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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2021
(ARISING OUT OF SLP (C) NO. 35655 OF 2016)
AVTAR SINGH & ORS. ...APPELLANT(S)
VERSUS
BIMLA DEVI & ORS. ...RESPONDENT(S)
JUDGMENT
S. RAVINDRA BHAT, J.
1. Special leave granted. Counsel for parties were heard, with their consent, for
final disposal of the appeal which questions a judgment and order of the Punjab and
Haryana High Court1
.
2. The relevant facts are that the property marked 'ABCD' in the site plan
(produced along with the suit), located at GT Road, Shahabad Markanda was
purchased in the name of the first defendant, allegedly in lieu of claim of properties
left in Pakistan. It was stated that the joint family properties belonged to a Hindu
undivided family consisting of second plaintiff (hereafter Rajpal), his father and the
first defendant (hereafter Girdhari Lal). Girdhari Lal being brother of Rajpal agreed
to sell portion marked 'GFEDCB' along with the first floor roof of the entire building
(marked ‘ABCD’) to Rajpal’s wife, Bimla Devi (the first plaintiff/first respondent,
referred to by her name hereafter) for a total consideration of ₹ 2500/- in 1961. This
sum was allegedly received by Girdhari Lal who agreed to execute the sale deed as
1Dated 24.8.2016 in RSA 932/2010 (O & M).
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and when required by Bimla Devi. Girdhari Lal also delivered possession to Rajpal
and since then the plaintiffs claim to have been in peaceful possession of the
property. The suit alleged that Girdhari Lal was left with no right, title or interest in
the suit property except a formal sale deed which remained to be executed. In the
year 1978, Bimla Devi purchased portion marked 'IHDA' shown in blue colour in the
site plan and thereafter the plaintiffs demolished the existing construction and
constructed a residential house in portion marked 'OJHC'. They also reconstructed the
shop marked 'GFOB' and 'IJEA'. The plaintiffs being in exclusive possession as
prospective purchasers, also constructed a residential house on the entire portion
marked 'IHCB' on the first floor, which includes the portion purchased by the
plaintiffs in 1978. The Market Committee, Shahabad (M) assessed the portion
marked 'OJHC' as a separate unit (bearing No. 647, Ward No. 13, Shahabad (M)) in
the name of Bimla Devi. Since the staircase to access the roof was only in the said
residential portion and there was no access to the roof from any other side as such,
the roof too was in their exclusive possession.
3. The suit alleged that on 05.03.2000, Defendant Nos. 2 to 4 broke the lintel
portion of the roof (from point X to Y shown in the site plan, of the first floor)
illegally and with intention to take forcible possession of the plaintiffs’ house
constructed on the first floor. It was also alleged that they had secretly constructed a
staircase in the portion marked 'AEFG' for forcible occupation of the first floor of the
building.
4. Girdhari Lal, in his written statement denied that the plaintiffs had any cause of
action and claimed that they lacked locus standi to file and maintain the suit. The
written statement alleged that the property which was acquired in his name in the
year 1961 did not belong to any Hindu joint family as alleged by the plaintiffs, as he
had spent his own funds. He denied entering into an agreement to sell the property to
Rajpal, and claimed that he had neither received any sale consideration nor handed
over possession to Rajpal. Girdhari Lal sold the shop marked 'AGFE' to the second
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defendant (hereafter, Avtar Singh) by a registered sale deed dated 06.08.1999
together with first floor of the shop. It was alleged that Avtar Singh was in exclusive
possession of the property ever since.
5. The allegations in the written statement of Girdhari Lal, were endorsed by
Defendant Nos. 2 to 4 in a joint written statement. They reiterated that Avtar Singh
purchased the shop in dispute from Girdhari Lal along with chaubara (a room
surrounded by door/windows on all fours sides) situated on the roof, for a valuable
consideration of ₹ 3 lakhs by a sale deed dated 06.08.1999 and possession was
delivered to him. Avtar Singh was in possession of the shop for over 30 years prior to
the purchase as a tenant and doing business of spare parts of electrical goods and
submersible pumps. It was urged that the defendants are in peaceful possession of the
shop, roof as well as chaubara constructed thereon.
6. The trial court and the first appellate court after considering the evidence on
record - including the report of a local commissioner who, pursuant to the orders
made during the trial, visited the site - dismissed the suit. Bimla Devi (the first
plaintiff) preferred a second appeal. The High Court, framed a substantial question of
law, as required by Section 100 of the Code of Civil Procedure (CPC) which reads as
follows:
“Whether the findings of the Courts below in regard to claim of the appellants
qua their possession of the chobaras on the first floor of the three shops and
mandatory injunction to close the holes in the lintel of the shop in occupation of
Avtar Singh are the result of ignoring material evidence and misreading of
evidence rendering it perverse”.
The High Court answered the substantial question, in favour of the plaintiffs, Bimla
Devi and Rajpal, and, consequently allowed the second appeal, thus resulting in
decree of the suit. The High Court’s judgment is impugned before this Court.
7. Mr. K.K. Mohan, learned counsel appearing for the appellants/defendants
argued that the impugned judgment is in clear error of law because it upsets
concurrent findings of fact, based upon a complete misappreciation of the
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circumstances bearing from the record. Mr. Mohan underlines that the substantial
question of law framed by the High Court cannot be termed as falling within the
framework of Section 100 CPC. He complained that the High Court assumed
perversity on the part of the reasoning of the trial court and the district court and
ignored relevant and material evidence in the form of documents as well as the oral
depositions.
8. It was argued by the appellant that Avtar Singh is the father of the other two
defendants (Defendant Nos. 3 and 4); they purchased the shop in question, measuring
43.33 square yards along with the disputed chaubara for ₹ 3 lakhs by a registered
sale deed in 1999 from Girdhari Lal, who died during the pendency of the suit. This
fact was appreciated by the trial court, which gave credence to the registered
document rather than the allegations in the suit that a prior agreement to sell – which
was an unregistered document – was executed, favouring Bimla Devi and Rajpal, and
on which they based their claim.
9. It was urged that the entire story of the respondents/plaintiffs was that Rajpal
Singh was brother of Girdhari Lal and he purchased the northern half portion of the
building received by the latter, in lieu of his claim. This was a false and concocted
story, disbelieved quite rightly, by the trial court. In fact, they argued that this was not
supported by evidence of any kind. The court noticed that there was due execution of
the sale deed dated 06.08.1999 (exhibited as Ex.D-1) during the course of the trial.
This document unequivocally stated that the chaubara was part and parcel of the
property purchased by Avtar Singh. In the absence of a challenge to that sale deed,
that Rajpal and Bimla Devi had purchased the property through an agreement (Ex. P3 dated 24.08.1999) merely 18 days after the execution of Ex.D-1, was not believed.
That claim was never taken in the plaint filed by the respondent Bimla Devi but saw
the light of the day only during the trial. Consequently, the so-called agreement
(Ex.P-3) was disbelieved and discredited by both the trial court and the first appellate
court. This aspect was completely brushed aside by the High Court which proceeded
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to discuss the pure findings of fact even though it purported to frame substantial
questions of law.
10. It was urged that once the plaintiffs admitted to the due execution of Ex.D-1,
the evidence appreciated by the High Court and its observations that it was agreed by
the parties that ownership of the suit property was pending adjudication in separate
proceedings was a superfluity and untenable. Mr. Mohan also submitted that the
plaintiffs had admitted to Avtar Singh’s tenancy prior to the execution of Ex.D-1. It
was highlighted that the lower courts gave importance to the fact that the registered
document could not be brushed aside and its contents had to be taken at face value. It
was submitted that in view of all these factors, the interference by the High Court
with concurrent findings of fact was unwarranted.
11. Mr. Tarunvir Singh Khehar, learned counsel appearing for the
respondents/plaintiffs supported the judgment in appeal. He submitted that the suit
averments clearly mentioned that after the agreement to sell was entered into in 1978,
the plaintiffs were given possession with the property. It was underlined that the
plaintiffs reconstructed portions of the property and clearly mentioned that on the
first floor of the three shops, there were two portions. It was importantly argued that
the dimensions of the chaubara were different from what was alleged by the
appellants/defendants.
12. Learned counsel appearing for the respondents/plaintiffs also drew the
attention of this court to the report of the Local Commissioner which had been
challenged. He submitted that the Commissioner was asked to inspect the site and
report to the trial court about the precise dimensions of the various premises. It was
stated that Avtar Singh’s possession in the capacity as owner of the shop was not a
matter of dispute, and what was in issue was only regarding the possession of the
chaubara. Learned counsel submitted that the dimensions alleged in the plaint and
the dimensions of the chaubara found on the first floor were in accord with each
other. It was also submitted that the allegations in the suit that holes had been drilled
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on the lintels in order to make separate staircase from within the shop premises (of
Avtar Singh) was borne out because the Local Commissioner found such holes.
Analysis and Conclusions
13. One of the main arguments of the appellants/defendants is that the impugned
judgment is erroneous, because it upsets concurrent findings of fact. It is emphasized
that even though a substantial question of law was framed for consideration in the
second appeal, the exercise of jurisdiction and interference in the findings of the two
lower courts, was unwarranted.
