AVTAR SINGH & ORS. versus BIMLA DEVI & ORS.

[2021] 6 S.C.R. 239

AVTAR SINGH & ORS.

BIMLA DEVI & ORS.

(Civil Appeal No. 6096 of 2021)

SEPTEMBER 29, 2021

[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]

Code of Civil Procedure, 1908 – s.100 – Punjab Courts Act,1918 – Suit filed by respondents / plaintiffs alleging that defendantNos. 2 to 4 broke the lintel portion of the roof (of the first floor ofthe building) illegally with intention to take forcible possession ofthe plaintiffs’ house constructed on the first floor; and furthersecretly constructed staircase – Trial court and first appellatecourt after considering the evidence on record – including thereport of local commissioner who had visited the site – dismissedthe suit – Second appeal – High Court, framed substantial questionof law, as required by s.100 CPC and answered it in favour of theplaintiffs, consequently resulting in decree of the suit – Justificationof – Held: Not justified – The Local Commissioner’s reportcorroborated the respondents/ plaintiffs’ case that staircase didnot exist, or rather that it was in the stage of construction and wasnot completed – The report also bore out the plaintiffs’ allegationthat holes had been made in the lintel of the roof – Furthermore,the dimensions of the chaubara, as found by the LocalCommissioner, differed from what was stated by the seconddefendant – The lower courts ignored the evidence – in the formof the Local Commissioner’s report – with regard to the issue ofpossession of the chaubara – The Local Commissioner was neithercross-examined, nor was his report objected to – Mere findings offact cannot be interfered with in exercise of second appellatejurisdiction given the three limbs of jurisdiction available u/s.41of the Punjab Courts Act – Findings of fact which areunreasonable, or which are rendered by overlooking the record,therefore, per se do not appear to fall within the scope of secondappellate review by the High Court – On facts, High Court’sfindings – which are based entirely on re-appreciation of the record– and consequent interference with the concurrent findings of thelower courts, cannot be upheld.

DEFGH

[2021] 6 S.C.R.

AAllowing the appeal, the Court

HELD:1. The Local Commissioner’s report corroboratedthe respondents/plaintiffs’ case that staircase did not exist, orrather that it was in the stage of construction and was notcompleted. The report also bore out the plaintiffs’ allegation thatBholes had been made in the lintel of the roof. Furthermore, thedimensions of the chaubara, as found by the Local Commissioner,differed from what was stated by the second defendant. [Para 14][245-G]

2. From the evidence, it is apparent that undeniablyCsecond defendant’s possession – and perhaps even ownership -of the ground floor shop, could not be denied. The findings ofthe lower courts, therefore, based upon the registereddocuments cannot be faulted. However, both these courtsignored the other evidence – in the form of the LocalDCommissioner’s report – with regard to the issue of possessionof the chaubara. The Local Commissioner was neither cross-examined, nor was his report objected to. [Para 15][245-H; 246-A-B]

3. Mere findings of fact cannot be interfered with, inEexercise of second appellate jurisdiction given the three limbsof jurisdiction available under Section 41 of the Punjab CourtsAct. Findings of fact which are unreasonable, or which arerendered by overlooking the record, therefore, per se do notappear to fall within the scope of second appellate review by theHigh Court. In these circumstances, the High Court’s findingsF– which are based entirely on the reappreciation of the record– and consequent interference with the concurrent findings ofthe lower courts, cannot be upheld. [Para 18][248-C-D]

Pankajakshi v. Chandrika (2016) 6 SCC 157 : [2016]3 SCR 1018 – followed.GKulwant Kaur v Gurdial Singh Mann (2001) 4 SCC262 : [2001] 2 SCR 525 – held overruled.

Dhanpat v. Sheo Ram (2020) 16 SCC 209 ; RandhirKaur v. Prithvi Pal Singh (2019) 17 SCC 71 : [2019]9 SCR 776 – relied on.H

CIVIL APPELLATE JURISDICTION : Civil Appeal No.6096of 2021.

From the Judgment and Order dated 24.08.2016 of the HighCourt of Punjab and Haryana at Chandigarh in RSA No.932 of 2010(O&M).

D. S. Bali, K. K. Mohan, Firoz Saifi, Ms. Shalu Sharma, Advs.for the Appellants.

Tarunvir Singh Khehar, Shankar Divate, Advs. for theRespondents.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. Special leave granted. Counsel for parties were heard, withtheir consent, for final disposal of the appeal which questions judgmentand order of the Punjab and Haryana High Court[1].

