SA/44/2002 of MADAN SINGH and ANR. Vs SMT. SHANTI DEVI and ANR.

Reserved

HIGH COURT OF UTTARAKHAND AT NAINITALSECOND APPEAL NO. 44/2002

1.Madan Singh

S/o Late Kalam Singh

2.Murari Chowmein seller

S/o late Kalam Singh

Residents of village Dhak-patti,

Rajpur, District Dehradun

...Defendants-Appellants

1.Smt. Shanti Devi wife of late Ram Ratan Trihan

Resident 120/4, Narain-purwa, Lajpat Nagar

Kanpur, U.P. through his Power of Attorney

Sri Ramesh Chandra Gupta

2.Satya Prakash Goel

S/o late Nathu Mal

Residernt of 7, Kutchery Road

Dehradun

....Plaintiff-Respondents

3.1.2008

Hon’ble Rajesh Tandon, J.

Heard Shri Ramji Srivastava, counsel for the appellants and Shri V.K. Kohli, counsel for the respondents.

GROUNDS FOR THE APPEAL

2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 19.3.2002 passed in Civil Appeal No. 153 of 2001 passed by the Civil

Judge, Dehradun.

3.Second appeal was admitted on the following substantial questions of law mentioned in the memorandum of appeal:-

(1)Whether the photo-copy of the sale-deed dated 29.6.1968 which is neither certified nor attested

can be read in evidence without being proved by the oral testimony of the plaintiff for recording her title on the land in suit?

oral testimony of the plaintiff for recording her title

(2) Whether the evidence allegedly relied upon

by the plaintiff was barred by Section 90 of the Indian Evidence Act?

(3) Whether the photo-copy of the unregistered agreement can form the basis of the suit for declaring the title and getting possession on the land in suit?

(4) Whether the onus has been wrongly shifted on the Defendants to prove their own title and on its basis the suit can be dismissed?

FACTUAL MATRIX OF THE CASE

4.Briefly stated, suit was filed by the plaintiff being suit no. 360 of 1995 before the Court of Civil Judge (Jr. Division), Dehradun for decree for ejectment of the defendants as well as for recovery of damages at the rate of Rs.50/- per month. According to the plaint averments, the

plaintiff no. 1 Smt. Shanti Devi has become the owner of the property situate at Municipal No. 1, Mussoorie Road, Rajpur, Dehradun having an area of 4 bigha, 1 biswa and 13 biswansi by virtue of registered sale deed date 29.6.1968. The aforesaid property is in the possession of plaintiff no. 2 as purchaser by sale agreement dated 21.1.1998. The defendants have unauthorisedly occupied some part of southern portion of the aforesaid property and, therefore, they are liable to be evicted. The plaintiff is entitled to get sum of Rs.50/- per month towards damages. The plaintiffs have served notice upon the defendants for the ejectment from the aforesaid land in dispute but the defendants have not vacated the same and, as such, the present suit has been filed.

5.The defendant no. 1 has filed written statement stating therein that the plaintiffs are not the owners of the land in dispute. The plaintiff no. 2 cannot institute the suit on the basis of agreement and he is not entitled to claim the title. The khokha situate at land in dispute has been purchased by the defendant no. 1 on 12.11.1994 by Puranchand on sale consideration of Rs.8,000/- and since then he is in possession of the land of dispute as the owner. The plaintiffs have no right to file the suit. Suit is not maintainable in the eyes of law and is liable to be dismissed.

6.The defendant no. 2 has field written statement stating therein that the plaintiff no. 1 is not the owner of the alleged property and various proceedings are pending

between the plaintiff no. 1 and other parties with regard to the aforesaid property. The sale agreement of the plaintiff no. 2 is totally invalid and he is also in unauthorised occupation of the aforesaid property. The defendant no. 2 is in possession of the land in dispute form the last 20-21

years and he has become the owner of the land in dispute

on the basis of adverse possession. The suit of the plaintiffs

is liable to be dismissed.

