Sivankutty v. Harinder Kaur

16. Additionally, the appellant contends that he has perfected his title by adverse possession under Article 65 of the Limitation Act, 1963, which precludes any suit for possession filed more than twelve years after his possession became adverse to the claim of the respondent. Learned counsel for the appellant concludes by submitting that, if his ownership claim is dismissed, he is entitled to protection as a tenant, having paid a last known rent of Rs. 270/- per month. He contends that the Delhi Rent Control Act, 1958 applies, ousting the jurisdiction of the Civil Court, as his tenancy rights under the Delhi Rent Control Act, 1958 supersede the civil proceedings for possession. - 8 -

17. Mr. Avtar Singh, learned counsel appearing for the respondent vehemently opposes the submissions. He contends that the appeal seeks to re-litigate issues already adjudicated by the Trial Court and the first Appellate Court and argues that no substantial question of law arises, warranting its dismissal.

18. He submits that the appellant has failed to provide credible evidence or witnesses to prove that the mother of the respondent was aware of his alleged possession of the suit property since 29.09.1995. He contends that the appellant did not demonstrate possession that was hostile, open, and continuous, nor provide supporting evidence such as utility bills or other records to establish continuous occupancy. He further argues that reliance on FIR No. 297/13 is misplaced, as it merely references the alleged creation of documents on 29.09.1995 and does not substantiate the claim of the appellant.

19. Learned counsel for the respondent argues that the ownership claim of the appellant, based on documents allegedly executed by the father, is baseless as he was not the registered owner and lacked the authority to transfer such title. The title of the respondent, derived from the Sale Deed dated 10.07.1952, is supported by unchallenged testimonies of PW-3 to PW-5 and affirmed by the High Court in Vijayan v. Harinder Kaur[1]. The failure on behalf of the appellant to produce the original documents purporting to the transfer of the suit property or explain these omissions, further undermines the claims claim of the appellants.

20. Learned counsel argues that the plea of a benami transaction is unsustainable, as only the father of the respondent could have raised it,

- 9 if he was alive. The respondent maintains that the title documents have always been with her mother, who paid the sale consideration, and the appellant has provided no evidence to show otherwise.

21. Learned counsel submits that the authenticity of the possession letter dated 29.09.1995 was not conclusively verified by the CFSL, unlike the rent receipt of the same date. He further contends that the appellant admitted during cross-examination that properties 195 and 195A refer to the same property and thus, cannot take the same defence in an appeal.

22. He submits that during cross-examination, the appellant acknowledged the Sale Deed dated 10.07.1952 in favor of the respondent’s mother and admitted that the suit property was transferred to the respondent in 2006 therefore, the appellant is estopped from disputing her ownership under Section 115 of the Indian Evidence Act, 1872.

23. I have heard the arguments advanced by the learned counsel for the parties and have meticulously perused the record. Discussion

24. From the record, it is seen that the present Regular Second Appeal has been preferred by the appellant challenging the judgments of the Trial Court and the first Appellate Court, both of which decreed the suit in favour of the respondent, granting her possession and mesne profits in respect of the suit property at 195, Gautam Nagar, New Delhi, while dismissing the appellant's counter-claim of adverse possession, title, and allegations of a benami transaction.

25. From the record and the submissions advanced, it is seen that the following matrix of the relation of the parties emerges:- - 10 -

26. Upon consideration of the submissions advanced by both the parties, the Court is of the considered opinion that the grounds raised by the appellant are primarily centered around the veracity of certain documents purportedly executed by the father of the respondent in favour of the appellant, alongside allegations of a benami transaction. It is observed that the appellant has raised issues concerning the authenticity of documents, the nature of the transaction between the father and mother of the respondent, the question of adverse possession, and alleged procedural defects related to valuation and court fees.