2. The relevant facts are that the property marked ‘ABCD’ inthe 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 statedthat the joint family properties belonged to Hindu undivided familyconsisting of second plaintiff (hereafter Rajpal), his father and the firstdefendant (hereafter Girdhari Lal). Girdhari Lal being brother of Rajpalagreed to sell portion marked ‘GFEDCB’ along with the first floor roofof the entire building (marked ‘ABCD’) to Rajpal’s wife, Bimla Devi(the first plaintiff/first respondent, referred to by her name hereafter)for total consideration of ` 2500/- in 1961. This sum was allegedlyreceived by Girdhari Lal who agreed to execute the sale deed as andwhen required by Bimla Devi. Girdhari Lal also delivered possessionto Rajpal and since then the plaintiffs claim to have been in peacefulpossession of the property. The suit alleged that Girdhari Lal was left

1 Dated 24.8.2016 in RSA 932/2010 (O & M).

Awith no right, title or interest in the suit property except formal saledeed which remained to be executed. In the year 1978, Bimla Devipurchased portion marked ‘IHDA’ shown in blue colour in the site planand thereafter the plaintiffs demolished the existing construction andconstructed residential house in portion marked ‘OJHC’. They alsoreconstructed the shop marked ‘GFOB’ and ‘IJEA’. The plaintiffs beingBin exclusive possession as prospective purchasers, also constructed aresidential house on the entire portion marked ‘IHCB’ on the first floor,which includes the portion purchased by the plaintiffs in 1978. TheMarket Committee, Shahabad (M) assessed the portion marked ‘OJHC’as separate unit (bearing No. 647, Ward No. 13, Shahabad (M)) inCthe name of Bimla Devi. Since the staircase to access the roof wasonly in the said residential portion and there was no access to the rooffrom any other side as such, the roof too was in their exclusivepossession.

3. The suit alleged that on 05.03.2000, Defendant Nos. 2 to 4Dbroke the lintel portion of the roof (from point X to Y shown in the siteplan, of the first floor) illegally and with intention to take forciblepossession of the plaintiffs’ house constructed on the first floor. It wasalso alleged that they had secretly constructed staircase in the portionmarked ‘AEFG’ for forcible occupation of the first floor of the building.

E4. Girdhari Lal, in his written statement denied that the plaintiffshad any cause of action and claimed that they lacked locus standi tofile and maintain the suit. The written statement alleged that theproperty which was acquired in his name in the year 1961 did notbelong to any Hindu joint family as alleged by the plaintiffs, as he hadspent his own funds. He denied entering into an agreement to sell theFproperty to Rajpal, and claimed that he had neither received any saleconsideration nor handed over possession to Rajpal. Girdhari Lal soldthe shop marked ‘AGFE’ to the second defendant (hereafter, AvtarSingh) by registered sale deed dated 06.08.1999 together with firstfloor of the shop. It was alleged that Avtar Singh was in exclusiveGpossession of the property ever since.

5. The allegations in the written statement of Girdhari Lal, wereendorsed by Defendant Nos. 2 to 4 in joint written statement. Theyreiterated that Avtar Singh purchased the shop in dispute from GirdhariLal along with chaubara (a room surrounded by door/windows on allHfours sides) situated on the roof, for valuable consideration of `3 lakhs

by 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 tothe purchase as tenant and doing business of spare parts of electricalgoods and submersible pumps. It was urged that the defendants are inpeaceful possession of the shop, roof as well as chaubara constructedthereon.

6. The trial court and the first appellate court after consideringthe evidence on record - including the report of local commissionerwho, pursuant to the orders made during the trial, visited the site -dismissed the suit. Bimla Devi (the first plaintiff) preferred secondappeal. The High Court, framed substantial question of law, as requiredby Section 100 of the Code of Civil Procedure (CPC) which reads asfollows:

“Whether the findings of the Courts below in regard to claimof the appellants qua their possession of the chobaras onthe first floor of the three shops and mandatory injunctionto close the holes in the lintel of the shop in occupation ofAvtar Singh are the result of ignoring material evidence andmisreading of evidence rendering it perverse”.

The High Court answered the substantial question, in favour ofthe plaintiffs, Bimla Devi and Rajpal, and, consequently allowed thesecond appeal, thus resulting in decree of the suit. The High Court’sjudgment 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 lawbecause it upsets concurrent findings of fact, based upon completemisappreciation of the circumstances bearing from the record. Mr.Mohan underlines that the substantial question of law framed by theHigh Court cannot be termed as falling within the framework of Section100 CPC. He complained that the High Court assumed perversity onthe part of the reasoning of the trial court and the district court andignored relevant and material evidence in the form of documents aswell as the oral depositions.

