IMPORTANT POINT
Order of High Court interfering with concurrent findings of facts by two courts below, in exercise of powers under Section 100 of Civil Procedure Code is unsustainable.

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 respondents-plaintiffs’ 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.

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.

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 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