Dismissed

Smt. Raj Kumari v. Dr. K. Sudha

Telangana HC19 Apr 2023SA/182/2019

Case brief

AI extract

What is this about?

Second appeals against concurrent decrees dismissing suits to cancel registered sale deeds of two Banjara Hills plots, which the vendors alleged were nominal, without consideration and hit by the Urban Land (Ceiling and Regulation) Act. The High Court held the grounds raised only questions of fact, disclosed no substantial question of law under Section 100 CPC, and dismissed both appeals at the ad

What the court decided

AI extract

Smt. Raj Kumari Vs Dr. K. Sudha — Property and Title | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE NINETEENTH DAY OF APRIL TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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SECOND APPEAL Nos: 182 OF 2019 and 185 of 2019

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Appeal Under Section 100 of C.P.C against the Judgment and Decree Dated: 24-09-2018 made in A.S. No. 108 of 2013 on the file of the Court of the Chief Judqe, City Civil Court, Hyderabad, Preferred against the Decree in O.S No. 1565 of 201 1 Dated 30-06-201 1 on the file of the Court of the lV Senor Civil Judge, City Civil Court Hyderabad.

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Between:

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'1. Smt. Raj Kumari, W/o: Sri. V,jay Singh, aged about 64 Yrs,, Occ- Housewife,

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Sri. Uday Singh, S/o: Sri. Vijay Singh, aged about- 44 Yrs., Occ- Business, (Both R/o H.No- 8-2-603/2317, Road No lO,Banjara Hills, Hyderabad.)

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...APPELLANTS/APPELLANTS/PLAI NTIFFS

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AND

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Dr. K. Sudha, W/o: K. Prabhakarr Reddy, aged about- 52 Yrs. Occ- Medical Practitioner, R/o Padmavathi Nursaing l{ome, Karimnagar Proper and District

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...RESPONDENT/RESPONDENT/DEFENDANT

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lA NO: 2 OF 20'19

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be^pleased To pass an order directing the respondent herein & others on her behalf not to interfere in to the possession of the petitioner over the suit schedule property i.e., South west Portion of House Bearing No: 8-2-603/2316, on Plot No: 6, in Sy.No; 403, admeasuring 327 Sq.Yds., situated at Road No; 10, Banjara Hills, Hyderabad, Shaikpet Mandal, Hyderabad, bounded at East: Road, West: House of Neighbours, North: H. No: 8-2-603/2315 and at South: Portion of H. No: 8-2-

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60312316 & 8-2-60312317^till finalization^{of the Second Appeal in the interests of} justice

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IA NO: 1 OF 2020

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Petition under Order 42 Rule 2 R/W 100 of C.PC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to pass an order permitting the petitioners to add the following substantial questions of law to the existing Substantial questions of law already existing in the Second Appeal to meet the ends of justice.

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Counsel for the Appellants: SRl, BAJRANG SINGH THAKUR

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Counsel for the Respondent: SRl. E. AJAY REDDY

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SECOND APPEAL NO: 185 OF 2019

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Appeal Under Section 100 of C.P.C against the Judgment and Decree Dated 24-09-2018 madeinA.S. No. 107 of 2013 on thefileof theCourtof theChief Judge, City Civil Court , Hyderabad, Preferred against the Decree in OS. No. 1564 of 2011 Dated 30-06-20'11 on the file of the Court of the lV Senior Civil Judge, City Civil Court Hyderabad.

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Between:

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Smt. Raj Kumari, W/o: Sri. Vijay Singh, aged about- 64 Yrs., Occ. Housewife, R/o H.No. 8-2-60312317, Road No. lO,Banjara Hills, Hyderabad.

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...APPELLANT/APPELLANTS/PLAINTIFF

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AND

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Dr. K. Sudha, Wo: K. Prabhakarr Reddy, aged about. 52 Yrs., Occ. Medical Practitioner, R/o Padmavathi Nursaing Home, Karimnagar Proper and District.

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...RESPONDENT/RESPONDENT/OEFENDANT

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lA NO: 2 OF 2019

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Petition under Section 151 CPC praying that in the, circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To pass an order directing the respondent herein and others on her behalf not to interfere

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in to the possession of the^petitioner over the suit schedule^property i.e., South East Portion of House Bearing No. 8-2-60312316, on Plot No. 6, in Sy. No. 403, admeasuring 342 Sq.Yds., equivalent to 286 Sq. N/ts., situated at Road No. 10, Banjara Hills, Hyderabad, Shaikpet Mandal, Hyderabad, bounded at East. Road, West: South-West Portion of H.N o. 8-2-60312316, North. Way to South West Portron of H. No. 8-2-603/2316 and at South. H. No. 8-2-603/2316 till finalization of the Second Appeal in the rnterests of^justice.

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Counsel for the Appellant: SRl. BAJRANG SINGH THAKUR

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Counsel forthe Respondents: SRl. E. AJAY REDDY

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The Court Delivered the following: COMMON JUDGMENT

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SF-(lO\l).\l'PL \t. \rr'.. Itl2 of l0l9 an(l I85 of 2(ll9

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co\r \IoN .t t.'I)( r \1['r':

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-I'he Seconcl Appeal No.ltt2 ol 20l9 is ljlcd by the appcl lants/appel lants/plaintil'1-s aggricvcd b1 the^judgrncnt and dccree passcd by the Chiel'Judge, Citl Civil^('ourt. livderabad in r.S.No. 108 of l0li dated 24.09.201[i, conllrrning thc .iutigment and dccree of the lV Scnior^('ivil Judge.^('it1 C'iril⁽ ourt. I{rdcrabed in O.S.No.l565 ol 1007 dated 30.06.2011

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?. The Second Appeal No.i[i5 of ]0 19 is tiled by the appc llant/appellant/p lainti lf aggricvc'd bv the^juclurrrent and decree passcd bv the Chief Judge. City-^(livil Clourt. [lvderabad in A.S.No.l07. of 20 l3 dated 24.09.2018, conlinrring the iuclgme nt and dccree of the IV Sr:nior Civil Judge. City Civil Court. Ily-derabad in O.S.No. 1564 of 2007 dated 30.06.201 I .

