MAHABOOB versus MAKTUMSAB

Citation: [2008] 4 S.C.R. 628 · Decided: 10-03-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed

Judgment (excerpt)

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[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.] 
Code of Civil Procedure, 1908 - s.100: 
Second appeal - Interference with question of fact - Suit 
for declaration of title in respect of property- 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 
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 
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MAHABOOB v. MAKTUMSAB 
629 
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HELD:1.1. The High Court proceeded on the basis A 
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 B 
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 c 
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 D 
who was examined to prove Ex.D-11 has not identified 
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the signature of the plaintiff, the High Court is not justified 
in relying on Ex.D-11. Hence, the consequent action taken 
on the basis of Ex.D-11 cannot be accepted. DW.1 is none 
else than son of the defendant. As rightly obsel'Ved by E 
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 it F 
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is accepted that his statement is correct, he admitted that 
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as per Ex.P-1 the plaintiff's father got 7 acres 10 guntas. 
The Trial Court has also raised a doubt that there is nothing 
on record to show that Ex.D-11 and D-13 were given to 
village accountant with the consent of the plaintiff. Like G 
the Trial Court, the First Appellate Court too 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 1 O guntas. In light of the factual conclusion 
arrived by the Trial Court as well as the First Appellate H 
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630 
·SUPREME COURT REPORTS 
(2008] 4 S.C.R. 
A Court analyzing the oral and documentary evidence, the 
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High Court committed an error in interfering on a question 
of fact which was not permissible under Section 100 CPC. 
[Para 1 O] [634-A-H] 
B 
. 1.3. It was 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 
c Court declaring the plaintiff as the owner in possession 
of 7.10 acres is acceptable. [Para 10] [635-A, B, C] 
P Cl)andrasekharan and Ors. v. S. Kanakarajan and Ors. , 
2007 (5) SCC 669 and

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