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2003 DIGILAW 1133 (JHR)

Suresh Mahatha @ Suresh Sharma v. Dulal Devi

2003-09-10

VISHNUDEO NARAYAN

body2003
Judgment Vishnudeo Narayan, J.-This appeal at the instance of the defendant appellant is directed against the judgment and decree dated 11.5.1988 and 24.5.1988 respectively passed in Title Appeal No.3 of 1984 by Shri Shiveshwar Narain, 1st Additional District Judge Dhanbad whereby and whereunder the judgment and decree dated 30.11.1983 and 10.12.1983 respectively passed by 1st Additional Sub Judge, Dhanbad in Title Suit No. 27/2 of 1980/82 were set aside and the appeal filed by the plaintiffs respondent was allowed and the suit of the plaintiffs respondent was decreed. 2. The plaintiffs respondent have filed Title Suit No. 27 of 1980 for a declaration of his title as permanent occupancy raiyat over the suit land described in Schedule A of the plaint with a further direction that defendant appellant has acquired no title in respect of the suit property. 3. The case of the plaintiffs respondent, in brief, is that the suit property detailed in schedule A of the plaint belonged to Gangadhar Mahto and his three brothers having 1/4th share each and his three brothers were joint in mess with Gangadhar Mahto but each of them possessed their property separately as per 1/4th share and all the brothers of Gangadhar Mahto died issueless and Gangadhar Mahto also died leaving behind his widow Sabu Mani @ Abu Mani and she came in exclusive possession of the entire family property including the suit property. The plaintiff's respondent acquired the suit property along with other lands by virtue of the registered sale deed dated 15.3.1967 executed by Sabumani aforesaid in his favour and the said sale deed is for consideration and the plaintiffs respondent came in possession of the entire land covered under the sale deed including the suit property and since then he is continuing in cultivating possession over the same. It is alleged that subsequently the defendant appellant started distributing the possession of the plaintiffs respondent on the basis of alleged sale deed dated 17.3.1979 executed by Sabumani in his favour. It is also alleged that Sabumani had no right, title or interest in the suit property to confer any title or possession over the suit land in favour of the defendant appellant by executing the sale deed dated 17.3.1979 which led to proceeding under Section 144 and other provisions of Code of Civil Procedure. It is also alleged that Sabumani had no right, title or interest in the suit property to confer any title or possession over the suit land in favour of the defendant appellant by executing the sale deed dated 17.3.1979 which led to proceeding under Section 144 and other provisions of Code of Civil Procedure. The plaintiffs respondent had filed this title suit for declaration of his title in respect of the suit property in view of the fact that a cloud has been cast on his title. 4. The case of the defendant appellant is that Sabumani aforesaid has never executed any sale deed in favour of the plaintiffs respondent with respect to their suit land on 15.3.1967 nor the plaintiffs respondent had ever come in possession over the same. It is also alleged that if there is any sale deed in existence in favour of the plaintiffs respondent alleged to have been executed by Sabumani then in that case the sale deed is fraudulent and a sham transaction and without consideration. The defendant appellant claimed the suit property by virtue of the registered sale deed dated 17.3.1979 executed by Sabumani in their favour and since then they are in possession over the suit property. 5. In view of the evidence oral and documentary on the record the learned trial court framed the following issues for adjudication: (i) Has the plaintiff any cause of action for the suit? (ii) Is the suit maintainable in its present form? (iii) Is the suit barred by limitation? (iv) Is the suit barred by Principles of waiver, estoppel or acquiescence? (v) Is the suit bad for non-joinder of parties? (vi) Is the plaintiff in possession of the suit land by virtue of the sale deed dated 15.3.1967 said to have been executed by Sabumani in his favour? (vii) Whether the plaintiff is entitled to a decree for declaration of his title over the suit land as prayed for? (viii) To what relief or reliefs, if any, the plaintiff is entitled? 6. The learned trial court while deciding issue nos. (vii) Whether the plaintiff is entitled to a decree for declaration of his title over the suit land as prayed for? (viii) To what relief or reliefs, if any, the plaintiff is entitled? 