7.On the pleadings of the parties, following issues have been framed:-

1.As to whether the plaintiff no. 1 is the owner of the

property alleged in the suit and the plaintiff no. 2 is in possession of the suit property on his behalf?

2.As to whether the defendants have unauthorisedly

occupied the property in dispute shown by red colour and if yes, as to whether the plaintiffs are entitled to get back the possession of the land in dispute from the defendants?

and if yes, as to whether the plaintiffs are entitled to

3.As to whether the plaintiffs are entitled to get the damages from the defendants with regard to property in dispute?

damages from the defendants with regard to property

4.As to whether the defendant no. 1 is the owner of the property in dispute being purchaser?

5.As to whether the defendant no. 2 has become

owner of the property in dispute on the basis of

adverse possession?

6.To what relief the plaintiffs are entitled to?

8.The plaintiffs have examined Satya Prakash as P.W.1. Towards the documentary evidence, the plaintiffs have produced notice i.e. paper no. 7 ga, receipts i.e. paper no. 8 ka and 9 ka, A.D. card i.e. paper nos. 10 ka and 11 ka, copy of sale deed i.e. paper no. 40 ga, copy of agreement i.e. paper no. 41 ga, copy of power of attorney i.e. paper no. 43 ga and copy of tax assessment for the years 1973-78, 1979-84, 1984-89, 1989-94 and 1994-99.

9.The defendants have examined Madan Singh as D.W. 1. Towards the documentary evidence, the defendants have produced medical certificate as per list 25 ga and original receipt dated 12.11.1994 as per list 56 ga.

10.While deciding as to whether the plaintiff no. 1 is the owner of the property alleged in the suit and the plaintiff no. 2 is in possession of the suit property on his behalf, as to whether the defendant no. 1 is the owner of the property in dispute being purchaser and further as to whether the defendant no. 2 has become owner of the property in dispute on the basis of adverse possession, the trial court has relied upon paper no. 40 ga which is certified copy sale deed dated 29.6.1968. This sale deed discloses that the plaintiff no. 1 is the owner of the property mentioned in the plaint by virtue of the aforesaid sale deed. The trial court has also relied upon paper no. 41 ga i.e. agreement to sale by which the plaintiff no. 1 has transferred the property in suit to the plaintiff no. 2. Thereafter, reliance has been placed by the trial court on paper no. 49 ga which is tax assessment for the years 1973-78, 1979-84, 1984-89, 1989-

94 and 1994-99 wherein name of Shanti Devi has been shown. So far as the receipt i.e. paper no. 57 ka produced by the defendants is concerned, the same discloses that that the shop has been constructed on 12.11.1994 on ‘kuchhi’ Government land and in the possession since the year 1985 and Madan Singh has sold the same to Puran Singh. The trial court has recorded the finding that the aforesaid receipt and the statement of D.W.1 Madan Singh are contradictory to each other. The trial court has recorded the finding to the following effect:-

On the one hand, D.W.1 in his cross examination states the land in dispute as khokha and on other hand receipt shows that the shop is constructed in ‘kuchhi’.

11.Further, so far as receipt paper no. 57 ka is concerned, the trial court has recorded the finding that merely on the basis of the aforesaid receipt, the defendant no. 1 cannot be said to be the owner of the property in dispute. Further, the trial court has placed to credence on the statement of D.W.1 who has failed to state that as to who is the owner of the land in dispute where the khokha has been placed. Therefore, the defendants cannot be said to be the owner in possession over the property on the basis of adverse possession. On the basis of the aforesaid, the trial court has concluded that the defendants are not owners in possession of the property in dispute and the defendant no. 2 has not become the owner in possession of the property in dispute on the basis of adverse possession. Further, finding has been recorded that the plaintiff no. 1 is the owner of the

property in dispute and the plaintiff no. 2 is in the possession of the property in dispute.

