Premwati And Others v. Mihilal Sharma And Another

Neutral Citation No. - 2024:AHC:196275

Reserved on 05.12.2024 Delivered on 16.12.2024 Court No. - 36

Case :- SECOND APPEAL No. - 2565 of 1984

Appellant :- Premwati And Others

Respondent :- Mihilal Sharma And Another

Counsel for Appellant :- T.S. Dabas,Arpit Agarwal,Jitendra Kumar Yadav

Counsel for Respondent :- Murlidhar,A.K. Sharma,Bhanu Bhushan Jauhari,K.K. Lal,S.Agarwal,Subodh Kumar,V.S. Kushwaha

Hon'ble Kshitij Shailendra,J. In Re:- Civil Misc. (Setting Aside Abatement) Application No.18 of 2023

1. In view of the consensus arrived at between the learned counsel for the parties on previous dates of hearing, as noted in the orders passed earlier, the instant application is allowed.

2. Abatement of appeal, if any, stands set aside.

In Re:- Delay Condonation Application No.19 of 2023

1. In view of the consensus arrived at between the learned counsel for the parties on previous dates of hearing, as noted in the orders passed earlier, the application is allowed.

2. The delay in filing substitution application as well as application for setting aside abatement is hereby condoned.

1 of 18

In Re:- Substitution Application No.20 of 2023

1. This application has been filed with a prayer to substitute heirs/ legal representatives of deceased respondent no.1, who died on 20.11.2016 pending appeal.

2. In view of the consensus arrived at between the learned counsel for the parties on previous dates of hearing, as noted in the orders passed earlier, the substitution application is allowed.

3. Office is directed to carry out necessary substitution in the array of parties before issuing any certified copy as the appeal itself is being finally decided today.

In Re:- Civil Misc. (Name Deletion) Application No.21 of 2023

1. By means of this application, a prayer has been made to make an entry of death of appellant no.1 with a further remark that her heirs/ legal representatives are already on record as appellants No.2 and 3.

2. The application is allowed.

3. Office is directed to carry out necessary correction in the array of parties before issuing any certified copy as the appeal itself is being finally decided today.

In Re:- Recall Application No.17 of 2022

1. By means of this application, a prayer to recall the order dated 11.04.2022 has been made. On the said date, the appeal was dismissed as abated.

2. In view of consensus arrived at between the learned counsel for the parties, as noted in the orders passed today on Applications No.18 of 2023, 19 of 2023 and 20 of 2023, the instant application is allowed.

2 of 18

3. The order dated 11.04.2022 passed by this Court dismissing the appeal as abated is hereby recalled.

4. The appeal is restored to its original number and status.

Order on Appeal

1. Heard Sri Arpit Agarwal, learned counsel for the defendant- appellants and Sri Bhanu Bhushan Jauhari, learned counsel for the plaintiff-respondent and perused the record.

2. Two sale deeds of different dates but registered on the same day, both executed by same vendor but in favour of contesting parties, have given rise to the instant appeal, that has been filed by the defendants of Original Suit No.224 of 1982 challenging the judgment dated 25.08.1984 and decree dated 01.09.1984 whereby learned Additional District Judge, 5^th, Bareilly has allowed Civil Appeal No.229 of 1983 setting aside the trial court's judgment dated 31.10.1983 and, consequently, decreed the suit for cancellation of the sale deed executed by the defendant no.1 in favour of the defendants no.2 to 4.

Plaint case

3. Admittedly, one Shyam Deo Sharma (in short S.D.S.) was owner of a land bearing plot No.389M, area 4 bigha, 19 biswa and 15 biswansi pukhta, situated in Village and Pargana Bahuddinpur Sanna, Tehsil Aonla, District Bareilly. He executed two sale deeds, one dated 23.11.1981 (hereinafter referred to as the 'first sale deed') in favour of the plaintiff Mihi Lal Sharma (in short M.L.S.) and the other in favour of the defendants no.2, 3 and 4, namely, Smt. Premwati, Uma Shanker and Prem Shanker Sharma on 25.11.1981 (hereinafter referred to as the 'second sale deed'), there being a difference of only two days in between execution of two sale deeds. Whereas, the first sale deed was

