Code of Civil Procedure, 1908: s.100 – Exercise of power under, scope – Suit for title and permanent injunction based on sale deed – Claim of defendants that suit property fell into share of husband of defendant no.1 and father of defendant no.2 and 3 by way of partition – Trial court dismissed the suit holding that the partition deed is admissible in evidence and the plaintiff in collusion with PW2 got executed a sham document in his favour – First appellate authority upheld the decision of trial court – High Court framed only one substantial question as to whether the appellant was the owner and in possession of the suit land as he purchased it subsequent to the partition deed – High Court allowed the appeal holding that the partition deed required registration and therefore was inadmissible in evidence and that both the courts below were not justified in holding that the sale deed was only nominal one – On appeal, held: The jurisdiction of High Court under s.100 after the 1976 amendment is confined only with the second appeal involving a substantial question of law – In the instant case, no substantial question of law was framed – Trial court as well as first appellate court, both gave cogent reasons on appreciation of evidence on record more particularly the sale deed and the partition deed and held that the plaintiff was not entitled to declaration that he became the owner – While interfering with the orders by both the courts below, High Court again re-appreciated the entire evidence on record, which in exercise of powers under s.100 was not permissible – Under the circumstances, High Court committed a grave/manifest error in quashing and setting aside the findings recorded by both the courts below, which were on appreciation of evidence on record – Partition.
Partition: The case of defendants was that husband of defendant no.1 and father of defendant no.2 and 3 purchased the suit property on 12.12.1948 under a registered sale deed – Said property was blended into the joint family properties by him – Thereafter when partition took place said suit property fell into his share – Plaintiff filed suit for declaration of title on the basis of sale deed – Trial court and first appellate court held that the said sale deed was only a nominal sale deed and not an out and out sale deed since it was executed as security for loan and never intended to sell the suit property – High Court allowed the appeal holding that in view of the registered sale deed executed in favour of the plaintiff, the plaintiff became the actual owner – On appeal, held: Father of defendants was not a signatory to the sale deed and therefore it was not binding on him or his heirs – Even otherwise, in a suit for a declaration on the basis of the registered sale deed, it is always open for the defendant, who is a stranger to the sale deed, to raise a plea that the sale deed was void, fictitious, collusive or not intended to be acted upon and or not binding to him – Partition deed relied upon by the defendants could be said to be a Palupatti which means list of properties partitioned – At the most, it can be said to be a family arrangement – Therefore, in the facts and circumstances of the case, the same was not required to be registered – The execution of this document/ Partition Deed/ Palupatta dated 23.04.1971 was established and proved by examining different witnesses – Even the plaintiff also categorically admitted that the oral partition took place on 23.04.1971 and he also admitted that
3 to 4 punchayat people were also present – Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties – So far as sale deed dated 18.05.1973 executed in favour of the plaintiff was concerned, there was serious dispute with respect to consideration paid by the plaintiff – In the facts and circumstances of the case, the High Court was not justified in interfering with the findings recorded by both the courts below – The orders passed by both the courts below dismissing the suit are restored.
Disposing of the appeal, the Court
HELD: 1. The jurisdiction of the High Court to entertain Second Appeal under Section 100 of the 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 of the CPC. In the second appeal under Section
100 of the 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; contrary to the mandatory provisions of the applicable law; or contrary to the law pronounced by the Apex Court; or based on inadmissible evidence or no evidence. The substantial question of law framed by the High Court in the instant case, as such, cannot be said to be a substantial question of law at all. The Trial Court as well as the First Appellate Court, both gave cogent reasons on appreciation of evidence on record, more particularly, the Sale Deed dated 22.06.1964, document dated 23.04.1971 and subsequent Sale Deed dated 18.05.1973 and thereafter held that the plaintiff is not entitled to the declaration that he has become the owner. While interfering with the Judgment and Decree passed by both the Courts below, the High Court again re-appreciated the entire evidence on record, which in exercise of powers under Section 100 of the CPC, is not permissible. [Paras 7.1, 7.2, 7.4, 8] [226-B-E; 227-C-E]
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 : [1999] 2 SCR 728 ; Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 : [1999] 5 Suppl. SCR 24 – relied on.
