High Court · 2025

2. The appellants were plaintiffs in Original Suit No.44 of 2012 filed by them claiming a decree for cancellation of registered sale deed dated 23.08.2010 executed in favour of the respondent no.1 by a person who was not impleaded in the suit. A counter-claim claiming a decree for eviction was preferred by the defendants.

3. The trial court dismissed the suit for cancellation of the registered sale deed and decreed the counter-claim. A single Civil Appeal No.18 of 2022 was filed by the appellants that has been dismissed on 07.09.2024.

4. At the very outset, it is noted that as per Order 8 Rule 6-A CPC, when a counter-claim is preferred, it has the same force as that of a plaint/ a separate suit. The composite decision by the civil court deciding the suit and the counter-claim gives rise to two separate decrees raising necessity to challenge the decision(s) by two separate civil appeals. Reference in this regard can be made to the decision of Supreme Court in Rajni Rani and another Vs. Khairati Lal and others: (2015) 2 SCC 682.

5. In the instant case, only one civil appeal was filed and even before this Court single second appeal has been filed. It is not clear as to which part of decree the appellants are challenging. Nevertheless, the Court proceeds to hear the instant appeal on merits.

6. The basis of the claim of the appellants was a notarized unregistered agreement for sale dated 25.02.1997 executed by the vendor through whom the respondent no.1 purchased the property.

7. It is contended by learned counsel for the appellants that pursuant to the aforesaid agreement, actual and physical possession of the property was given to the appellants who raised constructions over the same and their names were recorded as occupiers in the municipal records. It is urged that after executing the agreement, the vendor remained with no title in view of substantial changes made in the property in dispute and, in the facts of the case, the vendor had no right to execute the sale deed in favour of appellants' real brother.

8. The Court finds that the trial court as well as first appellate court have discussed the oral and documentary evidence and have arrived at a conclusion that mere execution of a notarized agreement for sale, photostat copy whereof was produced, a claim for cancellation of registered sale deed cannot sustain. The Court further finds that no suit for specific performance based upon the agreement for sale was filed nor could it be filed as there was no registered document. As a matter of fact, the challenge to a registered sale deed was made merely at the strength of photocopy of an agreement for sale. Admittedly, the appellants have not acquired title to the property and mere entries in certain municipal records as occupiers could protect their intermittent possession but could not confer rights as owners of the property.

9. In view of the above, challenge to the sale deed executed by true owner merely at the strength of an agreement did not have any cogent and legally sustainable basis. Once it is found that the appellants were not owners of the property, the true owners were well within their rights to obtain a decree for eviction as they could not forcibly dispossess the persons in possession of the property. Even that decree was claimed and has been drawn by the two courts.

10. 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.

11. 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 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.

12. In Madhavan Nair v. Bhaskar Pillai (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.

13. 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.

14. Recently, the Supreme Court has seriously condemned the approach of the High Courts to entertain a challenge even when no substantial question of law is involved and appeals are admitted on inappropriate questions which cannot be said to be substantial questions. The proposition has been laid down in Civil Appeal Nos.14138- 14139 of 2024, Jaichand (dead) through LRs and others Vs. Sahnulal and another, decided on 10.12.2024.

15. Considering the submission advanced and findings recorded by both the courts below, no substantial question of law arises for consideration in this appeal.

16. Consequently, the appeal fails and is, accordingly, dismissed under Order 41 Ru1e 11 CPC. Order Date :- 16.1.2025 AKShukla/- ANIL KUMAR SHUKLA High Court of Judicature at Allahabad

2. The appellants were plaintiffs in Original Suit No.44 of 2012 filed by them claiming a decree for cancellation of registered sale deed dated 23.08.2010 executed in favour of the respondent no.1 by a person who was not impleaded in the suit. A counter-claim claiming a decree for eviction was preferred by the defendants.

3. The trial court dismissed the suit for cancellation of the registered sale deed and decreed the counter-claim. A single Civil Appeal No.18 of 2022 was filed by the appellants that has been dismissed on 07.09.2024.

4. At the very outset, it is noted that as per Order 8 Rule 6-A CPC, when a counter-claim is preferred, it has the same force as that of a plaint/ a separate suit. The composite decision by the civil court deciding the suit and the counter-claim gives rise to two separate decrees raising necessity to challenge the decision(s) by two separate civil appeals. Reference in this regard can be made to the decision of Supreme Court in Rajni Rani and another Vs. Khairati Lal and others: (2015) 2 SCC 682.

5. In the instant case, only one civil appeal was filed and even before this Court single second appeal has been filed. It is not clear as to which part of decree the appellants are challenging. Nevertheless, the Court proceeds to hear the instant appeal on merits.

6. The basis of the claim of the appellants was a notarized unregistered agreement for sale dated 25.02.1997 executed by the vendor through whom the respondent no.1 purchased the property.

7. It is contended by learned counsel for the appellants that pursuant to the aforesaid agreement, actual and physical possession of the property was given to the appellants who raised constructions over the same and their names were recorded as occupiers in the municipal records. It is urged that after executing the agreement, the vendor remained with no title in view of substantial changes made in the property in dispute and, in the facts of the case, the vendor had no right to execute the sale deed in favour of appellants' real brother.

8. The Court finds that the trial court as well as first appellate court have discussed the oral and documentary evidence and have arrived at a conclusion that mere execution of a notarized agreement for sale, photostat copy whereof was produced, a claim for cancellation of registered sale deed cannot sustain. The Court further finds that no suit for specific performance based upon the agreement for sale was filed nor could it be filed as there was no registered document. As a matter of fact, the challenge to a registered sale deed was made merely at the strength of photocopy of an agreement for sale. Admittedly, the appellants have not acquired title to the property and mere entries in certain municipal records as occupiers could protect their intermittent possession but could not confer rights as owners of the property.

9. In view of the above, challenge to the sale deed executed by true owner merely at the strength of an agreement did not have any cogent and legally sustainable basis. Once it is found that the appellants were not owners of the property, the true owners were well within their rights to obtain a decree for eviction as they could not forcibly dispossess the persons in possession of the property. Even that decree was claimed and has been drawn by the two courts.

10. 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.

11. 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 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.

12. In Madhavan Nair v. Bhaskar Pillai (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.

13. 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.

14. Recently, the Supreme Court has seriously condemned the approach of the High Courts to entertain a challenge even when no substantial question of law is involved and appeals are admitted on inappropriate questions which cannot be said to be substantial questions. The proposition has been laid down in Civil Appeal Nos.14138- 14139 of 2024, Jaichand (dead) through LRs and others Vs. Sahnulal and another, decided on 10.12.2024.

15. Considering the submission advanced and findings recorded by both the courts below, no substantial question of law arises for consideration in this appeal.

16. Consequently, the appeal fails and is, accordingly, dismissed under Order 41 Ru1e 11 CPC. Order Date :- 16.1.2025 AKShukla/- ANIL KUMAR SHUKLA High Court of Judicature at Allahabad