Iqbal Singh v. Hari Kishan Lal

13. Per Contra, Mr. Deepak Khosla, learned counsel appearing on behalf of respondents/defendants vehemently opposes the aforesaid submissions and avers that the findings of the first Appellate Court are legally sound, supported by evidence, and free from any material error. Moreover, he asserted that the sale deed was admissible under Section 90 of the Indian Evidence Act, 1872, which provides a presumption of genuineness for documents that are more than 30 years old. He also submits that the certified copy of the aforenoted sale deed, supported by the revenue records and mutations, established the valid transfer of ownership from Umrao Singh to Sh Pran Nath Sarvaria, predecessor-in-interest of the

14. Learned counsel, therefore, asserts that no substantial question of law arises for consideration in the instant appeal, and the validity of the sale deed cannot be challenged on legal grounds as the same has already attained finality. He also avers that any alternative plea of adverse possession or claim of title in suit property through the predecessor-in-interest, cannot raise any substantial question of law warranting consideration in the instant appeal.

15. I have heard learned counsel appearing for the parties and have perused the record.

16. A perusal of the Trial Court judgment dated 30.04.2007, would indicate that the Trial Court took note of the earlier suit and the order passed thereto by the Court of Sub judge on 30.01.1978. The Trial Court observed that despite there being an adverse finding against the original plaintiff qua title and ownership of the suit property, the same was not challenged by the him. The Trial Court dismissed the suit as being barred under Section 11 of the CPC which envisages the doctrine of res judicata. The Trial Court also opined that the wife of the original defendant was a necessary party whom the appellants/plaintiffs did not implead even though the pleading and documents in the instant suit and the earlier round of litigation indicate that the possession and ownership of land was with the wife of the original defendant. The Trial Court dismissed the suit filed by the appellants/plaintiffs with costs and rendered a finding to the effect that the parties were litigating for a protracted period of time due to the appellants/plaintiffs using dilatory tactics. The relevant findings rendered by the Trial Court read as under:-

24. However, in the present suit also the plaintiff has based his claim on the similar pleadings. In my considered view, the suit of the plaintiff is clearly barred by the principles of resjudicata and also by provisions of order 23 Rule 1 (4) CPC ***

26. The defendant has denied the ownership of the plaintiffs in both the suits. The defendant has rather asserted that the wife of the defendant Smt. Shakuntala Devi was the owner of the suit plots. On these averments the issue regarding ownership was framed in the earlier suit also.

27. As already observed that the Ld. Appellate Court of Sh. H.K.S. Malik as not granted any liberty to the plaintiff to file another suit on the same cause of action. The suit of the plaintiff is hence hit by principles of resjudicata and the suit is clearly barred by section 11 CPC and the plaintiff cannot be allowed to agitate the issue of ownership which already stands adjudicated upon in the previous suit by a competent court. ***

29. It is clear that if the plaintiff abandons his suit or part of claim without permission to institute a fresh suit in respect of the subject matter of such suit or part of the claim he is precluded from instituting any fresh suit in respect of such subject matter on such part of the claim.

30. In the present matter also no permission was granted to the plaintiff to institute a fresh suit in respect of the same subject matter of the previous suit. In his statement seeking withdrawal in the previous suit he has not mentioned even a word in regard to his claim of ownership of the suit property despite their being a clear finding against him.

31. Even otherwise defendants have placed on record number of documents i.e. sale deeds, agreement to sell, revenue records in regard to suit land. No relief qua the existing documents of title in favour of the defendants has been sought by the plaintiff despite that the said documents were well within the knowledge of plaintiff as the same had been referred by the defendant in their written statement filed in the earlier suit.

32. The suit of the plaintiff is hence also barred by the provisions of order 23 CPC. In view of my above findings both the issue no.3 and issue no.9 are decided against the plaintiff and in favour of the defendant. Accordingly, the issue no.1 also stands disposed off against the plaintiff.”

17. The aforenoted judgment was assailed by way of an appeal preferred by the appellants/plaintiffs and the first Appellate Court vide judgment dated 04.05.2009 reversed the findings rendered by the Trial Court and held that it had incorrectly relied on the findings of an earlier withdrawn suit. It was also held that the appellant/plaintiffs’ possession of the disputed property was supported by credible testimonies and land records, while the claims by the respondents/defendants were unsubstantiated.

