AVTAR SINGH & ORS.versusBIMLA DEVI & ORS.

                          [2021] 6 S.C.R. 239                              239


                      AVTAR SINGH & ORS.                                   A
                                   v.
                       BIMLA DEVI & ORS.
                   (Civil Appeal No. 6096 of 2021)
                       SEPTEMBER 29, 2021                                  B
      [K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
       Code of Civil Procedure, 1908 – s.100 – Punjab Courts Act,
1918 – Suit filed by respondents / plaintiffs alleging that defendant
Nos. 2 to 4 broke the lintel portion of the roof (of the first floor of
                                                                           C
the building) illegally with intention to take forcible possession of
the plaintiffs’ house constructed on the first floor; and further
secretly constructed a staircase – Trial court and first appellate
court after considering the evidence on record – including the
report of a local commissioner who had visited the site – dismissed
the suit – Second appeal – High Court, framed substantial question         D
of law, as required by s.100 CPC and answered it in favour of the
plaintiffs, consequently resulting in decree of the suit – Justification
of – Held: Not justified – The Local Commissioner ’s report
corroborated the respondents/ plaintiffs’ case that a staircase did
not exist, or rather that it was in the stage of construction and was
                                                                           E
not completed – The report also bore out the plaintiffs’ allegation
that holes had been made in the lintel of the roof – Furthermore,
the dimensions of the chaubara, as found by the Local
Commissioner, differed from what was stated by the second
defendant – The lower courts ignored the evidence – in the form
of the Local Commissioner’s report – with regard to the issue of           F
possession of the chaubara – The Local Commissioner was neither
cross-examined, nor was his report objected to – Mere findings of
fact cannot be interfered with in exercise of second appellate
jurisdiction given the three limbs of jurisdiction available u/s.41
of the Punjab Courts Act – Findings of fact which are
                                                                           G
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 – On facts, High Court’s
findings – which are based entirely on re-appreciation of the record
– and consequent interference with the concurrent findings of the
lower courts, cannot be upheld.                                            H
                                  239
240           SUPREME COURT REPORTS                      [2021] 6 S.C.R.


A           Allowing the appeal, the Court
            HELD:1. The Local Commissioner’s report corroborated
      the respondents/plaintiffs’ case that a staircase did not exist, or
      rather that it was in the stage of construction and was not
      completed. The report also bore out the plaintiffs’ allegation that
B     holes had been made in the lintel of the roof. Furthermore, the
      dimensions of the chaubara, as found by the Local Commissioner,
      differed from what was stated by the second defendant. [Para 14]
      [245-G]
            2. From the evidence, it is apparent that undeniably
C     second defendant’s possession – and perhaps even ownership -
      of the ground floor shop, could not be denied. The findings of
      the lower courts, therefore, based upon the registered
      documents cannot be faulted. However, both these courts
      ignored the other evidence – in the form of the Local
D     Commissioner’s report – with regard to the issue of possession
      of the chaubara. The Local Commissioner was neither cross-
      examined, nor was his report objected to. [Para 15][245-H; 246-
      A-B]
            3. Mere findings of fact cannot be interfered with, in
E     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
F     – which are based entirely on the reappreciation of the record
      – and consequent interference with the concurrent findings of
      the lower courts, cannot be upheld. [Para 18][248-C-D]
            Pankajakshi v. Chandrika (2016) 6 SCC 157 : [2016]
            3 SCR 1018 – followed.
G
            Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC
            262 : [2001] 2 SCR 525 – held overruled.
            Dhanpat v. Sheo Ram (2020) 16 SCC 209 ; Randhir
            Kaur v. Prithvi Pal Singh (2019) 17 SCC 71 : [2019]
H           9 SCR 776 – relied on.
            AVTAR SINGH & ORS. v. BIMLA DEVI & ORS.                           241