12.While deciding as to whether the defendants have unathorisedly occupied the property in dispute shown by red colour and if res, as to whether the plaintiffs are entitled to get back the possession of the land in dispute from the defendants, the trial court has recorded the finding that the defendants have unauthorisdly occupied the property in dispute which has been shown by red colour in the plaint map. Therefore, the trial court has concluded that the plaintiffs are entitled to get back the possession of the property in dispute form the defendants.

red colour and if res, as to whether the plaintiffs are

from the defendants, the trial court has recorded the

13.While deciding as to whether the plaintiffs are entitled to get damages to the extent of Rs.50/- per month from the defendants., the trial court has recorded the finding that it has not been disputed that the monthly rent of the property is to the extent of Rs.50/-. Therefore, the trial court has recorded the finding that the plaintiffs are entitled to get the damages to the extent of Rs.50/- per month from the defendants.

14.On the basis of the aforesaid, the trial court has decreed the suit.

15.Aggrieved by the judgment and decree passed by the trial court, the defendants preferred the appeal.

Before the appellate court, counsel for the defendants

has argued that the trial court had fixed 19.4.2001 for arguments but the trial court has heard ex parte arguments on behalf of the plaintiffs and finally disposed of the suit without giving any opportunity for arguments to the defendants. The appellate court has taken into consideration the order sheet of the original suit which shows that on 3.4.2001 the evidence of the defendant was closed, and 12.4.2001 was fixed for argument on which date the defendant Madan Singh ws present in the court. No application for setting aside the order dated 3.4.2001 has been filed. Thereafter on 12.4.2001, 19.4.2001 was fixed for argument in the presence of defendant Madan Singh. In view of the aforesaid, the appellate court has recorded the finding that there is no force in the contention advanced by the counsel for the defendant that without giving any opportunity for arguments to the defendants, the trial court has disposed of the suit finally.

into

17.as under:-

The appellate court has further recorded the finding

On the plaint there are signatures of Power of Attorney Holder of Smt. Shanti Devi and plaintiff no. 2. The plaintiff no. 2 has verified the

Attorney Holder of Smt. Shanti Devi and

plaint. On behalf of the plaintiff document i.e.

paper no. 35 C/2 has been filed alongwith the appeal. The aforesaid document has been filed in suit no. 456 of 1992 Lalit Kapur v. Satya Prakash which shows that according to the agreement the plaintiff no. 2 S.P. Goyal was given the

possession of khasra no. 78 area 0.47 acre. In the file of original suit certified copy of sale deed i.e. paper no. 40 Ex. Ka-8 which is forty years old has been filed. Alongwith the same map is annexed. Agreement 41 has been filed on behalf of the plaintiff which is agreement between the plaintiff no. 1 and plaintiff no. 2. Paper no. 42 is Power of Attorney by which the plaintiff no. 1 has appointed Ramesh Chand Gupta as her power of attorney holder. Thus, on the basis of agreement between the plaintiffs, it is proved that the possession of the property in dispute was given to the plaintiff no. 2. The trial court has not erred while giving its finding in this regard that the plaintiff has cause of action to fie the suit.

18.Before the appellate court, the defendant-appellants have also argued that the defendant no. 1 has purchased the khokha in dispute from Puran Singh on sum of Rs. 8,000/-. The defendant-appellants have pressed his ownership on the property in dispute on the basis of receipt 7 which shows that ‘ljdkjh tehu dPph cuh gqbZ pknj lfgr ,d nqdku tks fd 8 gtkj :i;s udn mldk dCtk enu flag dks ns fn;k gS vkSj og bl nqdku dk ekfyd gks x;k gS’. The appellate court has recorded the finding that aforesaid receipt shows that the Pooran Singh has given the possession of the khokha to the defendant no. 1 and no ownership right has been given to the defendant no. 1. Further, the appellate court has relied upon paragraph 13 of the written statement filed by the

defendant no. 1 to the effect that the khokha in question is situate at the distance of three meters from the road. The appellate court has further recorded the finding that the defendants have failed to prove that the khokha in dispute is not situate at the land of the plaintiffs.

situate at the distance of three meters from the road. The

defendants have failed to prove that the khokha in dispute

19.The appellate court has further placed reliance on

paper no. 40 C/6 which is map annexed with the sale deed

40 and similar to the plaint map. On the basis of the same, the appellate court has recorded the finding that the plaintiffs have succeeded in proving that the land in dispute belongs to plaintiff no. 1. The appellate court has also

recorded the finding that the defendant no. 1 has not

become the owner in possession of the land in dispute on

the basis of adverse possession.

