No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal = When 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 and 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. 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. 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. High court reversed the same in second appeal Apex court held that We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record.The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature of the construction which could not be partitioned. The defendants in their additional written statement had stated that originally both the brothers proposed to purchase the property together. Subsequently Ramchandrarao Ingole retracted and was not interested in purchasing the property due to funds crunch. Trimbakrao Ingole therefore alone paid the entire consideration. Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change. It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement. The High Court invoked the presumption under Sec.45 of TP Act, without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW­1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).8859 OF 2019
(arising out of SLP (Civil) No(s). 16697 of 2018)
NARESH AND OTHERS …APPELLANT(S)
VERSUS
HEMANT AND OTHERS …RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.

  1. The appellants who were the original defendants in the Suit
    are aggrieved by the order of the High Court allowing the
    respondents­plaintiffs’ 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.
  2. The predecessors of the plaintiffs and the defendants were
    brothers namely, Ramchandrarao Ingole and Trimbakrao Ingole.
    1
    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.
  3. 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.
    2
  4. 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
    3
    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.
  5. 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 been in possession
    does not raise any estoppel precluding him or his legal heirs from
    asserting their rights, relying upon Suraj Rattan Thirani and
    4
    others vs. Azamabad Tea Co. Ltd. And others, (1964) 6 SCR 192.
    Signature of the vendee on the sale deed was not mandatory, as
    held in Aloka Bose vs. Parmatma Devi and others, (2009) 2 SCC
  6. The fact that Trimbakrao Ingole may have signed at the time
    of registration on the reverse of the deed or that his name may have
    been mentioned as the purchaser of the stamp papers does not
    make him and his legal heirs the exclusive owners of the property.
    The oral evidence by both sides was insufficient to exclude the
    rights of the plaintiffs. The appellants were unable to lead any
    evidence under the second and third proviso to Section 92 for
    rebutting the presumption in the law in favour of the plaintiffs
    under Section 45 of the Act. The fact that the original sale deed
    may have been produced by the defendants cannot be proof of
    exclusive ownership. The findings in favour of the defendants by
    the Trial Court and the First Appellate Court are only in the realm of
    probabilities. The High Court rightly held in the nature of the
    evidence, that the conclusions arrived at by the two courts below
    were, therefore, perverse.
    5
  7. We have considered the submissions on behalf of the parties,
    perused the respective pleadings and the evidence on record. The
    plaintiffs acknowledged the construction of a house on the suit
    property, seeking a share in the vacant lands fully aware of the
    nature of the construction which could not be partitioned. The
    defendants in their additional written statement had stated that
    originally both the brothers proposed to purchase the property
    together. Subsequently Ramchandrarao Ingole retracted and was
    not interested in purchasing the property due to funds crunch.
    Trimbakrao Ingole therefore alone paid the entire consideration.
    Since the stamp papers had already been purchased and the sale
    deed drafted in name of both the brothers, registration followed
    without any change. It is very important to notice that no rejoinder
    or replication was filed by the plaintiffs to this additional written
    statement.
  8. The evidence was in the nature of oath versus oath by the legal
    heirs of the two brothers. No documentary evidence except for the
    sale deed was led. The Trial Court correctly noticed the gap of 36
    days between the preparation of the sale deed on 29.03.1957 and its
    6
    subsequent registration on 03.05.1957 as a circumstance to accept
    the contention of the defendants that Ramchandrarao Ingole
    retracted from any contribution and his status as a vendee or
    beneficiary of the purchase. Since registration on 03.05.1957 till the
    institution of the suit by the legal heirs of Ramchandrarao Ingole,
    38 years later, he did not prefer any claim since 03.05.1957 till his
    brothers death in 1980, including for 15 long years till his own
    death on 23.03.1995. Thereafter, PW­1 in his evidence admitted
    that the construction of the house had been made by Trimbakrao
    Ingole alone. There is no evidence that this construction was made
    from joint family funds. It is an undisputed fact that the plaintiffs
    at no point of time ever since purchase resided in the house or upon
    the suit lands or enjoyed the same in any manner let alone incurred
    any expenditure on the same.
  9. The claim for a presumption under Section 45 of the Act in
    favour of the plaintiffs was raised for the first time before the First
    Appellate Court but was negated in light of the factual findings.
    Importantly, it was held that mere failure of the defendants to
    adduce satisfactory evidence that Trimbakrao Ingole had paid the
    7
    entire consideration did not absolve the plaintiffs of their duty to
    establish their own claim in accordance with law by satisfactory
    evidence to substantiate the presumption sought to be relied upon.
    In other words, the appellate court correctly held that the weakness
    of the defence could not become the strength of the plaintiff,
    especially when the defendants were disputing their claims.
  10. Section 45 of the Transfer of Property Act read as follows:
    “45. Joint transfer for consideration.—Where
    immoveable property is transferred for consideration
    to two or more persons and such consideration is paid
    out of a fund belonging to them in common, they are,
    in the absence of a contract to the contrary,
    respectively entitled to interests in such property
    identical, as nearly as may be, with the interests to
    which they were respectively entitled in the fund; and,
    where such consideration is paid out of separate
    funds belonging to them respectively, they are, in the
    absence of a contract to the contrary, respectively
    entitled to interests in such property in proportion to
    the shares of the consideration which they
    respectively advanced.
    In the absence of evidence as to the interests in the
    fund to which they were respectively entitled, or as to
    the shares which they respectively advanced, such
    persons shall be presumed to be equally interested in
    the property.”
