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JHARKHAND HIGH COURT
D.N. Upadhyay, J.
Smt. Gita Devi and Ors. —Appellants
versus
Sobha Agarwalla and Ors. —Respondents
Second Appeal No. 61 of 2004 (Against the Judgment dated 24.11.2003 and Decree dated 15.12.2003, passed and signed by 1st Additional District Judge, Singhbhum East at Jamshedpur in Title Appeal No. 4 of 2000)]
Decided on 5.8.2016
For the Appellants:Mrs. Anubha Rawat Choudhary, Advocate
For the Respondents:Mr. Ayush Aditya and Mr. Shashank Shekhar, Advocates
IMPORTANT POINT
There is no prohibition of entertaining a Second Appeal even on a question of fact.
Headnote:(A) Civil Procedure Code, 1908—Section 100—Second appeal—Maintainability of—There is no prohibition of entertaining a Second Appeal even on a question of fact provided Court is satisfied with findings of fact recorded by Courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that findings of fact are found to be perverse—In a Second Appeal Court should not interfere with findings of Court below given on facts but then if findings are based on misreading of evidence or based on non-evidence resulting in injustice, High Court can enter into mixed question of fact and law both—Law is not static, it has to change with changing time and it should be dynamic because purpose of law is to serve needs of life. (Para 13)
(B) Transfer of Property Act, 1882—Section 53A—Part Performance—Appellants have sought for protection under Section 53A of Transfer of Property Act and, accordingly, substantial question of law to this effect has also been framed—Protection contained under Section 53A of Transfer of Property Act deals with mixed question of facts as well as law—Appellants have clearly pleaded that they have been enjoying peaceful possession over suit property after they acquired the same from year 1975 i.e. date of execution of Sale Deed— Appellants are entitled for protection contained under Section 53A of Transfer of Property Act and they cannot be evicted therefrom. (Paras 14 to 16)
Result: Appeal allowed.
D.N. Upadhyay, J.—This Second Appeal has been preferred by defendants/appellants against the Judgment dated 24.11.2003, Decree dated 15.12.2003, passed and signed by 1st Additional District Judge, Singhbhum East at Jamshedpur in Title Appeal No. 4 of 2000 whereby Judgment dated 14.10.1999 and Decree dated 27.11.1999, passed and signed by learned Munsif in connection with Title Suit No. 56 of 1996 has been affirmed.
2. This Appeal has been admitted on 12.08.2004 after formulating following substantial questions of law:—
(i) Whether the Courts below have committed errors of record in, arriving at the finding particularly in dealing with Ext. H, Ext. 3 and Ext. 3/A and some other documents on the record?
(ii) Whether the appellants’ possession over the suit land should have been dealt with and decided in view of the provisions of Section 53A of the Transfer of Property Act?
3. Mrs. Sobha Agarwalla, wife of Milchand Agarwalla and Mrs. Sarita Agarwalla, wife of Sri Satyanarayan Agarwalla (Respondent Nos. 1 and 2) were the plaintiffs in the Trial Court whereas proforma respondent nos. 3 to 9 here in this Second Appeal were arrayed as proforma defendants. The appellant no. 1 was defendant no. 1 and her husband Late Lall Dhari Prasad (then alive) was impleaded as defendant no. 2. Since Lall Dhari Prasad (defendant no. 2) has died, the legal heirs and successors have been substituted and they are appellant nos. 2 to 6. For better understanding the appellants will be referred as defendants whereas respondent nos. 1 and 2 shall be addressed as plaintiffs.
4. That the plaintiffs namely Mrs. Sobha Agarwalla and Mrs. Sarita Agarwalla filed Title Suit No. 56/1996 in the Court of Munsif at Jamshedpur for declaration of their title and also for recovery of possession over the suit property described in Schedule-A of the plaint after evicting the defendant nos. 1 and 2 from the suit premises and also to declare the unregistered Agreement dated 03.11.1983 and the registered Sale Deed dated 11.10.1984 false and manufactured document.
The case of the plaintiffs, in short, is that a piece of land measuring more or less 48’ x 12’ along with a Khapraposh house standing on Holding No. 520 being portion of R.S. Plot No. 1333 under R.S. Khata No. 401, Mauza-Jugsalai, corresponding to present Survey Plot No. 151 and present Survey Khata No. 413, previously belonged to Ram Kumar Das Agarwalla and after his death, it devolved upon his sons Sitaram Agarwalla, Sagarmal Agarwalla, Bajrang Lal Agarwalla and Ram Awtar Agarwalla. The land was recorded in the name of Ram Kumar Das Agarwalla in the Revisional Survey of the year 1937 and in the present Survey, the possession over the said land has been recorded in the name of his four sons since 1938.
On 13.02.1979, Sitaram Agarwalla and his brother Bajrang Lal Agarwalla only, in place of their four brothers, entered into an Agreement to Sale a piece of land measuring 48’ x 12’ with Pucca khapraposh House and all other structures thereon being New Plot No. 151, Mauza-Jugsalai, described in Schedule-A of the plaint with defendant no. 1 for a consideration of Rs.3,500/- out of which the defendant no. 1 paid an advance of Rs.2,500/- on the same day of the said Agreement to Sale. It was agreed between defendant no. 1 and defendant no. 6 and his brother Sitaram Agarwalla (since deceased) that they would execute and register the Sale Deed with respect to Schedule-A properties in favour of defendant no. 1 within a fortnight from the date of obtaining permission. It was further agreed that the Sale is to be completed within five months from the date of Agreement dated 13.02.1979. It was further agreed that in case the permission is not obtained then the defendant no. 6 and his brother Sitaram Agarwalla will refund the advance amount to the defendant no. 1 failing which the defendant no. 1 shall be at liberty to realise the same through process of the Court. As a matter of fact it has subsequently been held by th