18. Thereafter, the case was remanded back to the first Appellate Court by this Court in a second appeal as noted earlier.

19. The first Appellate Court, while reappreciating the evidence after remittal has held that the execution and registration of the sale deed dated 21.10.1937, registered on 27.10.1937, were duly proved through the production of the original registration record by the Department of Archives. The certified copy of the sale deed, Ex. DW1/1, along with the attached site plan, Ex. DW1/2 and Ex. DW1/2A, clearly indicated the inclusion of plots 49 to 60, totalling 2195 sq. yds., as part of Khasra No. 807. The Court noted that the sale deed reflected proper execution, registration, and payment of stamp duty, thereby serving the purpose of public notice regarding the transfer of land. It was further established that the plots, including the disputed plots 50 to 53, were transferred either in full or partially as detailed in the site plan, which was an integral part of the registration record.

20. The Court held that the objections raised regarding the validity of the sale deed lacked merit as the original registration record corroborated its execution and registration. The Court rejected the argument that the presumption of genuineness could not apply to the certified copy, emphasizing that the original registration record had been duly summoned and verified. Furthermore, the Court observed that the undivided ownership of the land by Umrao Singh and Bharat Singh allowed the transfer of the plots within their respective shares. The subsequent mutations and sales, including the transactions relating to plots 50 to 53, were upheld as valid, with the site plan confirming the extent of the transfer. The Court recorded a finding to the effect that the transfer of plot numbers 50 to 53 through the sale deed dated 21.10.1937 completely divested Umrao Singh of any right, title, or interest in the land covered by the sale deed, and consequently, the ownership claims of his lineal descendants, including the original plaintiff and the appellants/plaintiffs herein, lack merit and cannot be sustained.

21. The Court concluded that the sale deed dated 21.10.1937 validly transferred the land specified in the deed to Sh. Pran Nath Sarvaria. Subsequently, he transferred a portion of this land, specifically plots 50 to 54, to Sh. Mool Singh Arora through a sale deed dated 08.02.1938. Thereafter, Smt Shakuntala Arora, the widow of Sh. Mool Singh Arora, via two sale deeds dated 04.12.1963 and an agreement to sell dated 12.01.1983, sold the plots in question to Smt. Shakuntala Devi, the wife of original defendant namely, Sh. Hari Kishan Lal, predecessor of respondents/defendants herein.

22. It is seen that since the other issues which were decided had a direct bearing on the issue framed by this Court while remitting the matter to the Appellate Court, the first Appellate Court found that the additional issue framed by the High Court was in favour of the respondents/defendants and, therefore, the decision on other earlier decided issues stood merged and, the suit filed by the appellants/plaintiffs came to be dismissed. The findings rendered by the first Appellate Court read as under:- “It is accordingly held that appellant is not the owner of suit property no. 50 to 53 and can have no right, title or interest In the same. In view of finding on the said additional issue, no claim can be raised by the appellant. In respect of plot no. 51 to 53 Shakuntala Devi wife of respondent will be owner by virtue of sale deed and no injunction can be sought against her family members for seeking possession of those plots or for seeking injunction in respect of those plots. Even if objection is raised as to the imperfect title or no title in respect of plot no, 50 as there is agreement to sell only, protection of Section 53-A of Transfer of Property Act will be available. The agreement to sell though is not a document of title but is indicative of right and interest of the purchaser i.e. Shakauntala Devi wife of defendant through Shakuntala Devi widow of Mool Singh and it is being dated 12.01.1973 i.e. prior to the amendment in the year 2002 in the Registration act and the Transfer of Property Act will be admissible in evidence for the protection of part performance u/s 53A of Transfer of Property Act and the possession of purchaser in the plot no. 50 cannot be said to be of a trespasser, in any case appellant having no right, title or interest in the suit plots no, 50 to 53, any injunction or possession for the same can not be granted. Any mutation entry at a later stage in the aforesaid background or any Ration Card pertaining to plot no, 50 in favour of appellant or his family members for the same reason of having no title cannot create any right or interest in the plot in question. As the file was remanded by Hon'ble High Court for returning finding only on the issue framed by the Hon'ble High Court, there is no occasion for touching upon any other issue except to the extent finding on the issue framed by Hon'ble High Court has bearing in Its effect on any other issue As finding on the issue framed by the Hon’ble High Court given above has its effect and bearing upon Issue no. 01 and relief to be granted, same may be taken as modified by virtue of the effect of the finding on the issue framed by Hon'ble High Court. Counsel for the parties had consented for framing of this issue knowing fully well that It Is this Issue which will be determinative of the title claim of the respective parties on the plot no. 50-53. This will determine whether Umrao Singh transferred these plots to Sh. P. N. Sarvaria continued to retain these plots as it is through the sale deed dated 21.10.1937 registered on 27,10.1937 that P. N. Sarvaria had claimed the land and plots of which plot no. 50 to 53 are part and It is on the basis of the said sale deed that Mool Singh got his right In plot no. 50 to 53 by way of sale deed and from the widow of Mool Singh, wife of defendant got her title, right and interest in plot no. 50 to 53 by way of sale deeds and agreement to sell. Suit of the appellant is accordingly dismissed.”