    8
  11. The High Court invoked the presumption without proper
    consideration and appreciation of the facts considered and dealt
    with by two courts holding by reasoned conclusions why the
    presumption stood rebutted on the facts. The High Court also
    committed an error of record by holding that there was no evidence
    that Trimbakrao Ingole alone had constructed the house, a finding
    patently contrary to the admission of PW­1 in his evidence. The fact
    that mutation also was done in the name of Trimbakrao Ingole alone
    which remain unchallenged at any time was also not noticed. The
    conclusion of the High Court that improper appreciation of evidence
    amounted to perversity is completely unsustainable. No finding has
    been arrived at that any evidence had been admitted contrary to the
    law or that a finding was based on no evidence only in which
    circumstance the High Court could have interfered in the second
    appeal.
  12. The High Court therefore manifestly erred by interfering with
    the concurrent findings on facts by two courts below in exercise of
    powers under Section 100, Civil Procedure Code, a jurisdiction
    9
    confined to substantial questions of law only. Merely because the
    High Court may have been of the opinion that the inferences and
    conclusions on the evidence were erroneous, and that another
    conclusion to its satisfaction could be drawn, cannot be justification
    for the High Court to have interfered.
  13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2
    SCR 673, this court with regard to the scope for interference in a
    second appeal with facts under Section 100 of the Civil Procedure
    Code observed as follows:
    “12. ….The admissibility of evidence is no doubt a
    point of law, but once it is shown that the evidence
    on which courts of fact have acted was admissible
    and relevant, it is not open to a party feeling
    aggrieved by the findings recorded by the courts of
    fact to contend before the High Court in second
    appeal that the said evidence is not sufficient to
    justify the findings of fact in question. It has been
    always recognised that the sufficiency or adequacy
    of evidence to support a finding of fact is a matter
    for decision of the court of facts and cannot be
    agitated in a second appeal. Sometimes, this
    position is expressed by saying that like all
    questions of fact, sufficiency or adequacy of
    evidence in support of a case is also left to the jury
    for its verdict. This position has always been
    accepted without dissent and it can be stated
    without any doubt that it enunciates what can be
    10
    properly characterised as an elementary
    proposition. Therefore, whenever this Court is
    satisfied that in dealing with a second appeal, the
    High Court has, either unwittingly and in a casual
    manner, or deliberately as in this case,
    contravened the limits prescribed by s. 100, it
    becomes the duty of this Court to intervene and
    give effect to the said provisions. It may be that in
    some cases, the High Court dealing with the
    second appeal is inclined to take the view that
    what it regards to be justice or equity of the case
    has not been served by the findings of fact recorded
    by courts of fact; but on such occasions it is
    necessary to remember that what is administered
    in courts is justice according to law and
    considerations of fair play and equity however
    important they may be, must yield to clear and
    express provisions of the law. If in reaching its
    decisions in second appeals, the High Court
    contravenes the express provisions of section 100,
    it would inevitably introduce in such decisions an
    element of disconcerting unpredictability which is
    usually associated with gambling; and that is a
    reproach which judicial process must constantly
    and scrupulously endeavour to avoid.”
  14. Though precedents abound on this settled principle of law, we
    do not consider it necessary to burden our discussion unnecessarily
    except to rely further on Gurdev Kaur and others vs. Kaki and
    others, (2007) 1 SCC 546, holding as follows:
    “71. The fact that, in a series of cases, this Court
    was compelled to interfere was because the true
    legislative intendment and scope of Section 100 CPC
    11
    have neither been appreciated nor applied. A class
    of judges while administering law honestly believe
    that, if they are satisfied that, in any second appeal
    brought before them evidence has been grossly
    misappreciated either by the lower appellate court
    or by both the courts below, it is their duty to
    interfere, because they seem to feel that a decree
    following upon a gross misappreciation of evidence
    involves injustice and it is the duty of the High
    Court to redress such injustice. We would like to
    reiterate that the justice has to be administered in
    accordance with law.
    xxxx
  15. The Judicial Committee of the Privy Council as
    early as in 1890 stated that there is no jurisdiction
    to entertain a second appeal on the ground of an
    erroneous finding of fact, however gross or
    inexcusable the error may seem to be, and they
    added a note of warning that no court in India has
    power to add to, or enlarge, the grounds specified in
    Section 100.
    xxxx
  16. Despite repeated declarations of law by the
    judgments of this Court and the Privy Council for
    over a century, still the scope of Section 100 has not
    been correctly appreciated and applied by the High
    Courts in a large number of cases. In the facts and
    circumstances of this case the High Court interfered
    with the pure findings of fact even after the
    amendment of Section 100 CPC in 1976. The High
    Court would not have been justified in interfering
    with the concurrent findings of fact in this case even
    prior to the amendment of Section 100 CPC. The
    judgment of the High Court is clearly against the
    provisions of Section 100 and in no uncertain terms
    clearly violates the legislative intention.
    12
  17. In view of the clear legislative mandate
    crystallised by a series of judgments of the Privy
    Council and this Court ranging from 1890 to 2006,
    the High Court in law could not have interfered with
    pure findings of facts arrived at by the courts below.
    Consequently, the impugned judgment is set aside
    and this appeal is allowed with costs.”
  18. The order of the High Court interfering with concurrent
    findings of facts by two courts is, therefore, held to be
    unsustainable in exercise of the powers under Section 100 of the
    Civil Procedure Code. The order of the High Court is consequently
    set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial
    Court and the First Appellate Court are restored. The suit of the
    plaintiffs is dismissed. The present appeal is allowed.
    .……………………….J.
    (Ashok Bhushan)
    ………………………..J.
    (Navin Sinha)
    New Delhi,
    November 19, 2019.
    13