In a second appeal concerning a property dispute, the High Court dismissed the appeal, holding that it involved factual questions of whether a deceased estate executed a power of attorney post-mortem, which were not substantial questions of law warranting interference.
The second appeal was summarily rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 217/2018
----Appellants
Versus
----Respondents
For Appellant(s) : Mr. Ramandeep Singh
(2 of 8)
[CSA-217/2018]
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment
06/12/2018
Appellant-defendants have preferred this second appeal against impugned judgment & decree dated 15th of November, 2018, passed by Addl. District Judge, Anoopgarh, District Sri Ganganagar (for short, ‘learned first appellate Court’), whereby the appeal of defendants has been dismissed and judgment and decree dated 6th of August, 2013, passed by Civil Judge (Jr. Div.), Anoopgarh, District Sri Ganganagar (for short, ‘learned trial Court’), decreeing the suit filed by respondent-plaintiffs has been affirmed.
The brief facts are that the respondent-plaintiffs, legal heirs of one Jhonpiram, including his sons and other family members, filed a suit against appellant-defendants and respondent No.4 Meharchand - another son of Jhonpiram, for declaration of right, possession of property and mesne profits, stating inter-alia therein that they are descendents of Jhonpiram, who was allotted land measuring 25 bigha, as a pong dam oustee, in Anoopgarh and Khatedari Sanad was issued to him on 19.06.1995. It is averred that Jhompiram was the sole owner of that land, who died on 26.08.1995 yet a power of attorney was got prepared on 12.10.1998, by impersonating him, in favour of appellantdefendant No.1, and after a few days on 15.10.1998, an agreement was executed in respect of said agricultural land of
(3 of 8)
[CSA-217/2018]
Jhonpiram in favour of respondent No.2, which was got registered on 11.12.1998. It is also averred that defendant No.1 & 2, with an intention to devour the land of Jhopiram, hatched a conspiracy and got prepared false and fabricated power of attorney by presenting someone else in his place by impersonation in the office of Sub Registrar whereas the land in question was given on Theka Kast to defendant No.2 by the plaintiffs and she had been paying them Theka amount to the extent of their share but during the period from 2005-06 & 2006-07 Theka amount was not paid on the pretext of crop failing and later on they came to know about the disputed sale from the Patwari concerned. The respondent-plaintiffs prayed for declaring the so called power of attorney null and void in relation to their right and title so also for cancellation of sale deed, executed on the basis of forged power of attorney, and also prayed for possession of disputed land to the extent of their share.
The suit was contested by appellant-defendant No.1 by filing a written statement. It was pleaded that the land in disputed was sold by Jhonpiram in his lifetime for consideration of Rs.60,000 to him through power of attorney on 31.10.1985 and since then he was in possession of the said land, which he sold to defendant No.2 on 15.10.1998. Defendant No.1 alleged that defendant No.3 and plaintiff No.1 hatched a conspiracy and under a power of attorney sold the land in favour of Chiranjilal on 10.04.2000 for consideration of Rupees two lakhs. In addition to other allegations of blackmailing etc., he denied any conspiracy on his part with defendant No.2 and accepted the ownership of defendant No.2
(4 of 8)
[CSA-217/2018]
being purchaser of land and thereby prayed for dismissal of the suit.
Defendant No.2 filed separate written statement and denied the case of plaintiff-respondents while supporting the contents of written statement filed by defendant No.1, and stated that there was no conspiracy between defendant No.1 & 2 and she being bona fide purchaser is in possession of the land, as such, plaintiffs are not entitled to any relief and, accordingly, prayed for rejection of the plaint.
Defendant No.3 also filed separate written statement with counter claim and denied any conspiracy between defendant No.1 & 2 but claimed his 1/5th share in the disputed land. It was prayed that sale deed dated 15.10.1998 to the extent of his share be declared null and void and possession of the land of his share be ordered to be given to him.
Learned trial Court, on the basis of pleadings of rival parties, framed issues for determination. Thereafter, parties led their oral as well as documentary evidence. After conclusion of the evidence of contesting parties, the learned trial Court partly decreed the suit of respondent-plaintiffs in following terms:
“vr% oknhx.k efgUnzflag vkfn }kjk izLrqr okni= ckcr bLrdjkfj;k gd o dCtk fnyk, tkus dk fo:) izfroknhx.k ,oa izfroknh la[;k 3 }kjk izLrqr izfrnkok ,rn~}kjk vkaf”kd :i ls Lohdkj dj fMØh dj izfroknh la- 1 fiz;ozr }kjk >ksaihjke ds uke vkoafVr fookfnr Hkwfe eqjCck la- 97@2 pd 11 ds rglhy vuwix<+ dk eq[kR;kjukek fnukad 12-10-1998 ds vk/kkj ij izfrokfn;k la- 2 dqynhidkSj ds i{k esa fu"ikfnr cS;ukek fnukad 15-10-1998 dks oknhx.k ,oa izfroknh la- 3 ds fgLls dh Hkwfe ds vf/kdkjksa ds izfr
(5 of 8) [CSA-217/2018]
'kwU; ?kksf’kr fd;k tkrk gSA izfroknhx.k fu;ekuqlkj ,d ekg ds vUnj fookfnr Hkwfe esa oknhx.k o izfr-la- 3 dks muds fgLls dh Hkwfe dk dCtk lkSai nsaosA [kpkZ eqdnek i{kdkjku viuk&viuk ogu djsaxsA blh vuqlkj ipkZ fMØh cuk;k tkosA”
Being disdained by the judgment and decree of learned trial Court, appellant-defendants preferred appeal before learned first appellate Court. The first appellate Court, vide its judgment and decree dated 15th of November 2018, upheld the judgment and decree passed by learned trial Court. The learned first appellate Court, appreciated the evidence afresh and recorded its concurrence with the findings and conclusions of learned trial Court on all the issues and dismissed the appeal of the appellantdefendants.