6. The learned trial court while deciding issue nos. (vi) and (vii) aforesaid had held that the sale deed dated 15.3.1967 said to have been executed by Sabumani in favour of the plaintiffs respondent was not a genuine one on the ground that there is some interpolation in the contents of the sale deed and also the said sale deed is without consideration and the said sale deed has never been acted upon and the plaintiffs respondent had never come in possession over the same. The learned trial court has also held that the sale deed executed by Sabumani in favour of the defendant appellant on 17.3.1979 is for consideration and the defendant appellant is in possession of the suit property and prior to their purchase Sabumani was herself in possession thereof. In view of the findings aforesaid the learned trial court held that the plaintiffs respondent is not entitled to the decree as prayed for and has dismissed the suit. 7. Aggrieved by the judgment and decree of the trial court the plaintiffs respondent preferred Title Appeal No. 3 of 1984. The lower appellate court on reappraisal and reappreciation of the evidence oral and documentary on the record reversed the judgment and decree of the trial court and allowed the appeal as per the impugned judgment and decreed the suit. The appellate court below came to the finding that the sale deed dated 15.3.1967 (Ext. 2) executed by Sabumani in favour of the plaintiffs respondent is a genuine sale deed and the plaintiffs respondent had acquired title over the suit land. It has also been held that the sale deed in favour of the defendant appellant was of much later date i.e. 17.3.1979 and Sabumani had no right for execution of the sale seed on 17.3.1979 in favour of the defendant appellant as she had no right, title or interest in the suit property in view of the sale deed dated 15.3.1967 executed by her in respect thereof in favour of the plaintiffs respondent. It has also been held that the defendant appellant has acquired no title over the suit property by virtue of the subsequent sale deed dated 17.3.1979 (Ext. It has also been held that the defendant appellant has acquired no title over the suit property by virtue of the subsequent sale deed dated 17.3.1979 (Ext. B) in respect of the suit land executed by Sabumani in their favour. The learned court below also found possession of the plaintiffs respondent over the suit property. The defendant appellant had come before this court in Second Appeal against the judgment of reversal. 8. This Court while admitting the appeal for hearing has formulated the substantial question which runs thus : "While reversing the judgment and decree passed by the learned trial court, whether the learned lower appellate court were required to meet the reasonings of the trial court in holding that Ext. 2 is a genuine document?" 9. Assailing the impugned judgment it has been submitted by the learned counsel for the defendant appellant that the learned appellate court below did not assign any reason in the impugned judgment for not agreeing with the findings of the learned trial court while reversing the judgment and decree of the trial court. It has been submitted further that in view of the evidence on the record the trial court has held that the sale deed (Ext. 2) in favour of the plaintiffs respondent is not a genuine document and the same is without consideration and it was never acted upon and the learned trial court has assigned cogent reasons for coming to the said finding of fact. It has also been submitted that as per the admission contained in para 12 of the plaintiff it is crystal clear that the defendant appellant is in possession of the suit property and prior to that Sabumani was in possession thereof and the impugned judgment is conspicuously silent in respect thereof. It has also been submitted that in the impugned judgment the learned appellate court has not specifically given a finding of the fact of the possession of the plaintiffs respondent over the suit land by virtue of the sale deed in question and in view of the evidence on the record the impugned judgment is perverse. In support of his contention a reference has been made of the ratio of the case of Neelakantan and others vs. Mallika Begum (A.I.R. 2002 SC 827) in which it has been observed by the Apex Court which runs hereunder: "........ In support of his contention a reference has been made of the ratio of the case of Neelakantan and others vs. Mallika Begum (A.I.R. 2002 SC 827) in which it has been observed by the Apex Court which runs hereunder: "........ It is well settled that the High Court while considering the matter in exercise of its jurisdiction in Second Appeal or Civil Revision would not reverse the finding of fact as recorded by the courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take different view." Lastly it has been submitted that the findings of fact arrived at by the learned appellate court below ignoring important relevant evidence on the record is bad in law and the same is based on misreading of the evidence as well as misapplication of law and viewed thus the impugned judgment is unsustainable. 