RSA No. 1926 of 1989 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1926 of 1989 Date of Decision: 21.11.2011 Ved Prakash ……Appellant Vs. Faqir Chand ……Respondent CORAM: Hon’ble Mr. Justice Rameshwar Singh Malik Present: Mr. Alok Mittal, Advocate for the appellant. Mr Ajay Mahajan, Advocate for the respondent. ***** Rameshwar Singh Malik, J. The instant appeal filed by the plaintiff is directed against the judgment and decree dated 19.1.1989 passed by the learned Additional District Judge, Faridkot, whereby the first appeal of the plaintiff was dismissed upholding the judgment and decree dated 5.6.1986 passed by the learned Additional Senior Sub-Judge, Moga, dismissing the suit for declaration and permanent injunction. Brief recapitulation of the facts is as follows:- The plaintiff filed the suit for declaration and permanent injunction pleading that suit property was an ancestral house situated at Moga. It was stated by the plaintiff that suit property was owned by Kundan Lal, father of the parties. The parties to the suit and their father Kundan Lal formed a joint Hindu family. Kundan Lal was the karta of the joint Hindu family. He brought about the written partition of his property on 19.8.1957. Pursuant to the partition, the plaintiff Ved Parkash became 1 RSA No. 1926 of 1989 owner of the suit property. It was further alleged that the plaintiff had been coming in continuous and peaceful possession over the suit property since the date of its partition. The defendant was estopped by his act and conduct from interfering in the lawful and peaceful possession of the plaintiff. Besides, it was also alleged that Kundan Lal moved an application dated 4.6.1962 to the office of Excise and Taxation Officer, Ferozepur, for allotment of separate number and for separate assessment of the house in question. It was further the case of the plaintiff that he had been paying electricity, water, sewerage and house tax bills in the capacity of owner. Faqir Chand-defendant was in possession of that portion of the house which was ‘marked in green colour’ in the site plan. The house marked in green colour had come to the share of the defendant. The defendant filed his written statement taking the plea that the suit was barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure (‘CPC’ for short). He further alleged that the site plan was not according to the factual position obtaining at the site. The suit was not properly valued for the purposes of court fee and jurisdiction. Five daughters and widow of Kundan Lal were necessary parties, but had not been impleaded. The suit property was the self acquired property of Kundan Lal. The plaintiff was living separately from Kundan Lal for the last 30 years. Kundan Lal never effected any partition. The defendant further pleaded that Kundan Lal executed a registered Will dated 16.5.1983 bequeathing all his property in favour of the defendant. The plaintiff was residing at Lucknow for the last 25 years. The defendant further pleaded that he was in possession of the entire house as owner. On completion of the pleadings of the parties, the learned trial court framed the following issues:- 2 RSA No. 1926 of 1989 1. Whether the plaintiff is owner of the house in dispute? OPP 2. Whether Kundan Lal executed a valid Will dated 16.5.1983 in favour of the defendant? OPD 3. Whether the suit is barred by the provisions of Order 2 Rule 2 CPC? OPD. 4. Whether the suit is bad due to non-joinder of necessary parties? OPD. 5. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP. 6. Relief Parties led their respective evidence. The learned trial court decided issues No. 1 and 2 in favour of the defendant and against the plaintiff. Issues No. 3 to 5 were decided in favour of the plaintiff and against the defendant (hereinafter referred to as `the respondent’). However, on the basis of findings recorded on issues No. 1 and 2, suit of the plaintiff was dismissed by the learned Additional Senior Sub-Judge, Moga, vide judgment and decree dated 5.6.1986. Dissatisfied, the plaintiff filed his first appeal but the contention raised on behalf of the plaintiff did not find favour with the learned Additional District Judge, Faridkot. The appeal of the plaintiff was dismissed vide judgment and decree dated 19.1.1989. Feeling aggrieved against the above said judgments and decrees passed by the courts below, the plaintiff (hereinafter referred to as `the appellant) has preferred the present regular second appeal before this Court. I have heard the learned counsel for both the parties and with their assistance, have gone through the record of the case. 3 RSA No. 1926 of 1989 Sh. Alok Mittal, learned counsel for the appellant, submits that following substantial questions of law arise in the present case. 1. Whether the learned courts below have erred in appreciating the evidence on record in its right prospective ? 2. Whether the learned courts below erred in law in arriving at the conclusion that the document relied upon by the appellant is a partition deed and not a memorandum of partition and therefore requires registration despite the finding that the document mentions the fact of the appellant already being separated ? 3. Whether the impugned orders, having been passed by the learned courts below without application of mind and without taking into consideration the evidence on record, are legally sustainable in the eyes of law ? Learned counsel for the appellant very fairly submits at the very outset that his sole argument is that the learned courts below have not rightly appreciated the evidence adduced by the appellant in the form of `Mark A’. He submits that the document ‘Mark A’ produced by the appellant was, in fact, not a memorandum of partition but a partition deed which did not require registration. He further submits that since the learned courts below have failed to consider the evidence available on the record, the impugned judgments and decrees were liable to be set aside and the appeal was liable to be allowed. In support of his contention, Sh. Alok Mittal, learned counsel for the appellant, relies upon only on one document i.e. Mark A. 4 RSA No. 1926 