3 of 18

presented for registration before the Sub-Registrar on 02.12.1981, the second sale deed was presented on 25.11.1981. Interestingly, both the sale deeds were registered on the same day on 28.12.1981. The plaintiff challenged the second sale deed on the ground that the vendor S.D.S. had agreed to sell the property to the plaintiff by executing a registered agreement for sale dated 25.07.1981, he appointed one Vijay Pal Singh (in short V.P.S.) as his attorney by executing a registered power of attorney dated 06.11.1981, issued a notice dated 09.11.1981 to the plaintiff to get the sale deed executed through attorney V.P.S. and, thereafter, himself executed first sale deed on 23.11.1981 in his favour. Later on, through mutation entry, the plaintiff came to know about execution of second sale deed in favour of the defendant-appellants and, therefore, the suit was filed seeking cancellation thereof on the ground that after executing the first sale deed, the vendor could not execute the second sale and such execution is a result of collusion as the defendants are real brothers and sisters inter se and are closely related to the vendor and were having full knowledge of the transaction between the plaintiff and the vendor.

Defence

4. Whereas, the vendor of both sale deeds, namely, S.D.S., neither filed written statement nor was produced as a witness from either side, the defendants no.2, 3 and 4, i.e. the vendees of second sale deed, contested the suit taking pleas that the plaintiff had purchased litigation in collusion with the vendor being his close friend and agreed to sell the land in their favour on 30.12.1980 and had received advance money after signing a receipt the same day; agreement for sale executed in favour of the defendants is prior in time; the subsequent agreement for sale dated 25.07.1981 is collusive and fraudulent; vendor and his attorney V.P.S. were in full knowledge of

4 of 18

A.F.S. dated 30.12.1980 and, hence, the plaintiff has no case. Both the sale deeds as well as agreement for sale and power of attorney were brought on record and witnesses were produced by both sides to prove their case and defence.

Judgments of two courts

5. The trial court dismissed the suit holding that execution of the first sale deed could not be proved and the agreement for sale dated 30.12.1980 is prior in time in comparison to agreement for sale dated 25.07.1981. The first appellate court allowed the appeal setting aside the trial court's judgment and decreed the suit for cancellation of second sale deed recording findings on proof of due execution of the first sale deed and by applying Section 47 of the Registration Act, 1908 holding that both the documents having been registered on the same day, the registration would relate back to the date of execution and once the first sale deed was executed prior in time, the same would confer title upon the plaintiff.

Admission Order

6. The instant appeal was admitted by order dated 19.10.1984 on following substantial questions of law:-

"(a) Whether in view of failure to prove the execution part as also the consideration part of the sale deed dated 23.11.81 the plaintiff's suit could possibly be decreed for injunction and cancellation sale deed in the defendants' favour dated 25.11.81 ?

(b) Whether under the facts and circumstances of the case the defendants had established a prior agreement to sell in their favour dated 30.12.80 in pursuance whereof the deed had been executed in their favour ?

5 of 18

(c) Whether the defendants were bona fide purchasers for value without notice in view of the non-registration of the so called sale deed dated 23.11.1981 ?

(d) Whether the receipt evidencing agreement to sell dated 30.12.1980 was admissible as a piece of evidence ?

(e) Whether in view of the defendants' undisputed possession and the plaintiff's failure to prove the sale deed and prior agreement to sell in his favour the suit could be decreed in his favour ?"

Submissions on behalf of the defendant-appellants

7. Sri Aprit Agarwal, learned counsel for the appellants has vehemently argued that for applying Section 47 of the Registration Act, due execution of the sale deed is sine qua non and since it is established on record that the execution of first sale deed was not proved, the first appellate court has erred in decreeing the suit; plaintiff having not produced vendor S.D.S. as a witness to prove execution of first sale deed, adverse inference would be drawn against him; mere fact that the agreement for sale dated 30.12.1980 was an unregistered agreement, the suit not, being a suit for specific performance of the said agreement, the same could not be discarded from being read in evidence; the plaintiff's case is unbelievable as he relied upon a power of attorney executed by vendor in favour of V.P.S. on 06.11.1980, on which date stamp was purchased and both vendor and attorney were there and, hence, there was nothing to preclude the parties to execute a sale deed but it was not done for the reasons best known to the plaintiff; notice was issued by vendor on 09.11.1981 asking the plaintiff to get the sale deed executed from attorney V.P.S. but, later on, the vendor himself claims to have executed sale deed on 23.11.1981; execution of first sale deed on 23.11.1981 is a mere eye

6 of 18

wash and, in fact, the deed was prepared ante-dated after having come to know about the execution and registration of second sale deed in favour of the defendant-appellants; the plaintiff not being executant of the sale deed, in absence of suit for declaration under Section 34 of the Specific Relief Act, 1963, the suit for cancellation under Section 31 was not maintainable; the judgment in a declaratory suit being a judgment in personam and a judgment under Section 31 being a judgment in rem, since no declaration of title was sought by the plaintiff, suit was bound to fail on this ground alone. In support of his submissions, learned counsel has placed reliance upon certain authorities, relevant ones shall be referred at appropriate place.

