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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1276 OF 2013
(Arising out of SLP (C) No. 29198 of 2010)
Nasib Kaur and Ors. … Appellants
Versus
Col. Surat Singh (Deceased)
through L.Rs & Ors. … Respondents
WITH
CIVIL APPEAL No. 1277 OF 2013
(Arising out of SLP (C) No. 29205 of 2010)
Nasib Kaur and Ors. …
Appellants
Versus
Mrs. Dulari Singh and Ors. … Respondents
J U D G M E N T
A. K. PATNAIK, J.
Leave granted.
2. These are the appeals against the common judgment
dated 11.11.2009 of the High Court of Punjab and HaryanaPage 2
in R.S.A. Nos. 2579 of 1997 and 2482 of 2008 by way of
special leave under Article 136 of the Constitution.
3. The facts very briefly are that Col. Surat Singh filed
Civil Suit No. 735-T on 18.04.1987 for declaration that the
plaintiff was the owner and was in possession of suit land.
The plaintiff’s case in the suit was that while he was in
joint holding of some land, he sold 2 bighas and 16 biswas
of land out of his share without specifying any khasra nos.
to Col. Girdhar Singh and his family members (defendant
nos. 1 to 4) and thereafter defendant nos. 1 to 4 sold the
land in pieces to defendant nos. 5 to 8 in the suit
specifying the khasra nos. and mutation nos. 1120 and
1174. As the plaintiff did not sell the land specifying the
khasra nos. to Col. Girdhar Singh and his son, they had no
right to sell specific pieces of land with specific khasra
nos. The plaintiff’s further case in the plaint was that the
specific khasra nos. which had been mutated in favour of
defendant nos. 3, 4 and 5 were not in accordance with the
registered sale deed in favour of Col. Girdhar Singh and
his family members. Defendant Nos. 1 to 4 did not
contest the suit, whereas defendant Nos. 5 to 8 appeared
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and filed their written statements. On the pleadings of the
parties, the trial court framed issues and by its judgment
and decree dated 20.02.2004 found that the areas of land
sold under the sale deed dated 17.07.1978 by the plaintiff
was less by 1 Biswas than the area in the mutation
entries and similarly the area of land sold by the plaintiff
as Attorney of Nanak Singh was less than the area shown
in the mutation entries. The trial court, therefore, ordered
for correction of the mutation entries, but directed that
the corrections to be carried out would have no effect as
regards the possession of the suit property, which has to
continue as before and would be liable to be changed as
and when any partition proceeding is effected between
the co-sharers. Col. Surat Singh filed an appeal C.A. No.
1721 on 20.03.2004 before the Additional District Judge,
Patiala, but by judgment and decree dated 18.03.2008 the
Additional District Judge, Patiala, dismissed the appeal.
4. Col. Surat Singh also filed Civil Suit No. 148-T on
09.03.1987 for permanent injunction restraining the
defendants from raising any construction on the suit
property or alienating the same in any manner
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whatsoever. The plaintiff’s case in the suit was that he
sold 2 bighas and 16 biswas of land out of the joint holding
of his own share without specifying any khasra nos. to one
Col. Girdhar Singh and his son on 17.07.1978 and Col.
Girdhar Singh has thus become a co-sharer to the extent
of 2 bighas and 16 biswas in his joint holding of the
property. Col. Girdhar Singh, however, did not file any
partition proceedings seeking partition of his share out of
the joint holding. Thereafter, Col. Girdhar Singh sold the
share to the extent of 2 bighas and 16 biswas of land to
the defendants in February, 1987 and the defendants are
now threatening to raise a new construction near the farm
house of the plaintiff in a place of their choice on the plea
that they had purchased the land without specific khasra
nos. from Col. Girdhar Singh. The defendants contested
the suit by filing a written statement and their plea in the
written statement inter alia was that their predecessor-ininterest (Col. Girdhar Singh and his son) had purchased
the suit property from the plaintiff and his uncle, Nanak
Singh, vide sale deeds dated 17.07.1978 and 19.07.1979
and the plaintiff has himself delivered possession of the
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property purchased by their predecessor-in-interest
without khasra nos. Their further plea in the written
statement was that Col. Girdhar Singh had constructed his
kothi and quarters and planted Eucalyptus trees on the
suit property and the plaintiff has not raised any objection
and the plaintiff was, therefore, estopped by his act and
conduct from filing the suit. On the pleadings of the
parties, the trial court framed issues and in its judgment
and decree dated 18.08.1998 held that the plaintiff has
sold 4 bighas and 16 biswas of land to Col. Girdhar Singh
and others which is in possession of the defendants and
hence the plaintiff was not entitled to injunction.