                           Case Law Reference                                 A
[2016] 3 SCR 1018                      followed             Para 16
[2001] 2 SCR 525                       held overruled       Para 16
(2020) 16 SCC 209                      relied on            Para 16
[2019] 9 SCR 776                       relied on            Para 16           B
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.6096
of 2021.
      From the Judgment and Order dated 24.08.2016 of the High
Court of Punjab and Haryana at Chandigarh in RSA No.932 of 2010
(O&M).                                                                        C
       D. S. Bali, K. K. Mohan, Firoz Saifi, Ms. Shalu Sharma, Advs.
for the Appellants.
     Tarunvir Singh Khehar, Shankar Divate, Advs. for the
Respondents.
                                                                              D
         The Judgment of the Court was delivered by
         S. RAVINDRA BHAT, J.
       1. Special leave granted. Counsel for parties were heard, with
their consent, for final disposal of the appeal which questions a judgment
and order of the Punjab and Haryana High Court1.                              E
       2. The relevant facts are that the property marked ‘ABCD’ in
the site plan (produced along with the suit), located at GT Road,
Shahabad Markanda was purchased in the name of the first defendant,
allegedly in lieu of claim of properties left in Pakistan. It was stated
that the joint family properties belonged to a Hindu undivided family
                                                                              F
consisting of second plaintiff (hereafter Rajpal), his father and the first
defendant (hereafter Girdhari Lal). 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         G
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
1
    Dated 24.8.2016 in RSA 932/2010 (O & M).                                  H
242            SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A     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
B
      in exclusive possession as prospective purchasers, also constructed a
      residential house on the entire portion marked ‘IHCB’ on the first floor,
      which includes the portion purchased by the plaintiffs in 1978. The
      Market Committee, Shahabad (M) assessed the portion marked ‘OJHC’
      as a separate unit (bearing No. 647, Ward No. 13, Shahabad (M)) in
C     the name of Bimla Devi. Since the staircase to access the roof was
      only in the said residential portion and there was no access to the roof
      from any other side as such, the roof too was in their exclusive
      possession.
             3. The suit alleged that on 05.03.2000, Defendant Nos. 2 to 4
D     broke the lintel portion of the roof (from point X to Y shown in the site
      plan, of the first floor) illegally and with intention to take forcible
      possession of the plaintiffs’ house constructed on the first floor. It was
      also alleged that they had secretly constructed a staircase in the portion
      marked ‘AEFG’ for forcible occupation of the first floor of the building.
E            4. Girdhari Lal, in his written statement denied that the plaintiffs
      had any cause of action and claimed that they lacked locus standi to
      file and maintain the suit. The written statement alleged that the
      property which was acquired in his name in the year 1961 did not
      belong to any Hindu joint family as alleged by the plaintiffs, as he had
      spent his own funds. He denied entering into an agreement to sell the
F     property to Rajpal, and claimed that he had neither received any sale
      consideration nor handed over possession to Rajpal. Girdhari Lal sold
      the shop marked ‘AGFE’ to the second defendant (hereafter, Avtar
      Singh) by a registered sale deed dated 06.08.1999 together with first
      floor of the shop. It was alleged that Avtar Singh was in exclusive
G     possession of the property ever since.
             5. The allegations in the written statement of Girdhari Lal, were
      endorsed by Defendant Nos. 2 to 4 in a joint written statement. They
      reiterated that Avtar Singh purchased the shop in dispute from Girdhari
      Lal along with chaubara (a room surrounded by door/windows on all
H     fours sides) situated on the roof, for a valuable consideration of `3 lakhs
         AVTAR SINGH & ORS. v. BIMLA DEVI & ORS.                            243
                  [S. RAVINDRA BHAT, J.]

