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

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 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 Rajpals 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 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 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 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 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 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.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 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 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 fours sides) situated on the roof, for a valuable consideration of Rs. 3 lakhs by a sale deed dated 06.08.1999 and possession was delivered to him. 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.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 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 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 Courts judgment is impugned before this Court.

Reasoning: 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.