14. The Local Commissioner's report corroborated the respondents/plaintiffs' case
that a staircase did not exist, or rather that it was in the stage of construction and was
not completed. The report also bore out the plaintiffs’ allegation that holes had been
made in the lintel of the roof. Furthermore, the dimensions of the chaubara, as found
by the Local Commissioner, differed from what was stated by Avtar Singh.
15. From an overall discussion of the evidence, it is apparent that undeniably Avtar
Singh's possession - and perhaps even ownership - of the ground floor shop, could
not be denied. The findings of the lower courts, therefore, based upon the registered
documents cannot be faulted. However, both these courts ignored the other evidence -
in the form of the Local Commissioner's report - with regard to the issue of
possession of the chaubara. The Local Commissioner was neither cross-examined,
nor was his report objected to.
16. In these circumstances, the question that arises, is whether the High Court
justly interfered with what are unquestionably, concurrent findings of fact. This court
in its five-judge bench ruling, in Pankajakshi v. Chandrika2 held that the provisions
of Section 41 of the Punjab Courts Act, 1918 continued to be in force, and not
Section 100 CPC. The Court observed that:
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(2016) 6 SCC 157.
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“27. …. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore,
it is not a law made by the Legislature of a State after the Constitution of India has
come into force. It is a law made by a Provincial Legislature under Section 80A of
the Government of India Act, 1915, which law was continued, being a law in force in
British India, immediately before the commencement of the Government of India Act,
1935, by Section 292 thereof. In turn, after the Constitution of India came into force
and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts
Act was continued being a law in force in the territory of India immediately before
the commencement of the Constitution of India by virtue of Article 372(1) of the
Constitution of India. This being the case, Article 254 of the Constitution of India
would have no application to such a law for the simple reason that it is not a law
made by the Legislature of a State but is an existing law continued by virtue of
Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would
apply to such law which is to continue in force until altered or repealed or amended
by a competent Legislature or other competent authority. We have already found that
since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no
application to Section 41 of the Punjab Courts Act, it would necessarily continue as
a law in force.”
As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh
Mann3 which held that Section 41 is inconsistent with Section 100 CPC after its
amendment in 1976, and that the latter prevails, was expressly overruled.
17. The decision in Pankajakshi (supra) came up for discussion in two subsequent
judgments of this Court. In Dhanpat v. Sheo Ram4
, citing the ruling in the earlier
decision Randhir Kaur v. Prithvi Pal Singh5
, it was held as follows:
“13. It may be noticed that in view of Constitution Bench judgment of this Court
in Pankajakshi v. Chandrika [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016)
3 SCC (Civ) 105] , substantial question of law may not be required to be framed in
Punjab and Haryana but still, the finding of fact recorded cannot be interfered with
even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was
examined by this Court in Randhir Kaur v. Prithvi Pal Singh [Randhir
Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein,
the scope for interference in the second appeal under Section 41 of the Punjab
Courts Act applicable in the States of Punjab and Haryana was delineated and held
as under : (Randhir Kaur case [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC
71 : (2020) 3 SCC (Civ) 372], SCC p. 80, paras 15-16)
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(2001) 4 SCC 262.
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(2020) 16 SCC 209.
5
(2019) 17 SCC 71.
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“15. A perusal of the aforesaid judgments would show that the jurisdiction in
second appeal is not to interfere with the findings of fact on the ground that
findings are erroneous, however, gross or inexcusable the error may seem to be.
The findings of fact will also include the findings on the basis of documentary
evidence. The jurisdiction to interfere in the second appeal is only where there is
an error in law or procedure and not merely an error on a question of fact.
16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir
Kaur, 2015 SCC OnLine P&H 4792] could not interfere with the findings of fact
recorded after appreciation of evidence merely because the High Court thought
that another view would be a better view. The learned first appellate court has
considered the absence of clause in the first power of attorney to purchase land on
behalf of the plaintiff; the fact that the plaintiff has not appeared as witness.”
18. It is thus evident, therefore, that mere findings of fact cannot be interfered with
in exercise of second appellate jurisdiction given the three limbs of jurisdiction
available under Section 41 of the Punjab Courts Act. Findings of fact which are
unreasonable, or which are rendered by overlooking the record, therefore, per se do
not appear to fall within the scope of second appellate review by the High Court. In
these circumstances, the High Court's findings – which are based entirely on the
reappreciation of the record – and consequent interference with the concurrent
findings of the lower courts, cannot be upheld.
19. In view of the foregoing reasons, the impugned judgment has to be set aside.
The appeal is accordingly allowed, without orders on cost.
.......................................................J
[K.M. JOSEPH]
......................................................J
[S. RAVINDRA BHAT]
New Delhi,
September 29, 2021.