by a sale deed dated 06.08.1999 and possession was delivered to him.        A
Avtar Singh was in possession of the shop for over 30 years prior to
the purchase as a tenant and doing business of spare parts of electrical
goods and submersible pumps. It was urged that the defendants are in
peaceful possession of the shop, roof as well as chaubara constructed
thereon.
                                                                            B
      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          C
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         D
      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       E
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 findings of fact, based upon a complete
misappreciation of the circumstances bearing from the record. Mr.           F
Mohan underlines that the substantial question of law framed by the
High Court cannot be termed as falling within the framework of Section
100 CPC. He complained that the High Court assumed perversity on
the part of the reasoning of the trial court and the district court and
ignored relevant and material evidence in the form of documents as          G
well as the oral depositions.
       8. It was argued by the appellant that Avtar Singh is the father
of the other two defendants (Defendant Nos. 3 and 4); they purchased
the shop in question, measuring 43.33 square yards along with the
disputed chaubara for ` 3 lakhs by a registered sale deed in 1999 from
                                                                            H
244             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


A     Girdhari Lal, who died during the pendency of the suit. This fact was
      appreciated by the trial court, which gave credence to the registered
      document rather than the allegations in the suit that a prior agreement
      to sell – which was an unregistered document – was executed,
      favouring Bimla Devi and Rajpal, and on which they based their claim.
B            9. It was urged that the entire story of the respondents/plaintiffs
      was that Rajpal Singh was brother of Girdhari Lal and he purchased
      the northern half portion of the building received by the latter, in lieu
      of his claim. This was a false and concocted story, disbelieved quite
      rightly, by the trial court. In fact, they argued that this was not supported
      by evidence of any kind. The court noticed that there was due execution
C     of the sale deed dated 06.08.1999 (exhibited as Ex.D-1) during the
      course of the trial. This document unequivocally stated that the
      chaubara was part and parcel of the property purchased by Avtar
      Singh. In the absence of a challenge to that sale deed, that Rajpal and
      Bimla Devi had purchased the property through an agreement (Ex. P-
D     3 dated 24.08.1999) merely 18 days after the execution of Ex.D-1, was
      not believed. That claim was never taken in the plaint filed by the
      respondent Bimla Devi but saw the light of the day only during the trial.
      Consequently, the so-called agreement (Ex.P-3) was disbelieved and
      discredited by both the trial court and the first appellate court. This
      aspect was completely brushed aside by the High Court which
E     proceeded to discuss the pure findings of fact even though it purported
      to frame substantial questions of law.
             10. 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
F     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
G     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
H     that the suit averments clearly mentioned that after the agreement to
         AVTAR SINGH & ORS. v. BIMLA DEVI & ORS.                              245
                  [S. RAVINDRA BHAT, J.]

sell was entered into in 1978, the plaintiffs were given possession with      A
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 importantly argued that the
dimensions of the chaubara were different from what was alleged by
the appellants/defendants.
                                                                              B
       12. Learned counsel appearing for the respondents/plaintiffs also
drew the attention of this court to the report of the Local Commissioner
which had been challenged. He submitted that the Commissioner was
asked to inspect the site and report to the trial court about the precise
dimensions of the various premises. It was stated that Avtar Singh’s          C
possession in the capacity as owner of the shop was not a matter of
dispute, and what was in issue was only regarding the possession of
the chaubara. Learned counsel submitted that the dimensions alleged
in the plaint and the dimensions of the chaubara found on the first
floor were in accord with each other. It was also submitted that the
allegations in the suit that holes had been drilled on the lintels in order   D
to make separate staircase from within the shop premises (of Avtar
Singh) was borne out because the Local Commissioner found such
holes.
      Analysis and Conclusions
                                                                              E
       13. One of the main arguments of the appellants/defendants is
that the impugned judgment is erroneous, because it upsets concurrent
findings of fact. It is emphasized that even though a substantial question
of law was framed for consideration in the second appeal, the exercise
of jurisdiction and interference in the findings of the two lower courts,     F
was unwarranted.
        14. The Local Commissioner’s report corroborated the
respondents/plaintiffs’ case that a staircase did not exist, or rather that
it was in the stage of construction and was not completed. The report
also bore out the plaintiffs’ allegation that holes had been made in the      G
lintel of the roof. Furthermore, the dimensions of the chaubara, as found
by the Local Commissioner, differed from what was stated by Avtar
Singh.
     15. From an overall discussion of the evidence, it is apparent that
undeniably Avtar Singh’s possession - and perhaps even ownership -            H
246               SUPREME COURT REPORTS                        [2021] 6 S.C.R.


