Agam Lal v. Sri Nath — 1987 DIGILAW 217 (ALL)

JUDGMENT K.P. Singh, J. - This second appeal has been directed against the judgment of IVth Additional District Judge, Allahabad in Civil Appeal no. 734 of 1983-Shri Nath, Plaintiff-Appellant v. Agam Lal and others, defendants-respondents. 2. Brief facts giving rise to the present second appeal are that Shri Nath and Mst. Lodhia bad filed a suit for declaration that the sale deed executed by one Mst. Sahdeiya, defendant no. 2 in favour of the appellant Agam Lal on 13.7.81 was illegal, void and ineffective therefore, the same should be cancelled and the sub-Registrar, Karchhana be informed accordingly. It has been alleged in the plaint that Mata Dayal and Shri Nath were co-tenure-holders of the land alleged to have been sold to Agam Lal appellant by Mst. Sahdeiya. According to the plaint allegations Mst. Sahdeiya had no right and title to the disputed land as she was not the widow of Mata Dayal and that she could not execute the sale deed in favour of Agam Lal appellant. The existence of sale deed casts doubt on title of the plaintiff, therefore, the suit for the prayer mentioned above. 3. The Claim of the plaintiff was contested by the appellant on the allegation that Mst. Sahdeiya was widow of Mata Dayal and she was fully entitled to execute the sale deed in favour of the appellant Agam Lal and that the civil court had no jurisdiction and various other pleas were taken to negative the claim of the plaintiff. 4. The Trial court through its judgment dated 24.8.83 did not accept the claim of the plaintiff and dismissed the suit. Aggrieved by the judgment of the Trial court the plaintiff, had preferred an appeal which has been allowed by the lower appellate court through its judgment dated 23.3.85. Against the judgment of the first appellate court the defendant appellant has preferred the above-noted appeal. 5. Learned counsel for the appellant contends before me that in the facts and circumstances of the present case the plaintiff had no right and title to the dispute land because there were three daughters of Mata Dayal. The lower appellate court has acted illegally in setting the judgment of the Trial court and giving a decree to the plaintiff. 6. Learned counsel for the appellant contends before me that in the facts and circumstances of the present case the plaintiff had no right and title to the dispute land because there were three daughters of Mata Dayal. The lower appellate court has acted illegally in setting the judgment of the Trial court and giving a decree to the plaintiff. 6. Second contention raised on behalf of the appellant is that the finding recorded by the trial court could not be altered by the first appellate court in the facts and circumstances of the present case. The learned counsel for the appellant has placed reliance Upon a ruling reported in A.I.R. 1983 S.C. page 114 Madhusudan Das v. Smt. Narayani Bai and others, and 1986 A.I.R. page 61 Brahmadeo and others v. Dy. Director of consolidation at Deoria and others. 7. Third contention raised on behalf of the appellant is that the Civil court had no jurisdiction to try the suit. The learned counsel for the appellant has placed reliance upon the rulings reporting in A.I.R. 1973 S.C. page 2451 Gorakh Nath Dube v. Hari Narain Singh and others, and 1981 A.W.C. page 469 Dr. Ajodhya Prasad v. Gangotri Prasad. 8. Fourth contention raised on behalf of the appellant is to the effect that the voters' list was not conclusive, therefore, the appellant court has acted illegally in accepting the claim of the plaintiffs by placing reliance upon the voters list. In this connection the learned counsel for the appellant has referred to the ruling reported in 1977 R.D. page 1 Smt. Dashrath Dei v. Ram Newaj and others. 9. In my opinion none of the contentions raised on behalf of the appellant have force. 10. As regards first contention the claim of the appellant is that, there were three daughters born out of the union between Mata Dayal and Mst. Sahdeiya, on appraisal of evidence the lower appellant court has come to the conclusion that Mst. Sahdeiya was not widow of Mata Dayal and had no concern with the property of Mata Dayal. Therefore, the argument advanced on behalf of the appellant fails because it is not the case of the appellant that Mata Dayal had three daughters rather the case of the appellant is that Mata Dayal and Mst. Sahdeiya had given birth to three daughters, when Mst. Therefore, the argument advanced on behalf of the appellant fails because it is not the case of the appellant that Mata Dayal had three daughters rather the case of the appellant is that Mata Dayal and Mst. Sahdeiya had given birth to three daughters, when Mst. Sahdeiya is not found as widow of Mata Dayal deceased, the contention of the appellant that there are three daughters of Mata Dayal cannot be accepted in the facts and circumstances of the present case. Sri Nath, one of the plaintiffs, being co-sharer in the disputed land would be entitled to maintain the suit. If Mst. Lodhia widow of Mata Dayal had died during the pendency of the suit leaving no heir, I am unable to accept the contention of the learned counsel for the appellant that the plaintiff's suit could not be decreed because there were other heirs of Mata Dayal namely the above mentioned three daughters. According to me the alleged three daughters are not the daughters of Mata Dayal out of a legal wedlock. 11. As regards the contention that the appellate court would not alter the finding of the Trial court, it is well known that the appellate court has as much powers to appraise the evidence on record as the trial court. The findings recorded by the trial court are not based on the demeanour of the witnesses examined before it, so as broad proposition I am unable to agree with tho contention of the learned counsel for the appellant that the appellate court could not alter the finding rendered by the trial court. The rulings relied upon by the learned counsel for the appellant deal with different situations and they are distinguishable in the facts and circumstances of the present case. In the present case, the trial court had not appraised the documentary evidence from correct angle. The lower appellate court has emphasised with this aspect of the matter and has re-appraised the evidence on record and has come to a contrary finding. To me appears that the finding of fact recorded by the lower appellate court does not suffer from patent error of law warranting interference in second appeal by this court. 12. The lower appellate court has emphasised with this aspect of the matter and has re-appraised the evidence on record and has come to a contrary finding. To me appears that the finding of fact recorded by the lower appellate court does not suffer from patent error of law warranting interference in second appeal by this court. 12. As regards the question of jurisdiction it is note-worthy that the relevant claim in the suit is only for cancellation of the sale deed executed by Smt. Sahdeiya in favour of the appellant and a prayer has been made that relevant information should be sent to the Registrar's office so that the correction may be made in that record. Such a relief is not cognisable by the revenue court. True on the allegations the plaintiff had asserted that he was Vihnmidhar of the disputed land. The relief claimed in the suit could not be Granted unless the plaintiff was found bhumidhar of the disputed land but the reliefs claimed can also not be granted by the revenue courts. The rulings of this court on this question are conflicting. However, in view of the allegations and reliefs claimed in the plaint I am not inclined to accept the contention of the learned counsel for the appellant that the civil court had no jurisdiction to grant relief to the plaintiff-opposite party. 13. As regards the contention of the learned counsel for the appellant that the voters' list is not conclusive in view of the rulings relied upon by him, it is sufficient to indicate that the appellate court has not only based its judgment on the voters' list, but has also dealt with the oral evidence a record. Therefore, the appellant cannot assail the judgment of the lower appellate court on the basis of the rulings cited by him. 14. In the result, all the contentions raised on behalf of the defendant-appellant fail and the second appeal preferred by the defendant-appellant fail and the second appeal preferred by the defendant-appellant has no force and deserves dismissal. Accordingly the second appeal is dismissed. Parties are directed to bear their own costs.