Aggrieved, Col. Surat Singh filed an appeal C.A. No. 16-
T/1989-90 before the learned District Judge, Patiala, but
by judgment and decree dated 16.05.1997, the Additional
District Judge, Patiala, dismissed the appeal.
5. Aggrieved by the judgments and decrees passed by
the Additional District Judge, Patiala, dismissing the two
civil appeals, the wife of the plaintiff, Smt. Dulari Singh,
filed second appeals R.S.A. nos. 2579 of 1997 and 2482 of
2008 before the High Court and by the impugned common
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judgment, the High Court allowed the appeals and set
aside the judgments and decrees of the trial court and the
first appellate court in the two suits and decreed the suit
of the plaintiff for possession qua land measuring 17
karams X 45 karams after declaring the plaintiff to be the
owner of the said property. The High Court has also held
that the plaintiff was entitled for relief of permanent
injunction restraining the defendants from raising any
construction in the said property or alienating the said
property. Aggrieved, the defendants nos. 5 to 8 in Civil
Suit No.735-T/18.04.1987 and the legal heirs of
defendants nos. 1 and 2 and the other defendants in Civil
Suit No. 148-T/09.03.1987 have filed these appeals.
6. Learned counsel appearing for the appellants
submitted that in both the suits, the trial court recorded
findings that the appellants had purchased the suit
property from Col. Girdhar Singh and his family members
to whom the plaintiff had himself delivered possession of
the suit property in the years 1978 and 1979 at the time
of execution of the two sale deeds and hence the
appellants were in possession of the suit properties and
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the first appellate court had also concurred with those
findings and dismissed the First Appeals of the
respondents but the High Court reversed the judgments of
the trial court and the first appellate court. He submitted
that the High Court’s jurisdiction under Section 100 of the
Code of Civil Procedure, 1908, (for short the ‘the CPC’)
was limited to only deciding substantial questions of law
which arise in a case and in this case there was no
substantial question of law which arose for decision and,
therefore, the findings of the first appellate court affirming
the findings of the trial court could not have been
disturbed by the High Court.
7. Learned counsel for the respondents, on the other
hand, submitted that this Court has held in Ishwar Dass
Jain vs Sohan Lal [(2000) 1 SCC 434] that when material
evidence is not considered, which if considered, would
have led to an opposite conclusion, a substantial question
of law arises for decision which the High Court can decide
in a Second Appeal under Section 100 C.P.C. He
submitted that the High Court had, therefore, framed a
substantial question of law in the impugned judgment:
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whether the courts below have failed to consider the
material evidence on record. He submitted that the core
issue in this case is the very identity of the land sold by
the plaintiff as Attorney of Nanak Singh and the trial court
and the High Court had not addressed this core issue and
hence a substantial question of law had arisen for decision
by the High Court. He relied on Achintya Kumar Saha vs.
Nanee Printers and Others [(2004) 12 SCC 368] in support
of this submisson. He submitted that the High Court
answered the aforesaid substantial question of law in
favour of the respondents after considering the material
evidence led in the suit. He submitted that the High Court
found on the basis of the evidence that was adduced in
the suit by the parties that Col. Surat Singh (plaintiff), as
Attorney on behalf of Nanak Singh, had sold two bighas of
land with regard to specific khasra nos. i.e. 167 min (1-10)
and 166 min (0-10) by sale deed Ex.PW-7/2 and the
appellants by virtue of the sale deed in their favour took
possession of the portion marked EHGF in the site plan
Ex.PW-9/A whereas the portion sold was in the western
side of portion marked ABCD as the said portion was
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owned by Nanak Singh. He submitted that the High Court
has held in the impugned judgment that the portion on the
eastern side, i.e., marked with letters EHGF belongs to the
plaintiff Col. Surat Singh and has accordingly declared that
the land measuring 17 karams X 45 karams as depicted
with letters EHGF in site plan Ex.PW-9/A was owned by
plaintiff Col. Surat Singh and the plaintiff was entitled to
the relief of permanent injunction restraining the
defendant from raising any construction in the aforesaid
suit property or alienating the aforesaid suit property.
8. We find that in Civil Suit No. 735-T/18.04.1987,
plaintiff Col. Surat Singh had prayed for declaration,
injunction and possession and the suit was partly decreed
for correction of some mutation entries but the trial court
clearly held that it would in no manner have any effect
upon the possession of the parties to the suit which may
be determined and finalized as and when partition
proceedings are taken up and decided. Against the
decree of the trial court, the plaintiff filed first appeal C.A.