20.In view of the aforesaid, the appellate court has dismissed the appeal. I do not find any infirmity in the aforesaid findings.

SUBMISSION REGARDING THE SALE DEED

21.Counsel for the appellants has submitted that the plaintiff no. 1 has neither filed any evidence nor the original sale-deed dated 29.6.1968 and, as such, the same cannot be relied upon in accordance with the bar contained under Section 90 of the Indian Evidence Act.

22.provides as under:-

Sub-section 2 of Section 90 of the Indian Evidence Act

“Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and duly certified copy thereof is produced, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, it is that person’s handwriting, and in the case of document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested”.

23.I have perused paper no. 40 2 which is the sale deed in question. The aforesaid sale deed is duly attested and, therefore, sub-section 2 of Section 90 of the Indian Evidence Act is applicable in the present case and, therefore, the submissions made by the counsel for the appellant are negatived.

24.In the judgment of State of Haryana v. Ram Singh reported in [2001 (44) ALR 719], the Apex Court relying upon the judgment of Ramappa v. Bojappa AIR 1963 SC 1633, 1637, has held that certified copy of the registered sale deed is admissible in evidence and does not need to be proved by calling witness and it is open to the court to accept the certified copy as reliable evidence and without examining parties to the documents. The observations made by the Apex Court are quoted below:-

upon the judgment of Ramappa v. Bojappa AIR 1963

“4. Counsel for the State was right when he submitted

that the High Court erred in rejecting Exhibits R/2

and R/3 as inadmissible only on the ground that the

parties to the documents had not been examined by the State. It is not the law that certified copy of registered agreement for sale is inadmissible in evidence unless the parties to the documents are examined to prove it. That would be contrary to what Sections 77 read with Section 74 (2) and 76 of the Evidence Act, 1872 and more specifically Section 51 of the Act provides. As far as the provisions of the Evidence Act are concerned, certified copy of the registered sale deed is admissible in evidence and does not need to be proved by calling witness. (see Ramappa v. Bojappa AIR 1963 SC 1633, 1637).

5. Section 51 of the Act is to the same effect. In Land Acquisition Officer and Mandal Revenue Officer v. V. Narasaiah (supra), it was held by the virtue of Section 51-A, certified copy of document registered under the Registration Act, 1908 including copy under Section 57 of the Act may be accepted as evidence of the transaction recorded in such documents. It is open to the court to accept the certified copy as reliable evidence and without examining parties to the documents. This does not however preclude the Court from rejecting the transaction itself as being mala fide or sham provided such challenge is laid before the Court.”

25.In view of the aforesaid, the submissions made by counsel for the appellant that the sale deed dated 29.6.1968 cannot be read in evidence without being proved by oral testimony of the plaintiff for recording her title on the land in suit, is liable to be rejected and the substantial question

of law to that effect, therefore, is decided against the appellant.

As far as the substantial question of law as to whether

the evidence allegedly relied upon by the plaintiff was

barred by Section 90 of the Indian Evidence Act is concerned, as has already been stated in preceding paragraphs that in view of Sub-section 2 of Section 90 of the Indian Evidence Act, the evidence allegedly relied upon by the plaintiff was not barred by Section 90 of the Indian Evidence Act. As such, the substantial question is decided against the appellants. The plaintiff no. 2 is in possession of the property on behalf of the plaintiff no. 1 and sale agreement has been made in his favour, therefore, the suit filed on behalf of the plaintiff no. 1 and 2 both are maintainable.

