Oral Judgment:
1. This second appeal is directed against judgment and order dated 7.7.2006, passed by the learned Additional District Judge, Darwha, in Regular Civil Appeal No.160 of 2004, whereby the appeal was dismissed, which arose from judgment and order dated 28.11.2003, passed by the learned Joint Civil Judge Junior Division, Digras, in Regular Civil Suit No.112 of 2001, whereby the suit was dismissed.
2. The present second appeal was admitted by this Court, on 6.2.2008, on the following substantial questions of law, thus:
"1. Whether the Courts were justified in dismissing the suit for possession, as filed by the plaintiff, when it was not in dispute that the plaintiff had earlier filed a suit for specific performance of contract against the defendant and the decree passed in the said suit was executed and a sale-deed was registered through Court in favour of the plaintiff?
2. Whether the Courts were further justified in holding that the plaintiff had not proved his title, without considering the evidence rendered by the parties on record on the said issue?
3. Whether the suit of the plaintiff could have been dismissed merely on the ground that the plaintiff had not succeeded in proving the forcible dispossession on 08.06.1996?"
3. The appellant/plaintiff had instituted Regular Civil Suit No. 112 of 2001, in the Court of Civil Judge Junior Division, Digras, with a prayer for possession of the suit agricultural land bearing Survey No.12/03 with area of 1H 41R situated at village Belora, Taluka Digras, District Yavatmal.
4. It is the grievance on behalf of the appellant/plaintiff that both the Courts below ignored the judgment and order as well as final decree in former Regular Civil Suit No.56 of 1991 between the same parties wherein the respondent/defendant had sold the suit land to the appellant/plaintiff. The suit land which was owned by the respondent/defendant was agreed to be sold in favour of the appellant/plaintiff on 5.9.1988 for consideration of Rs.21,000/-. Cash amount in the sum of Rs. 14,000/- as earnest money was paid on the said day by the appellant/plaintiff and an agreement to sale (souda chitthi) was executed whereby the appellant/plaintiff was put in possession of the suit land admeasuring 3 acres 20 gunthas (1H 41 R). Thus, pursuant to agreement to sell the suit land, respondent/defendant had agreed to pay balance amount of consideration in the sum of Rs.7,000/- at the time of execution of sale deed. The suit for specific performance of contract was contested and following issues were framed in that suit, thus:
"1. Does the plaintiff prove that on 5.9.88 defendant agreed to sell his suit land in consideration of Rs.21,000/-? ... Yes
2. Does the plaintiff prove that on the same day he took possession of suit land? ... Yes
3. Does the plaintiff prove that he paid Rs. 14,000/- to defendant as earnest money? ...Yes
4. Does plaintiff prove that in 1989 he paid Rs.4,600/- to defendant towards remaining consideration? ... No
5. Does the defendant prove that he made a loan transaction with defendant and signed on blank stamp paper as security for the amount? ... No
6. To what relief the plaintiff is entitled to? ... As per final order
7. What order and decree? ..... As per final order.
The suit of the appellant/plaintiff was decreed against the respondent/defendant whereby the respondent/defendant was directed to execute the sale deed in favour of the appellant/plaintiff in respect of the suit land by paying balance amount of consideration or depositing the same in the Court within time allowed. This decree became final and satisfied in Regular Darkhast No.18 of 1993 sale deed was executed through the executing Court on 9.8.1995.
5. It is the case of the appellant/plaintiff that the respondent/defendant took forcible possession from the appellant/plaintiff despite the fact that the sale deed was executed, in respect of the suit land, on 9.8.1985 by the executing Court of which the respondent/defendant was aware and party to the litigation.
6. Learned counsel appearing for the appellant/plaintiff submits that in view of the principle of res judicata as mentioned in Section 11 of the Civil Procedure Code to argue that it was not open for the trial Court below to try the same issue which was framed and decided in the former suit between the same parties. The same issue which was subsequently raised in the Courts below ought not to have been decided again. Therefore, both the impugned judgments and orders suffer on the count that principle of res judicata as stated in Section 11 of the Civil Procedure code is completely ignored resulting in failure of justice.
7. My attention is invited to Exh.62 which was certified copy of judgment and order in Regular Civil Suit No.56 of 1991 in the former suit between the same parties. The issues and findings are already recorded as above.
Thus, looking to the judgments and orders by the Courts below it appears that the trial Court as well as the first appellate Court clearly erred in law to overlook the principle of res judicata in a suit for possession based upon the title particularly when the suit in the present case i.e. Regular Civil Suit No.112 of 2001 was instituted on 27.8.2001 and the written statement was filed on 26.2.2002. Thus, there was no justification really for both the Courts below to dismiss the suit for possession based upon the title particularly when decree in former suit involving same issue was satisfied and the sale deed was executed through the executing Court. The copy of the said sale deed, is annexed along with Civil Application No. 7625 of 2007, which is in Marathi and also averred the description of the suit property sold and to be delivered in possession of the purchaser by the Court.
8. In the present case, under the agreement to sell actual physical possession was already parted with by the respondent/defendant and pursuant to the registered sale deed through the Court, the appellant/plaintiff became lawful owner and already was in possession of the suit land.
9. On behalf of the respondent/defendant the submission is that in the second appeal interference would not be warranted as there are concurrent findings of facts recorded by the Courts below.
10. Learned counsel appearing for the appellant/plaintiff, however, invites my attention to the ruling in the case of D.R. Rathna Murthy ..vs.. Ramappa, reported at 2011(3) Mh.L.J. 44 to argue that despite such situation when the Courts below recorded concurrent findings of facts, the Apex Court in paragraph No.7 of the ruling, after considering the rival submissions and record of the case, expressed its opinion, thus:
œUndoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the reappreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji ..vs.. Mahadev Channabasappa and ors., AIR 2000 SC 2108; Hafazat Hussain ..vs.. Abdul Majeed and ors. (2001)7 SCC 189; and Bharatha Matha and anr. ..vs.. R. Vijaya Renganathan and ors., JT 2010(5) SC 534).?
11. Thus, there is no absolute bar for second appellate Court to interfere with the finding of facts in exceptional cases wherein the Courts below ignored the material evidence or acted on no evidence; when the Courts below drew wrong interference from the proved facts by applying law erroneously; and when the Courts have wrongly cast the burden of proof.
12. Thus, in the larger interest of justice when the second appellate Court finds substantial question of law, and whenever the question of law is fairly argued in a case where there is a room for interference in the impugned judgment under the appeal and it is necessary to discuss and determine alternate view when question of law raised is debatable, the interference by the second appellate Court is definitely permissible if after having considered that judgments by the Courts below ignored the fact that the possession of the suit land was delivered by the respondent/defendant pursuant to agreement to sell. The decree for specific performance which was already granted in the former suit between the same parties i.e Regular Civil Suit No.56 of 1991 and the final decree in the said suit resulted in execution of the registered sale deed through the executing Court in favour of the appellant/plaintiff bearing in mind the principle of res judicata, the suit ought to have been decreed with costs as also damages for loss of occupation and enquiry into mesneprofits from the date of the decree till possession ought to have been ordered. Hence, the impugned judgment and order must be set aside.
13. In the result, this Court passes the following order:-
i) Second Appeal No.83 of 2007 is allowed.
ii) The suit shall stand decreed as prayed for.
iii) There shall be enquiry into mesneprofits under Order XX Rule 12 of the Civil Procedure Code for wrongful occupation by the respondent/defendant.
iv) The second appeal is disposed of accordingly.