NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).8859 OF 2019 (arising out of SLP (Civil) No(s). 16697 of 2018)

NARESH AND OTHERS ...APPELLANT(S)

VERSUS

HEMANT AND OTHERS          ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellants who were the original defendants in the Suit

are aggrieved by the order of the High Court allowing the

respondents­plaintiffs’ Second Appeal, upsetting the concurrent

findings of facts by two courts.   The parties shall be referred to by

their respective  positions in the  Suit for  better  appreciation and

convenience.  

3. The  predecessors of the plaintiffs and the  defendants  were

brothers namely, Ramchandrarao Ingole and Trimbakrao Ingole.

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They partitioned among themselves in 1952. The suit property

consists of 7011 sq. ft. of lands, with a house constructed in 1974­

75 thereupon leaving substantial vacant lands, was purchased

jointly in the name of the two brothers by sale deed dated

29.03.1957. Trimbakrao Ingole expired in 1980 and Ramchandrarao

Ingole also passed away on 22.03.1995.  The plaintiffs as legal heirs

of Ramchandrarao Ingole, relying on the sale deed filed Special Civil

Suit No.268 of 1995 seeking partition and possession of their half

share in the suit property.

4. The suit  was dismissed by the Trial  Court.  The  first  appeal

preferred by the plaintiffs was also dismissed. Both the courts

arrived at concurrent findings of facts that the plaintiffs had failed

to prove that Ramchandrarao Ingole had contributed to the

purchase of the suit property or that at any time he had been a

beneficiary of the purchase by residence or possession. The house

had  been constructed  exclusively  by  Trimbakrao Ingole from his

own funds and who remained in exclusive possession of the same

relying on the admissions of PW­1 in his evidence.  Ramchandrarao

Ingole was held not to be a vendee of the suit property.

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5. Shri V.C. Daga, learned senior counsel appearing for the

appellants, submitted that the High Court in a Second Appeal under

Section 100 of the Civil Procedure Code should not have interfered

with the concurrent findings of facts by two courts that

Ramchandrarao Ingole  was  not  and  was  never intended  to  be  a

beneficiary of the purchase.   The presumption under Section 45 of

the Transfer of Property Act (hereinafter referred to as ‘the Act’), by

reason of his name being mentioned in the sale deed as a vendee

also was rebuttable and not absolute. Two courts on appreciation of

the oral evidence, were satisfied for reasons recorded that

Ramchandrarao Ingole was never a beneficiary or in joint ownership

of the suit property.   Trimbakrao Ingole alone was present at the

time of registration and the stamp papers were also purchased by

him.  The construction was also raised by him alone from his own

funds, acknowledged by PW­1 in his evidence. Ramchandrarao

Ingole never raised any claim for share in the property either during

the life time of Trimbakrao Ingole or for fifteen years thereafter till

his own death.  It is only after the passing away of Ramchandrarao

Ingole that his legal heirs staked claim for partition based merely on

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the recitals in the sale deed.  Section 92 of the Indian Evidence Act

has no application in the facts of the case as it is applicable only in

case of a bilateral document relying on Bai Hira Devi and others

vs. Official Assignee of Bombay, AIR 1958 SC 448.   The present

sale deed was a unilateral document executed by the vendor alone.

It was lastly submitted that the house was built in ‘L’ shape and by

design was incapable of being divided. The plaintiffs, as evident from

their own pleadings were indulging in speculative litigation, eyeing

the vacant area of the suit property.

6. Shri Pallav Sisodiya, learned senior counsel appearing for the

respondents,  submitted  that  the suit  property  was purchased by

both the brothers together in  view of their  cordial relations.  The

cordiality ended with the death of Ramchandrarao Ingole. Thus, the

suit came to be filed after his death.  Relying on the recitals in the

sale deed, reading the same in conjunction with Section 45 of the

Act, it was submitted that Ramchandrarao Ingole was co­owner by

operation of law.  The fact that he may not have been in possession

does not raise any estoppel precluding him or his legal heirs from

asserting their rights, relying  upon  Suraj  Rattan  Thirani  and 4

others vs. Azamabad Tea Co. Ltd. And others, (1964) 6 SCR 192.

Signature of the vendee on the sale deed was not mandatory, as

held in Aloka Bose vs. Parmatma Devi and others, (2009) 2 SCC

582.  The fact that Trimbakrao Ingole may have signed at the time

of registration on the reverse of the deed or that his name may have

been mentioned  as the  purchaser  of the  stamp papers  does  not

make him and his legal heirs the exclusive owners of the property.

The oral evidence  by  both sides  was insufficient to exclude the

rights of the plaintiffs. The appellants  were unable to lead any

evidence under the second and third proviso to Section 92 for

rebutting the presumption in the law in favour of the  plaintiffs

under Section 45 of the Act.   The fact that the original sale deed

may  have been  produced  by the  defendants cannot be proof of

exclusive ownership.   The findings in favour of the defendants by

the Trial Court and the First Appellate Court are only in the realm of

probabilities.   The  High  Court rightly  held in the  nature of the

evidence, that the conclusions arrived at by the two courts below

were, therefore, perverse.  

