1 SA 31 of 2011 with CAS 73/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.31 OF 2011 WITH CIVIL APPLICATION NO.73 OF 2010 IN SECOND APPEAL NO.31 OF 2011 Shri Kailas Laxman Shedge ...Appellant (Org.Defendant) Vs. Shri Vasant Laxman Shedge ...Respondent (Org. Plaintiff) ----- Mr.Sandeep M. Phatak for Appellant Mr.N.V. Gangal for Respondent. ----- CORAM: V.M. KANADE J. DATED: 4TH FEBRUARY, 2011 P.C. 1. Heard the learned Counsel appearing on behalf of the Appellant and the learned Counsel appearing on behalf of Respondent. 2. The Appellant is the original Defendant and the Respondent is the Original Plaintiff (for the sake of convenience, both the parties shall be referred to as “the Plaintiff” and “the Defendant”). 2 SA 31 of 2011 with CAS 73/2010 3. Brief facts are as under:- 4. The Defendant is the step-brother of the Plaintiff. The Plaintiff and Vishwas were born to the first wife of Laxman and the Defendant was born to the second wife of Laxman. The suit property consists of ground plus two floor structure situated at Village Bhanwaj. The second floor of the building is the subject matter of the suit. The suit was filed by the Plaintiff for eviction of the Defendant from the second floor premises. It was alleged that the Defendant was a gratuitous licensee. By notice dated 29/3/2004 the said license was terminated with effect from 30/04/2004. In the said suit, it was contended that since the Defendant did not vacate the second floor premises, he was in illegal possession from 2004 and the Plaintiff also claimed compensation of Rs 6,000/- per month from the Defendant till he hands over the possession of the premises. 5. The Defendant filed his Written Statement. It was contended that Laxman Dhondu Shedge was the resident of Karve Nagar, Taluka Haveli, District Pune 3 SA 31 of 2011 with CAS 73/2010 and he was in possession of ancestral landed property bearing Survey No.53 Hissa No.1 + 2A and Survey No. 45, Hissa No.4. According to the Defendant, during the life time of Laxman, he prepared his Will and the suit property was bequeathed to the Plaintiff, Defendant and Vishwas and equal share was granted to all of them. In the year 1988, the Plaintiff and Defendant and their brother Vishwas allotted 179 square meter area from Survey No.45 Hissa No.4 to the Developer and consideration for development was accepted by the Plaintiff and his brother Vishwas as per the terms and conditions in the Development Agreement and apart from receiving money, each brother received a flat admeasuring 1100 sq.ft. According to the Defendant, from the said consideration which they have received, they purchased a plot admeasuring 300 sq. meters from CTS No.5040 in the name of Vishwas from one Jakhotiya and since the property was purchased out of the consideration of Survey No.45 Hissa No.4, all the brothers have equal share in the said CTS property and the property purchased from Jakhotiya was out of the joint family income and the building was also constructed from the income of joint family, consisting of three floors and the Defendant was given one floor 4 SA 31 of 2011 with CAS 73/2010 on the second floor. The Defendant also filed his counter-claim and claimed 1/3rd share in the property, partition and separate possession and for a declaration that he was the owner of the property and separate possession of his 1/3rd share. 6. The Plaintiff filed Written Statement to the counter-claim of the Defendant. According to the Plaintiff, the amount of sale proceeds of the land which was given to the Developer was accepted by their father and three brothers as per their share which was mentioned in the Written Statement to the counter- claim. It was contended that three brothers accepted the amount of Rs 12,02,080/- and the price of total land was Rs 21,52,160/- out of which an amount of Rs 3,10,000/- each for the three flats allotted to the Plaintiff was adjusted. It was contended that the Plot No.5040 of Jakhotiya was purchased by Vishwas alone and it was recorded in the name of the Plaintiff. The entire construction cost was borne by the Plaintiff and no objection was ever raised by the Defendant at any time. 7. The Plaintiff examined himself by filing affidavit of 5 SA 31 of 2011 with CAS 73/2010 evidence and he was cross-examined. The Defendant also filed his examination-in-chief. He was also cross- examined. He examined one more witness viz Shekhar Atmaram Mahimkar to prove his case. 8. The Trial Court decreed the suit in favour of the Plaintiff. The Lower Appellate Court confirmed the Judgment and Order of the Trial Court and dismissed the appeal filed by the Defendant. 