Case: AVTAR SINGH &amp; ORS Vs. BIMLA DEVI &amp; ORS

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 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 Singhs 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 Commissioners report - with regard to the issue of possession of the chaubara. The Local Commissioner was neither 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. 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 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 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 In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of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, Article 254 of the Constitution of India would have no application to such a 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 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. As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC 262 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 Ram (2020) 16 SCC 209 , citing the ruling in the earlier decision Randhir Kaur v. Prithvi Pal Singh (2019) 17 SCC 71 , 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 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, (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, (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, 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. 16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir Kaur, 2015 SCC OnLine P&H 4792] 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 Courts findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. From an overall discussion of the evidence, it is apparent that undeniably Avtar Singhs 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 Commissioners report - with regard to the issue of possession of the chaubara. The Local Commissioner was neither cross-examined, nor was his report objected to.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 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 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, Article 254 of the Constitution of India would have no application to such a 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 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.As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC 262   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 Ram (2020) 16 SCC 209  , citing the ruling in the earlier decision Randhir Kaur v. Prithvi Pal Singh (2019) 17 SCC 71  , 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 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, (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, (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, 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.16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir Kaur, 2015 SCC OnLine P&H 4792] 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 Courts findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld.