Dismissed

Purshottam v. Mohanlal

Chhattisgarh HC25 Nov 2024SA/464/2024

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Chhattisgarh considered a challenge to the title suit decree. Finding no substantial question of law, the court held that the concurrent factual findings of lower courts regarding the plaintiff's purchase and construction were based on proper appreciation of evidence and were not perverse, thus dismissing the appeal.

What did the court decide?

Second appeal dismissed at motion stage; decree of first appellate court drawn accordingly.

Purshottam Vs Mohanlal — Partition | Chhattisgarh HC (2024)

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2024:CGHC:46250

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 464 of 2024

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1 - Purshottam S/o Mohanlal Chandra Aged About 47 Years R/o Village Bhatgaon, Police Station Bhatgaon, District Sarangarh-Bilaigarh, Chhattisgarh.

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... Appellant

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Versus

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1 - Mohanlal S/o Algu Chandra Aged About 73 Years R/o Village Bhatgaon, Police Station Bhatgaon, District Sarangarh-Bilaigarh, Chhattisgarh.

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2 - State Of Chhattisgarh Through Collecotor, District Sarangarh - Bilaigarh, Chhattisgarh.

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... Non-Appellant

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For Appellant : Mr. Aman Kumar Kesharwani, Advocate For : Mr. Topilal Bareth, Panel Lawyer Non-appellant/State

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SB: Hon'ble Shri Parth Prateem Sahu, Judge

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ORDER ON BOARD

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26/11/2024

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The appellant has filed this appeal under Section 100 of the Code of Civil Procedure, 1908 questioning the legality and sustainability of the impugned judgment and decree dated 31.07.2024 passed by the learned District Judge, Sarangarh, District – Sarangarh-Bilaigarh (Chhattisgarh) in Civil Appeal No. 05/2024 whereby, the learned First Appellate Court dismissed the appeal filed by the appellant/defendant affirming the judgment and decree dated 23.01.2024 passed by the learned Trial Court in Civil Suit No. J-14-A/2019 in favour of the respondents/plaintiff.

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Digitally SHUBHAM signed by DEY SHUBHAM DEY

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Facts relevant for disposal of this appeal are that the respondent/plaintiff filed suit for declaration of title, possession and permanent injunction on the ground that the plaintiff was under employment in the South Eastern Coal Fields Ltd. He retired from his service after attaining the age of superannuation. He purchased a property bearing Khasra No. 2696/6 admeasuring 0.093 hectares of land situated at Village Bhatgaon, Patwari Halka No. 15, Tehsil – Bilaigarh and thereafter, have got his name mutated in the revenue records of the said land. The aforementioned property was purchased by him with his own income and since then, he is in possession of the suit property after purchase of the land. He also constructed the house of 08 rooms about 09 years ago over the subject land and 03 rooms of the said house, he gave to his son i.e. Defendant No. 1 about 05 years ago, who is residing with the permission of the plaintiff. Defendant started ill-treating physically and mentally harassing the step-mother and the plaintiff, also using filthy language against them and his daughter. Looking to the activities of the defendant, when plaintiff asked the defendant to vacate his house, he refused and is residing forcefully in the residential accommodation, possessed by him.

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The defendant submitted written statement to the suit filed by the plaintiff denying the pleadings made therein, it is further pleaded that the land over which the house is constructed is purchased by him, but in the name of his father. Since the date of purchase, the defendant is in possession of the suit property. It is also pleaded that the construction of the house of 08 rooms was not done by the plaintiff, but by the defendant of which, he kept in his possession 05 rooms and gave 03 rooms for residence of the plaintiff. It is the plaintiff who continuously abused and ill-treated the defendant and has also made an attempt to oust him. Defendant has also made complaint to the concerned police station. In the written statement, the technical objection with regard to valuation of the suit is also raised. In

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additional pleading, it is also pleaded that the suit property was received by him in mutual partition dated 06.03.2013.