Submissions on behalf of the plaintiff-respondent

8. Sri Bhanu Bhushan Jauhari, learned counsel for the plaintiff- respondent argued that the appellants have raised submissions contrary to and beyond their pleadings which cannot be allowed; the entire defence is based upon an agreement for sale dated 30.12.1980 which, being an unregistered document executed after 01.01.1977, has no legal sanctity or evidentiary value; due execution of first sale deed was proved as per the requirements of law; vendor S.D.S. being a relative of the appellants and being opponent of plaintiff in suit proceedings, his non-production would lead adverse inference against the defendants and not against the plaintiff; production of attesting witnesses to the sale deed is not the requirement of law under Section 68 of the Evidence Act which applies for Will; chain of events established due execution of first sale deed as it was preceded by execution of a registered agreement dated 25.07.1981, a registered power of attorney dated 06.11.1981 and notice dated 09.11.1981; suit was rightly filed seeking cancellation of the sale deed as it does not depend upon executant or non-executant but can be instituted by any

7 of 18

person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury; no declaration of rights was necessary or possible so long as second sale deed was existing and, hence, there was no requirement to institute a suit under Section 34 of the Act, agreement dated 30.12.1980 was shown to be executed in favour of two persons, namely, Premwati and Prem Shanker Sharma but sale deed was executed in favour of three persons, third one being Uma Shanker Sharma and, hence, the entire defence is hopeless; the first appellate court has rightly appreciated the pleadings of the parties and oral and documentary evidence on record and has given correct interpretation of Section 47 of the Registration Act and, therefore, no substantial question of law arises for consideration and the appeal deserves dismissal.

Answer to first question

9. The first question relates to due execution of the first sale deed. There is no dispute between the parties that date mentioned on the first sale deed is 23.11.1981 and it was executed by the same vendor who executed the second sale deed. It is also not in dispute that Section 47 of the Registration Act attaches statutory priority to the sale deed which is executed prior in time, irrespective of date of its registration. Therefore, to answer of first question, the Court has to see as to whether the first appellate court has rightly held the first sale deed as a duly executed document.

10. Admittedly, vendor S.D.S. neither filed written statement nor appeared as a witness from either side. Plaintiff himself appeared as PW-1. His complete oral testimony needs a mention. He stated that S.D.S. had executed an agreement for sale dated 25.07.1981 in his favour, S.D.S. signed the same before him, got it registered, a sum of

8 of 18

Rs.10,000/- was paid to him, the defendants no.2 to 4 are relatives of S.D.S. and were having full knowledge of the agreement and payment of money, S.D.S. executed sale deed in his favour on 01.11.1981 (it is relevant to mention that this date was subsequently clarified as 23.11.1981 at the last page of cross examination of PW-1, even otherwise, it would not make a difference as the date mentioned on the deed has to be seen which cannot change by oral testimony and even if 01.11.1981 is read, it would not benefit the defendant-appellants in either way. Hence, 23.11.1981 would be read as the date of execution of the first sale deed, irrespective of mentioning 01.11.1981 at one place in the examination-in-chief of PW-1); S.D.S. delivered possession to the plaintiff; certain receipts of payment made by the plaintiff were issued; the entire amount has been paid; receipts were not filed as it was not required nor Qatib thought it necessary to make a mention about the same in the sale deed; Rs.10,000/- was paid prior to agreement for sale and balance Rs.11,250/- was paid on 06.11.1981; since the plaintiff had instituted suit against S.D.S., he would not summon him; money was arranged by selling agricultural field for a sum of Rs.7,000/-, Rs.5,000/- was arranged from relatives and some amount was brought from the house; S.D.S. was in need of money as he had purchased a Metadoor truck; plaintiff came to know about the second sale deed after his sale deed was registered; S.D.S. was there on 23.11.1981 while executing the sale deed at about 5.00 PM; registration could not be done on that day as there was a lot of rush in the registry office; stamp was purchased on 06.11.1981; S.D.S. had agreed to come for registry next day but did not come and that possession of the property had already been delivered to him.