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I'he parries are refencd to lrereinafier as they were array cd befbre the trial court.

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'l'he case ol the plaintif)ls in bricl- u,as thal thcy werc the absolute owners and possessor.s o1' the SoLrlh trast and South West

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I I

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l)r.<;RR. t l8: o/ )0lt)

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por-tion of thc l{.No..-l-6()-l,ll (r in I)lot No.6 irr Sr-.No.101

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admcasuring 342 and 327 Sq. Yds. rcspcctivcl) situat.d at Road No. 10. Banjara IIiiis. Hrcicrabacl antl tirc \iinrc^\ cr'{.' purchitscd bl iltetu urrdc-r' rcgistcred sale dced docunrerrt \o.l88i i')9i. datcd l l.0-.i. !99-i and rectificatiorl dced bearinc docurricrrt No.-16411997, dated 25.02.1997. Right from the date ol purchasc. th,:r' rve re in exclusive possession ancl enloyment o1' thc suit schedulc l)ropertii:s. Alicr purchase ol'the pl-oper1y, they got constructcd a roorn. 1'hey- got issued a paper publicaiion to sell the said propertics. Onc Mr. I). Sanjeeva Rc'ddy approached the plaintiff' No. i and ol'li:r'cd to purchasc the suit schedule properties and settled thc tcrrns ri ith thc plaintillis and tock the copii's lor legai opinion. A few days later. [). San-iecva Reddy approached thc plaintiffs and informed thor that tlre suit sc,redulc properties would lall under the provisions ol [-rrban l-and (Cciling and Regulation) Act, 1976 and hence, they could not transl'er the same. However, at the satne time, the said P. Sanjeeva Reddv assurcd thc plaintills that he got good potitical clout and could obtain necessaD clearances and regularise the suit schedule properties along rvith other^plots and would safeguard the interest of the plaintiffs over thc scl.redulc properlies and took their signatures on declaration lbrms along with the original sale deeds of

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I l

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L) I"O R R,J -l .. l. \ar. /lJl rr4i,/ Itli oJ )t) l9

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the' suit schedlllc propcrties lbr the purposc rrt' ti lins sraicment ol illlrl clcclaration belbre thc llrbarr [.and 1C'eiling [{cgu lation ) r\uthorities. Few days later, P. Sanjeer.a Reddv approached the plaintilfs and in{brmed thern thar a sum ol ILs.-1.00,000r- to Rs.5,00,000i- would be rcquired to rcgularisc cach plot fi.orr t_ll..C. Since, thc plaintilf's were not having sulticienr tLnds, thc said P Sanieeva [{eddy ofl'ered to pay thc said arnount rr ith a conrlition to execLlte thc sale deed in his f'avour, so that his intcrcst rvould be sal-eguarded. Though the plaintifls were reluctanr to exccure sale deed in f'avour of the said P. San jeeva Reddy, the said pcrson persr-radcd thc plaintiffs 1tl rctain the possession of the suit propenies and assurcd the plaintiff's that immediately after obtaining necessarv clearances fiom thc Lil-C Authorities, the terms in respect ol the suit schedule properlies would be settled.^'l'he plaintills in good l-aith and beliel'ext-cr-rred sale deeds in respect of the suit properties in favour olthe det-endant without receiving any sale consideration. However, the possession in respect of the suit schedule properties had been retained b1, thc plainrift's themsclves. All these days, P.Sanjeeva Reddy was inlbrming the plaintifl:; that he u'as pursuing the rnattcr with the concerned authorities

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and dodged the matter lbr the past l-e w years. While the mattcr stood

thus tlre plaintill.s rcccir cd ic.rtcr iionr R'rr crrue [)ivi-.;iorial Otllccr'. Secundelabad stating that thc delendar,t madc an application lirr issuance ol no ob.lection ccrtillcatc fbr rniikins nccessary changes to 'l'o,.vn Strrve.v Lrirrd (-l'SL) [iecords. Irnnrccliatclr,. the plaintitl.s croppec up a doubt in thcir nrind. as suclr cnr-luilcd ,nto thc rnatte r in dctail anci canre to knov; that P.Sanjccva Reddy in collusion with the defl'ndant "vas^{trl,ingto usurpthe propcltl illegalll . -Ihe plaintiflshadnc.er} received an1' consideratiou- lhc said docuntcnt u'as nominal and did not conler an)' title or right in lespect ol'the sLiit properties. Al-ter krrorving the lraud and ruischie t' irlured h.r thc Celtn-dant in collus:ion with P. Sanjec,,,e lieddl . thc plaintil'fi-s api,roachcd the Sub-Registrar, Nizam Shahi, Hyderabad requostirlg to canccl the sale deed docurrent Nos.93l of 1999 and 83 I oi' 1999 dated 13.04.1999 but the SubRegistrar refused to cancel the salc cieeds z'nd aclvised the plaintilfs to seek redressa! in the court ol [.an

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4.1 .^'l he plaintil'l's lurtlrcr subrnitted that in the opcn market, the price of thc pr'operties rvould bc morc than Rs.35,00,000/- and Rs.40,00,000i- for each of'the plots, as such. the question of alienating the suit schedulc propefiies lot e meager amount oi Rs.4.50.000i- tbr each would not arise. Besides, the sale was also hit by the provisions of

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1:,' -

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l)r.G R R.J .S, t. \rr. /,il .r/rrl ltl5 of )0t 9

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l i II I

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thu l.rrban Land tCeiling and Regulation) ]\ct and thc salc cleccl ivas ipso lacto void.^'l-hat apart, the detbndant had not paid a singlc paise to the plaintilts and the plaintilfs had not received any arnount lion'r the dcli'ndant and not passcd anv reccipt acknor.r'le clging thc saicl lurount tiorn the dcf'cndant. Moreover, the possession ol the propc'rtY \trs also retaincd by the plaintitfs and the alleged sale was illegal. null ancl void and the same was a result of fraud, AS such. lilctl thc suits lor canccllation o{'the registered sale deeds in lavour ol'the delcndant in respect of the suit schedule propefties and to declare them as null and void and the said documents not binding on the plaintilfs and .rlso lbr pclpetual injr-rnction restraining the dcf-endant lrorn alienating and interf'ering with the possession and enjoyment of the plaintif}'s IN respect ofthe suit schedule property.