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Learned Trial Court based on the pleadings made by the respective parties has formulated four issues for consideration and after completion of trial, based on the pleadings made by the respective parties, evidence brought on record by them (oral and documentary), decreed the suit of the plaintiff vide judgment and decree dated 23.01.2024. The judgment and decree dated 23.01.2024 passed by the learned Trial Court was put to challenge in an appeal before the learned First Appellate Court under provision of Section 96 of the Code of Civil Procedure, 1908 which also came to be dismissed by the impugned judgment and decree dated 31.07.2024 affirming the judgment and decree passed by the learned Trial Court.

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Learned Counsel for the applicant submits that learned Court below have not appreciated the evidence brought on record by the appellant/defendant in an appropriate manner. He contended that in the written statement specific plea has been taken that the suit property over which, the subject house is constructed was purchased by the defendant’s own income, but in the name of his father, there is specific pleading with respect to the construction of 08 room house by the defendant and not by the plaintiff. He also submits that in additional pleading, it is also mentioned that 05 rooms of the house was given to defendant in a mutual partition. The facts pleaded is proved by the defendant, in his evidence. The pleadings made in the written statement and the evidence of the DW-1 is supported by the witness Darsram Chandra (P.W. 2). The defendant has also examined Daulal Chandra (P.W. 3) as witness to prove the pleadings made in the written statement. He contended that the learned Courts below failed to take note of the fact

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that the defendant after purchase of the property, after construction of the house has thrown the same into common stuff which was not considered by both the Courts below.

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Learned counsel for the Respondent/State supports the impugned judgment and decree dated 31.07.2024 passed by the learned First Appellate Court as also, the learned Trial Court.

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I have heard learned counsel for the parties on admission of this appeal and perused the record.

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Perusal of the plaint would show that the plaintiff has pleaded that he was an employee of South Eastern Coal Fields Limited. He purchased the land bearing Khasra No. 2696/6 admeasuring 0.093 hectares situated at Village Bhatgaon from his self income through registered sale-deed dated 26.02.2007 from Dharau S/o. Hiralal. After purchase of the land, he also constructed 08 rooms house from his own and out of 08 rooms, 03 rooms have been given to the defendant (his son). Defendant in the written statement has disputed all the pleadings made in the plaint and have stated that the land is purchased by him from his income, but in the name of his father, house was also constructed by him and 03 rooms were given under permissive possession to his father for his residence and in additional pleading, it is stated that he got the part of the house in which he is residing i.e. 05 rooms in a mutual partition.

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The plaintiff in support of his pleadings in the plaint, in evidence has exhibited, certified copy of the sale-deed dated 26.02.2007 as Ex. P/1. In his evidence-in-chief, he stated as per the pleadings made in the plaint. In cross-examination, though admitted that Panchayat handed over 03 rooms to the Defendant No. 1, however, he denied the fact that he gave 05 rooms in partition to the defendant and have further stated that he will reside in the house till his life time. He also stated that the proceedings of

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the partition was conducted by the Panch , however, he refused to sign the said proceedings, not agreed to the decision of meeting. He further stated in the cross-examination that he purchased the suit land from his own income received while he was under employment in the South Eastern Coal Fields and denied the suggestion that the sale-deed was executed in his name at the instance of the defendant. The plaintiff examined Kailash Chandra Sharma as P.W. 2. He denied the suggestion given in crossexamination by the defendant that the land was purchased from the income of the defendant. In examination-in-chief, this witness made statement that the plaintiff while in service in South Eastern Coal Fields Limited purchased the land from his own income and is in possession since then.

