Rohit Taneja vs Sardar Chamkaur Singh & Others

Manoj K. Tiwari, J

This Second Appeal has been filed under Section 100 C.P.C. challenging the judgment & decree dated 03.08.2018 passed by learned IInd Additional District Judge, Haridwar in Civil Appeal No. 75 of 2015 and also the judgment & decree dated 16.11.2015 passed by learned Ist Additional Civil Judge (Senior Division), Haridwar in Misc. Civil Suit No. 07 of 2011.

This case has a chequered history. Sardar Chamkaur Singh (respondent no. 1 herein) filed an eviction suit against Mr. Dhaneshwar Dutt Taneja (father of the appellant) before Small Cause Court, Haridwar, which was registered as SCC Case No.10 of 2006. It was the contention of Sardar Chamkaur Singh before the Small Cause Court that Mr. Dhaneshwar Dutt Taneja (appellant's father) was a tenant in respect of a shop situate at Jwalapur, Haridwar and he had defaulted in payment of rent. Appellant's father filed his Written Statement contending that he never committed default in payment of rent, however. he admitted that he is tenant in respect of the shop in question.

Learned Judge SCC, Haridwar decreed the eviction suit filed by Sardar Chamkaur Singh vide judgment dated 16.04.2009. Appellant's father challenged the said judgment by filing Revision Petition before District Judge, Haridwar, which was dismissed by the revisional court. Appellant's father, thereafter, filed petition under Article 227 of Constitution of India against judgment of trial court as well as revisional court, which too was dismissed by this Court.

The decree holder (Sardar Chamkaur Singh) put the decree to execution by filing Execution Case No. 02 of 2009. Before the Executing Court, appellant's father did not appear despite notice. Instead appellant appeared and filed application under Order 21 Rule 97 (2) C.P.C. with the contention that the property originally belonged to Smt. Lajwanti W/o Charandas and her son, who sold it to Sri Radhey Mohan Sharma and he purchased the property in question from Sri Radhey Mohan Sharma, who had entered into a compromise with Sardar Chamkaur Singh on 17.01.2000 in the proceedings pending before Additional Commissioner, Saharanpur. In his application, appellant contended that, by virtue of the sale deed, he is the owner of the property in question, therefore, he cannot be evicted therefrom at the instance of Sardar Chamkaur Singh, who has no title over the property in question.

The application under Order 21 Rule 97 (2) C.P.C. filed by the appellant was registered as Misc. Civil Suit No. 7 of 2011.

In sum and substance, the case of the appellant before the Executing Court was that the original owner of the property in question was Smt.Lajwanti and Sri Ramakant. Sri Radhey Mohan Sharma and Sri Tilak Raj purchased the property in question by a registered sale deed dated 28.01.1986. Thereafter, some dispute arose between decree holder - Sardar Chamkaur Singh and Sri Radhey Mohan Sharma in respect of the property in question and ultimately a compromise was entered between them in the proceedings before Additional Commissioner, Saharanpur on 17.01.2000 and the decree holder had admitted that he will have no concern with Plot No. 917. It was further alleged that the decree holder had filed the eviction suit against his father on the basis of false averments, which was wrongly decreed on 16.04.2009. Based on these pleadings, appellant prayed that he may not be evicted from the property in question on the strength of the alleged decree dated 16.04.2009.

The decree holder in his reply denied the allegation made by the appellant in his application under Order 21 Rule 97 of C.P.C. The decree holder contended that against the decree passed by Small Cause Court, appellant's father filed Revision No. 10 of 2009, which was dismissed. It was further contended that Sri Radhey Mohan Sharma was not the owner of the property in question, therefore, the sale deed alleged to have been executed by Sri Radhey Mohan Sharma qua the property in question is void. It was further stated that since the property in question was in possession of the judgment debtor, therefore, the judgment debtor had raised some construction and thereby changed the nature of the property in question. Based on these pleadings, learned Additional Civil Judge (Senior Division), Haridwar framed three issues, English translation whereof is reproduced below:

"i) Whether the objector is owner in possession of the property in question, which is described in Execution Case No. 2 of 2009, prior to passing of the decree?

ii) Whether the decree holder had filed the SCC Case No. 2 of 2009 by suppressing information and on the basis of false facts and yet the suit was decreed?

iii) Relief."

Thus, the moot question, which was to be determined was (a) whether the objector (appellant herein) had purchased the selfsame property, which was subject matter of eviction suit filed by Sardar Chamkaur Singh against Mr. Dhaneshwar Dutt Taneja (father of the appellant) and (b) whether Sri Rahdey Mohan Sharma, from whom objector (appellant herein) had purchased the property had any right, title or interest over the suit property.

Learned Executing Court, after considering entire material on record, including the sale deeds i.e. one executed by Smt. Lajwanti on 25.01.1986 in favour of Sri Radhey Mohan Sharma and Sri Tilak Raj and the subsequent sale deed dated 21.08.2001 executed by Sri Radhey Mohan Sharma and Sri Tilak Raj in favour of objector (appellant herein), decided issue Nos. 1 & 2 against the objector (appellant herein) and dismissed his objection filed under Order 21 Rule 97 of CPC. Thus, feeling aggrieved, objector filed regular first appeal, which was registered as Civil Appeal No. 75 of 2015. Learned 2nd Additional District Judge, Haridwar affirmed the findings recorded by the Executing Court and dismissed the appeal vide judgment dated 03.08.2018.

Thus, feeling aggrieved, objector/applicant filed this second appeal challenging the judgment and decree passed by Executing/Trial Court as well as 1st Appellate Court.

Scope of interference with concurrent findings of fact in a Second Appeal under Section 100 C.P.C. is limited. Hon'ble Supreme Court in the case of Thulasidhara & another v. Narayanappa & others reported in (2019) 6 SCC 409 has summarized the legal position in the following words:-

"7.1. At the outset, it is required to be noted that by the impugned judgment and order1, in a second appeal and in exercise of the powers under Section 100 CPC, the High Court has set aside the findings of facts recorded by both the courts below. The learned trial court dismissed the suit and the same came to be confirmed by the learned first appellate court. While allowing the second appeal, the High Court framed only one substantial question of law which reads as under:

"Whether the appellant is the owner and in possession of the suit land as he purchased it in the year 1973, that is, subsequent to the date 23-4-1971 when Ext. D-1, partition deed, Palupatti is alleged to have come into existence?"

No other substantial question of law was framed. We are afraid that the aforesaid can be said to be a substantial question of law at all. It cannot be disputed and even as per the law laid down by this Court in the catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC.

7.2. As observed and held by this Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar7, in the second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

OR

(ii) Contrary to the law as pronounced by the Apex Court;

OR

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in the second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.

7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain v. Sohan Lal8. In the aforesaid decision, this Court has specifically observed and held: (SCC pp. 441-42, paras 10-13)

"10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.

There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. ...

The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. ...

In either of the above situations, a substantial question of law can arise.""

Hon'ble Supreme Court in the case of Damodar Lal v. Sohan Devi & others reported in (2016) (3) SCC 78 has held that High Court cannot interfere with the findings of fact recorded by first appellate Court under Section 96 C.P.C. Relevant paragraphs of the said judgment are extracted below:-

"8. "Perversity" has been the subject-matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of the Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.

In Krishnan v. Backiam, it has been held at para 11 that: (SCC pp. 192-93)

"11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."

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In Kulwant Kaur v. Gurdial Singh Mann, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp. 278-79)

"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:

'103. Power of High Court to determine issues of fact.-In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal-

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.'

The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."

In S.R. Tewari v. Union of India, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Admn., it was held at para 30: (S.R. Tewari case, SCC p. 615)

"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn., Kuldeep Singh v. Commr. of Police, Gamini Bala Koteswara Rao v. State of A.P and Babu v. State of Kerala.)"

This Court has also dealt with other aspects of perversity.

We do not propose to discuss other judgments, though there is a plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and the first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."

Appellant has not raised the ground of perversity and the judgments rendered by learned Courts below have been challenged on other grounds. On going through the paper book, I am satisfied with the findings recorded by the Trial Court as well as the First Appellate Court are in accordance with the evidence on record.

Even otherwise also, this second appeal does not involve any substantial question of law. In such view of the matter, there is no scope of interference with the impugned judgments in the present second appeal.

Accordingly, second appeal is dismissed. No order as to costs.