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4.2.^'f he defendant filed written statement subrnitting that the plaintills offered to sell the schedule properlies for a total sale considerertion of Rs.4,50,000/- in each case and she agreed to purchase the samc and consequentlv on receipt of the said total sale considcration. the plaintilfs executed the sale deed dated 13.04. 1999 in favour of the def-endant transferring the schedule properties acknorvledging the receipt ol the total sale consideration and possession

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t. l. ,'.llt)^(ntl

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ol'thc schedule plopertics u,er-c also dclirer.'d br thc plaintil'l.s in lrcr

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tiivour. l-ltc suit sch.cdLrlc r)!'opcrt\ ri as rc-qistcrcd bctirr,.: the .loint Sr-rb Ilegistrar-l in the olfice o1- thc Dislrict licgistrar. IIlderabad.^-t hcde{'endant bccarne the absolute ou'ner attd p(}sscssor cll' the schedule propertics rvith ctfcct fi'om l-1.0-1. l()99 arrd shc continued tc, be iir possession of the sarne till datc. ller nanrc rias ntutated in the Municipal Records ',ride proccedings clatetl l0.l 1.2007 and consequently, she paid vacant Iancl tax and l)ropcrty taxes uptc) 1 1 .03.2008. She also applied tbr pori,cr connection lionr the^(lerrtral Porver Distribution Corporation l.inrited ol Andhra Pradesh dated 10.I I .2007 by paying rcquisile anrount arrd the sarlc was yet to be relcased and denied the contentions raiscd br the plaintills that fiaud was played upon them and that thc salc clec<ls^ri ere exccuted b1, playing l'rar-rd.

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4.3. She further contended that she was a practicing doctor

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hailing from a respectable larnily and purchased the properties rvith her hard earned moncy'and the plaintil'fi havirrlr aiicnatcd thc propcrty in the year 1999 with an evil cye werc laying foisc clain'rs in view of escalation ofprices ofthc land and praved to disrriss thc suit

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DT.GRR,J 5. l.^\r,r- /,9i r,rll Ilt5 of )tt le

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j. []asing on the said pleadings, the trial courl tiamed thL-

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tbllori ing issues:

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l. Whcthcr thc plaintil'f is cntitlccl lirr declaration as pra)'ed lbr in the plaint ? 2. Whether the plaintifl is entitled fbr perpetual injunction?

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To what reliefl

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'I'he plaintitl No.2 in O.S.No. 1565 ol 2007, the son o1' thc plaintill'No.l in the said suit was examined as PW. l. The husband ot'thc' plaintifT No. 1 and the attcstor o1'thc rcgistered sale dc,-'ds res cranrined as PW2. Exs.Al to A7 were marked on hehall'ol' the plaintiffs. The def'endant examined herself as DWI and got exanrined hcr husband as DW2. Exs.Bl to 87 were marked on behall ol the de ltndant.

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l. Considering the oral and documentary evidence on record, the trial court observed that thc onus would lie on the plaintilfs to prove that lraud was played upon them by the defendant. PWs. I and 2 tailed to adduce evidence to show that fraud was played in execution of' Er..{ I document. PW. I admitted that the schedule propcrties \cre sold in f-avour ol tlre del'endant under Ex.A I original sale deeds dared 13.0'1. 1999 but ironically statcd that they were not aware olthe contents

Dt.GRR..l

of the sale deed. [)W] also adrnitted ahout thc c('cr.rti()n ol'[:r.Al salc deeds but stated that the dcf-endant did not pav tl)c salc considcration and prornised to pay thc salc ccnsidcratiorr rlicr clcanrnce oi'urhan land ceiling pemrission, but Ex.A I sale dceds u or-rld rlisclosc that a duc sale considcration ol Rs.4,50,000/\ as paid bl thc dclerrclarrt to the plaintill\ and the plaintifls lailcd to cxamine l). San.jcer a l{cdd1 nof made him as a party delendant. disbelievcd thc case of thc plaintilts lhe trial court further observed that had th:re bcor anr han in rcspcct ol rclristration of the suil prcpcrlics iittr;lcting tir,' urL-'an lanrl ccilirrg provisions, thc- registering officer would not r.gister the docunrent unless the survey nuinber was cleared h1, thc Iirban l-and^(-ciling Authorities, thus the clairn ol thc plainti fTs tha.t the1, had got cxecuted the sale deed norninally Ibr the purposc oi'gctting Lrrban iand ceiling permission appeared to be an afterthought and the same could not bc acted upon.

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1.1 .^'lhe trial coull further observed that though it was contended that the sale consideration was vel'y rncager, the plaintifls purchased the suit schedulc 6rrcrrises liour tlreir ve ndors on -l 1.03.199.5 for a sum of Rs.1,75,000/- and within a short period of 5 years sold the sarne lor Rs.4,50,000/-, thus, they sold it lor au increased price and as

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Dr.(, R R. J .\a. t. \o. t,: int t8;4 lt/e

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thc' plaintifl. and pws' r arrd r being riterates courd not give proper expranarion as to wh-v they had subscribed their signatures on sare deeds and [)w2 had atrested as a wirness to the originar tix.Al sa]e crc.eds had the docunrcrrt e.xecuted through fraudulent rreanr ; held that the element of'fiaud plcaded by th, e plaintifls was not proved by any satisfactory and acccprablc piccc ol.cvidcncc ancl hcld i.ssuc No. I in lbvour ol.rhc defendanr as against the plaintifh. As the defendanl was held to be rhe owner of the propeny, issue No.2 was also held in her favour observing thar no injunction could be granted against the t r ue _o*.'or Lrrs r ue owner and as such. dismissed the suits.

