Dismissed

Laxman Singh v. Mahendra Singh

Rajasthan HC29 May 2024CSA/281/2017

Case brief

AI extract

What is this about?

Two interconnected second appeals challenging decrees over disputed haveli shops at Kishangarh, including a compromise decree and a permanent injunction suit based on a Will and inayat gift. The High Court found no substantial question of law, upheld unregistered document admissibility for collateral purposes and dismissed both appeals.

What the court decided

AI extract

Laxman Singh Vs Mahendra Singh — Property and Title | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 281/2017

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Laxman Singh S/o Late Shri Baijnath Singh, aged about 60 years, R/o Khidki Chauk, Naya Shahar, Kishangarh Distt. Ajmer

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----Appellant-Defendant

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Versus

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Mahendra Singh S/o Late Shri Shiv Pratap Singh, R/o Khidki Chauk, Naya Shahar, Kishangarh Distt. Ajmer. At Present In Crpf-67 Battalion Shrinagar Jammu Kashmir

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----Plaintiff-Respondent

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Connected With

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S.B. Civil Second Appeal No. 151/2012

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Satya Narain S/o Shri Bheru Lal Jangid, R/o Khidki Chowk, Naya Shahar, Kishangarh, Distt. Ajmer Raj.

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----Appellant-Defendant

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Versus

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Mahendra Singh S/o Late Shri Shiv Pratap Singh Rajput, R/o Khidki Chowk, Naya Shahar, Kishangarh, Distt. Ajmer Raj. ----Plaintiff-Respondent

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Govind Singh S/o Late Shri Baij Nath Singh Rajput,

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Laxman Singh S/o Late Shri Baij Nath Singh Rajput resident of Khidki Chowk, Naya Shahar, Kishangarh, Distt. Ajmer (Raj.)

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----Respondents

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For Appellant(s)	: Mr. V.L. Mathur Mr. Amit Dhawan
For Respondent(s)	: Mr. Jitendra Singh Shekhawat for
	Mr. Ripu Daman Singh Naruka

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Judgment / Order

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29/05/2024

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These two civil second appeals are interconnected, therefore, we are considering the issue of admission by a common order.

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S.B. Civil Second Appeal No. 281/2017 is preferred by appellant-defendant-Laxman Singh aggrieved from judgment dated 06.12.2016 in civil appeal no.35/2013 passed by learned

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Additional District Judge, Kishangarh, District Ajmer, whereby appeal preferred by appellant-defendant aggrieved from judgment and decree dated 20.05.2013 in civil suit no.59/2012 titled as Mahendra Singh Vs. Laxman Singh was dismissed and decree in favour of plaintiff was affirmed. The plaintiff has filed a suit for permanent injunction of a disputed property and learned Trial Court has restrained the defendant from collecting rent from pending.

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S.B. Civil Second Appeal No. 151/2012 is filed by appellantdefendant-Satya Narain, aggrieved from dismissal of civil regular appeal no.29/2009 on 14.12.2011 by learned Additional District Judge, Kishangar, District Ajmer, affirming the judgment and decree dated 14.12.2005 in civil suit no.116/2005 titled as Mahendra Singh & Ors. Vs. Satya Narain.

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Learned counsel for appellant-defendant-Laxman Singh in S.B. Civil Second Appeal No.281/2017 submits that the plaintiff has filed a civil suit for injunction restraining defendant to collect rent from the shops and to make any construction. He further submits that if there is any dispute in payment and collection of rent or ownership/title, then a proper suit is required to be filed but herein only an injunction suit was filed and same was erroneously decreed by the Trial Court. He also referred the averment of the plaint and submitted that the plaintiff has claimed on the basis of a Will but this Will was executed without any authority. He also submitted that the plaintiff has not acquired any title or ownership right on basis of will. He further submitted that the Trial Court has committed serious error while considering

