LexTHULASIDHARA & ANOTHER versus NARAYANAPPA & OTHERS
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SUPREME COURT REPORTS
[2019] 8 S.C.R.
THULASIDHARA & ANOTHER
v.
NARAYANAPPA & OTHERS
(Civil Appeal No.784 of 2010)
MAY 01, 2019
[L. NAGESWARA RAO AND M.R. SHAH, JJ.]
Code of Civil Procedure, 1908: s.100 – Exercise of power
under, scope – Suit for title and permanent injunction based on
sale deed – Claim of defendants that suit property fell into share of
husband of defendant no.1 and father of defendant no.2 and 3 by
way of partition – Trial court dismissed the suit holding that the
partition deed is admissible in evidence and the plaintiff in collusion
with PW2 got executed a sham document in his favour – First
appellate authority upheld the decision of trial court – High Court
framed only one substantial question as to whether the appellant
was the owner and in possession of the suit land as he purchased it
subsequent to the partition deed – High Court allowed the appeal
holding that the partition deed required registration and therefore
was inadmissible in evidence and that both the courts below were
not justified in holding that the sale deed was only nominal one –
On appeal, held: The jurisdiction of High Court under s.100 after
the 1976 amendment is confined only with the second appeal
involving a substantial question of law – In the instant case, no
substantial question of law was framed – Trial court as well as first
appellate court, both gave cogent reasons on appreciation of
evidence on record more particularly the sale deed and the partition
deed and held that the plaintiff was not entitled to declaration that
he became the owner – While interfering with the orders by both
the courts below, High Court again re-appreciated the entire
evidence on record, which in exercise of powers under s.100 was
not permissible – Under the circumstances, High Court committed a
grave/manifest error in quashing and setting aside the findings
recorded by both the courts below, which were on appreciation of
evidence on record – Partition.
Partition: The case of defendants was that husband of
defendant no.1 and father of defendant no.2 and 3 purchased the
[2019] 8 S.C.R. 212
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suit property on 12.12.1948 under a registered sale deed – Said
property was blended into the joint family properties by him –
Thereafter when partition took place said suit property fell into his
share – Plaintiff filed suit for declaration of title on the basis of
sale deed – Trial court and first appellate court held that the said
sale deed was only a nominal sale deed and not an out and out sale
deed since it was executed as security for loan and never intended
to sell the suit property – High Court allowed the appeal holding
that in view of the registered sale deed executed in favour of the
plaintiff, the plaintiff became the actual owner – On appeal, held:
Father of defendants was not a signatory to the sale deed and
therefore it was not binding on him or his heirs – Even otherwise, in
a suit for a declaration on the basis of the registered sale deed, it is
always open for the defendant, who is a stranger to the sale deed,
to raise a plea that the sale deed was void, fictitious, collusive or
not intended to be acted upon and or not binding to him – Partition
deed relied upon by the defendants could be said to be a Palupatti
which means list of properties partitioned – At the most, it can be
said to be a family arrangement – Therefore, in the facts and
circumstances of the case, the same was not required to be registered
– The execution of this document/ Partition Deed/ Palupatta dated
23.04.1971 was established and proved by examining different
witnesses – Even the plaintiff also categorically admitted that the
oral partition took place on 23.04.1971 and he also admitted that
3 to 4 punchayat people were also present – Therefore, the same
even can be used as corroborative evidence as explaining the
arrangement made thereunder and conduct of the parties – So far
as sale deed dated 18.05.1973 executed in favour of the plaintiff
was concerned, there was serious dispute with respect to
consideration paid by the plaintiff – In the facts and circumstances
of the case, the High Court was not justified in interfering with the
findings recorded by both the courts below – The orders passed by
both the courts below dismissing the suit are restored.
Disposing of the appeal, the Court
HELD: 1. The jurisdiction of the High Court to entertain
Second Appeal under Section 100 of the CPC after the 1976
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