Gurbachan Singh (Dead) v. Gurcharan Singh (Dead)

1. The present appeals stand filed against a judgment rendered by the Punjab and Haryana High Court in Civil Regular Second Appeal number 283 of 1984 dated 18th February, and in RA­RS­42­C of 2010 and Civil Misc. No.6287­C of 2010 dated 28th May, 2010 by which the court in such jurisdiction set aside the concurrent findings returned by the Additional District Judge, Jalandhar in Civil Appeal No.248 of

1 Hereinafter referred to as “Impugned Judgment” 1981 dated 1st August, 1981 and by the Sub­Judge 1st Class, Jullundur ( now Jalandhar ) in Civil Suit No.186 of 1981 dated 24th September, 1981.

2. The crux of these appeals lies in a property dispute wherein one of the two brothers namely, Faqir Singh had allegedly sold off the portion of property belonging to him that his brother Gurbachan Singh and he inherited from their father namely Suchet Singh who died intestate in the year 1942. Gurcharan Singh (Respondent herein/plaintiff) bought a piece of land belonging to Faqir Singh measuring 4 marlas vide sale deed dated 19th December, 1978[2] for a consideration of ₹ 6000. Thereafter, he was put in possession of such land however, it was forcibly taken by the Appellant Gurbachan Singh who stated that since Faqir Singh did not have any exclusive title or possession over the suit property, he could not purport to sell the same.

3. The Respondent (Gurcharan Singh) filed a suit for possession over such disputed property before the Sub­ Judge 1st Class, Jullundur ( now Jalandhar ), who, having considered the evidence led, framed certain issues and

2 Hereinafter referred to as “disputed property” returned findings in favour of the Appellant (Gurbachan Singh) herein. On 1st appeal, the learned Additional District Judge upheld the judgement rendered by the court below on two grounds viz. that there is no document on record to prove that the disputed property had been given to Faqir Singh in a family partition; and that if Suchet Singh had indeed affected partition 50 or 60 years ago, then there should have been an entry in the revenue record to that effect, however, no such entry is to be found. Impugned Judgement

4. The learned single Judge framed the following questions of law (not substantial questions of law) for his consideration­ whether the findings recorded by both the courts below by relying upon cogent evidence in the shape of admissions made by witnesses of the Respondents, can be termed to be perverse given the set of circumstances or not? And, whether a person, who is concededly the owner on the basis of valid the executed sale deed and having become co­sharer by virtue of the same, is entitled to protect his possession, if it is established that he is in settled possession of a specific area or not?

5. Referring to the testimonies of DW­1, DW­3 and DW­4 the learned judge noted a categorical admission that Suchet Singh had partitioned the property during his lifetime. It was also noticed that the abovenamed witnesses testified to the Respondents herein having carried out construction on the property purchased by him, the implication thereof being that after the execution of the sale deed, possession also rested with him. In view of the said facts the judge held that the judgements of the courts below were result of “complete misreading of the evidence” and that the Appellant was entitled to the possession of the specific portion sold to him, thereby setting aside the concurrent findings of the courts below. The Instant Appeals

6. The judgement rendered in the regular 2nd appeal has been impugned before us on the ground that the High Court has transgressed the scope of second appeal; that the purchaser of a co­share does not have a right to possession [this ground is urged on the basis of 3 judgement rendered by this court in Jai Singh v. Gurmej Singh[3], Ramdas v. Sitabai 4 and Shyam Sunder v. Ram Kumar[5] ] and, that the High Court had erred in its appreciation of evidence, particularly on the aspects of possession, the disputed property being an integral part of the Appellant herein’s house and that of the Respondents herein having raised construction on the disputed property. Our View

7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala[6] ( 2­ Judge Bench), it was observed:­

“27. In HeroVinoth v. Seshammal [HeroVinoth v. S eshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow: (SCC p. 554, para 21) “21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law”, means— of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with—technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31: (1927­28) 55 IA 235: AIR 1928 PC 172] the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100: AIR 1951 Mad 969]: (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5) ‘5. … when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.’

28. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.” (Emphasis supplied)

8. However, the formulation or lack thereof of the Court having framed substantial questions of law is not one of relevance to the instant dispute and therefore does not come to the aid of the Appellant herein. This case arises out of a dispute in Punjab and therefore, the rigors of section 100 do not apply. It has been held by this court that in appeals arising out of the state of Punjab or the State of Haryana, courts are not required to frame substantial questions of law as per section 100 of CPC.

9. The Constitution bench in Pankajakshi (Dead) through LRs v. Chandrika[7] had held Kulwant Kaur v. Gurdial Singh Mann[8] which held section 41 of the Punjab Courts Act, 1918 to be repugnant to section 100, CPC to be bad in law, thereby implying that section 41 of the Punjab Court Act holds as good law. It was held as under:­