MAHABOOB v. MAKTUMSAB

Citation: [2008] 4 S.C.R. 628

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, P. SATHASIVAM

Case summary

MAHABOOB v. MAKTUMSAB.pdf

Judgment text

[2008] 4 S. C. R. 628 .. ;, - MAHABOOB II. MAKTUMSAB (Civil Appeal No. 1869 of 2008) MARCH 10, 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ. ] y , Code of Civil Procedure, 1908 - s. 100: Second appeal - Interference with question of fact - Suit for declaration of title in respect ofproperty- Decreed by Trial Court- Order upheld by First Appellate Court- Second appeal - High Court modified the decree passed by Courts below - Justification of - Held: Not justified - High Court erred in interfering on a question offact which was not permissible under s. 100 CPC. Appellant filed suit for declaration of title in respect of property, which according to him came to the share of his father pursuant to a partition in the year 1973. The defendant contended that the plaintiff-Appellant had wrongly described the property as 7 acres and 10 guntas, when in fact he owned and possessed only 7 acres of land. Trial. Court decreed the suit. That order was upheld by the First Appellate Court.

On second appeal, High Court modified the judgment and decree of the Courts .. below holding that the Appellant was owner in possession T only to an extent of 7 acres. Questioning the modified decree to the extent of 10 guntas, Appellant has filed the present appeal. The question which arose for consideration i~ the present appeal is whether the High Court was justified in interfering with the conclusion arrived at by both the Courts below. Allowing the appeal, the Court l ) MAHABOOB v. MAKTUMSAB 629 HELD:1. 1. The High Court proceeded on the basis -). that it was during 1985 as per arrangement in Ex. D-11, RS. Nos. 98/2 and 98/3 were equally divided between two brothers i. e. grandfather of the plaintiff and father of the defendant and each got 7 acres to their share, the same was intimated to the village accountant and on that basis entry was made. In other words, the High Court based its reliance as per Ex. D-11. [Para 9] [633-E, F] 1. 2.

The discussion of the Trial Court on these issues clearly shows that the document Ex. D-11 does not contain the date and as to when the same was returned and intimated to the village accountant. On verification of Ex. D- 11, the Trial Court came to the conclusion that it does not bear even the signature and seal of the office of the village accountant. When the plaintiff has totally denied the execution of Ex. D-11 and more particularly when DW. 2 who was examined to prove Ex. D-11 has not identified the signature of the plaintiff, the High Court is not justified -- on the basis of Ex. D-11 cannot be accepted. DW. 1 is none else than son of the defendant. As rightly observed by the trial Court, he is aged about 26 years as on February, 1994, whereas partition was taken place in the year 1973. This shows that he was just aged about 7 years in 1973. In such circumstances, it is difficult to believe that he was aware of the transaction that took place in 1973.

Even if we accept his statement is correct, he admitted that as per Ex. P-1 the plaintiffs father got 7 acres 10 guntas. The trial Court has also raised a doubt that there is .... y nothing on record to show that Ex. D-11 and D-13 were given to village accountant with the consent of the plaintiff. Like that of the trial Court, the First Appellate Court raised a doubt about the factum of 1985 partition. The Appellate Court also concluded that as per Ex. P1 the extent of RS No. 98/3 is 7 acres and 10 guntas. In the light of the factual conclusion arrived by the trial Court as well as the First Appellate Court analyzing the oral and documentary evidence, we are of the view that the High Court ..... has committed an error in interfering on a question of fact which ... was not permissible under Section 100 CPC vide P. > ) Chandrasekharan and Others vs. S. Kanakarajan and Others, 2007 (5) SCC 669 and Basayya I. Mathad vs. Rudrayya S. Mathad in Civil Appeal No. 1349 of 2001 dated 24. 01.

2008 {2008 (1) Current Tamil Nadu Cases 537]. It is settled law by this Court, that, it is impermissible for High Court to interfere on a question of fact particularly when both the Courts below rejected Ex. D-11 as not admissible since the same was not properly proved by the defendant. The conclusion arrived at by the High Court is not acceptable and the decision arrived by the trial Court and the First Appellate Court declaring the plaintiff as the owner in possession of 7. 10 acres is acceptable. · · 11) In the light of the above discussion, the conclusion arrived at by the High Court cannot be sustained and the same is set aside. The civil appeal is allowed. No costs. 8. 8. 8. Appeal allowed.