10. Refuting the contention aforesaid it has been submitted by the learned counsel for the plaintiffs respondent that the learned appellate court below on proper appreciation and reappraisal of the evidence came to the finding that the sale deed dated 15.3.1967 (Ext. 2) has been duly executed by Sabumani in favour of the plaintiffs respondent in respect of the suit land and the plaintiffs respondent have acquired valid right, title and interest in respect thereof and since then he is coming in possession over the suit property and Sabumani did not take any step within the period of limitation to get the said sale deed declared null and void and, them fore, Sabumani had no right, title and interest in the suit property after the execution of the sale deed dated 15.3.1967 (Ext. 2) and subsequent execution of the sale deed dated 16.3.1979 (Ext. B) by her in favour of defendant appellant will confer no right on them in the suit property. It has also been submitted that there are cogent evidence on the record to show that the sale deed (Ext. 2) and subsequent execution of the sale deed dated 16.3.1979 (Ext. B) by her in favour of defendant appellant will confer no right on them in the suit property. It has also been submitted that there are cogent evidence on the record to show that the sale deed (Ext. 2) executed by Sabumani on 15.3.1967 in favour of the plaintiffs respondent has been acted upon and that plaintiff respondent was in possession over the suit land and the registered sale deed would be presumed to be genuine unless it is set aside by the competent court. It has also been submitted that the finding of the trial court as per the detailed evaluation of sale deed dated 15.3.1967 and 17.3.1979 on the basis of certain facts like payment of consideration money, witnesses in respect of the sale deed and probability of the execution of two sale deeds by Sabumani has committed an error in coming to the finding that the sale deed dated 15.3.1967 is not genuine and the finding of the learned trial court is against the pleadings of the parties also. It has further been submitted that the learned appellate court below in para 7 of the impugned judgment has considered the evidence on the record and after properly evaluating the evidence has allowed the appeal and reversed the judgment of the trial court and it cannot be said that the finding of the learned appellate court below is bad in law and is based on misleading of the evidence or ignoring important evidence. Relying upon the ratio of the case of Arumugham and others vs. Sundarambal and another [(1994) 4 SCC 350] it has been submitted that it is open to the 1st Appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It is not permissible for the 2nd Appellate Court to interfere with such finding of the 1st Appellate court only on the ground that the 1st Appellate Court had not come to grips with the reasonings given by the trial court and in view of the ratio of the said case the substantial question framed in this case has become non-est. 11. 11. It is an admitted fact that Sabumani @ Abumani was absolute owner of the properties succeeded from her deceased husband Gangadhar Mahto and his three other brothers and they all have died issueless. Both the parties to the suit claimed the suit land by virtue of the sale deeds executed in their favour by Sabumani. The registered sale deed in favour of the plaintiffs respondent was executed on 15.3.1967 by Sabumani whereas the sale deed in favour of the defendant appellant has been executed by Sabumani on 16.3.1979 i.e. more than 12 years of the execution of the sale deed in favour of the plaintiffs respondent. It is also an. admitted fact that sale deed (Ext. 2) dated 15.3.1967 in favour of the plaintiffs respondent are in respect of several other plots including the suit plots. There is no dispute in respect of the fact that Sabumani has taken no steps for setting aside the sale deed dated 15.3.1967 executed by her in favour of the plaintiffs respondent within the statutory period of limitation and in this view of the matter the sale deed dated 15.3.1967 in favour of the plaintiffs respondent had reached its finality. Here I will refer the averments made in para 9 of the written statement of the defendant appellant. The defendant appellant has made out a case that Sabumani has never sold the suit property to the plaintiffs respondent nor the plaintiffs respondent obtained possession over any portion of the same on strength of his alleged purchase. The further case of the defendant appellant is that if there is any said sale deed, the same is collusive, fraudulent without consideration, farzi and was never acted upon and by virtue of the alleged' sale deed the plaintiffs respondent did not and could not acquire any right, title and interest or possession over the suit property. It, therefore, appears from the averments made in the written statement of the defendant appellant that he was not in know of the fact of the existence of any sale deed executed by Sabumani in favour of the plaintiffs