11. The entire thrust of learned counsel for the appellant is that the sale deed of 23.11.1981 was not executed nor was its execution duly

9 of 18

proved nor was the document marked as exhibit nor did the witness come up with statement that he had seen the vondor signing the sale deed in his presence and, further, merely because the deed contained a date as 23.11.1981, the same cannot be treated as date of execution of sale deed. Although, much emphasis was laid by learned counsel for the appellants that execution of sale deed was not proved in accordance with law, the Court does not find any force in the said submission. Reference to the judgment of this Court in Ram Kishore Vs. Ambika Prasad: 1966 AWR 57, as relied upon by learned counsel for the respondent, can be made here. This Court held that Section 68 of the Evidence would apply only to the documents which are required by law to be attested by witnesses such as Wills but would not apply to the sale deed. Further, the Supreme Court, in Hans Raji Vs. Yosodanand: (1996) 7 SCC 122, while dealing with Section 68 of the Evidence Act, has held that sale deed never required any attestation and would not cover a transaction of sale. Therefore, merely because executant S.D.S. or any other witness, if any, to the first sale deed did not appear in witness box, the same, in itself, cannot discard the oral testimony of vendee-plaintiff (PW-1) who stated each and every relevant aspect regarding the events of execution of registered agreement for sale, exchange of money, making arrangement thereof, signing the sale deed by the vendor in the presence of vendee, date and timing of execution, reason for non- registration on that particular day and all other aspects that have already been mentioned above.

12. The Court is also not impressed by the submission of appellants as regards "adverse inference" as vendor S.D.S. was an opponent and his interest was adverse to the plaintiff in the litigation. It was not expected from the plaintiff to produce him nor were his whereabouts

10 of 18

known to anyone. Contrarily, it has come in the oral testimony of DW-

1 Prem Shanker that sisters of vendor S.D.S. and vendee Prem Shanker had been married to his cousin brothers. Therefore, vendor was certainly a close relative of vendees of second sale deed and, hence, even if the principle of adverse inference recognized by Section 114 of the Evidence Act is invoked, the same would apply against the defendants as the evidence which could be, but not produced, would, if produced, be unfavourable to the defendants who were withholding the same (reference Section 114, Illustration (g) of the Evidence Act). Vendor could be produced by defendants to say that he had not signed or executed the first sale deed or that it is ante- dated, however, the same having not been done, the Court cannot presume that sale deed was not executed on 23.11.1981.

13. Since section 47 of the Registration Act is directly involved in this case, the same is quoted as under:-

"47. Time from which registered document operates.- A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."

14. The Supreme Court in Gurubax Singh Vs. Kartar Singh: AIR 2002 SC 959 has held that a document on the subsequent registration will take effect from time when it was executed and not from the time of its registration. Similar view has been taken by a Division Bench of this Court in Chaturbhuj Sharma Vs. Durga Dayal and others:

AIR 1976 Allahabad 7 (LB), the Supreme Court in Thakur Kishan Singh (Dead) Vs. Arvind Kumar: (1994) 6SCC 951 and this Court in Gausul Azam Vs. State of U.P. through Secretary Revenue, Lko and others: 2019 (143) RD 215.

11 of 18

15. On the applicability of Section 47 of the Registration Act, the proposition laid down in various authorities cited by the appellant himself goes to show that the sale deed executed prior in point of time would be given preference over the subsequent sale deed.

16. In view of the above discussion, this Court is satisfied that the first appellate court has not erred in recording finding in favour of due execution of the first sale deed. Accordingly, first question is answered in the manner that the first sale deed dated 23.11.1981 was proved as duly executed.