No. 1721 on 20.03.2004 and the Additional District Judge
held by its judgment and decree dated 18.03.2008 that
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the trial court is right in coming to the conclusion that
plaintiff had not produced cogent evidence that he was
the owner of the suit property. Relevant extract from para
29 of the judgment of the first appellate court which
records the aforesaid findings and discusses the evidence
in support of the finding is quoted hereinbelow:
“It was incumbent upon the plaintiff to
produce on record, the revenue record
relating to the suit property, so as to
ascertain the share of the plaintiff, as alleged
by him. The perusal of jamabandi Ex.PW-4/1
for the year 1978-79; jamabandi Ex.PW-7/V
for the year 1978-79; jamabandi Ex.PW-4/1
show that these pertain only to land
measuring 29 bighas 5 biswas, which is
recorded to be the ownernship of Col. Surat
Singh and other co sharers and in possession
of one Baghel Singh. Jamabandi Ex.DW7/V
pertains to land measuring 29 bighas 5
biswas + 9 bighas 12 biswas + 0-4 biswas
which is recorded to be the ownership of Col.
Surat Singh and other co-sharers and only
land measuring 9 bighas 12 biswas
comprised in khasra No.165(3-1), 166(3-0),
167(1-16) and 168(1-15) is recorded in
exclusive possession of Col. Surat Singh. The
trial court has rightly held that other than the
said revenue record no jamabandi of the suit
land has been produced by the plaintiff. It
has further rightly held that as per sanad
takseem Ex.PW7/A the land has been
partitioned between different co-sharers,
which is mentioned as 72 bighas 8 biswas of
which 15 bighas 12 biswas fell to the share of
Col. Surat Singh. But even when the plaintiff
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has filed the present suit for declaring his to
be owner in possession of the suit property,
he did not bring forth on file any revenue
record pertaining to the suit property except
jamabandies Ex.PW4/1 and Ex.PW7/V
pertaining to the year 1978-79 which are in
complete and do not depict the entire
property of Col. Surat Singh as a co-sharer
along with other co-sharers. Trial court has
rightly held that extent of ownership and
possession of the plaintiff as alleged by him
was to be proved by him, by brining on
record documents from which he drew his
title over the suit property. But no revenue
record in the form of jamabandi has been
produced on record, so as to prove the extent
of ownership and possession of the plaintiff,
so in the absence of any documentary proof
regarding ownership of the suit property and
the revenue record produced by the plaintiff
being incomplete and relating to the year
1978-79, whereas the present suit was filed
in 1987, copy of the sanad Takseem
Ex.PW7/A depicting the share of Col. Surat
Singh, are not sufficient to establish the
extent of the property of which Col. Surat
Sigh was the owner. Though, Sanad Takseem
Ex.PW7/A was prepared on 30.8.92, but no
revenue record after the preparation of the
sanad takseem has been produced, so as to
prove that the possession has been delivered
and partition had been duly acted upon.”
9. We find that in Civil Suit No. 148-T/9-3-1987, the
plaintiff Col. Surat Singh had prayed for permanent
injunction restraining the defendant from raising any
construction or alienating in any manner whatsoever on
the suit property and on the basis of the pleadings of the
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parties one of the issues framed was whether the
defendants are owners and are in possession of the
property purchased by them from Col. Girdhar Singh and
others but by order dated 08.08.1990 the trial court
deleted this issue and finally by judgment dated
08.08.1990 dismissed the suit. The plaintiff thereafter
filed Civil Appeal No.16 on 19.09.1990 and contended
before the Additional District Judge inter alia that the trial
court was not right in deleting Issue No.2 by order dated
08.08.1990 at the stage when the parties had already led
their evidence on that issue and the decision on this issue
was necessary for deciding the suit itself but the
Additional District Judge rejected this contention of the
plaintiff with the following reasons:
“The simple prayer of the plaintiff made in
the suit is that the defendants be restrained
from raising construction over the suit land,
or alienating the same. He has admitted in
his plaint and replication that the
predecessor-in-interest of the defendants;
namely, Girdhar Singh, purchased the land
from him and Nanak Singh, while the same
was still joint. Naturally the defendants will
become co-sharers in the land after
purchasing the same from Girdhar Singh, as
they would step into his shoes. In these
circumstances, there was no necessity for
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framing an issue that the defendants are the
owners of the suit land.”