8. It was argued by the appellant that Avtar Singh is the fatherof the other two defendants (Defendant Nos. 3 and 4); they purchasedthe shop in question, measuring 43.33 square yards along with thedisputed chaubara for ` 3 lakhs by registered sale deed in 1999 from

AGirdhari Lal, who died during the pendency of the suit. This fact wasappreciated by the trial court, which gave credence to the registereddocument rather than the allegations in the suit that prior agreementto sell – which was an unregistered document – was executed,favouring Bimla Devi and Rajpal, and on which they based their claim.

B9. It was urged that the entire story of the respondents/plaintiffswas that Rajpal Singh was brother of Girdhari Lal and he purchasedthe northern half portion of the building received by the latter, in lieuof his claim. This was false and concocted story, disbelieved quiterightly, by the trial court. In fact, they argued that this was not supportedby evidence of any kind. The court noticed that there was due executionCof the sale deed dated 06.08.1999 (exhibited as Ex.D-1) during thecourse of the trial. This document unequivocally stated that thechaubara was part and parcel of the property purchased by AvtarSingh. In the absence of challenge to that sale deed, that Rajpal andBimla Devi had purchased the property through an agreement (Ex. P-D3 dated 24.08.1999) merely 18 days after the execution of Ex.D-1, wasnot believed. That claim was never taken in the plaint filed by therespondent Bimla Devi but saw the light of the day only during the trial.Consequently, the so-called agreement (Ex.P-3) was disbelieved anddiscredited by both the trial court and the first appellate court. Thisaspect was completely brushed aside by the High Court whichEproceeded to discuss the pure findings of fact even though it purportedto frame substantial questions of law.

10. It was urged that once the plaintiffs admitted to the dueexecution of Ex.D-1, the evidence appreciated by the High Court andits observations that it was agreed by the parties that ownership of theFsuit property was pending adjudication in separate proceedings was asuperfluity and untenable. Mr. Mohan also submitted that the plaintiffshad 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 factthat the registered document could not be brushed aside and its contentsGhad to be taken at face value. It was submitted that in view of all thesefactors, the interference by the High Court with concurrent findings offact was unwarranted.

11. Mr. Tarunvir Singh Khehar, learned counsel appearing for therespondents/plaintiffs supported the judgment in appeal. He submittedHthat the suit averments clearly mentioned that after the agreement to

sell was entered into in 1978, the plaintiffs were given possession withthe property. It was underlined that the plaintiffs reconstructed portionsof the property and clearly mentioned that on the first floor of the threeshops, there were two portions. It was importantly argued that thedimensions of the chaubara were different from what was alleged bythe appellants/defendants.

12. Learned counsel appearing for the respondents/plaintiffs alsodrew the attention of this court to the report of the Local Commissionerwhich had been challenged. He submitted that the Commissioner wasasked to inspect the site and report to the trial court about the precisedimensions of the various premises. It was stated that Avtar Singh’spossession in the capacity as owner of the shop was not matter ofdispute, and what was in issue was only regarding the possession ofthe chaubara. Learned counsel submitted that the dimensions allegedin the plaint and the dimensions of the chaubara found on the firstfloor were in accord with each other. It was also submitted that theallegations in the suit that holes had been drilled on the lintels in orderto make separate staircase from within the shop premises (of AvtarSingh) was borne out because the Local Commissioner found suchholes.

Analysis and Conclusions

13. One of the main arguments of the appellants/defendants isthat the impugned judgment is erroneous, because it upsets concurrentfindings of fact. It is emphasized that even though substantial questionof law was framed for consideration in the second appeal, the exerciseof jurisdiction and interference in the findings of the two lower courts,was unwarranted.

14. The Local Commissioner’s report corroborated therespondents/plaintiffs’ case that staircase did not exist, or rather thatit was in the stage of construction and was not completed. The reportalso bore out the plaintiffs’ allegation that holes had been made in thelintel of the roof. Furthermore, the dimensions of the chaubara, as foundby the Local Commissioner, differed from what was stated by AvtarSingh.

