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JAGWATI versus GAMA SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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JAGWATI v. GAMA SINGH & Ors - RSA-247-2004 [2006] RD-P&H 3022 (9 May 2006)

RSA NO. 247 OF 2004 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA NO. 247 OF 2004

DATE OF DECISION:17.3.2006

JAGWATI ......PETITIONER

VERSUS

GAMA SINGH AND OTHERS ......RESPONDENTS

CORAM:- HON'BLE MR.JUSTICE M.M. KUMAR
PRESENT: Mr. Amit Jain, Advocate for the appellant.

JUDGEMENT

This order shall dispose of RSA Nos.247 and 248 of 2004.

Both the appeals have given rise to a common question of law and fact.

The appeals have been filed by one Smt. Jagwati, which have arisen out of two civil suit. One of the suit was filed by Jagwati herself bearing Civil Suit No.898 of 1994 instituted on 20.10.1994 and the other was filed by one Gama Singh bearing Civil Suit No.311 of 1992 instituted on 8.6.1992.

The later suit has been decreed and the judgment and decree have been upheld by the Lower Appellate Court and the earlier suit filed by Smt.

Jagwati has been dismissed by both the courts below. As a consequence both the appeals have been filed by Smt. Jagwati against the common judgement and decree disposing of both the suits because the suit filed by Smt. Jagwati was for permanent injunction against Gama Singh and the other suit filed by Gama Singh was for possession by way of specific performance and for permanent injunction. There are concurrent findings RSA NO. 247 OF 2004 2

of fact recorded by both the Courts below holding that Jagwati had failed to prove that possession of the suit property was delivered to her by one Nihal Singh defendant-respondent (now represented by his LRs) in pursuance to a lease deed dated 8.6.1992. It has further been found that Nihal Singh had already executed agreement to sell dated 23.6.1987 (Ex.D-1) and status quo order was passed on 8.6.1992 against Nihal Singh in a separate suit and that he was not entitled to execute the lease deed on that day i.e.8.6.1992. Therefore, he was not competent to create any encumbrances by executing a lease deed in favour of Smt. Jagwati on 8.6.1992. It has also been proved that defendant-respondent Nihal Singh and Smt. Samundari are related to each other and the lease deed dated 8.6.1992 has been found to be collusive, null and void. It has further been held that the aforementioned lease deed has been executed by Nihal Singh with a view to defeat the rights of Gama Singh. Both the Courts have also rightly accepted the alternate entries showing the possession of Smt.

Jagwati on the basis of lease deed holding that such entries would not have any binding effect on the rights of Gama Singh defendant-respondent.

On the basis of the agreement to sell dated 23.6.1987 Gama Singh had filed Civil Suit No.311 of 1992 and the order of status quo was issued in his favour on 8.6.1992. The lease deed for 99 years is also of the same date. The agreement has been proved on record showing that an amount of Rs.8,000/- were not paid by Gama Singh as earnest money and the receipt in the connected suit has been proved as Ex.P-C. The sale deed as per the agreement was to be executed on 15.6.1999 and jamabandi Ex.P-5 in the year 1986-87 has proved on record that Nihal Singh was shown to be in possession over the suit land. It is true that Nihal Singh has not been recorded as owner on the date when the agreement to sell was executed on 23.6.1987. However, he was declared RSA NO. 247 OF 2004 3

as occupancy tenant under Sections 5 and 8 of the Punjab Tenancy Act, 1887 vide order dated 26.8.1999 passed by an Assistant Collector First Grade and accordingly mutation was also sanctioned in his favour. Both the Courts have applied Section 43 of the Transfer of Property Act, 1882 which incorporates principle of equitable estoppel.

Having heard the learned counsel at some length, I am of the considered view that no question of law warranting admission of the appeal has been raised which is sine qua non under Section 100 of the Code of Civil Procedure 1908. As noticed in the above paras, facts have not been disputed and this Court cannot, in exercise of jurisdiction under Section 100 of the Code enter into the area of re-appreciation of evidence for the purpose of reversing the findings. It is well settled that the First Appellate Court is the final Court of fact and even law. In this regard reference may be made to the judgment of the Hon'ble Supreme Court in the case of Santosh Hazari vs. Purshotam Tiwari 2001 (3) SCC 179 which is to the effect that pure findings of fact remain immune from challenge before the High Court in second appeal and the First Appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the First Appellate Court even on question of law unless such question of law is a substantial question of law. Therefore, no opportunity is provided to admit the appeal.

Accordingly, the appeals fail and the same are dismissed.

(M.M. KUMAR)

JUDGE

March 17, 2006

ps

RSA NO. 247 OF 2004 4

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA NO. 248 OF 2004

DATE OF DECISION:17.3.2006

JAGWATI ......PETITIONER

VERSUS

GAMA SINGH AND OTHERS ......RESPONDENTS

CORAM:- HON'BLE MR.JUSTICE M.M. KUMAR
PRESENT: Mr. Amit Jain, Advocate for the appellant.

JUDGEMENT

For order see RSA No.247 of 2004.

(M.M. KUMAR)

JUDGE

March 17, 2006

ps


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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