar Das Jain Vs. Sohan Lal, [(2000)1 SCC
434] and State of Madhya Pradesh Vs. Sabal Singh & Ors.,
[(2019)10 SCC 595], C. Doddanrayana Reddy and Ors. Vs.
C. Jayarama Reddy and ors. [(2020)4 SCC 659], has
categorically held that at the stage of second appeal, fact findings
recorded by two Courts below, based on appreciation of evidence,
should be honoured and must not be interfered with unless and
until there is some perversity, illegality or jurisdictional error which
leads manifest injustice. Once findings of fact recorded by two
Courts below are justified and based on due appreciation of
evidence, re-appreciation of evidence at the stage of second
appeal in order to draw a different conclusion is not warranted.
13. The substantial questions of law as proposed by appellant-plaintiff
are essentially questions of fact requiring re-appreciation of evidence,
which is not permissible within the scope of Section 100 of CPC, unless
and until there is some illegality or perversity in findings. None of the
question of law, falls within the purview of substantial question of law.
(9 of 9) [CSA-439/2019]
In order to exercise the scope of Section 100 of CPC,
involvement/formulation of substantial question of law is sine qua non.
14. Learned counsel for appellant also could not point out that the
findings of first appellate court suffer from any infirmity/illegality or
misreading/non-reading of evidence. In such circumstances, no
substantial question of law arises in this second appeal. Subsequently is
sine qua non for exercising the jurisdiction under Section 100 CPC and
to entertain the second appeal. Hence, the second appeal is found to be
devoid of merits and the same is dismissed.
15. There is no order as to cost.
16. All other pending application(s), if any, also stand(s) disposed of.
17. Record be sent back forthwith.
(SUDESH BANSAL),J
SAURABH/86-87
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