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inayatnama Ex.2A, which was not a registered document and same is contrary to provision under Section 17 of the Registration Act. He also referred the findings and submitted that the compromise was never executed and it was not proved from the evidence on record. He also submitted that the disputed property is jointly registered in the name of Baijnath Singh, Kedarnath Singh and Shiv Pratap Singh and present appellant is legal heir of Baijnath Singh. He also submitted that the appellant-defendant is in possession for more than 40 years and on basis of continuous possession of more than 12 years on basis of adverse possession, the defendant has acquired right of ownership. He specifically referred the erroneous reading of evidence and material by the Trial Court and non-consideration of grounds by the First Appellate Court. Atlast, he submitted that the Appellate Court has misread the document Ex.2A and did not considered mandatory provision of Section 17 of Registration Act, while dismissing the first appeal. 5. Learned counsel for respondent-plaintiff has opposed the contentions of learned counsel for appellant and submitted that the Will dated 07.04.1985, was never challenged by the defendant and after death of Shiv Pratap Singh in 1989 and Kedarnath Singh in 1999, the plaintiff has acquired all rights under the Will, which was inayat (Bakshish) to Shiv Pratap Singh and Kedarnath Singh. He submitted that out of humanitarian courtesy Baijnath Singh was allowed to reside as a gratuitous person, but without acquiring any right in the property. He also submitted that Baijnath Singh was not having right or title in the property. He further submitted that the record clearly shows that the Trial Court

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has considered the entire evidence on record before drawing conclusion in favour of plaintiff. He also referred the documents on record and evidence and submitted that all disputed facts are questions of fact and the Trail Court has rightly decided these issues in favour of respondent-plaintiff, therefore, it does not give rise to any substantial question of law.

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Learned counsel for appellant in S.B. Civil Second Appeal No. 151/2012 submits that the compromise dated 14.12.2005 was never executed with rightful owner and this compromise is against legal principles. He also submitted that the defendant-appellant has never executed a compromise on 14.12.2005 and the Trial Court has erroneously drawn a decree on basis of compromise. Learned counsel for appellant further submits that the appeal preferred by appellant-defendant was dismissed only on ground of limitation and the Appellate Court has not considered the grounds on merits. He further submitted that if any compromise is executed by playing fraud then same can be recalled even in second appeal. He submits that due to pleading of fraud this appeal requires consideration on merits.

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Aforesaid contentions were opposed by learned counsel for respondent plaintiff on the ground that the decree was passed in 2005 but thereafter, a civil suit was filed to challenge the decree and thereafter an appeal was preferred and finally when appeal was dismissed, the instant second appeal is preferred. He also submits that the decree was passed on the basis of compromise, therefore, same cannot be challenged in view of provision under Order 23 Rule 3 of CPC.

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Heard learned counsels for the parties and perused the record summoned from learned Trial Court.

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S.B. Civil Second Appeal No.151/2012

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The plaintiff has filed a civil suit before learned Civil Judge (Junior Division) for eviction of defendant (present appellant). During pendency of the civil suit an application was filed on 14.12.2005 by plaintiff-defendant, and on basis of compromise between the parties, the civil suit was decreed between plaintiff and defendant. The Trial Court has explained the compromise to the parties who were present before the Trial Court and identified by the counsel.

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The defendant-Satya Narain has filed a civil regular appeal no.29/2009 after a delay of 3 years 8 months and 16 days and an application under Section 5 of Limitation Act was also filed. The Appellate Court has considered that to challenge the decree dated 14.12.2005, the defendant has filed a civil suit and after several years this civil suit was withdrawn on 20.07.2009, and appeal was filed in year 2009. The Appellate Court has found that the appellant-defendant has failed to explain the reasons of delay, therefore, the appeal was barred by limitation and application under Section 5 of Limitation Act, was dismissed.