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g. Aggrieved b-y rhe said dismissal, the plaintiffs preferred thc appeals. 1.he appeals were heard by the Chief Judge, City Civil Coun, Hyderabad vide A.S.Nos. 107 of 2013 and I0g of 2013 and passed the judgments and dccrees separately, confirming the judgments and decrees olthe trial courl and dismissed the appeals.

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Aggrieved by the concurrent findings of the courts belovr in dismissing the ,surrs and appeals filed by them, the plainriffs preferrcd thcse Second Appeals raising s u bstantia l '-'-"'6 o t-,stalltla questions of law as floilows:

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t)r.(,ll R..l s. t. \r. /,s-'r/arl

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l{r

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\'ithout obtairring arty pcrrnissiorr liorn thc conlpclcnt authotit) under Section 5 olThe IJrban I.anci⁽⁽ cilirrc & itegulation) Act, I 976. whcn l:x.A I re-riist,:red salc decds rvere erecutcd. whether the courts [relorr rrcrc right in not granting thc rclic('ol"'Clance llation ol thc above saic dceds"'l

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When the parties executed Lx.A I in^r iolation^,rl Section 3tl(4) ol'^'l-he Urban [.and lCeiline & [{cgu lation ) Act, t 976, whether thc courts be krrr u cre right in giving support to the crinrinal act. \hcn thc salre was vitiatcd as null and void as pel' the provisions ol the Act?

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When fraud i.r'as plaled not^,)nl]'on thc appellants hLrt also on thc parties in executing F.r.Al nithout obtaining the Certificate fi'cm tho ULC. r,'hcthcl thc courts below rvere right in :;a1 ing that tht- tiaud ri,as not established by the appcllants?

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When the case of the appellants was that under thc guise of obtaining ULC pennissions, one Mr.P.San-ieeva Reddy. husband ol the rcspondent': sister obtained signaturcs \vithout pa)'ing thc valid sale consideration, no physical possession n'as givcrr to the respondent and the samc u,'as stated b)' the PWs.l and 2. whelher the courts below u,cre right irr saying that the posscssion rras delircred to thc respondent on paylxent of entirc sale considcration. particularly under Section I03 ol the l:vidcnce Act.

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Dr.G ll R.J S. t. \t'.18) .tnl 185 oJ )tt lt)

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I 8^rt'.,

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\'hcthcr thr courts bclou' *'erc right in obserwing that $hcthcr anr prudcnt pr'rson could sell his propertv onl) lbr Rs.4.50.000i- rvhen the government markel valuc ()l'the suit schcdule propertl, existing as on the tirnc ol' registration ol' Ex.A I rvas Rs. I 1.62.500/- (fbr rvhich thc rcsporrdcnt had paid penalty and additional arnounts lbr rcgistration )?

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Whether the courts bolow rverc right in giving the vr:rdict as il the respondent was in possession ol thc suit schedulc propcrties negating the claim of the appcllants ahout their possession over the suit properlics basing on the llxs.B I to 85. which were the docurrcnts ohtained afier filing the suit by the rcspon dent s')

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Whether the courts below were right in negativing the claim of injunction to the appellants and observing that the respondents were in possession of the propen),. rvhen PW. I not only gave evidcnce as witness to Ex.A I stating in his evidence that no possession of thc property was delivered to the rcspondent rvhilc executing Ex.Al and the respondonts in thcir plcadings and cvidencc admittcd thal thc)' $,ere residcnts ol Karirnnagar.

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Heard the Iearned counsel lor the appellants, Sri Bajrang

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l)r.C R R..l l. l. /,. /,s,' ir21l Itit 1l :fil9

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Sirr-rrh lhakur and thc lcarned courlscl lbr the rcsporrdclit. Sri I:. .r.ilrr

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Ilcr-ld-r

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I I . Scctiorr I00 ol the^(lode of Civil l'}roccdLrrc. 1908 as substitutecl bv thc Code o1'Civil l)rocerdurc Arnenclurcnt Acl. 1976 ( 104 ol' 1976) with ef'fect fiom 01.02.1977 reads as undcr:-

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'1O(t. Sccon(l .\l)pea l.

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(l) Save as otherwisc cxpressly provided in the botir of this Code or by any other !aw lor the time being irt lbrce, an appeal shall lie to the High Court fionr evr:rr decrce passed in appeal by any Court subordinate to the Iligh Court. il'thc Iligh^(-ourt is satisfled tlrat thc case invc'lvcs a substantial question oi'lau'.

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(2) An appeal may lie under this section lronr an appellate decree^passed ex^pafie.

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(.1) tn an appeal under this scction. the nrcrnorandurr ol'irppcal shall plcciscly statc thc substantial qucstion ol'law involved in the appeal.

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(4) Where the High Court is Satistied that a substantial question of law is involved in any case. it shall formulate that question.

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(-s) 1'he appeal shall be heard on the question so lormulated and the respondent shal[, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

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Providcd that nothing in lhis sub-section shall bc decnred to takc a$,a)' or abridge the powcr ol'the Clourt to hcar. lbr reasolls to be recorded. the appeal on any other substantial question of lai,',. not

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<br>

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D r.{; R R,J .!-.. 1../r- / li-' irrrrl 135 ol :ltl9

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t-1

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lirlnrtrlirte,-l t.r'. it. il il r-s ',rtisllctl tllrt thc casc inrolves :LIull .lLl! \li()r,.