9. The learned Counsel appearing on behalf of the Defendant submitted that the order passed by the Lower Courts was perverse. It was submitted that the finding recorded by both the Courts below was contrary to the evidence on record. Secondly, it was submitted that there could be no estoppel by contract against the law. In support of his submission, he relied upon the judgment of the Apex Court in Bondar Singh and Others vs. Nihal Singh and Others1. He also relied upon the observations made by the Apex Court in para 4 of the said Judgment. It was urged that when part of the joint family property was sold, Vishwas was given higher amount whereas the Defendant and the Plaintiff and 1 (2003) 4 SCC 161 6 SA 31 of 2011 with CAS 73/2010 his father were given lessor amount. Therefore, higher amount which was given to Vishwas contained a part of the share which was not given to the Defendant. It was submitted that the suit property was purchased by Vishwas out of the said amount and, therefore, it was a joint family property. He also submitted that observation made by the Lower Appellate Court in para 25 of its Judgment is perverse finding. 10. On the other hand, the learned Counsel appearing on behalf of the Plaintiff submitted that the concurrent finding of fact was recorded by both the Courts below that the suit property was purchased by Vishwas out of the share which was received by him and that other brothers and father had their share which was not used for purchasing the suit property. It was submitted that the property was purchased in the name of the Plaintiff. The construction cost was borne by the Plaintiff and the suit property was entered in the records of rights in the Plaintiff’s name and at no time the Defendant had ever raised any objection. 11. I have heard both the learned Counsel at length. 7 SA 31 of 2011 with CAS 73/2010 12. The Apex Court in Bondar Singh and Others vs. Nihal Singh and Others2 has observed in para 4 of its judgment as under:- “4. Before we proceed further it is necessary to notice a preliminary argument raised by the learned counsel for the appellants. It was contended that the question of possession is A question of fact and the High Court while exercising power under Section 100 of the Code of Civil Procedure, had no jurisdiction to upset the findings on this question recorded by the lower appellate court. An appeal under Section 100 CPC can be entertained by the High Court only on a substantial question of law. There can be no quarrel with this legal proposition. The scope of powers of the High Court under Section 100 CPC is a matter of settled law. The learned counsel for the appellant cited several judgments in 2 (2003) 4 SCC 161 8 SA 31 of 2011 with CAS 73/2010 support of his contention. We do not consider it necessary to discuss these decisions because so far as the question of power of High Courts under Section 100 CPC is concerned, it needs no discussion. If the findings of the subordinate courts on facts are contrary to the evidence on record and are perverse, such finding can be set aside by the High Court in appeal under section 100 CPC. A High Court cannot shut its eyes to perverse findings of the courts below. In the present case, the findings of fact arrived at by the lower appellate court were contrary to the evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed.” 13 There cannot be any doubt regarding the ratio of the said judgment. Perusal of the judgment of the Lower Appellate Court indicates that the finding 9 SA 31 of 2011 with CAS 73/2010 recorded by the Appellate Court is not perverse. The Lower Appellate Court has re-appreciated the evidence on record and has considered the evidence on record in its proper perspective and has independently confirmed the finding recorded by the Trial Court 14. So far as the observation made by the Lower Appellate Court in para 25 of its judgment is concerned, it was submitted that the said observation is perverse. It is necessary to reproduce the said observation made by the Lower Appellate Court in para 25 which reads as under:- “25)........... Therefore, it appears that the defendant in the present matter is not claiming his right in the suit property being co-parcener or member of Hindu Joint family. However, he has claimed his share in the suit property by way of general partition. So presumption of a joint family is not applicable to the facts of the present case. Therefore, it is for the defendant to prove and establish that the suit 10 SA 31 of 2011 with CAS 73/2010 property is purchased from/out of income of the joint family and therefore, he has 1/3rd share in it. However, looking to the entire evidence on record, there is evidence to show that the consideration paid for purchase of CTS No.5040 was only paid by Vishwas, that too through account payee cheque. That consideration is Rs 49,000/-. It is further contended that Vishwas alone was not able to pay such huge amount. Such contention of the defendant is not acceptable, because from the earlier transaction, it appears that three brothers and father have accepted the amount in lacks by selling land S. No.45 H. No.4.” 