27. However, it is seen that none of these grounds raise a substantial question of law. The issues of authenticity of certain documents, allegations of forgery, and claims of a benami transaction involve factual determinations and assessments of evidentiary material, that were thoroughly examined by the Courts below. Both the Trial Court and the first Appellate Court have exhaustively analyzed the evidence, including testimonies and documentary proof, and arrived at consistent conclusions dismissing the claims of the appellant. Surinder Kaur [Registered Owner vide sale deed, 1952] Mr. Amar Singh [ Alleged to be benami owner] Harinder Kaur [Daughter] Acquired suit property vide Gift Deed, 2006. Sh. Sivankutty [ Inducted as Tenant in 1974] Alleged Sale Documents, Executed by Amar Singh, 1995. - 11 -

28. The plea of benami transaction is unsustainable as for a benami transaction defence to be valid, the appellant would be required to prove the following:a. Who held the title document; b. Who paid the sale consideration; c. The surrounding circumstances of the transaction; d. The motive behind the transaction.

29. This Court, in Deept Sarup Agarwal v. S. Randhir Singh Chandhok[2], has observed that the question of whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by various circumstances delineated as under:-

- 12 initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, it any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.”

30. The legal nature of the material documents, such as the sale deed in question, is admitted. The contention of the appellant with respect to the value of the suit property, the alleged benami nature of the transaction essentially pertains to the factual contents of the documents and not to the legal nature of the documents.

31. Furthermore, considering the plea of adverse possession, it is pertinent to point out that in the case of Chatti Konati Rao v. Palle Venkata Subba Rao[3], the Supreme Court took a view that mere possession of any land or property does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. It was further held that the person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed.

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32. While shedding light on the two-fold requirements so as to sustain the claim of adverse possession, the Supreme Court in the case of Annakili v. A. Vedanayagam[4] has held as under:-

33. In the decision of the Supreme Court in the case titled as M Siddiq (D) through LRs v. Mahant Suresh Das[5], the requirements which were needed to be met to successfully set up a plea of adverse possession i.e., the same being peaceful, open and continuous, were held to be duly established firstly, by adequate pleadings and secondly, by leading sufficient evidence. The relevant paragraph of the said decision reads as under:-

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34. While extensively dealing with the law on adverse possession, the Supreme Court in the case of P.T. Munichikkanna Reddy v. Revamma[6] has held as under:- “5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird [100 So 2d 57 (Fla 1958)]; Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085: 303 SW 2d 569 (1957)]; Monnot v. Murphy [207 NY 240: 100 NE 742 (1913)]; City of Rock Springs v. Sturm [39 Wyo 494: 273 P 908: 97 ALR 1 (1929)].)

6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim. ***

8. Therefore, to assess a claim of adverse possession, twopronged enquiry is required:

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1. Application of limitation provision thereby jurisprudentially “wilful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.

9. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard.”

35. The Supreme Court in Parwatabai v. Sonabai[7], stressed upon the condition that one has to also establish the exact date from which adverse possession started. Paragraph no.5 of the said decision reads as under:-

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36. In Karnataka Board of Wakf (supra), while succinctly encapsulating the essentials required to be fulfilled so as to claim a property on the ground of adverse possession, the Supreme Court in paragraph no.11 has held as under:- “11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254], Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567].) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128].]”

37. A conspectus of the aforesaid discussion would, in no uncertain terms, evince that the plea of adverse possession puts an onerous condition on the claimant to demonstrate that the possession of the - 17 property in question is peaceful, open and continuous. Mere possession of a property for a long term without proving the same with cogent evidence to be hostile against the true owner, would not itself divest the rightful owner from his claim over the property. The claimants are legally bound to precisely establish the commencement and continuity of possession i.e., the exact date from which the possession became hostile and adverse to the true owner. In addition to the proof of actual possession, the claimant must also demonstrate a clear intention to possess the property in hostility with the title of the true owner and that too, for a period of at least twelve years. The conditions associated with a claim of adverse possession are to be fulfilled with complete certainty. For, the ultimate effect of the claim is to deny title to the true owner by operation of law by curbing his right to approach the Court beyond the prescribed limitation.