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ll. l'he' cristc'ncc- ,r1' sLrbstantial questiorl of' larv is the ,r'iile

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qtru nott tbr the exercise' o1'the'.iLrriscliction under the amende(l Section 100 ol thc Code. Section 100 ol' thc⁽ odc-. as amended in 1976. restricts the^jurisdiction ol the tligh Courr to hear a Second Appeal only on substantial queslion of lau, involved in thc case. The High Court rnust be satislicd that a subslantial clLrcstion o1' lar'i, is inrolved in the case and such question has then to be lbrmulated by it. Such questions may be the one proposed by the appcllant or lnay be any other questions which though not proposed b1, thc appcllant vet in the opinion ol the I{igh Court arises as involvecl in the case and is substantial in nature. The phrase 'substantial question ol law' as occurring in the amended Section 100 is not definecl in the Code. T'he word substantial, as qualifying question ol law, nreans - o1'having substance, essential, rea[, of sound worth, important or considerable as laid by the Hon'ble Apex Ciourl in Santosh Hazari vs Purushottam Tiwari (Deceased) By Lrs.l, the Hon'ble Apex Courl also obsen,ed that:

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"12. ....[t is to be understood as something in contradistinction with - teqhnical, ol no substance or la

(200r)l scc r79

Jre:

Dr.G R lt,J s. l. \rr. /,\J 4rrl Iti t{ )t) I^r)

¶121

cor\cqucncc. of acddclnic lllcrcl. Ilttrrer'.'r. it is clcar tlrar thc I cgirlat.urc lriis choscn nol to qualil_\ the sc()pc )l )uh\tanti.rl qLresti(1r1^()l lltu h) sulflxinc lhe rrold: ol-r.rcncral intporlancc as has bccn donc in rnanl othcr provisi()ns slrch as Section 109 ol' thc^(lotlc or i\rticlc l l-.i(| )(a) of the Constitution. lhe substantial^question ol llu,on,"r'hich a second aptrreal shall be lrcard nccd nrrI ncccssarilr bc a suLrstantial qucstion ol' Iaw ol' scncral inrportance. In^()uran Ditta & Anr. Vs. T. Ranr I)itta. IAIR l92ll Privy^(iouncil 1721. thc phrase sukrstantial question ol law as it was employed in the lasl clausc ol the then cxisting Section ll0 ol the C.P.C. (sincc omitted b.v. the Amendryent Act. 197i) canrc up lor consitleratiorr and lhcir Lordships hcld that it did r'r()t nrcau a sLrbstantial question of gcueral irnponancc but a suhstantial qucstion of' law which was involved in the case as betwecn the parties. ln Sir Chunilal V. Mehta & Sons [,td. Vs. The Century, Spinning and Manufacuring Co., Ltd., [( 1962) Supp.3 S('ti -\49]. the Constitution Bench cxpressed agrconlcnt with tlrc firllor.r'inc view taken b1 a I'ull []ench of Madras High Coult in Rimmalapudi Subba Rao Vs. Noony Veeraju. [II-R lq52 Madras 264]:-

¶122

'i..

¶123

"rvhen a question of law'is lairly arguable, where there is roont' lor difference of opinion on it or ri,hcrc the Court thought it ncccsser\ tr) dcal \ilh tllat qucsti()n xl somc length and discuss alteinative view. then the question would be a substantial question of lau. On the other hand if the question was practically covered by the decision of thc highest Court or ilthe general principles ro be applied in determining the question are w'ell settled and thc only question was of applying those principles to the particular !'act of the case it would not be a substantial question of law."

¶124

¶125

ltr.0R ll.J 'l...-1.^{{r,':/,.ll .0rl} Ilt5 tl ) t9

¶126

and laid clo\I thc lbllorring lcsl as proper lcst. lbr detcrmining s hethe r lr qucstion ol' larv raisc'tl in the casc is sLlbstinl il l:-

¶127

''1'hc. propcr test firr cletcrrnining whether a question of larr raised in thc case is substantial uould. in oul opinion. be vrhetlrer it rs^{()l'.,.:cncrirl} ptrhlru rrnponancc or' uhelhcr it .lircctll und substantially allccts the rights ol- the partics and if so whether it is either an open question in the sense that it is not tinally settled b) this Court or by lhc Prir'y'^(ouncil or hr the Fcderal C'ourt or is r.lot lrce lionr tlillicLritr or calls lor discussi()n ol lltcrrrirtirc \ir.us. ll' thc qucstion is settlcd b1 thc highest Cou or the gcncral principles to be applied in determining the qucstion are well settled and there is a mcre question of applying those principles or that thc plea raised is palpably absurd the qucstion rvould not bc a substantial questiiln ol' Ia\r."

¶128

A point ol lar.v which admits of no two opinions may be a proposition of law bul cannot be a substantial qucstion of larl,. fo bc substantial. a qucstion ol larv nrtrsl bc debatable. not preriously scttlecl b) law ol'tl.rc lantl or a bintling precederrt. and must havc a matcrial bearing on the decision ol'the case, il answered either way, in so far as the rights ol the parties bel'ore it are concerned. fo be a question of law involving in the case there must be first a foundation lor it laid in the pleadings and the question should cmerge fiom the sustainable findings of f-act arrived at by court ol'l'acts and it must be necessa0/ to decide that question t.rf law lor a^just and proper decision of the case. An entirely new point raised for thc first time bctbre thc High Court is not a^question involved in thc case unlcss it soes to the root of the matlcr. ll uill. therr:lirlc- dcPerrd orr thc lacts arrd circunrstancc ol cach casc whcthcr a question ol'law is

¶129

¶130

Dr.G R R..t

¶131

a substantial onc and iD,"olvcd in thc case. or nol; the paranl()unl o|erall considcration being the rrced [br strikirrs a iudicicus lralancc het,"vccn the indispcnsable ohliqatiorr to do.iusticc at all stagc's and impelling necessit. ol'avoiding prolongation in thc lil'e ol an)' lis.^"

¶132

li. I hc I lon'Lrle ,\1.rex Couri in Kondiba Dagadu Kadanr

¶133

vs Savitribai Sopan Gujar And Ors2 also held that:

¶134

".1. ...Ii has lurthcr been lound in a number ofcases that no el'lirrts arc made to distinguish: betwccn a quc,stion ol'lara'ancl a substantial question of law. In cxercisc olthe poucrs undcr this Section the findings ol'lact o1'the lst appeliate cou( are found to havc bcen disturbcd. It has to be kept in rnind that the right ol appcal is neither a natural nor an inherent right attachcd lo thc litigation. Bcirrg a substantiu" r,u,r,(.,r,,, right- it iras to [;c rc!.ulated in accordarrce with lau in lirrce at the relevant tinle-'l-he conditions mentioned in tlie Section must be strictly tulfilled before a sccond appeal can be maintained and no court has the power to add to or enlarge those grounds. 1'he second appeal : cannot be docided on merely equitable grounds. The concurrcnt Iindings of facts howsoever cn()neou-q cannot bc disturbed by the High Court in exercise of the powers under this Section. The substantial question ol law has to be distinguished from a substantial question ol fact This Court in Sir Chunilal V. Mehta and Sons l,td. r'. Century Spinning and N{anufactuing C-o. t,td. AIIt ( 1 962 ) SC' ll l4 held lhat :-

