Naresh vs Hemant

2. The appellants who were the original defendants in the Suit are aggrieved by the order of the High Court allowing the respondents­plaintiffs’ Second Appeal, upsetting the concurrent findings of facts by two courts. The parties shall be referred to by their respective positions in the Suit for better appreciation and convenience.

3. The predecessors of the plaintiffs and the defendants were ARJUN BISHT Date: 2019.11.19 18:05:10 IST Reason: brothers namely, Ramchandrarao Ingole and Trimbakrao Ingole. 1 They partitioned among themselves in 1952. The suit property consists of 7011 sq. ft. of lands, with a house constructed in 1974­ 75 thereupon leaving substantial vacant lands, was purchased jointly in the name of the two brothers by sale deed dated 29.03.1957. Trimbakrao Ingole expired in 1980 and Ramchandrarao Ingole also passed away on 22.03.1995. The plaintiffs as legal heirs of Ramchandrarao Ingole, relying on the sale deed filed Special Civil Suit No.268 of 1995 seeking partition and possession of their half share in the suit property.

4. The suit was dismissed by the Trial Court. The first appeal preferred by the plaintiffs was also dismissed. Both the courts arrived at concurrent findings of facts that the plaintiffs had failed to prove that Ramchandrarao Ingole had contributed to the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession. The house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW­1 in his evidence. Ramchandrarao Ingole was held not to be a vendee of the suit property. 2

5. Shri V.C. Daga, learned senior counsel appearing for the appellants, submitted that the High Court in a Second Appeal under Section 100 of the Civil Procedure Code should not have interfered with the concurrent findings of facts by two courts that Ramchandrarao Ingole was not and was never intended to be a beneficiary of the purchase. The presumption under Section 45 of the Transfer of Property Act (hereinafter referred to as ‘the Act’), by reason of his name being mentioned in the sale deed as a vendee also was rebuttable and not absolute. Two courts on appreciation of the oral evidence, were satisfied for reasons recorded that Ramchandrarao Ingole was never a beneficiary or in joint ownership of the suit property. Trimbakrao Ingole alone was present at the time of registration and the stamp papers were also purchased by him. The construction was also raised by him alone from his own funds, acknowledged by PW­1 in his evidence. Ramchandrarao Ingole never raised any claim for share in the property either during the life time of Trimbakrao Ingole or for fifteen years thereafter till his own death. It is only after the passing away of Ramchandrarao Ingole that his legal heirs staked claim for partition based merely on 3 the recitals in the sale deed. Section 92 of the Indian Evidence Act has no application in the facts of the case as it is applicable only in case of a bilateral document relying on Bai Hira Devi and others vs. Official Assignee of Bombay, AIR 1958 SC 448. The present sale deed was a unilateral document executed by the vendor alone. It was lastly submitted that the house was built in ‘L’ shape and by design was incapable of being divided. The plaintiffs, as evident from their own pleadings were indulging in speculative litigation, eyeing the vacant area of the suit property.

582. The fact that Trimbakrao Ingole may have signed at the time of registration on the reverse of the deed or that his name may have been mentioned as the purchaser of the stamp papers does not make him and his legal heirs the exclusive owners of the property. The oral evidence by both sides was insufficient to exclude the rights of the plaintiffs. The appellants were unable to lead any evidence under the second and third proviso to Section 92 for rebutting the presumption in the law in favour of the plaintiffs under Section 45 of the Act. The fact that the original sale deed may have been produced by the defendants cannot be proof of exclusive ownership. The findings in favour of the defendants by the Trial Court and the First Appellate Court are only in the realm of probabilities. The High Court rightly held in the nature of the evidence, that the conclusions arrived at by the two courts below were, therefore, perverse.

Consequently, the impugned judgment is set aside and this appeal is allowed with costs.”

15. The order of the High Court interfering with concurrent findings of facts by two courts is, therefore, held to be unsustainable in exercise of the powers under Section 100 of the Civil Procedure Code. The order of the High Court is consequently set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial Court and the First Appellate Court are restored. The suit of the plaintiffs is dismissed. The present appeal is allowed.