9911796707
TMI Blog2021 (9) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... . Girdhari Lal being brother of Rajpal agreed to sell portion marked 'GFEDCB' along with the first floor roof of the entire building (marked 'ABCD') to Rajpal's wife, Bimla Devi (the first Plaintiff/first Respondent, referred to by her name hereafter) for a total consideration of ` 2500/- in 1961. This sum was allegedly received by Girdhari Lal who agreed to execute the sale deed as and when required by Bimla Devi. Girdhari Lal also delivered possession to Rajpal and since then the Plaintiffs claim to have been in peaceful possession of the property. The suit alleged that Girdhari Lal was left with no right, title or interest in the suit property except a formal sale deed which remained to be executed. In the year 1978, Bimla Devi purchased portion marked 'IHDA' shown in blue colour in the site plan and thereafter the Plaintiffs demolished the existing construction and constructed a residential house in portion marked 'OJHC'. They also reconstructed the shop marked 'GFOB' and 'IJEA'. The Plaintiffs being in exclusive possession as prospective purchasers, also constructed a residential house on the entire portion marked 'IHCB&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereon. 6. The trial court and the first appellate court after considering the evidence on record-including the report of a local commissioner who, pursuant to the orders made during the trial, visited the site-dismissed the suit. Bimla Devi (the first Plaintiff) preferred a second appeal. The High Court, framed a substantial question of law, as required by Section 100 of the Code of Civil Procedure (CPC) which reads as follows: Whether the findings of the Courts below in regard to claim of the Appellants qua their possession of the chobaras on the first floor of the three shops and mandatory injunction to close the holes in the lintel of the shop in occupation of Avtar Singh are the result of ignoring material evidence and misreading of evidence rendering it perverse. The High Court answered the substantial question, in favour of the Plaintiffs, Bimla Devi and Rajpal, and, consequently allowed the second appeal, thus resulting in decree of the suit. The High Court's judgment 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 law because it upsets concurrent fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was urged that once the Plaintiffs admitted to the due execution of Ex. D-1, the evidence appreciated by the High Court and its observations that it was agreed by the parties that ownership of the suit property was pending adjudication in separate proceedings was a superfluity and untenable. Mr. Mohan also submitted that the Plaintiffs had 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 fact that the registered document could not be brushed aside and its contents had to be taken at face value. It was submitted that in view of all these factors, the interference by the High Court with concurrent findings of fact was unwarranted. 11. Mr. Tarunvir Singh Khehar, learned Counsel appearing for the Respondents/Plaintiffs supported the judgment in appeal. He submitted that the suit averments clearly mentioned that after the agreement to sell was entered into in 1978, the Plaintiffs were given possession with the property. It was underlined that the Plaintiffs reconstructed portions of the property and clearly mentioned that on the first floor of the three shops, there were two portions. It was imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances, the question that arises, is whether the High Court justly interfered with what are unquestionably, concurrent findings of fact. This Court in its five-judge bench ruling, in Pankajakshi v. Chandrika (2016) 6 SCC 157 held that the provisions of Section 41 of the Punjab Courts Act, 1918 continued to be in force, and not Section 100 Code of Civil Procedure. The Court observed that: 27. .... Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature Under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir Kaur] could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of Clause in the first power of attorney to purchase land on behalf of the Plaintiff; the fact that the Plaintiff has not appeared as witness. 18. It is thus evident, therefore, that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available Under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Court's findings - which are based entirely on the reappreciation of the record - and consequent interference with the concurrent findings of the lower courts, cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