Answer to second question

17. It is based upon execution of a prior agreement for sale dated 30.12.1980. Admittedly, the said document was executed after 01.01.1977 by which time the requirement of compulsory registration had been brought into statute book by U.P. Act No.57 of 1976. There is no need to mention authorities on this aspect as the law is well settled that an unregistered agreement executed after 01.01.1977 in relation to immovable properties situated in State of U.P. is not readable in evidence. Irrespective of the fact that the suit was not for specific performance of the said agreement, it would not make a difference as far as admissibility/readability of the said document in the present case is concerned which does not depend upon nature of suit. The Court may notice that the defence is substantially based upon the agreement dated 30.12.1980 and emphasis of the defendants is that since vendor had agreed to sell the property in favour of the defendants much prior to the date when he executed a registered agreement dated 25.07.1981 in favour of the plaintiff, the Court cannot ignore the strength/weakness of the defence based upon an inadmissible document. Once the agreement dated 30.12.1980 cannot be read in evidence, it has to be discarded for all purposes and,

12 of 18

therefore, what remains to be decided in the case is due execution of the first sale deed and attending circumstances in relation thereto.

18. Accordingly, the second question is answered in the manner that the agreement dated 30.12.1980 being an unregistered document after coming into force of amendments incorporated in Registration Act by U.P. Act No.57 of 1976, the same could not confer any right upon the defendants so as to dislodge the claim for cancellation of the second sale deed.

Answer to third question

19. It relates to bona fide purchase for value without notice of the first sale deed. In fact, the question is not of much significance in the sense that even if it is established that the defendants were having no knowledge about the execution of first sale deed for want of its registration prior to 28.12.1981, the same would not make a difference as the main ground of challenge to the second sale deed is, in fact, correlated to Section 47 of the Registration Act and not mainly on the question of bona fide or mala fide purchase. The entire pleadings and evidence on record, when examined as a whole, would lead to a conclusion that even assuming the defendants had no knowledge of first sale deed, if due execution of the first sale deed is proved, knowledge or no knowledge about its execution would make no difference. The third question is answered accordingly.

Answer to fourth question

20. It mentions a wrong date, i.e. 30.12.1981 in relation to the receipt evidencing agreement to sell. In fact, the correct date is 30.12.1980. An attempt was made by the appellants to show that the said document is a receipt and not an agreement, however, the document is on record as paper no.28-Ka. By it, vendor had agreed to

13 of 18

sell the property in favour of two persons, namely, Premwati and Prem Shanker Sharma. The intention of parties reflects the nature of transaction as an agreement for sale and not a mere receipt and even defendants, at so many places in pleadings and oral statement, admitted that it was an agreement for sale. Contrary to it, the registered power of attorney dated 06.11.1981 executed by S.D.S. in favour of V.P.S. establishes execution of registered agreement dated 25.07.1981 in favour of the plaintiff and also that no other agreement was ever entered into qua sale of the property with anyone. The registered documents dated 25.07.1981 and 06.11.1981 followed by notice dated 09.11.1981 would supersede even the contents of the agreement dated 30.12.1980 and whatever is the effect of the document dated 30.12.1980 and even if it is stretched to the extent of reading it as a receipt, though it is an agreement in itself but unregistered one, it would not improve the defence either way. Fourth question is answered accordingly in the manner that the unregistered agreement dated 30.12.1980 was not an admissible piece of evidence and, even otherwise, does not confer any benefit upon the defendant- appellants.

21. The Court may observe here that the Supreme Court, in

Vidhyadhar Vs. Mankikrao and another: AIR 1999 SC 1441, has held that since definition of sale under Section 54 of the Evidence Act clarifies that sale can be made for price paid or promised or part paid and part promised, even if the whole of the price is not paid but the document is executed and thereafter registered, the sale would be complete. In the instant case, the vendor has not come forward to say that some part of sale consideration was not paid to him, rather evidence on record is contrary and proves complete payment by the plaintiff to the vendor S.D.S. Even if some amount is treated as not

14 of 18

paid, though it is not established, in view of the decision of Supreme Court in Vidhyadhar (supra), the sale would be treated as complete.

22. Sri Arpit Agarwal also argued that the suit was not maintainable under Section 31 of the Specific Relief Act and the appellant being non-executant to the sale deed, should have sought declaration under Section 34 and reliance was placed upon judgment of Supreme Court in Deccan Paper Mills Co. Ltd. Vs. Regency Mahavir Properties and others: (2021) 4 SCC 786, Suhrid Singh Vs. Randhir Singh:

(2010) 12 SCC 112, Anathula Sudhakar Vs P. Buchi Reddy (Dead) by LRs. And others: (2008) 4 SCC 594 and Shri Ram and others Vs. 1^st Additional District Judge and others: AIR 2001 SC 1250.