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10.Perusal of the Exhibit P-1 would show that the land was purchased in the name of Mohan Lal (Plaintiff) vide registered sale-deed dated 26.02.2007. In Para 6 of the cross-examination, the Defendant No. 1 admitted that after retirement, his father purchased the land and constructed the house and have been residing there. However, he further stated that for purchase of the land, he gave the money. The defendant had not proved the same by producing cogent and reliable piece of evidence with respect to giving money to his father for purchase of the land. He further admitted that his father purchased 09 acres of land in which, name of the defendant and his brother was not recorded. In Para 8 of the crossexamination, though stated that in the year 2007, he was aged about 2930 years and working in the gas agency, however, he admitted that he has not produced any document in this regard. He further admitted that at the time of retirement, his father got a lump-sum amount of the GPF. There is further admission that on the date of execution of the sale-deed, he hadn’t gone to the office of the Registrar, there is no signature of his father and brother in Exhibit D -2 which is a handwritten mutual partition

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on plain paper. The witness Darsram Chandra DW-2 in his evidence has admitted that the plaintiff purchased the land before his retirement and further, that the plaintiff after purchase of the land constructed the house and started residing with his family. He further admitted that in affidavit, it is not pleaded that whether the defendant was working and what nature of work he was doing. The witness Daulal Chandra P.W. 3 also admitted in Para 6 of the cross-examination that the plaintiff after purchase of the land constructed the house and started living in Bhatgaon and left Salonikala.

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11.From the aforementioned evidence available on record, it is apparent that the witnesses have stated that the land was purchased by the plaintiff and it is he who constructed the house over the said land. The finding recorded to this effect by the learned Trial Court and affirmed by the First Appellate Court is based on proper appreciation of the documentary and oral evidence brought on record by the respective parties. With respect to the unregistered partition deed, there is no evidence on record and it does not bear the signature of the plaintiff or the other family members of the defendant. The defendant witnesses have also admitted this fact in their evidence. The learned Trial Court based on the evidence available on record and considering that Exhibit D-2 is the unregistered partition deed and the mutual partition is denied by the plaintiff and it does not bear signature of the plaintiff and other family members and therefore, it has not been accepted the same in evidence and have rejected the claim of the defendant based on Exhibit D-2. The said finding, in the opinion of this Court is based on the evidence available on record, it cannot be said to be erroneous.

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12.The second appeal is to be admitted on substantial question of law, though the appellant has made an attempt to argue before this Court that

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the learned Courts below have not considered that the suit property was thrown in common stock, however, there is no such pleading in the written statement and therefore, the said submission cannot be accepted.

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13.The Hon’ble Supreme Court in the case of C. Doddanarayana Reddy (Dead) by L.Rs. and Ors. Vs. C. Jayarama Reddy (Dead) by L.Rs. and

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Ors. (2020) 4 SCC 659 has observed and concluded thus:-

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“25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan13, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: (SCC pp. 347-48, paras 12-15)

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“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

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13. In Ramanuja Naidu v. Vs. Kanniah Naidu (1996) 3 SCC 392, this Court held : (SCC 393)

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‘It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'.

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14. In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166, this Court held: (SCC p. 166)

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‘Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.'

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15. And again in Taliparamba Education Society v. Moothedath c Mallisseri Illath M.N. (1997) 4 SCC 484, this Court held: (SCC p. 486, para 5)

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'5.... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.' "

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29. The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned first appellate court, have examined the school leaving certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once,two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any Judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

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30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the first appellate court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of fact.”

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14.The Hon’ble Supreme Court in the case of State of Rajasthan and Ors.

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Vs. Shiv Dayal and Ors. (2019) 8 SCC 637 has observed and concluded thus:-

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“16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117].

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17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.”

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15.For the foregoing discussions, evidence available on record, in the

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opinion of this Court, the finding recorded by both the Courts below is on proper appreciation of facts and evidence. Hence, the concurrent finding recorded by both the Courts does not call for interference of this Court.

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No substantial question of law is involved in this appeal. It is accordingly dismissed at motion stage.

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16.Decree be drawn accordingly.

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Sd/(Parth Prateem Sahu) Judge

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Dey

Purshottam v. Mohanlal

Case brief

What is this about?

What did the court decide?

Purshottam v. Mohanlal

Case brief

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