15. From an overall discussion of the evidence, it is apparent thatundeniably Avtar Singh’s possession - and perhaps even ownership -

Aof the ground floor shop, could not be denied. The findings of the lowercourts, therefore, based upon the registered documents cannot befaulted. However, both these courts ignored the other evidence - in theform of the Local Commissioner’s report - with regard to the issue ofpossession of the chaubara. The Local Commissioner was neitherBcross-examined, nor was his report objected to.

16. In these circumstances, the question that arises, is whetherthe High Court justly interfered with what are unquestionably,concurrent findings of fact. This court in its five-judge bench ruling, inPankajakshi v. Chandrika[2]held that the provisions of Section 41 ofthe Punjab Courts Act, 1918 continued to be in force, and not SectionC100 CPC. The Court observed that:

“27. …. Section 41 of the Punjab Courts Act is of 1918vintage. Obviously, therefore, it is not law made by theLegislature of State after the Constitution of India has comeinto force. It is law made by Provincial Legislature underDSection 80A of the Government of India Act, 1915, whichlaw was continued, being law in force in British India,immediately before the commencement of the Government ofIndia Act, 1935, by Section 292 thereof. In turn, after theConstitution of India came into force and, by Article 395,Erepealed the Government of India Act, 1935, the PunjabCourts Act was continued being law in force in the territoryof India immediately before the commencement of theConstitution of India by virtue of Article 372(1) of theConstitution of India. This being the case, Article 254 of theConstitution of India would have no application to such aFlaw for the simple reason that it is not law made by theLegislature of State but is an existing law continued byvirtue of Article 372 of the Constitution of India. If at all, itis Article 372(1) alone that would apply to such law whichis to continue in force until altered or repealed or amendedGby competent Legislature or other competent authority. Wehave already found that since Section 97(1) of the Code ofCivil Procedure (Amendment) Act, 1976 has no applicationto Section 41 of the Punjab Courts Act, it would necessarilycontinue as law in force.”

As result, the previous smaller bench ruling in Kulwant Kaurv Gurdial Singh Mann[3] which held that Section 41 is inconsistent withSection 100 CPC after its amendment in 1976, and that the latterprevails, was expressly overruled.

17. The decision in Pankajakshi (supra) came up for discussionin two subsequent judgments of this Court. In Dhanpat v. Sheo Ram[4],citing the ruling in the earlier decision Randhir Kaur v. Prithvi PalSingh[5], it was held as follows:

“13. It may be noticed that in view of Constitution Benchjudgment of this Court in Pankajakshi v. Chandrika[Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3SCC (Civ) 105] , substantial question of law may not berequired to be framed in Punjab and Haryana but still, thefinding of fact recorded cannot be interfered with even interms of Section 41 of the Punjab Courts Act, 1918. The saidquestion was examined by this Court in Randhir Kaurv. Prithvi Pal Singh [Randhir Kaur v. Prithvi Pal Singh,(2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein, thescope for interference in the second appeal under Section41 of the Punjab Courts Act applicable in the States ofPunjab 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)

“15. perusal of the aforesaid judgments would show thatthe jurisdiction in second appeal is not to interfere with thefindings of fact on the ground that findings are erroneous,however, gross or inexcusable the error may seem to be. Thefindings of fact will also include the findings on the basisof documentary evidence. The jurisdiction to interfere in thesecond appeal is only where there is an error in law orprocedure and not merely an error on question of fact.

16. In view of the above, we find that the High Court [PrithviPal Singh v. Randhir Kaur, 2015 SCC OnLine P&H 4792]

3 (2001) 4 SCC 262.

4 (2020) 16 SCC 209.

5 (2019) 17 SCC 71.

Acould not interfere with the findings of fact recorded afterappreciation of evidence merely because the High Courtthought that another view would be better view. Thelearned first appellate court has considered the absence ofclause in the first power of attorney to purchase land onbehalf of the plaintiff; the fact that the plaintiff has notBappeared as witness.”

18. It is thus evident, therefore, that mere findings of fact cannotbe interfered with in exercise of second appellate jurisdiction given thethree limbs of jurisdiction available under Section 41 of the PunjabCourts Act. Findings of fact which are unreasonable, or which areCrendered by overlooking the record, therefore, per se do not appear tofall within the scope of second appellate review by the High Court. Inthese circumstances, the High Court’s findings – which are basedentirely on the reappreciation of the record – and consequentinterference with the concurrent findings of the lower courts, cannotDbe upheld.

19. In view of the foregoing reasons, the impugned judgment hasto be set aside. The appeal is accordingly allowed, without orders oncost.

Bibhuti Bhushan Bose

Appeal allowed.