¶135

"'Ihe ploper test for determining whether a question ol law raised in the case is substantial would. in bur opinion. bc whether it is ol gcneral

¶136

'^{t tovgyi scc ;12}

¶137

a.--l \

¶138

t)t.c R R,J -1.-l-^\ar:.1,11 arrrl 185 ol )t)le

¶139

¶140

public inrportancc or !\hellrcr it dircctlt and substantiall\ alticls thc righls ot thc panies and il' so whethcf it is eithcr an opcn question in lhc scnse thar ir is not linally scttled by this Court or by the l'rivy Council or by the Fcderal Court or is not frec liom ditlicultl' or calls lor discussion ol alternati\c vicivs. It'thc question is se-ttled b) the highest^(oLrrt or thc seneral principlcs ro bc applied in dctc'rnrining thc quesrion are wellscttlcd and there is a mere question ol applling those principles or that the plea raiscd is palpably absurbed thc qr:estion rvould not bc a substantial question o1' la\4'. "

¶141

It is r-rot rvithin the donrain of'rhc ltigh Courl r0 investigate the grounds on which findings were arrir ed at, by the last courl of f'act. treing the tlrst appcllatc court. It is true that the lower appellatc court should not ordinaril)' reject r.r,ilncsses acccpted by thc trial court in respect of credibilitl but ct,cn rvhcre i1 has rejectcd the witncsscs accepted by the trial court. tlrc same is no ground lbr interlerence in seoond appeal when it is found that the appellate courl lrad given satisfactory reasons lor doing so. In a casc whcre liom a given set oJ' circumstanccs tw() inlcrences are possible. one drawn by the lower appcllate courr is binding on the l'ligh Coun in sccond.appeal. Adopring any other approach is not permissible. The High Court cannot substitute its opinion lor the opinion of the llrsr appellate court unless it is fbund that the conclusions drawn by the tower appellate court wcre crroneous being contrary to the mandatory provisions ol law applicable ol its settled position on the basis of pronouncements made by the apex Court. or was based upon in inadmissiblc evidence or arrived at withour evidence.

¶142

Il thc question ol law termed as substantial qucstion stands alrcady decided by a largc-r bench of the High Courr concemcd or by the privy Council or by the Federal Court or by the lupreme Court, irs

¶143

,\ _ , _.__-._ )'

¶144

¶145

I)r.G R R.J I I \ar /,9-'arrrl 185 rl )rt l')

¶146

nrcrcl-\ !\ r()t'l1t a[]Jtlicltlii)n on l'acts ol'thc ease rvouirl not bc tcrn)ed to lre a subslantial question ol' .larr. \'hc'rc' a pr)int ol lo\ ha: not lrccn ]rleadcd or is {irund lo h!- arisirlg bctrrecn thc partics in the abscncc o['an-r flctual lcrrmat. a litigarrt shou:d not hc allorvcd to raisc tliat question as substantial^question o['law in second appcal.^'l hc nlcrc appreciation ol the lacts, the documentarr er idcncc or the rneaning ol'cntire and the colrlcllts of thc docunrcnl carlnot he hcld to bc raising a suhstantial qucsti()n ol lrtrr. Ilut uhcrc it is liruncl that tlrc first al.rpcllatc corrrl has ;lssuntcd.jurisdiction *,hich did not vcst in it. thc sarne can be adjudicated in the sccond appeal. treating it as substantial question of law. Where the first appellate coufl is shonn to havc excrcised its discrction in a.itrdicial rranner. it Cannot hc lcrnred to be an error cither of law or proccdure rcquirirrg interllrurcc in sr:cond appeal.^-[his Court in Reserve Bank of tndia & Anr. v. Ramakrishan Covind Morcy. AIR⁽¹⁹⁷⁶⁾ SC 830 held that whether trial court should not have cxcrcised its iurisdiction dilferently is not a qucstion of law -iustilying intcrl'crence."

¶147

In thc li-elit olthc:ic principles enunciated b1'the IIon'blc Apex Court for considering whether any substantial question of law would arise in the lacts of thc prescnt casc, the questions raised by the appellants in the grounds ol appeai in both the Second Appeals are questions of facts and there is no question of law or substantial question of law involvcd in thc said points. Both the trial court as well as the lower appellate court answered all these points.

¶148

The lou,er appcllate courl observed that the appellants

¶149

Dr.C RR,J ..1. \0.1ill tttd ttl5 tl ltt l9

¶150

l()

¶151

rrainll, 6o111!'nded that thc salr-' consideration shoq'n in [r..\ I $as on11, Rs.-1.-j0.000i-. but dellcit sianrp dut) ol' tts.60.000/- \as paid on tlle nrark('t laluc of Rs. I1,62.500/-. as observed b1 thc trial court thc suit scht'dLrle propefiies wcre purchased b_r the plaintills on 31.01.1995 tbr Rs. i.75,000/- and they sold it alier llve ycars lbr an ar.nount of' Rs.4,50,000/- and thus, the submission of thc plaintiff could not be countenanced as thc sale consideration was already receiv'cd as agireed under I1x.A l. l'he lower appellatc court also agreccl u'itlr thc observations of the trial court that Exs.Bl to 83 proved the posscssion ol'thc def-endant over the suit schedule properlies. Both the courts obscrved that PW.2 in his evidencc admittcd rce.alding issuance of' paper notilication and also that they were in need of'money, as such, intended to sell the suit schedule properties and both PWs. I and 2 admitted regarding execution ol the sale deeds in I'avour ol'dei-cndant but sirnply stated that no consideration was passed.