23. The Court is not inclined to accept the said arguments for multiple reasons. First, that no substantial question of law was framed in this regard and even if an oral prayer was made to frame a question of law to this effect, by virtue of provisions of Rule 2 of Order 42 read with proviso attached to sub-section (5) of Section 100 CPC, it is not open to the appellant to urge any other ground in the appeal without leave of the Court given in accordance with the provisions of Section 100 and such a leave can be granted for reasons to be recorded provided the Court is satisfied that the case involves such question. In the instant case, non-maintainability of the suit was never an issue or point for determination before the two courts below nor has such ground or question been raised in the memo of appeal or by any application. Therefore, the Court cannot hear the appeal on this new question which does not emerge from the record and is not satisfied that the case involves such question. Even otherwise, Section 31 applies for any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, to apply to get it

15 of 18

adjudged void or voidable. Section 31 does not speak of executant only and declaration under Section 34 in absence of a suit for getting the sale deed cancelled or adjudged void, would not lie.As far as the judgment in Suhrid Singh (supra) is concerned, the same had arisen out of State of Punjab dealing with the court fees issue and, with due regards, the same is not applicable in the facts of the case, particularly when no foundation is there to entertain the challenge made to the suit. Similarly, judgment in Anathula Sudhakar (supra) deals with a situation where claim for injunction as a consequential relief in a suit for declaration and/or possession was examined. The authority is not on the point of Section 31 of the Specific Relief Act. The judgment in

Shri Ram (supra) is on the issue as to whether a non-recorded tenure holder can sue for cancellation of a sale deed on the ground of fraud or impersonation. The same is clearly distinguishable in the facts of the present case where the question involved is regarding preference to be given to one of two sale deeds. As regards proof of sale deed, oral testimony of PW-1 is sufficient to hold that the sale deed was duly executed and no infirmity is found in the statement.

24. However, without making any further deliberation on this aspect, since the Court declines to hear the appeal on such question, it rejects the arguments advanced by the appellant on that line. The reason is that the Supreme Court in Panchugopal Barua and others Vs. Umesh Chandra Goswami and others: AIR 1997 SC 1041

condemned the approach of the High Court in deciding the matter on those questions and aspects which were not raised before the trial court and the first appellate court and held that clear intendment of the legislature in amending Section 100 CPC cannot be frustrated. The principle of law laid down is that a new case/new plea, not supported by pleadings or evidence on record, cannot be raised for the first time

16 of 18

in second appeal. Similar view was taken by the Supreme Court in

Govindaraju Vs. Mariamman: JT 2005 (2) SC 107.

25. The Supreme Court, in Krishnan Vs. Backiam and another:

2007 (9) SCR 901, has held that the first appellate court being last court of facts under Section 96 CPC, the High Court would not be justified in interfering with the findings of fact recorded by the first appellate court, provided they are not perverse. In the instant case, the findings recorded by the first appellate court are not found to be perverse at all.

26. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311, the Supreme Court came to the conclusion that the finding reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. In Thiagarajan v. Sri Venugopalaswamy B. Koil, (2004) 5 SCC 762, the Supreme Court has held that the High Court in its jurisdiction under Section 100 C.P.C. is not justified in interfering with the findings of fact and that it is the obligation of the courts of law to further clear intendment of the legislature and not frustrate it by excluding the same and where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.

27. Similar view has been taken in Kondiba Dagadu Kadam vs Savitribai Sopan Gujar and others, (1999) 3 SCC 722 by observing that disturbance in findings of fact would be contrary to limitations imposed by section 100 C.P.C. The Supreme Court again reminded in

Commissioner, Hindu Religious & Charitable Endowments vs. P. Shanmugama (2005) 9 SCC 232 that the High Court has no jurisdiction in second appeal to interfere with the findings of fact. The

17 of 18

Apex Court, in State of Kerala v. Mohd. Kunhi (2005) 10 SCC 139

reiterated the same principle by observing that by such interference, the High Court would go beyond the scope of Section 100 of the Code of Civil Procedure.

28. In Madhavan Nair v. Bhaskar Pillai (Dead) By Lrs. . (2005) 10 SCC 553, the Supreme Court observed that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.

29. The view taken in the aforesaid decisions has been reiterated by the Apex Court in Gurdev Kaur and others vs. Kaki and others,

2007 (1) SCC 546.

30. Consequently, the appeal fails and is, accordingly, dismissed.

Order Date :- 16.12.2024 AKShukla/-

(Kshitij Shailendra, J.)

18 of 18