of 1989 On the other hand, Sh. Ajay Mahajan, learned counsel for the respondent, submits that the plea raised by the appellant is contrary to his own pleadings. The only document produced by the appellant is ‘Mark A’ which was not admissible in evidence. He further submits that the appellant himself filed Civil Suit No. 202 of 1983 for permanent injunction restraining the respondent from alienating the house, i.e., the suit property. The learned counsel further submits that the appellant himself took a specific averment, in his earlier suit, that the disputed house had not been partitioned, which is just contrary to his plea raised in the present suit. Concluding his arguments, learned counsel for the respondent, submits that the learned courts below have returned concurrent findings of fact. The present appeal is bereft of any merits, besides, there is no substantial question of law involved in the present appeal. He prays for dismissal of the appeal. I have given my thoughtful consideration to the rival contentions raised on behalf of both the parties. This court is of the considered opinion that the instant appeal is without any subsistence. It is liable to be dismissed for more than one reasons. I say so because the appellant has failed to prove his case by leading cogent and convincing evidence. The star argument of learned counsel for the appellant, is based on the document ‘Mark A’, which has not been duly proved. Further, the appellant has contradicted himself while taking the specific averment, in para No. 3 of his own earlier Civil Suit No. 202 of 1983, which reads as under:- “That the disputed house so far has not been partitioned between the parties and plaintiff has interest in the whole of the house.” 5 RSA No. 1926 of 1989 The above said admission by the plaintiff/appellant to the effect that the suit property, i.e. the house, was not partitioned between the parties till 2.8.1983, when the earlier suit was filed, his pleadings in the present suit and whatever little evidentiary value attached to document ‘Mark A’, also pales into insignificance. It is the settled proposition of law that admission by the party is the best evidence against it. The arguments raised by Mr. Ajay Mahajan, learned counsel for the respondent, have considerable force. Ex. D-1 is the valid Will dated 16.5.1983, duly executed by Kundan Lal in favour of defendant/respondent. It is a registered document. It has been duly proved by the respondent, by examining its scribe namely Hukum Chand (DW-1), besides, the attesting witnesses as DW-2 and DW-3. The copy of the plaint of earlier Civil Suit number 202 of 1983, has also been duly proved by the respondent as Ex. D-2, by examining Sh. M.S.Dhaliwal Advocate as PW-5. The electricity and water bills, besides the letter allegedly written by Kundan Lal vide Ex. P-6, are of no help to the appellant. These documents do not prove the ownership of the appellant, by any stretch of imagination. It is the settled proposition of law that the involvement of substantial question(s) of law is the sine qua non, for exercising the appellate jurisdiction, by the High Court under Section 100 CPC. In this regard, the following observations made by the Hon’ble Supreme Court of India, in the case of Narayanan Rajendran & Another Vs. Lekshmy Sarojini & Others, 2009 (5) SCC 264, are apposite :- “63. The analysis of cases decided by the Privy Council and this court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. Even prior to amendment, the consistent position 6 RSA No. 1926 of 1989 has been that the courts should not interfere with the concurrent findings of facts. 64. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was : (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question ; 7 RSA No. 1926 of 1989 (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question. 66. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.” Further, the learned trial court was in an advantageous position to examine demeanour of the witnesses, when examined by both the parties. This advantage is not available either to the first appellate court or this court. Thus, unless the view taken by the learned trial court is perverse, it cannot be interfered with. In this regard, Hon’ble Supreme Court of India, in the case of Jagdish Singh Vs. Madhuri Devi (2008) 10 SCC 497 observed as under:- “36. Three requisites should normally be present before an appellate court reverses a finding of the trial court :- (i) it applies its mind to reasons given by the trial court ; (ii) it has no advantage of seeing and hearing the witnesses ; and (iii) it records cogent and convincing reasons for disagreeing with the trial court. 37. If the above principles are kept in mind, in our judgement, the decision of the High Court falls short 8 RSA No. 1926 of 1989 of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has ”virtually” reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law. 38. Unfortunately, in the instant case, the said exercise has not been undertaken by the High Court. So-called conclusions reached by the High Court, therefore, cannot be endorsed and the decree passed in favour of the wife setting aside the decree of divorce in favour of the husband cannot be upheld. The order, therefore, deserves to be quashed and set aside and is hereby set aside.” The law laid down by the Hon’ble Supreme Court in the case of Narayanan Rajendran (supra), when applied to the facts and circumstances of the present case, brings this court to the irresistible conclusion that the present appeal is without any merit and same is liable to be dismissed. Both the learned courts below had recorded cogent and 9 RSA No. 1926 of 1989 concurrent findings of fact, which do not warrant any interference by this court. In the circumstances of the present case, coupled with the reasons, aforementioned, there is no question of law involved in the present appeal, much less substantial questions of law thereof. Thus, there is no merit in the appeal and it must fail. Accordingly, the instant appeal is dismissed. Parties to bear their own costs. November 21.11.2011. (RAMESHWAR SINGH MALIK) Amit K JUDGE . 10