Learned counsel for the appellants has argued that respondent-plaintiffs have miserably failed to prove their case yet the learned trial Court passed a decree in their favour and the learned appellate Court affirmed the same without thrashing out the matter in a prospective manner. Learned counsel has strenuously urged that substantial questions of law are involved in the instant appeal, which require adjudication for reversal of the judgments and decrees of the Courts below. In support of his contentions, learned counsel for the appellant-defedants has placed reliance on following judgments:
(6 of 8)
[CSA-217/2018]
I have heard the learned counsel for the appellant-defedants and perused the impugned judgments of both the Courts below.
On thorough examination of the impugned judgments, it is crystal clear that the learned trial court has recorded a finding of fact by marshalling the evidence and the learned appellate Court while fully concurring with the said finding of fact has affirmed the same.
The learned trial Court, upon appreciation of evidence, while deciding issue No. 1, 2, 7 & 8 has recorded a definite finding that Jhompiram was not alive when sale-deed in question Ex.3 was executed by Mr. Priyvrat as Power of Attorney. The findings recorded by the learned trial Court are clear and unequivocal that Jhompiram died on 26th of August 1995 and the date of execution of alleged power of attorney is 3 years posterior to his date of death, i.e., 12th of October, 1998. There remains no quarrel that if Jhompiram had died on 26.08.1995, obviously, execution of power of attorney by him in favour of Priyvrat on 12.10.1998 was not at all possible. Accordingly, by relying on the requisite evidence, including death certificate of Jhompiram issued by a competent authority, the learned trial Court decided all these issues in favour of respondent-plaintiffs and against the appellantdefendants. The learned first appellate Court, while examining the evidence de novo , has fully concurred with the findings and conclusions of the learned trial Court, based on sound appreciation
(7 of 8)
[CSA-217/2018]
of evidence. On the face of it, the concurrent finding of both the Courts below is based on sound reasonings, which cannot be faulted and as such no question of law much less substantial question of law is forthcoming in the instant appeal. Therefore, obviously, there is no reason for this Court to upset the said finding of fact in the second appeal.
A second appeal is entertainable only when there is substantial question of law involved in the matter but the present appeal is bereft of any substantial question of law rather the substantial questions of law proposed by the appellants are pure and simple question of facts and in this Court in second appeal is not obliged to enter into factual arena.
The unison findings of fact, recorded by both the Courts below, upon evaluation of evidence and other materials available on record, sufficiently demonstrate that afflictions of the appellants are wholly untenable. As a matter of fact, concurrent finding of fact recorded by both the Courts below is in consonance and in conformity with evidence and other materials available on record. Legal position is no more res integra that in exercise of powers under Section 100 CPC, it would be unwise and imprudent to enlarge the scope of judicial review so as to treat even an erroneous decision of a final Court of law and facts, i.e., first appellate Court, vulnerable. In other words, jurisdiction of this Court in second appeal is not available to correct the errors of law or erroneous findings recorded by first appellate Court vis-á-vis
(8 of 8)
[CSA-217/2018]
questions of law, unless such question of law be a substantial one. Therefore, upon close scrutiny of the impugned concurring judgments, in my view, no substantial question of law is forthcoming requiring adjudication in this appeal. The judgments cited by learned counsel for the appellant-defendants are clearly distinguishable as they were on their own facts and circumstances and are of no assistance to the appellant-defendants.
In view of foregoing discussion, the instant appeal is bereft of any merit and devoid of any force, and therefore, same is hereby rejected summarily.
(P.K. LOHRA),J
3 issues framed by the court
Whether the Second Appeal involves a substantial question of law to be adjudicated upon.
Whether the concurrent findings of fact regarding the Post-Mortem execution of the Power of Attorney can be resisted in appeal.
Whether the High Court should interfere with the findings of the trial and first appellate courts on factual questions.
Colour shows how this judgement treated each authority
Amit Kumar Shaw & Anr. Vs. Farida Khatoon and Anr.Distinguished¶58
Amit Kumar Shaw & Anr. Vs. Farida Khatoon and Anr. (AIR 2005 SC 2209) · Who else cites this
Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd.Distinguished¶58
Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. & Ors.(AIR 2013 SC 2389) · Who else cites this
2 provisions across 1 enactments
Priyvrat S/o Vishwanath
Kuldeep Kaur W/o Sukhwinder Singh
Mahindra Singh S/o Jhopi Ram
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