respondent. There is cogent evidence on the record to establish the fact that Sabumani had executed the sale deed (Ext. 2) dated 15.3.1967 in favour of the plaintiffs respondent. The learned trial court has not framed any issue regarding the due execution of the sale deed dated 15.3.1967 (Ext. There is cogent evidence on the record to establish the fact that Sabumani had executed the sale deed (Ext. 2) dated 15.3.1967 in favour of the plaintiffs respondent. The learned trial court has not framed any issue regarding the due execution of the sale deed dated 15.3.1967 (Ext. 2) for adjudication. Therefore, the findings arrived at by the trial court regarding the due execution of the sale deed (Ext. 2) is unwarranted in this case in the absence of any pleading to that effect. Sabumani is alive and living in the village where the suit property is situated. She has not taken oath on behalf of the defendant appellant to support their case that the sale deed dated 15.3.1967 (Ext. 2) has not been duly executed by her. In this view of the matter the appellate court below has rightly come to the finding of the fact that the sale deed (Ext. 2) in favour of the plaintiff respondent Moti Lal Sharma is genuine and valid and the said sale deed has been acted upon and the plaintiffs respondent had come in possession over the suit property and has also perfected his right, title and interest therein. It also appears in view of the record that Sabumani had no right, title and interest in the suit property after execution of the sale deed dated 15.3.1967 in favour of the plaintiffs respondent. Therefore, the sale deed executed by her on 16.3.1979 (Ext. B) in favour of the defendant appellant has conferred no title on them. Thus it cannot be said that the finding recorded by the appellate court below is without any legal evidence on the record or on misreading of the evidence or suffers from any legal infirmity which materially prejudices the case of the defendant appellant. It can also not be said that the finding recorded by the appellate court below is perverse and in this view of the matter it is not open for this court to set aside such a finding and to take a different view. Therefore, the ratio of the case of Neelkantan and other (supra) is of no help to the defendant appellant in the facts and circumstances of this case. It is not within the domain of this Court to investigate the grounds on which the findings were arrived at by the last court of fact, being the 1st Appellate Court. Therefore, the ratio of the case of Neelkantan and other (supra) is of no help to the defendant appellant in the facts and circumstances of this case. It is not within the domain of this Court to investigate the grounds on which the findings were arrived at by the last court of fact, being the 1st Appellate Court. It is true that the lower appellate court ordinarily should not reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interfering in Second Appeal where it is found that the appellate court had accorded reasons for doing so. Here in this case the learned appellate court below has assigned cogent reasons for coming to the conclusion of the genuineness and due execution of the sale deed dated 15.3.1967 (Ext. 2). In a case where from the given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible. This Court cannot substitute its opinion for the opinion of the 1st Appellate Court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of, law applicable or its settled position on the basis of pronouncement made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence. In this connection I am fortified in my view as per the ratio of the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and other [ (1999) 3 SCC 722 ]. In the case of Arumugham and others (supra), the Apex Court relying upon the ratio of the case of V. Ramchandra Ayyar and another vs. Ramalingam Chettiar and another (A.I.R 1963 SC 302) has observed : “........... that the second appellate court cannot interfere with the judgment of 1st Appellate Court on the ground that the 1st Appellate Court had not come to close grips with the reasoning by the trial court. It is open to the 1st Appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It is open to the 1st Appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It is not permissible for the second appellate court to interfere with such findings of the 1st Appellate Court only on the ground that the 1st Appellate Court had not come to grips with the reasoning given by the trial court". Viewed thus there is no substantial question of law at all involved in this case. Therefore, there is no illegality in the impugned judgment requiring any interference therein. 12. There is no merit in this appeal and it fails. The impugned judgment of the learned appellate court below is hereby affirmed. This appeal is hereby dismissed. There shall be no order as to costs in the facts and circumstances of this case.