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1996(4) Supreme 426
SUPREME COURT OF INDIA
M.M. Punchhi and K.S. Paripoornan, JJ.
Ramanuja Naidu -Appellant
versus
V. Kanniah Naidu & Anr. -Respondents
Civil Appeal No. 190 of 1978
Decided on 12-3-1996
Held that in interfering with the concurrent findings of facts of the lower courts, the learned single Judge of the High Court acted in excess of the jurisdiction vested in him under Section 100 of Civil Procedure Code. The learned Judge totally erred in his approach to the entire question, and in reappraising and reappreciating the entire evidence, and in considering the probabilities of the case, to hold that the judgments of the courts below are "perverse" and that the plaintiff is entitled to the declaration of title to suit property and recovery of possession. It is evident that the courts below found, on the basis of oral and documentary evidence, that Ex. B-2 sale deed obtained by the first defendant on 5.5.1967 is genuine and valid, and that first defendant discharged the mortgage, Ex. B-1, on 10.5.1967, took possession of the suit property and thereafter cultivated the same. The courts below were of opinion that Ex. A-1 cannot be accepted in view of the contradictions in the evidence of PW-1 and PW-2 regarding the payment of consideration, and none of the attestors to Ex. A-1 were examined. Laying stress on Ex. A-4, suit notice, sent by the plaintiff to the first defendant and other circumstances, the courts also found that there is collusion between the plaintiff and the second defendant and so, Ex. A-1 purported to have been executed by the second defendant in favour of the plaintiff is not valid in law. These concurrent findings of facts of the courts below, were based on oral and documentary evidence. The learned Single Judge on reappreciating the evidence took the view that it was "not probable" that the document Ex. B-1 "would have" been executed on 5.6.1967 in view of the delay in the registration of the document. In second appeal, the learned single Judge of the High Court totally erred in making such an approach. Besides, the learned single Judge totally ignored the concurrent findings of the courts below that the first defendant discharged the mortgage, Ex. B-1 on 10.5.1967, took possession of the property and cultivated the same and the said finding was based on the oral evidence of DW-3, the mortgagee and independant witnesses, DW-4 and DW-5 scribe, besides the defendant, DW-6. There was no evidence contra. The concurrent findings of the courts below that Ex. B-2, sale deed in favour of the first defendant is earlier in point of time and was genuine and valid is a finding of fact. Such a finding was not open to any challenge in Second Appeal. The learned single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code of Civil Procedure in the way he did. No question of law arose for consideration before the learned single Judge. (Para 8)
JUDGMENT
Paripoornan, J.-The first defendant in O.S. 329 of 1967, Munsiff Court, Thirukoilur, has filed this appeal against the judgment of a learned single Judge of the Madras High Court rendered in S.A. No. 93 of 1974 dated 27.8.1976, after having obtained special leave in Special Leave Petition No. 4469 of 1977 by order dated 25.1.1978. The plaintiff and the 2nd defendant in the suit are the respondents herein.
2. The plaintiff filed the suit for declaration of his title to the suit property and for recovery of possession of the same. The suit property is the northern 33 cents of dry land out of 65 cents in survey No. 217/4 in Payyur village. It belonged to the second defendant and his minor sons. The second defendant executed Ex. B-1 registered usufructuary mortgage dated 12.9.1966 to one Chellian, DW-3, for a sum of Rs. 600/-. The case put forward by the plaintiff was that the suit property belonged to the second defendant, and he subsequently sold the suit property to him by sale deed Ext. A-1 dated 5.6.1967 for Rs. 1,100/-, with direction to redeem Ext. B-1, mortgage. The sale deed was registered on 7.6.1967. He further alleged that the second defendant executed a sale deed in favour of the 1st defendant on 5.5.1967, (Ex. B-2); that the first defendant and his father-in-law, who had a long standing emnity with the plaintiff, got the same executed by the second defendant dating the sale deed as one executed on 5.5.1967 and the same was registered on 8.6.1967 (Ex. B-2). The plaintiff objected to registration, but it was futile. The plaintiff alleged that the sale deed executed in his favour is anterior to Ex. B-2, and so the first defendant has no title to the suit property. It was in these circumstances that the plaintiff laid the suit for declaration of his title and recovery of possession, impleading his vendor, the second defendant.
3. The first defendant contended that he purchased the property from the second defendant vide Ex. B-2, sale deed dated 5.5.1967 with a direction to redeem Ex. B-1, mortgage, that he redeemed Ex. B-1, Mortgage and discharged the liability of mortgagee, Chellian (DW-3) on 10.5.1967, took possession of property and cultivated the same. It is thereafter with the knowledge of the above facts, the plaintiff took the sale deed due to enmity, on 5.6.1967. The document in his favour dated 5.5.1967 is genuine and earlier in point of time and conveyed valid title to the suit property. Plaintiff has no valid or proper title as per Ex.A-1 and, so, the plaintiff s suit for title and possession is unsustainable. The second defendant contended that he executed the sale deed to the plaintiff as stated, and the subsequent execution of the document in favour of the first defendant is sham and ineffective. The learned Munsiff, by judgment dated 3.3.1969 found that the sale deed executed by the second defendant in favour of the first defendant (Ex. B-2) is earlier in point of time, to the sale deed executed by the second defendant in favour of the plaintiff, that Ex. B-2 is true and valid and, dismissed the suit. In the appeal filed by the plaintiff, the learned Sub-ordinate Judge, Cuddalore, by judgment dated 26.3.1973, held on an analysis of the facts and circumstances, that the sale deed - Ex. B-2, was executed by the second defendant in favour of the first defendant on 5.5.1967, which is earlier in point of time to the sale deed executed by the second defendant in favour of the plaintiff on 5.6.1967, and that Ex. B-2 is valid and genuine. It was further held that on the date of the sale deed, Ex. A-1, in favour of the plaintiff, the second defendant had no subsisting title to the suit property and the plaintiff did not acquire valid title to the suit property. Ex. A-1 was held to be invalid in law. The judgment and decree of the trial Court were affirmed.
4. The plaintiff filed a second appeal before the Madras High Court as S.A. No. 93 of 1974. A learned single Judge of the Madras High Court, on reappreci
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