Prabhakar Ramchandra Kulthe Vs Dwarkabai Vitthal Pandharpurkar

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 SECOND APPEAL NO. 839 OF 2005
 ALONGWITH
SECOND APPEAL NO. 841 OF 2005

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 Prabhakar Ramchandra Kulthe ... Appellant

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V/s

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 Dwarkabai Vitthal Pandharpurkar ... Respondent

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 Mr. P.K. Hushing for the appellant (in both appeals).
 Mr. P.B. Shah for the respondent (in both appeals).

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CORAM: P.V. KAKADE, J.

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DATED: 29TH AUGUST, 2005
P.C.:

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 1. Both these appeals are being taken up for admission
 and final disposal as they arise out of common judgment
 passed by the Civil Judge, J.D., Daund, dated 29.1.1999.

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 2. The present appellant preferred appeals against the
 judgment and order passed by the Addl. Dist. Judge,
 Baramati in Civil Appeal No. 3 of 2000 and Civil Appeal
 No. 9 of 2000, while the earlier appeal filed by the
 original defendant Prabhakar was dismissed and later
 appeal filed by original plaintiff Dwarakabai came to be

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 allowed.

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 3. I have heard the learned counsel for both parties.
 Perused the record.

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 4. The plaintiff filed the suit for declaration and
 perpetual injunction against the defendant on the ground
 that while obtaining the sale deed of the suit property,
 the legal heirs of deceased Ramchandra had subjected her
 to fraud and misrepresentation. It was also alleged
 that the suit sale deed was without consideration and
 consequential relief of perpetual injunction was also
 sought for.

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 Defendant contested the claim on various grounds
 inter-alia submitting that the allegations made by the
 plaintiff were not correct and the suit sale deed was
 executed by the plaintiff in proper manner and, as such,
 the suit was sought to be dismissed.

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 5. The learned Trial Judge adjudicated the dispute on
 merits and came to the conclusion that the plaintiff had
 failed to prove that she was subjected to fraud while
 executing the suit sale deed. It was also held that the
 plaintiff failed to prove that the suit sale deed was

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 without consideration. However, it was held proved that
 the defendant had obstructed the possession of the
 plaintiff and, therefore, the suit for perpetual
 injunction came to be decreed while the suit for
 declaration was dismissed.

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 6. Both parties preferred appeals against the said
 judgment and order to the District Court, Baramati. The
 learned Addl. District Judge, after hearing both
 parties decreed the plaintiff’s suit for declaration and
 dismissed the defendant’s appeal against the order
 passed by the lower Court. Hence the present appeals.

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 7. At the outset, it may be noted that there is
 absolutely no substantial question of law involved in
 these appeals. It was submitted on behalf of
 the

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 appellant that contents of the plaint were sufficient to
 show that the perpetrator of the alleged fraud was the
 defendant as well as one Ramesh and Ramesh was not party
 to the suit and, as such, the suit could not be held to
 be maintainable when Ramesh was not defendant and an

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 element of fraud could not be proved in his absence,
 however, this submission is totally devoid of any
 merits. I have perused the contents of the plaint in

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 that regard and I have absolutely no doubt that said
 Ramesh was not necessary or proper party to the suit and
 defendant’s presence in the suit who was alleged to be
 the main perpetrator of the fraud, was sufficient to
 adjudicate the issue involved.

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 8. On perusal of the judgment of the lower appellate
 Court, it is seen that, on the basis of available
 evidence, the lower appellate Court has come to the
 conclusion that the plaintiff had proved that the sale
 deed dated 4.10.1991 was obtained by defendant and heirs
 of Ramchandra fraudulently. It was also proved that the
 sale deed dated 4.10.1991 was without consideration and
 further it was held to be proved that the plaintiff was
 in possession and it was obstructed by the defendant and
 hence the suit came to be decreed in its entirety. The
 learned counsel for the appellant sought to submit that
 the learned lower appellate Court Judge while
 adjudicating the dispute on merits summoned Darkhast
 proceeding of the earlier dispute and scrutinised the
 same in adjudicating the present dispute. In my
 considered view, no law prevent the Courts of facts from
 scrutiny of relevant documents especially which were
 part of execution proceeding No. 4 of 1982 relating to
 the partition of the suit property in order to come to

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 the proper conclusion in respect of the issues involved.
 Suffice is to say, therefore, I am satisfied that the
 lower appellate Court has rightly adjudicated the
 dispute by properly appreciating the evidence on record.
 Time again the Apex Court has held that it is not within
 the domain of the High Court to investigate the ground
 on which the findings were arrived at by the last Court
 of fact, being the first appellate Court. In a case,
 wherefrom a given set of circumstances two inferences
 are possible, one drawn by the lower appellate Court is
 binding on the High Court in second appeal. Adopting
 any other approach is not permissible. It is needless
 to mention that mere appreciation of facts, documentary
 evidence or the meaning of entries in and contents of
 documents cannot be held to be raising substantial
 question of law. In the present case before us, the
 factual matrix appears to be properly appreciated and
 hence I do not see any reason why the second appeal
 should be entertained at all.

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 In the result, both appeals stand dismissed with no
 order as to costs.

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 Consequently, Civil Application No. 1378 of 2005 in
 Second Appeal No. 841 of 2005 also stands dismissed

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 with no order as to costs.

Prabhakar Ramchandra Kulthe v. Dwarkabai Vitthal Pandharpurkar

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Prabhakar Ramchandra Kulthe v. Dwarkabai Vitthal Pandharpurkar

Case brief

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