2. Admittedly, the father of defendant no. 2 and 3 was not a signatory to the registered Sale Deed dated 22.06.1964 (Exhibit P1). Therefore, as such, the said Sale Deed did not bind the father of defendant no. 2 and 3. The entire evidence on record shows that the suit property was initially purchased by the father of defendant no. 2 and 3 in the year 1948 and thereafter, due to some internal family problems with respect to said suit property, it was the father of defendant no. 2 and 3 who threw the same property into the joint family property in the year 1952 and then executed the Sale Deed in favour of his father stating that it belongs to joint family property. The entire evidence on record show that even the Sale Deed (Exhibit P1) was not acted upon. In the cross-examination, the original plaintiff specifically admitted that in the year 1965-66, when the father sold away the said suit schedule property, there was no partition between the brothers at that time. In the circumstances, the registered Sale Deed (Exhibit P1), by which the suit property was sold to ‘S’ would not bind the father of defendant no. 2 and 3. It was a registered Sale Deed which was not acted upon.
Even otherwise, it is always
open for the defendant, who is a stranger to the Sale Deed, to raise a plea that the Sale Deed was void, fictitious, collusive or not intended to be acted upon and or not binding to him. In the facts and circumstances of the case, without even challenging the Sale Deed (Exhibit P1) by way of independent proceedings, in a suit filed by the plaintiff seeking a declaration that he has become the owner pursuant to the registered Sale Deed, it is always open for the defendant, who is stranger to the Sale Deed, to raise a plea that either the Sale Deed is not binding to him or the same was without consideration or it was a nominal Sale Deed or void or fictitious, for that matter, collusive and not intended to be acted upon. [Paras 9.1, 9.2] [228-F-H; 229-A-D, F-G]
Vidhyadhar v. Manikrao and Another (1999) 3 SCC
573 : [1999] 1 SCR 1168 – relied on.
3.1 So far as the finding recorded by the High Court that as Partition Deed dated 23.04.1971 (Exhibit D4) was unregistered though required registration under the provisions of the Registration Act and, therefore, the same is not admissible in evidence is concerned, it is required to be noted that as such Exhibit D4 can be said to be a Palupatti which means list of properties partitioned. At the most, it can be said to be a family arrangement. Therefore, in the facts and circumstances of the case, the same was not required to be registered. Deed dated 23.04.1971, under which the suit property had gone /devolved in favour of the father of defendant no. 2 and 3 was reduced in writing before the Panchayat and Panchas, and the same was signed by the village people/panchayat people and all the members of the family including even the plaintiff. Though the plaintiff disputed that the partition was not reduced in writing in the form of document Exhibit D4, on considering the entire evidence on record and even the deposition of plaintiff (cross-examination), he has specifically admitted that the oral partition had taken place in the year 1971. He has also admitted that he has got the share which tallies with document dated 23.04.1971 (Exhibit D4). [Paras 9.3, 9.4][230-G-H; 231-A-D]
3.2 So far as the Sale Deed dated 18.05.1973 (Exhibit P2) executed by ‘S’ in favour of the plaintiff was concerned, there was a categorically finding by both the courts below that the same document was sham. In the cross-examination, the plaintiff stated that he paid Rs. 3000 to 4000 to ‘S’ and the said property was purchased by him in the year 1973. However, in the document, the sale consideration is stated to be Rs.200/-. Therefore, there was serious dispute with respect to consideration paid by the plaintiff and received by the ‘S’ . In the facts and circumstances of the case, the High Court was not justified in interfering with the findings recorded by both the Courts below. [Paras 9.6, 10] [232-E-G]
Kale and Others v. Deputy Director of Consolidation and Others (1976) 3 SCC 119 : [1976] 3 SCR 202 ; Kaliaperumal v. Rajagopal and Another (2009) 4 SCC
193 ; S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 : [1973] 1 SCR
570 – relied on
Roshan Singh and Others v. Zile Singh and Others (2018) 14 SCC 814 – referred to
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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