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7. We have considered the submissions on behalf of the parties,

perused the respective pleadings and the evidence on record.   The

plaintiffs acknowledged the construction of a  house on the suit

property,  seeking a  share  in the vacant  lands  fully  aware of the

nature of the construction which could not be partitioned. The

defendants in their  additional  written  statement  had  stated that

originally both the brothers proposed to purchase the property

together.   Subsequently Ramchandrarao Ingole retracted and was

not interested in  purchasing the  property  due to funds crunch.

Trimbakrao Ingole therefore alone paid the entire consideration.

Since the stamp papers had already been purchased and the sale

deed  drafted in  name of  both the  brothers, registration followed

without any change.  It is very important to notice that no rejoinder

or replication was filed by the plaintiffs to this additional written

statement.   

8. The evidence was in the nature of oath versus oath by the legal

heirs of the two brothers. No documentary evidence except for the

sale deed was led. The Trial Court correctly noticed the gap of 36

days between the preparation of the sale deed on 29.03.1957 and its

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subsequent registration on 03.05.1957 as a circumstance to accept

the contention of the defendants that Ramchandrarao Ingole

retracted from any contribution and his status as a vendee or

beneficiary of the purchase. Since registration on 03.05.1957 till the

institution of the suit by the legal heirs of Ramchandrarao Ingole,

38 years later, he did not prefer any claim since 03.05.1957 till his

brothers  death  in 1980, including for  15  long years till  his  own

death  on  23.03.1995.  Thereafter,  PW­1  in  his evidence  admitted

that the construction of the house had been made by Trimbakrao

Ingole alone.  There is no evidence that this construction was made

from joint family funds.  It is an undisputed fact that the plaintiffs

at no point of time ever since purchase resided in the house or upon

the suit lands or enjoyed the same in any manner let alone incurred

any expenditure on the same.  

9. The claim for a presumption under Section 45 of the Act in

favour of the plaintiffs was raised for the first time before the First

Appellate  Court  but  was negated  in  light  of the factual findings.

Importantly, it was held that mere failure of the defendants to

adduce satisfactory evidence that Trimbakrao Ingole had paid the 7

entire consideration did not absolve the plaintiffs of their duty to

establish  their  own claim  in accordance with  law by satisfactory

evidence to substantiate the presumption sought to be relied upon.

In other words, the appellate court correctly held that the weakness

of the defence could not become the strength of the plaintiff,

especially when the defendants were disputing their claims.   

10. Section 45 of the Transfer of Property Act read as follows:

“45. Joint transfer for consideration.—Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.  

In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.”

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11. The High Court invoked the presumption without proper

consideration and appreciation of the facts  considered  and dealt

with by two courts holding by reasoned conclusions why the

presumption stood rebutted on the facts.   The  High  Court also

committed an error of record by holding that there was no evidence

that Trimbakrao Ingole alone had constructed the house, a finding

patently contrary to the admission of PW­1 in his evidence.  The fact

that mutation also was done in the name of Trimbakrao Ingole alone

which remain unchallenged at any time was also not noticed. The

conclusion of the High Court that improper appreciation of evidence

amounted to perversity is completely unsustainable.  No finding has

been arrived at that any evidence had been admitted contrary to the

law or that a finding  was  based on  no evidence only in  which

circumstance the High Court could have interfered in the second

appeal.

12.  The High Court therefore manifestly erred by interfering with

the concurrent findings on facts by two courts below in exercise of

powers under Section 100, Civil Procedure Code, a jurisdiction

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confined to substantial questions of law only. Merely because the

High Court may have been of the opinion that the inferences and

conclusions on the evidence were erroneous, and that another

conclusion to its satisfaction could be drawn, cannot be justification

for the High Court to have interfered.     

13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2

SCR 673, this court with regard to the scope for interference in a

second appeal with facts under Section 100 of the Civil Procedure

Code observed as follows:

“12.  ….The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to  contend before the  High Court in  second appeal that  the said evidence  is  not  sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for  decision  of the court of facts  and cannot  be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be

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properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this  Court to  intervene and give effect to the said provisions.  It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they  may  be,  must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated  with gambling; and that is a reproach  which judicial process  must constantly and scrupulously endeavour to avoid.”

14. Though precedents abound on this settled principle of law, we

do not consider it necessary to burden our discussion unnecessarily

except to rely further on  Gurdev Kaur and others vs. Kaki and

others, (2007) 1 SCC 546, holding as follows:

“71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC

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have neither been appreciated nor applied. A class of judges while  administering  law honestly  believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere,  because  they seem to  feel that  a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such  injustice.  We would  like  to reiterate that the justice has to be administered in accordance with law.

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73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100.

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81. Despite repeated declarations of law by the judgments of this Court and the Privy Council  for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not  have been  justified  in  interfering with the concurrent findings of fact in this case even prior to the amendment  of  Section 100 CPC. The judgment of the  High Court is  clearly  against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.

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82. In view of the clear legislative mandate crystallised  by  a series  of judgments  of the  Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.”

15. The order of the High Court interfering with concurrent

findings of facts by two courts is, therefore, held to be

unsustainable in exercise of the powers under Section 100 of the

Civil Procedure Code. The order of the High Court is consequently

set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial

Court and the First Appellate Court are restored.   The suit of the

plaintiffs is dismissed.  The present appeal is allowed.  

.……………………….J.   (Ashok Bhushan)

………………………..J.    (Navin Sinha)   

New Delhi, November 19, 2019.

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