SUBMISSION REGARDING ADVERSE POSSESSION

27.So far as the adverse possession over the property is concerned, the Apex Court in Karnataka Board of Wakf v. Government of India and others (2001) 10 SCC

779 has held as under:-

“10. Now we will turn to the aspect of adverse

possession in the context of the present case. The appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession are mutually exclusive. This finding of the High Court that the title of the Government of India over the suit property by way of adverse possession is assailed.” The appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession are mutually exclusive. This finding of the High Court that the title of the Government of India over the suit property by way of adverse possession is assailed.”

respondent based on title of the suit property

11. In the eye of the law, an owner would be

deemed to be in possession of property so long

as there is no intrusion. Non-use of the property

by the owner even for long time won’t affect his

title. But the position will be altered when another person takes possession of the property and asserts right over it. Adverse possession is hostile title in denial of the true owner. It is well-settled principle that party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (see S.M. Karim v. Bibik Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkataryappa v. State of Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession and the animus

and asserts right over it. Adverse possession is

Karnataka (1997) 7 SCC 567.) Physical fact

animus

possidendi to hold as owner in exclusion to the

actual owner are the most important factors that

are to be accounted in cases of this nature. Plea

of adverse possession is not pure question of

law but blended one of fact and law. Therefore,

person who claims adverse possession should

show: (a) on what date he came into possession,

(b) what was the nature of his possession, (c)

whether the factum of possession was known to

the other party, (d) how long his possession has

continued, and (e) his possession was open and undisturbed. person pleading adverse possession has no equities in his favour. Sincehe is trying to defeat the rights of the true owner, it is for him to clearly plead and establish allfacts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128.]

possession has no equities in his favour. Since

28.In view of the aforesaid principle, the defendant-appellants have failed to prove that they have become the owners of the property in dispute on the basis of adverse possession. The substantial question of law involved in the second appeal, therefore, is decided against the defendant-appellants.

29.On the basis of the aforesaid as well as the concurrent findings recorded by the courts below, the substantial questions of law are decided against the defendant-appellants.

SCOPE OF SECTION 100 OF THE

CODE OF CIVIL PROCEDURE

30.The Apex Court has interpreted the scope of Section 100 of Code of Civil Procedure view with regard to interference on the findings of fact. In Shah Mansukhlal Chhaganial (D) through LRs V. Gohil Amarsing

Govindbhai (D) through LRs reported in [2007 (66) ALR 310], the Apex Court has held as under:-

“Yet again in Roop Singh v. Ram Singh 2000 (3)

SCC 708=2000 (39) ALR 484 (SC), this Court has expressed that the jurisdiction of High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads:

“7. It is to be reiterated that under section 100, CPC jurisdiction of the High Court to entertain second appeal is confined only to such appeals which involve substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100, CPC. That apart, at the time of disposing of the matter, the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact finding Courts after appreciating the evidence held that the defendant entered into the possession of the premises as batai, that is to say, as tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two Courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings.”

31.In Boodireddy Chandraiah v. Arigela Laxmi and another [2007 (03) RD 610], the Apex Court has observed as under:-

“6. 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 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. In case where from given set of circumstances two interferences of fact are possible, one drawn by the Lower Appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the Lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

26. The question of law raised will not be considered as substantial question of law, if it stands already decided by larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts

required for point of law have not been pleaded, litigant should not be allowed to raise that question as substantial question of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising substantial question of law. But where it is found that the First Appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the First Appellate Court is shown to have exercised its discretion in judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve bank of India v. Ramkrishna Govind Morey, held that whether the Trial Court should not have exercised its jurisdiction differently is not question of law justifying interference. See: Kondiba Dogadu Kadam v. Savitribai Sopan Gujar and others 2000 (Suppl. RD 265 = 1999 (36) ALR 218

8. The phrase “substantial question of law”, as occurring in the amended section 100 of the C.P.C. is not defined in the Code. The word substantial, as “”qualifying question of law, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in –contradiction with technical, of no substance orconsequence, or academic merely.However, it is clear that the legislature has chosen not to qualify the scope

of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as section 109 of the C.P.C. or

“of general importance” as has been done in many

Article 133 (1) (a) of the Constitution. The substantial

question of law on which second appeal shall be

heard need not necessarily be substantial question of

law of general importance. In Guran Ditta v. T.