38. In the present case, the plea of adverse possession was not supported by the cogent evidence on record. During crossexamination, the appellant admitted to not notifying the mother, the registered owner, about the alleged purchase from the father of the respondent. In cross-examination, the mother of the respondent testified that she became aware of the claim only on 12.08.2011, negating any assertion of adverse possession since 1995. Therefore, the appellant has failed to provide credible evidence or witnesses to prove that the mother of the respondent was aware of his alleged possession of the suit property since 29.09.1995 and thus, the appellant was unable to prove that the possession of the appellant was hostile, open and continuous.

39. Under Section 100 of CPC, a Regular Second Appeal is maintainable only on a substantial question of law, and this Court does - 18 not sit as a forum for re-evaluation of facts or re-assessment of evidence that has already been scrutinized by two concurrent findings of fact. Thus, it is imperative for the appellant to first cross the hurdle of maintainability of the present appeal before delving into the factual controversy. The ambit of a substantial question of law has been elaborated by the Supreme Court in the case of Boodireddy Chandraiah v. Arigela Laxmi[8], which warrants an informed discussion for proper appreciation of the case. The Court first observed that the scope of a second appeal is only limited to consideration of a substantial question of law and such question must be duly formulated in the memorandum of appeal. Even if not so formulated, the High Court must first satisfy itself regarding the existence of a substantial question and must hear the appeal only on the question so formulated. The relevant part reads as under:-

40. The Court then deprecated the practice of entertaining a second appeal without insisting upon the formulation of substantial questions of law. It equally emphasized upon the distinction between a question

- 19 of law and a substantial question of law in light of the scope of a second appeal. Pertinently, by relying upon the decision of the Supreme Court in Chunilal V. Mehta and Sons v. Century Spg. & Mfg. Co. Ltd.9, the Court laid down the test for determining whether a question could be termed as a substantial question of law. The relevant part reads thus:-

18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first Appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. [AIR 1962 SC 1314] held that: (AIR p. 1318, para 6) „6. … 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 discussion of alternative views. If the question is settled by the highest court or the general AIR 1962 SC 1314 - 20 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.‟

41. The Court further observed that in case two inferences are possible on appreciation of the material on record, it would not be a sufficient reason to disturb the inference adopted by the first Appellate Court, and interference shall be justified only when the conclusion drawn by the first Appellate Court could be held as erroneous, contrary to legal provisions or law settled by the Supreme Court or based upon inadmissible evidence. The relevant paras read thus:-

19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first Appellate Court has assumed jurisdiction which did not - 21 vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first Appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [(1976) 1 SCC 803] held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference. (See Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722].)

42. Thereafter, the Court elaborately examined the scope of the phrase ‘substantial question of law’ and observed that in order for a question to be substantial, it must be debatable, unsettled and directly material to the case at hand so as to affect the outcome of the case one way or the other. Further, the question being raised must have a foundation in the pleadings and must emanate from the substantial factual findings of the first Appellate Court. Put otherwise, a question cannot be raised out of thin air in a second appeal, without any foundation in the pleadings, in order to fulfil the criteria of the second appeal.

43. The Court then summarized the principles associated with Section 100 CPC and also laid down the scope of interference in concurrent findings of the Court of first instance and the first Appellate Court, in the following terms:-

24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A - 22 question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where

(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to „decision based on no evidence‟, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” [Hero Vinoth v. Seshammal, (2006) 5 SCC 545 at pp. 552-56, paras 17-24.]”

44. The foregoing discussion reveals that an onerous burden is cast upon the appellant in a second appeal under Section 100 CPC. The existence of a substantial question of law is a sine qua non for entertaining a second appeal. Moreover, such a question must meet the threshold of a ‘substantial‟ question in accordance with the criteria set out above.

