2021 (9) TMI 1550 - SC - Indian Laws

Exclusive possession of property - possession of the chobaras on the first floor of the three shops - mandatory injunction to close the holes in the lintel of the shop in occupation of Avtar Singh - ignoring material evidence and misreading of evidence or not - Section 100 Code of Civil Procedure - HELD THAT - Undeniably Avtar Singh s possession-and perhaps even ownership-of the ground floor shop could not be denied. The findings of the lower courts therefore based upon the registered documents cannot be faulted. However both these courts ignored the other evidence-in the form of the Local Commissioner s report-with regard to the issue of possession of the chaubara. The Local Commissioner was neither cross-examined nor was his report objected to. The question that arises is whether the High Court justly interfered with what are unquestionably concurrent findings of fact. This Court in its five-judge bench ruling in PANKAJAKSHI VERSUS CHANDRIKA 2016 (2) TMI 1063 - SUPREME COURT held that the provisions of Section 41 of the Punjab Courts Act 1918 continued to be in force and not Section 100 Code of Civil Procedure - the previous smaller bench ruling in KULWANT KAUR ORS. VERSUS GURDIAL SINGH MANN (DEAD) BY LRS ORS. 2001 (3) TMI 1044 - SUPREME COURT which held that Section 41 is inconsistent with Section 100 Code of Civil Procedure after its amendment in 1976 and that the latter prevails was expressly overruled. It is thus evident therefore that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available Under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable or which are rendered by overlooking the record therefore per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances the High Court s findings - which are based entirely on the reappreciation of the record - and consequent interference with the concurrent findings of the lower courts cannot be upheld. The impugned judgment has to be set aside - Appeal allowed.

Summary

Issues Involved:
1. Whether the findings of the lower courts regarding the possession of the chaubara and mandatory injunction to close the holes in the lintel of the shop were perverse.
2. Whether the High Court justly interfered with the concurrent findings of fact by the lower courts.

Summary:

Issue 1: Findings of Lower Courts and Possession of Chaubara
The property in question, located at GT Road, Shahabad Markanda, was allegedly purchased by the first Defendant, Girdhari Lal, in lieu of properties left in Pakistan. The Plaintiffs claimed that Girdhari Lal agreed to sell a portion of the property to Rajpal's wife, Bimla Devi, in 1961, and that they had been in peaceful possession since then. However, Girdhari Lal denied these claims, stating that the property was acquired with his own funds and that he never agreed to sell it to Rajpal. The trial court and the first appellate court dismissed the suit, relying on a registered sale deed dated 06.08.1999, which indicated that Avtar Singh purchased the disputed property from Girdhari Lal. The High Court, however, framed a substantial question of law and ruled in favor of the Plaintiffs, leading to the decree of the suit.

Issue 2: High Court's Interference with Concurrent Findings
The Appellants argued that the High Court's judgment was erroneous as it upset concurrent findings of fact without proper justification. They emphasized that the substantial question of law framed by the High Court did not fall within the framework of Section 100 CPC. The High Court's interference was based on the Local Commissioner's report, which corroborated the Plaintiffs' claims regarding the possession of the chaubara and the construction of a staircase. The Supreme Court noted that the Local Commissioner's report was neither cross-examined nor objected to, and thus, the findings of the lower courts based on registered documents could not be faulted. However, the High Court's reappreciation of the record and interference with the concurrent findings of the lower courts were deemed unjustified.

Conclusion:
The Supreme Court held that mere findings of fact cannot be interfered with in the exercise of second appellate jurisdiction. The High Court's findings, based entirely on the reappreciation of the record, and its interference with the concurrent findings of the lower courts, were not upheld. Consequently, the impugned judgment was set aside, and the appeal was allowed without orders on cost.