Ram Ditta AIR 1928 PC 172, the phrase

‘substantial question of law’ as it was employed in the last clause of the then existing section 100 C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordship held that is did

not mean substantial question of law which was involved in the case. In Sri Chunilal’s case (supra), the Constitution Bench expressed agreement with the following view taken by full Bench of the Madras High Court in Rirnmalapudi Subba Rao v.

Noony Veeraju AIR 1951 Mad.969:

“When question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it

necessary to deal with that question at

some length and discuss alternative views,

then the question would be substantial question of law. On the other hand if the question was practically covered by decision of the highest Court or if the general principles to be applied determining the question are well settled and the only question was of

the

decision of the highest Court or if the

determining the question are well settled

applying

those principles to be particular facts of the

case it would not be substantial question

of law.”

9.This Court laid down the following test as proper test, for determining whether question of law raised in the case is substantial:

“The proper test for determining whether question of law raised in the case issubstantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by theFederal Court or is not free from difficulty or calls for discussion of alternative views.If the question is settled by the highest Court or the general principles to applied in determining the question are well settled and there is mere question of applying those principles or that the plea raised is palpably absurd the question would not be substantial question of law.”

10.In Dy. Commnr. Hardoi v. Rama Krishna

Narain AIR 1953 SC 521, also it was held that question of law of importance to the parties was substantial question of law entitling the appellant to certificate under (the then) section 100 of the C.P.C.

11.To be “substantial” question of law must be debatable, not previously settled by law of the land or binding precedent, and must have material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be question of law “involving in the case” there must be first 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 just and proper decision of the case. An entirely new point raised for the first time before the High Court is not question involved in the case, or not; the paramount overall consideration being the need for striking judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of ant lis. See: Santosh Hazari v. Purushottam Tiwari (deceased by LRs. 2001 (92) RD 336 (SC) = 2001 (42) ALR 794 (SC).

12.The principles relating to section 100, C.P.C., relevant for this case, may be summarized thus:

(i)An inference of fact from the recitals or contents of document is question of fact. But the legal effect of the terms of document is question of law. Construction of document involving the application of any principle of law, is also question of law. Therefore, when there is misconstruction of document or wrong contents of document is question of fact. But the legal effect of the terms of document is question of law. Construction of document involving the application of any principle of law, is also question of law. Therefore, when there is misconstruction of document or wrong

application of principle of law in construing document, it gives rise to question of law.

(ii)The High Court should be satisfied that the case involves substantial question of law, and not mere question of law. question of law having material bearing on the decision of the case (that is, question, answer to which affects the rights of parties to the suit) will be substantial question of law, it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves debatable legal issue. substantial question of law will also arise in contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable but because the decision rendered on material question, violates the settled position of law.

The general rule is that High Court will not

interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where: (1) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or

(iii) the Courts have wrongly cast the burden of proof.

When we refer to ‘decision base on no evidence’, it not only refers to cases where there is total dearth of evidence, but also refers to any case, where the evidence, taken as whole, is not reasonably capable of supporting the finding.”

32.In Govindaraju v. Martamman reported in AIR

2005 SC 1008, the Apex Court has held as under:-

“16. As per settled law, the scope of exercise of the jurisdiction by the High Court in Second Appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed as later date after recording reasons for the same. It was observed in Santosh Hazari’s case (supra) that point of law which admits of no two opinions may be proposition of law but cannot be substantial question of law. To be ‘substantial’ question of law must be debatable, not previously settled by law of the land or binding precedent and answer to the same will have material bearing as to the rights of the parties before the Court. As to what would be the question of law “involving in the case.” It was observed that to be question of aw ‘involving in the case’ there must be first foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be necessary to decide that question of law for just and proper decision between the parties.”

33.In view of the aforesaid, High Court has limited powers under Section 100 of Code of Civil Procedure to interfere with the findings of fact recorded by the courts below. Second appeal, therefore, is liable to be dismissed.

34.Consequently, second appeal is dismissed. No order as to costs.

Avneet 3.1.2008

(Rajesh Tandon, J.)