¶152

Learned counscl fbr the respondenl relied upon the judgment ol the Madhya Pradesh High Court in Rajkumar Jain Vs. Savitri Devi and Othersr wherein it was held that:

2010(2) MPLJ r38

l. l. \1, . /8!'/rr1

-'lhcrc i:, alr\a, il Jislincli,rr lretrrten salc pricc arld markct pricc. .,\ person ma) or lna\ not scll the propcrt) on thc ol}'ered pr:cc. ho\e\er. a "endor would sellthc propeltl r,n thc agr.:ed price. which mav be less or nlore than the rnarkct prictr. lhe agrccd^pricc would aln'ays dcpend upon numher ol c()nsiderat ioiis. Neccssitl o!'urgencj. to scllcr purchitse u'ould aluays affect the sale price. Sonietinres looking to thc compelling reason or the erigcncies of life, a person may agrec to purchase or sell properly i'or lessor value or for a pricc less than the malkct price. il'sr.rch is the case then the consideratior llxcd lir| transt'cr of propcrt-\ ivould ht lhe salc pricc so lixcd bet\cen parties ivlrich hrav or rra) rrot hc thc n)arket pricc

¶157

True it is, Iilr thc purp(,ses of legistration. the rnarket value should be deter:nined -.o that the loss ol' revenue is uot suffered b1, thc Statc. Assuming in a case. a person v"ho is in inrmediat* nced of sum trl'Rs. 2 crores may sell his propcrty rrorth Rs. 5 crorcs for the said amount ol Rs. I Crc,re s. Salc price would be two crores but lor thc purpose ol registration. thc value ol the document would be 5 crorcs being thc nrarket value. Determination of the markct value r.,",ould depend upon thc nrarket condition and guideline hut thc'sale price would bc dctcrrnined on thc basis of the mutual consent and the agreement of the partics."

¶158

With regard to the contention of the learned counsel lor the appellants that PWs. I and 2 stated that they \ieie not a\'are of the contents of the sale deeds. the leamed counsel lor the respondent relied upon the judgment of the Hon'ble Apex Court in Placido Francisco

¶159

l)t.(;R R,.l '..{. \n1. /,Y,' r,nrl

¶160

¶161

l'into(l)ietl) bv l-Rs. 's. .tose Iilirnciso l'intor u.ltercin it sa: Ireld

¶162

t hat

¶163

"ll. Thc only stand ol'respondent ),1o.I is iunorlnce ul' the nature o1' tho docurnent on rvhich his sitnaturcs uerc obtaincd. Such ignorance is nol an instance ol' m isrepre sentation or a lraud in the lacts ol thc prcsenl casc which would vitiatc a sale deed execLltcd and registcred with the Sub-Registrar. lt has been admitted b1 respondent No. I that he went to the SubRegistrar's olllce with his wife. signed once outside thc Municipal Building and once belbre the [)lficers. shou,s that tactically he has adnrittcd execution of thc salc decd without expressly stating so. We find that thc findings of the Courts below that the documcnt is rvilhout consideration or the considcration having not plcaded in the plaint or the fact that appellant No. I has discharged thc debtors ofrespondcnt No. I will not render the document ol sale deed as Yoid."

¶164

With regard to the plaintiffs' contention that they had not receivcd any consideration contrary to the contents ol the registered documents marked as Ex.AI and as to the applicability ol Scction 92 of Indian Evidence Act, the Hon'ble Apex Court in tht' same^judgment white relying upon its own judgment in Roop

¶165

Kumar vs Mohan Thcdanis held that:

¶166

*26. . . .This Court held that it is general and most inflexible rule that in respect of written instrumcnts. any othcr evidence is excluded from being used either as a substitute lbr such instruments. or to contradict or altcr thcm.^'fhis is a matter both of principle and policy. lt was hcld that in Section 92 ol the Evidcnce Act, thc legislature has prevented oral evidcnce lionr

¶167

' lot^I S( C Ont-ine SC 842

¶168

' (l(r0j i6 SC( 59)

¶169

l)!'.0 R R..l . l. \or../,9-r anr,l 185 ol :01'i

¶170

bcinq adduccd li)r thc pul|(i\c rr1^,,r ing th!'c()ntract. such contracl ean be provcd h1 prodtrclion ol' such u,rrting. [t rras licld that Scction 9l is ctrnccrnc,.] rritlr themode c,1' prool of a docunrcnl sith liniitation imposed bl Section 91. lf altcr the docLrrrrcnr has beerr produced lo pro!c ils lcrrrrs un.ler Seeli()r) 91. provisioris oi Scclion 9l conre inio operation lirr thc purpose ol'ercludirrg cridcncc itl attr rrral aglcenrcnt or statement lbr thc purposc^()f c()ntradicting. r afying. adding or subtracting fionr its ternrs.^.l his⁽ r.urt hcld as under:

¶171

"17. It is lrkeu'ise a genelal and nrost inllcxihic lule tlrat r.rhcr,.'rcr ririrtcrr instruments are appointcd. cithcr hr thrrequiremcnt of' law. or by the contract 01' the parties. to be the repositories and nrcnrorials of tluth. an,v- othcr cvidence is cxcludetl lionr bcing uscd eithcr as a substilutc tbr sLrclr instrurncnts. ol to contradict or altcl thenr. 'I his is a nrattcl both o: principle and policv. It is of principlc bccausc suelr instrurrents arc in their or.r.n nature arld origirr. cniitlcd to a much higher dcgree ol' clcdit than oral evidence. It is of polici, becaL;sc it uould be attended with great mischicf il' those instruments. upon ivhich rnen's rights dependcd. rvcre Iiable to he inlpeached h)' loose collateral cvidencc. (St'e .\turkie on Evidence, p. 618).

¶172

[n Section 92 the legislaturc has prevented oral evidence being adduced lor the purpose of varying the contract as between the^parties to thc contract: but. nr) such limrtations are irnposed under Section 91. Ilaving regard to the .iural position ofSections 9l and 92 and thc delibcratc omission lrom Section 9l ol such words of limitation, it must be taken note ol that er,e n a third party if hc wants to establish a particular contract belween ccrtain othcrs. either when such contiact has becn reduced to in a document or u'hcrc undcr the lau' such contract has to be in writing, can only prove such contract by the production of' such writing.

