Rachna Bai & others vs Kayyum Khan & another

This is an appeal by the plaintiff against the judgment and decree dated 26.11.2014 passed by First Civil Judge, Class II, Dhar in Civil Suit No.11-

A/2014 and judgment and decree dated 26.7.2017 passed by 2nd Additional District Judge, Dhar in Civil First Appeal No.9-A/2017, whereby the civil

suit as well as the first appeal have been dismissed.

The appellants/plaintiffs filed the suit for the relief of declaration and permanent injunction for the land bearing Survey No. 157/2/1/A area 0.0114

Hect. situated in Village Sadalpur, District Dhar (hereinafter, for short, “the suit landâ€). According to the plaintiffs, they inherited the suit land

after the death of their father Late Sajan Singh. They are in possession of the suit land and cultivating the same. On 15.1.2014, the defendant No.1

came with others and started damaging the crops. Later on, plaintiffs came to know that the defendant No.1 has got mutated his name in connivance

with the revenue authorities. Thereafter, the plaintiffs filed the suit along with an application for temporary injunction.

After notice, defendant No.1 filed the written statement by submitting that the father of the plaintiffs had already sold the suit land to him by a

registered sale-deed dated 2.9.1998 and thereafter, he constructed a house over the suit land. On the basis of pleadings, the learned trial Court framed

7 issues for adjudication. Both the parties led their evidences and thereafter, the learned trial Court vide judgment and decree dated 26.11.2014 has

dismissed the suit. Being aggrieved, plaintiffs filed first appeal and that too has been dismissed vide judgment dated 26.7.2017, hence this second

appeal before this Court.

The appellant has proposed following substantial questions of law :

“(i) Whether a person acquires sole and absolute ownership over ancestral property apart from the fact that other legal heirs are in existence?

(ii) Whether the mere suit for declaration filed by the plaintiffs/appellants is maintainable without consequential relief in view of Section 34 of the

Specific Relief Act, 1963?

(iii) Whether daughters/grand-daughters having rights over the ancestral property?â€​

The plaintiffs approached the Civil Court alleging that they received the suit land after the death of their father and now they are in possession. The

defendant came with registered sale-deed dated 2.9.1998 by which the suit land was sold by Sajan Singh i.e. father of plaintiffs to him. The defendant

is having registered sale-deed (Ex. D/1) in his favour. The defendant has also filed certified copy of the judgment and decree dated 24.9.2013 passed

by 4th Civil Judge, Class-II, Dhar, by which the suit filed by the plaintiffs against one Fakru in respect of part of Survey No.157 has been dismissed.

Sajan Singh, father of the plaintiffs, sold the land bearing Survey No.157 to various persons by different sale-deeds during his life time. Thereafter, he

expired on 10.10.1998. The plaintiffs filed the civil suit in the year 2014.

According to the plaintiffs, the signature of their father over the sale-deed is forged and immediately after execution of the so called sale-deed, he

expired. When the plaintiffs are alleging forgery, then the burden lies on them to prove the same which they failed to discharge. Therefore, both the

Courts below have rightly came to the conclusion that the defendant is a registered owner of the suit land by virtue of registered sale-deed dated

2.9.1998.

The plaintiffs have assailed the sale-deed on the ground that the suit land is an ancestral property and their father had no right to sale the same as

the same was recorded in the revenue record jointly in the name of their father and his brother. The plaintiffs admitted in the cross-examination that

along with the name of their father, name of Laxman, Shakur, Peer Mohammad and Kayyum are also recorded, but they are not brothers of Sajan

Singh. Therefore, the plaintiffs have also failed to prove that the suit land was an ancestral property of their father.

The learned trial Court has also recorded the finding in respect of possession against the plaintiffs. The defendant produced the 'Panchnama' (Ex.

D/4) dated 26.11.2012, which proved that the house is in possession of the defendant. Both the Courts below have concurrently held that the plaintiffs

have failed to prove their case. Hence, I do not find any substantial question of law involved in this appeal.

Even otherwise, the apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as under:

It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first

appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but

even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the

appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn

by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot

substitute its opinion for the opinion of the first appellate court unless 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 without evidence.

If the question of law termed as a substantial ques-tion stands already decided by a larger Bench of the High Court concerned or by the Privy

Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial

question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant

should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary

evidence or the meaning of entries and the contents of the document cannot be held to be raising a 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 a

substantial question of law. Where the first appellate court is shown to have exercised its discretion in a 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 [AIR

1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

In case of  Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the apex court has held as under:

Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established

their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was

no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A

schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’

right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the

findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by

the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.

Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others : (2017) 9 SCC 586 has held as under:

Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their

case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law

much less substantial question of law, are binding on this Court.

It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also

not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though

concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court.

In view of the above, this appeal does not involve any question of law much less substantial question of law and the same is hereby dismissed.

No order as to costs.