23. On the edifice of the aforesaid delineation of the impugned judgment and submission made by learned counsel for the parties, it is seen that the respondents/defendants, albeit did not produce the original sale deed, yet the first Appellate Court has correctly found that the execution and registration of the sale deed dated 21.10.1937 were duly proved through the production of the original registration records in Additional Book No. 1, Volume NO. 1931, and the certified copy was also exhibited as Ex. DW1/1.

24. The thrust of the challenge preferred by the appellants/plaintiffs against the impugned judgment rests upon the averment that the sale deed dated 21.10.1937 could not be taken as proved due to the non-production of the original sale deed. It is noted that the aforesaid objection was also raised before the first Appellate Court and the same was dismissed in light of the summons to the Department of Archives who presented the original registration records.

25. Moreover, the objection regarding the lack of presumption of genuineness for certified copies of documents older than 30 years was also raised before the first Appellate Court and the same was dismissed in view of Section 90 of the Indian Evidence Act,1872.

26. More importantly, it is seen by the findings of fact rendered by the first Appellate Court that the sale deed dated 21.10.1937, along with the site plan (Ex. DW1/2 and Ex. DW1/2A, respectively), clearly established the transfer of plot nos. 49 to 55 and 56 to 60, as part of Khasra No. 807, to Sh. Pran Nath Sarvaria who was the predecessor in the interest of the

27. Thereafter, the Court dismissed the appellants/plaintiffs claims, confirming that the sale deed dated 21.10.1937 validly transferred the land, including plot no. 50 to 53, to Sh. Pran Nath Sarvaria, and subsequently, through further transactions, to Smt. Shakuntala Devi, wife of original defendant represented through legal representatives who are respondents/defendants herein.

28. Therefore, in the instant case, it is seen that the first Appellate Court has given a categorical finding of fact with respect to the right, title, and interest of the appellants/plaintiffs in the suit property. It also has been correctly held that with respect to Plot Nos. 51 to 53, Shakuntala Devi, wife of original defendant, is the rightful owner by virtue of the sale deed, and no injunction could be issued against her or her family members regarding possession of these plots or restraining their use thereof.

29. With respect to the proposed question of law based on a claim of adverse possession by the appellants/plaintiffs, it is seen that no evidence to that effect has been led by them before the Courts below, nor has any Court given any finding to that aspect.

30. Be that as it may, since the instant appeal only raises questions of fact and the same not being amenable to Section 100 of CPC, the appeal is bound to fail.

31. It is trite law that in second appellate proceedings, the Court refrains from interfering with the impugned judgment solely on the basis of erroneous findings of fact, irrespective of how manifest or egregious such errors may appear. It is imperative to underscore that the 1976 amendment to Section 100 of the Code of Civil Procedure (CPC) has significantly circumscribed the powers of the second appellate Court. Therefore, the ambit of a second appeal under Section 100 CPC is now strictly confined to matters where such a question of law is not only present but is also demonstrably substantial in nature. Post-amendment, the maintainability of a second appeal is contingent upon the existence of a substantial question of law.

32. In view of the aforesaid, no proposed substantial question of law arises in the instant case.

33. Accordingly, the instant appeal along with the pending application stands dismissed. No order as to cost.

(PURUSHAINDRA KUMAR KAURAV) JUDGE 28, JANUARY, 2025 p/mjo