10. The aforesaid discussion of the findings of the first
appellate court in the two cases shows that in the suit for
declaration of title, the plaintiff had not been able to
produce any evidence to prove his ownership over and
possession over the suit land. Moreover, in the suit for
injunction, the first appellate court had held that the
plaintiff had admitted in plaint that Col. Girdhar Singh, the
predecessor-in-interest of the defendants, had purchased
the land from him and Nanak Singh while the same was
joint and hence there was no necessity for framing the
issue (issue No.2) that the defendants are owners and are
in possession of the suit land. We find on a reading of the
sale deed dated 17.07.1978 (Ex.PW7/1) executed by the
plaintiff that possession of land measuring 2 bighas 16
biswas out of the share of the plaintiff was handed over to
Col. Girdhar Singh and his family members and it is not in
dispute that Col. Girdhar Singh and his family members
thereafter sold this land to the appellants. We also find on
a reading of the sale deed dated 19.07.1979 (Ex.PW7/2)
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executed by the plaintiff as Attorney of Nanak Singh that
the possession of the land measuring 2 bighas out of the
share of Nanak Singh was also given to Col. Girdhar Singh
and his family members and it is not in dispute that Col.
Girdhar Singh and his family members thereafter sold this
land to the appellants in 1987. Thus, the appellants were
in lawful possession of the said areas of land by virtue of
the two sale deeds and the plaintiff had not been able to
establish that he was the owner of the suit land and
consequently he is entitled to declaration of his title,
recovery of possession and injunction.
11. The plaintiff, however, contended in the second
appeal before the High Court that material evidence had
not been taken into consideration by the first appellate
court and the High Court has framed the following
substantial question of law:
“Whether the Courts below have failed to
consider the material evidence on record?”
Having framed the substantial question of law, the High
Court should have pointed out in the impugned judgment
the material evidence which had not been considered by
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the first appellate court, which if considered, would have
established ownership of the plaintiff to the suit property.
Instead of pointing out the material evidence which has
not been considered by the first appellate court, the High
court has made its own assessment of the entire evidence
as if it was the first appellate court and held that the
plaintiff was the owner of the suit property and was
entitled to possession of 17 karams X 45 karams of land
depicted in letters EHGF in the site plan Ex.PW-9/A and
that he was also entitled to the relief of permanent
injunction restraining the plaintiff from raising any
construction in the said property or alienating the said
property. The High Court has itself noticed in the
impugned judgment that the land depicted in the site plan
Ex.PW-9/A as EHGF was delivered to Col. Girdhar Singh
and his family members at the time of execution of the
sale deed by the plaintiff as Attorney of Nanak Singh on
19.07.1979 and the appellants had taken possession of
the aforesaid land from Col. Girdhar Singh and his family
members in 1987. The appellants were, thus, in legal
possession of the suit property and the High Court in
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exercise of its powers under Section 100 CPC could not
have reversed the findings of the trial court and the first
appellate court and decreed the suits for declaration of
title and for recovery of possession and injunction in
favour of the respondents so as to adversely affect such
legal possession of the appellants.
12. In Achintya Kumar Saha vs. Nanee Printers and
Others (supra) cited by learned counsel for the
respondents, this Court found that the main issue around
which the entire case revolved was whether the
agreement dated 05.07.1976 was a licence or a tenancy
and though this issue was before the trial court and the
agreement was held to be a licence, the lower appellate
court had not adjudicated upon this issue and this Court
held that when the core issue is not adjudicated upon, it
raises a substantial question of law under section 100
CPC.
In the present case, the core issue was
whether the
plaintiff was the owner of the suit property and the first
appellate court has held in C.A. No. 1721 on 20.03.2004
that the plaintiff has not been able to prove his ownership
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over the suit property and has further held in C.A. No.16-T
filed on 19.09.1990 that the plaintiff’s own admitted case
in the plaint is that the appellants had purchased the suit
property from Col. Girdhar Singh and his family members
and were in possession of the same and hence the plaintiff
was not entitled to declaration of his title, recovery of
possession and injunction. In this case, therefore, the first
appellate court had decided the core issue against the
plaintiff and no substantial question of law arose for
decision in this case by the High Court under Section 100,
CPC.
13. In the result, these appeals are allowed and the
impugned common judgment and decree of the High
Court is set aside. Considering, however, the peculiar
facts and circumstances of the case, the parties shall bear
their own costs.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(H. L. Gokhale)
New Delhi,
February 12, 2013.
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