A     of the ground floor shop, could not be denied. The findings of the lower
      courts, therefore, based upon the registered documents cannot be
      faulted. However, both these courts ignored the other evidence - in the
      form of the Local Commissioner’s report - with regard to the issue of
      possession of the chaubara. The Local Commissioner was neither
B     cross-examined, nor was his report objected to.
            16. In these circumstances, 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. Chandrika2 held that the provisions of Section 41 of
      the Punjab Courts Act, 1918 continued to be in force, and not Section
C
      100 CPC. 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
D
               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,
E              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, Article 254 of the
               Constitution of India would have no application to such a
F
               law for the simple reason that it is not a law made by the
               Legislature of a State but is an existing law continued by
               virtue of Article 372 of the Constitution of India. If at all, it
               is Article 372(1) alone that would apply to such law which
               is to continue in force until altered or repealed or amended
G              by a competent Legislature or other competent authority. We
               have already found that since Section 97(1) of the Code of
               Civil Procedure (Amendment) Act, 1976 has no application
               to Section 41 of the Punjab Courts Act, it would necessarily
               continue as a law in force.”
      2
H         (2016) 6 SCC 157.
         AVTAR SINGH & ORS. v. BIMLA DEVI & ORS.                        247
                  [S. RAVINDRA BHAT, J.]

      As a result, the previous smaller bench ruling in Kulwant Kaur    A
v Gurdial Singh Mann3 which held that Section 41 is inconsistent with
Section 100 CPC after its amendment in 1976, and that the latter
prevails, was expressly overruled.
       17. The decision in Pankajakshi (supra) came up for discussion
in two subsequent judgments of this Court. In Dhanpat v. Sheo Ram4,     B
citing the ruling in the earlier decision Randhir Kaur v. Prithvi Pal
Singh5, it was held as follows:
       “13. It may be noticed that in view of Constitution Bench
       judgment of this Court in Pankajakshi v. Chandrika
       [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3           C
       SCC (Civ) 105] , substantial question of law may not be
       required to be framed in Punjab and Haryana but still, the
       finding of fact recorded cannot be interfered with even in
       terms of Section 41 of the Punjab Courts Act, 1918. The said
       question was examined by this Court in Randhir Kaur
       v. Prithvi Pal Singh [Randhir Kaur v. Prithvi Pal Singh,         D
       (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein, the
       scope for interference in the second appeal under Section
       41 of the Punjab Courts Act applicable in the States of
       Punjab and Haryana was delineated and held as under :
       (Randhir Kaur case [Randhir Kaur v. Prithvi Pal Singh,           E
       (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372], SCC p. 80,
       paras 15-16)
       “15. A perusal of the aforesaid judgments would show that
       the jurisdiction in second appeal is not to interfere with the
       findings of fact on the ground that findings are erroneous,      F
       however, gross or inexcusable the error may seem to be. The
       findings of fact will also include the findings on the basis
       of documentary evidence. The jurisdiction to interfere in the
       second appeal is only where there is an error in law or
       procedure and not merely an error on a question of fact.
                                                                        G
       16. In view of the above, we find that the High Court [Prithvi
       Pal Singh v. Randhir Kaur, 2015 SCC OnLine P&H 4792]

3
  (2001) 4 SCC 262.
4
  (2020) 16 SCC 209.
5
  (2019) 17 SCC 71.                                                     H
248             SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A            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
B
             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
C     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
D     be upheld.
             19. In view of the foregoing reasons, the impugned judgment has
      to be set aside. The appeal is accordingly allowed, without orders on
      cost.

E
      Bibhuti Bhushan Bose                                         Appeal allowed.




F




G




H