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Hon’ble Supreme Court in the cases of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Balwant Singh (dead) Vs. Jagdish Singh and Ors. 2010 (8) SCC 685, Union of India Vs. Ram Charan AIR 1964 SC 215, Brijesh Kumar & Ors. v. State of Haryana & Ors.: (2014) 13 SCC 291, Esha Bhattacharjee v. Raghunathpur Nafar Academy

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& Ors.: (2013) 12 SCC 649, P. Subba Reddy (died) by LRs. And Ors. Vs. Special Deputy Collector (LA) 2024 INSC 286

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has laid down that (Section 5 Rule) unless the application for condonation of delay is supported with reasons of delay, same cannot be allowed. The order of First Appellate Court dated 14.12.2011 clearly indicate that the Appellate Court has considered the same and after considering the reasons it has dismissed the application for condonation of delay and consequently the instant appeal.

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A compromise decree cannot be challenged in view of provision under Order 23 Rule 3A CPC. Moreover, a civil suit was filed and same was withdrawn without any reason. The fact of fraud and misrepresentation was not proved from any material on record. The decree was passed in presence of present appellant Satya Narain.

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There are no grounds, which give rise to any substantial question of law, therefore, S.B. Civil Second Appeal No.151/2012 sans merits and same is liable to be dismissed.

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S.B. Civil Second Appeal No.281/2017

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The plaintiff has filed a civil suit on the ground that his father and his uncle Kedarnath Singh were employee of her highness, Kishangarh and in reward for services, she gave haveli with shops as bounty gift (inayat) (baksheesh). The plaintiff has stated that the father of defendant Baijnath Singh was authorized to collect rent on behalf of Kedarnath Singh and Shiv Pratap Singh. The plaintiff, who was serving in CRPF enquired from defendant about accounts of collection of rent, and a suit was filed, for same.

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The defendant has claimed that the property in question was in joint name of Kedarnath Singh, Shiv Pratap Singh and Baijnath Singh, but no such document has been filed on record. Moreover, an additional claim about adverse possession was also made by the defendant. On the basis of pleadings of the parties, total 6 issues were framed 2 witnesses were examined by plaintiff and 17 documents were exhibited by plaintiff whereas defendant has examined 2 witnesses and exhibited 42 documents.

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The Trial Court has considered the entire evidence on record and considered the definition of landlord. The Trial Court has also considered the law over the point and drawn a conclusion that inayat (baksheesh) given to Kedarnath Singh and Shiv Pratap Singh who executed a Will dated 07.04.1985, in favour of plaintiff. On basis of evidence on record, the Trial Court has decided the issue no.1 in favour of plaintiff but decided issue no.2 against the plaintiff, the issue nos.3 and 4 were decided against the defendant. As a result, the suit of plaintiff was decreed. 16. The Appellate Court has considered the grounds raised by the defendant in light of evidence and documents placed on record. Learned counsel has raised ground of non-registration of document Ex.2A but the material on record clearly shows that at the time of tender in evidence no such objection was raised by the defendant. Similarly, the Will was exhibited by the plaintiff and no objection was raised by the defendant-appellant. Any unregistered document is admissible for collateral purposes though registration of a document is a compulsory, if transfer value of property is more than ₹100/-.

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After considering the entire record, it is evident that the defendant has claimed parallel ownership and other side claiming ownership on basis of adverse possession. If anyone is hostile to the real owner and the period is more than 12 years then he can claim ownership on basis of adverse possession but not otherwise. A perusal of entire record clearly shows that the Trial Court and the Appellate Court has rightly drawn a conclusion on issue no.1 in favour of plaintiff and there is no perversity or illegality in drawing the conclusion on issue no.1, therefore, the grounds does not give rise to any substantial question of law.

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Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts.

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Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314, as under:

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"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for

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discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

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Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

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The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles.

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13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

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13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that

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post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was:

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(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

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(ii) The substantial question of law to precisely state such question;

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(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

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(iv) Another part of the section is that the appeal shall be heard only on that question.”

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Gurdev Kaur (supra) was referred to and relied

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upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71

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In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405 , Hon’ble Supreme Court explained the purpose of framing question of law in following manner:

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“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.

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b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they

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