¶173

l.l

¶174

ll. lhc rtrounds ol' cxclusion oi' extrinsic er idcncc- are :⁽ i) to admit inferior evidence rr hcn rhe lau re tluircs supcrior wotild amount to nLrllifring thc lau. and ( ii1 uhcn partics lr;rrc Juliberatcl\ pul llteir agrecmcnl inlo r.vriting, it is conclusivcly presumed. between themselves and their privies, that thcy intendcd the lvriting to tbrm a lull and final stalement of thcir intentions. and one which should be placcd beyond the reach ol'future conlr.\ crs\ - bad I'aith and treacherous ntcn'tor'.

¶175

ll. 'l-his Court in Gangabai v. Chhabubai [( I982) I SCC 4 : AIR 1982 SC 201 and lshwar Dass Jain r. Sohan Lal L(1000) I SCC 414 : AIR 2000 SC 4261 r'i ith rel'erencc to Section 92( l ) hcld that it is pcrmissihle to a party to a deed to contend that thc deed was not intended to be acted upon. but was only a sham document. The bar arises only when the document is relied upon and its tenns are sought to be varied and contradicted. Oral evidence is admissible to shou,that document executed was never intcntlecl to opcrate as an agreemcnt but that somc other agreemcnt altogether, nol rccordcd in lhe document. was entered into between the parties." (Emphasis Supplied)

¶176

A perusal ol the above judgmcnt-would show that the oral evidence of a wriuen agreement is excluded except rlhen it is sought to be alleged the document as a sham transaction.

¶177

lt is beyond dispute that a sale deed is required to bc registered i.e. a document required by law to be reduced to the lorm o1' a document. Therefore. no eVidencc ot'any oral agreement or statement shall be rdnrittcd fot thc purpose of' contradicting. varying. adding or sLrbtracting liom its tcrnrs.

¶178

't he t-eigned ignorance about the nature ol document cannot be said to be an instance ol lraud."

¶179

¶180

th.(, R i!..1 1. l. \rr. /I-' r/r/ I lti t)l :tti'/

¶181

lL) With regard to tlte contetttion laiscd br tltc learnL:';l

¶182

courlsel lbr the appcllants irr Point Nos.6 and 7 irr the gror-lnds oj appeal, the trial courr obsen,ed that l.-xs.ll I to []i clinchinEly pro\ e lhe posscssiort ol the del'endant^()vcr the sr"rit schedulc propctlics The place ol- residence nright not be a thctor to dccidc thr: possession of any person ovcr a proporty'. t hough thc propcrlr tar nas stated to be paid by the ptaintifls but it rvas not adrrittcd in er idcnce. I:xcept the self-serving er iderrcc ol I)\1s. I ancl I thul lto D"'I rvas interlering with the posscssion of plairrlrl't!. inclependcnt cvidcncc had bccn Jct in l.'y the plaintil'l-s to sht-rr,' thc thleatening and interlbrence by DW I.

¶183

Thus. all these are qucstions of facts hascd orr evidence and documents which the trial court and ihc Iower appellate court on appreciation ol the sarne hcld in far,oul ol'thc defcndant. Hence, no question oI law or substantial question of las arises on these aspects.

¶184

2l . The question Nos. 1, 2 and 3 raised by the learncd

¶185

counsel fbr the appellants was w,ith rellarci to^'l hc I irlran Lancl (Ceiling and Regulation) Act, 1976 that without obtaining an1'

¶186

l)r.C RR.J :5 .t.-t- \rr./,91.rx,/ 185 0l )ttl9

¶187

¶188

pcrntissi()n lirr thc e()!np.tcnt authoril) undcr the pro\ isions ol The lJrban Land^(Cciling and Rcgulation) 1\ct, 1976, rvhethc-r excclrtin_c. I.x.-,\ I by tlrr' partic's ri as right and r'alid, thc trial court obscrved on this poirrt that if there was an) ban in respect o1' registration ol the suit propcrties attracting thc urban land ceiling provisions. thc rccistcrine o1'llccr *'ould not have registercd the documcnt urlle ss the silr\ c\ ltLlutbL'r was clcarctl bv thc [Jrban l,and Ceiling Authoritic.s. llencc, tl.re contention ol' the plaintills that they got executed the salc decd nominally lor the purpose of getting [..lrban l.and Ceiling pelmission appeared to be an alierthought and prcsscd into service tbr the purpose ol filing the sr.llt-

¶189

¶190

Whcn thc plaintitli could execute a registered sale dced in lavour ol- thc def-endant vide Ex.A I without obtaining urban land ceiling permission, their contention that they believed one Mr.P.Sanjeeva lleddv that he ooLrld not purchase the property without the urban land ceiling perrnission and brought his close relative, the defendant and asked to execute a rcgistered document in her favour and believing the same, thc plaintilii rvho werc literate persons executed it in I'avour ol' delcndarrl and thus liaud rvas played upon them is

I I I

I I

runbelicvablc

ll. lhus. thc corrtention oltltc t:lairrtil'ls that lirud herl hi,.rn

¶195

plrtr.'d upon thcrn b_r, thc dclendarrl anrl^qot c\c(:rrted llrc ralc dcrrl :., her lavour lbr a rneagcr price rvas rightll diibelic!'cd h\ thc ctrrrr i:.,

¶196

bclou .

¶197

l-1.^-l his^(lourt does rtot lind anl clucstion ol'lau or uirr

¶198

substantial cluestion ol Iaw arising cn these points also. All thc citations relied by thc learned counscl rbr thc appcllants rlrc {)n tpre stions ol'lacts raised b,"'- thcr-n in thc grounds ol'appcal. as sucir thc san.rc are not consiclcred. I'hc ccincurrent lindings o{'I'acts'01,' thc courls bekrw cannot be dislurbed by this^(iourt in thc Seconcl

¶199

Aptrcll. As thcre arc no su'osti.u:iiaI qucsiioirs ol' !a'.i ;n'. olr c,J !r: cnicr"rain thc Second Appeals, thc: Second Appeals ale disnrissed at the stage of admission.

¶200