15. In my view, the observation made by the Lower Appellate Court in para 25 cannot be read out of context. Firstly, it has to be noted that the Defendant, apart from filing his Written Statement, also filed his counter-claim and in the counter-claim he has claimed 11 SA 31 of 2011 with CAS 73/2010 1/3rd share in the property and for separate possession of his 1/3rd share. The Defendant has claimed the relief on the basis that he be declared as owner of the property in view of what was mentioned in para (J) of his Written Statement. The Lower Appellate Court, after going through the evidence on record, has come to the conclusion that the property was purchased under registered sale deed for consideration of Rs 49,000/-. The Lower Appellate Court also has noted that in the entire oral evidence of the Defendant, it was nowhere mentioned that the suit property was purchased and constructed from the income of joint family. The Lower Appellate Court has also observed that the Defendant had not specifically deposed that consideration paid for purchase of CTS No.5040 was from the consideration received from the sale of Survey No.45 Hissa No.4. The Lower Appellate Court also considered the admissions given by the Defendant. It has noticed that the Defendant has admitted that he had seen the documents of the suit property viz assessment record which was in the name of the Plaintiff and he was shown as an owner since beginning. Similarly, he also admitted that the house was constructed in the name of Vishwas since beginning and no objection was raised 12 SA 31 of 2011 with CAS 73/2010 by the Defendant. He also admitted that the sale consideration of the plot was Rs 49,000/- and the said consideration was paid by cheque by Vishwas to Jakhotiya and that the house was constructed after obtaining permission from the Municipal Council. The Lower Appellate Court also observed that the Defendant not having challenged the entries regarding purchase of the suit property had admitted the ownership of the Plaintiff over the suit property. Taking into consideration the observations which are made by the Lower Appellate Court, it cannot be said that the observations in para 25 are perverse. The Lower Appellate Court further has proceeded to observe the other admissions which are given by the Defendant wherein he admitted that the Developer had paid the amount of share of the Defendant by cheque and he had accepted the amount of Rs. 6,08,712/- by cheque. He further admitted in his cross-examination that other brothers and his father also accepted the amount of consideration of their share by cheque. He also admitted his share in the remaining property at Pune was sold to one Bandu Shankar Kerame on 16/05/2005 by way of executing Power of Attorney and he accepted Rs 8,00,000/- by Demand Draft out of total 13 SA 31 of 2011 with CAS 73/2010 consideration of Rs 24,00,000/-. The Lower Appellate Court further held that on the basis of the said admission that brothers and father had accepted the amount of consideration to the extent of their share, it could not be said that the suit premises was purchased from/out of the joint family income. The Lower Appellate Court has thereafter held that the Civil Judge has appreciated the evidence on record correctly and properly and rightly decreed the suit. The Lower Appellate Court, being the Court of first appeal, has rightly appreciated the evidence and has taken into consideration the evidence which was brought on record by either parties and has given its separate findings on each and every issue and has confirmed the findings of the Trial Court. 16. So far as the second submission made by the learned Counsel appearing on behalf of the Defendant that there could be no estoppel by contract against law is concerned, the learned Counsel has not elaborated as to how the said submission was applicable to the facts of the present case and, therefore, the said submission has merely to be stated before rejecting it. 14 SA 31 of 2011 with CAS 73/2010 17. The Apex Court in Koppisetty Venkat Ratnam vs. Pamarti Venkayamma3 has deprecated the practice of interference of the High Court with concurrent finding of fact. The Apex Court, after taking into consideration the legislative background in the Fifty-fourth Report of the Law Commission of India in 1973 as well as the historical perspective in respect of the appellate jurisdiction which has to be exercised by the High Court, the accumulation of arrears of Second Appeals in the High Court and the rationale behind permitting the Second Appeal on the question of law and thereafter taking into consideration the leading cases decided after the 1976 Amendment, has observed in paragraph 17 and 18 as under- “17. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law.” 3 (2009) 4 SCC 244 15 SA 31 of 2011 with CAS 73/2010 “18. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this Court is compelled to interfere in a large number of cases decided by the High Courts under Section 100 CPC . Eventually this Court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial questions of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.” The observations made by the Apex Court squarely apply to the facts of this case. 18. In my view, submissions made by the learned Counsel appearing on behalf of the Appellant/Defendant that the findings of the Lower Court are perverse cannot be accepted. No substantial question of law is raised in this second appeal. This Second Appeal is, therefore, dismissed in limine. 16 SA 31 of 2011 with CAS 73/2010 19. Since the Second Appeal itself is disposed off, Civil Application No.73 of 2010 does not survive and the same is also disposed off. (V.M. KANADE, J.)