45. The Supreme Court, in Kiran Singh v. Chaman Paswan10, held that the Code of Civil Procedure does not vest a Court of second appeal with the jurisdiction to reexamine questions of fact upon which findings have been recorded by the Courts below. It further observed

- 23 that such findings, even if erroneous, cannot be reversed merely on the grounds of overvaluation or undervaluation, unless it can be demonstrably shown that the error was a direct consequence of such overvaluation or undervaluation. The relevant extract reads as under:- “14. That brings us to the question as to what is meant by “prejudice” in Section 11 of the Suits Valuation Act. Does it include errors in findings on questions of fact in issue between the parties? If it does, then it will be obligatory on the court hearing the second appeal to examine the evidence in full and decide whether the conclusions reached by the lower appellate court are right. If it agrees with those findings, then it will affirm the judgment; if it does not, it will reverse it. That means that the court of second appeal is virtually in the position of a court of first appeal. The language of Section 11 of the Suits Valuation Act is plainly against such a view. It provides that overvaluation or undervaluation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to overvaluation or undervaluation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by overvaluation or undervaluation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section. It must further be noted that there is no provision in the Civil Procedure Code, which authorises a court of second appeal to go into questions of fact on which the lower appellate court has recorded findings and to reverse them. Section 103 was relied on in Ramdeo v. Raj Narain [Ramdeo v. Raj Narain, 1948 SCC OnLine Pat 91: ILR (1948) 27 Pat 1091: AIR 1949 Pat 278] as conferring such a power. But that section applies only when the lower appellate court has failed to record a finding on any issue, or when there had been irregularities or defects such as fall under Section 100 CPC. If these conditions exist, the judgment under appeal is liable to be set aside in the exercise of the normal powers of a court of second appeal without resort to Section 11 of the Suits Valuation Act. If they do not exist, there is no other power under the Civil Procedure Code authorising the court of second appeal to set aside findings of fact and to re-hear the appeal itself on those questions. We must accordingly hold that an appellate court has no power under Section 11 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate court are correct, and that error in those findings cannot be held to be prejudice within the meaning of that section.” - 24 -

46. Furthermore, in addition to the failure of the appellant to meet the threshold of raising any substantial question of law, it is equally important to note that the findings rendered by both the Courts below are at ad-idem. A Court of the second appeal, normally, would not interfere in the impugned judgment on the ground of erroneous findings of fact, however, gross or inexcusable the error may seem to be11. It is pertinent to point out that post the 1976 amendment, the scope of the second appeal under Section 100 CPC was further curtailed and only in cases wherein the substantial questions of law arise, a second appeal is permissible, as discussed above. The rigors of Section 100 CPC become more stringent when the second appeal is filed assailing the concurrent findings of the Courts below, as in the case at hand. In Bholaram v. Amirchand12, the second Appellate Court set aside the impugned judgment on the ground that the findings are perverse and in disregard to the material available on record. However, the Supreme Court while setting aside the High Court judgment held that, even if we accept the rationale of the High Court, at best it could be termed as error in findings of fact but that itself would not entitle the High Court to interfere in the absence of a clear error of law. As seen from the decision in the case of Thiagarajan v. Sri Venugopalaswamy B. Koil13, the Supreme Court has observed that where the findings of facts by the lower Appellate Court are based on evidence, the second Appellate Court cannot ouster such finding and substitute it with its own finding on re-appreciation of evidence merely on the ground that another view was possible. Ramtran Shukul v. Mussumat Nandu (1892) 19 Cal 249 (252) (PC).

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47. Interference in the concurrent findings of the fact is permitted but only in exceptional circumstances, such as erroneous application of law, casting wrong burden of proof, incorrect inference based on misapplication of law etc. As a second appeal is not the third trial on facts and the first Appellate Court is final arbiter of facts, this interference by the second Appellate Court is rarity rather than regularity. In Jai Singh v. Shakuntala 14, the Supreme Court held that it is permissible to interfere even on questions of fact but it has to be done only in exceptional circumstances. The Court observed as under:-

48. Therefore, as the issues raised fall entirely within the domain of factual inquiry and verification of documents, this Court finds no merit in the present appeal. The questions formulated by the appellant fail to meet the threshold of substantial questions of law and do not merit interference. The appeal, thus, stands dismissed, along with the pending application(s).

JUDGE DECEMBER 09, 2024/MJ/sd