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2004 DIGILAW 874 (JHR)

Deodhari Mahto v. Sitaram Mahto

2004-08-24

VISHNUDEO NARAYAN

body2004
ORDER Vishnudeo Narayan, J. 1. Heard the learned counsel -for the appellants. 2. This appeal at the instance of the appellants stands directed against the impugned judgment and decree dated 30.4.2003 and 24.5.2003 respectively passed by Shri Anil Kumar, Additional District Judge, Fast Track, Court No. VII, Hazaribagh in Title Appeal No. 11 of 1988 and Title Appeal No. 11 (A) of 1988 whereby both the appeals were dismissed. 3. The appellants had filed Partition Suit No. 104 of 1979 for declaration that the sale deed dated 8.10.1978 executed by defendant No. 1 in favour of defendant Nos. 16 and 17 in respect of the land of Schedule G of the plaint is not binding on them and they have further sought a relief for partition of Schedule B to Schedule F land of the plaint in which they claimed l/6th share. 4. The plaintiffs had made out a case in para 15 of the plaint that the sale deed: dated 8.10.1978 executed by defendant No. 1 in favour of defendant Nos. 16 and 17 regarding the some land of Schedule G is bogus, illegal, sham and without consideration intended to injure the interest of the co-sharers. The trial Court, while decreeing the suit of the plaintiffs in part has negatived the relief in respect of the declaration as claimed in view of the evidence on the record and held that the sale deed is legal, operative and binding upon the plaintiffs. 5. The plaintiffs preferred title appeal before the appellate Court being aggrieved against the said finding and the defendants have also preferred a separate appeal against the said finding of the trial Court decreeing the suit for partition regarding l/6th share of the plaintiffs in the suit land. 6. Plaintiff No. 1, who has examined himself as PW 8 has deposed in his examination-in-chief that the said sale deeds executed by the defendant No. 1 in favour of defendant Nos. 16 and 17 is a sham transaction. 7. Both the Courts below have concurrently held that the sale deed executed by defendant No. 1 in favour of defendant Nos. 16 and 17 is genuine, valid and for consideration. 8. 16 and 17 is a sham transaction. 7. Both the Courts below have concurrently held that the sale deed executed by defendant No. 1 in favour of defendant Nos. 16 and 17 is genuine, valid and for consideration. 8. In this appeal at hand, the said finding has been challenged on the ground that Schedule G land of the plaint is a joint family property and this sale deed has seen the light of the day by the defendant No. 1 without the consent of the other co-sharers and in this view of the matter, the finding of-both the Courts below in respect thereof is illegal. I see no substance in the contention of the learned counsel for the appellants in respect thereof in view of the fact that there was no averment in the plaint of the appellants that the said sale deed is without consent of the other co-sharers. There is no evidence brought on the record in respect thereof. It further transpires from perusal of the impugned judgment of both the Courts below that this aspect of the matter was never raised before them. For the first time, before this Court in the second appeal, this question has been raised. There is catena of decisions of the Apex Court as well as of this Court that a party cannot be allowed to set up a new case in second appeal and ask for relief on different grounds. The plea raised for the first time at this stage is not permissible for which there is no basis as per averment contained in the plaint. And last but not the least, in the second appeal this Court has no jurisdiction to give a finding on an issue which was never pressed either before the Courts below. 9. In this view of the matter. I see no substance in the submission of the learned counsel for the appellants. Thus, there is no substantial question of law involved in this appeal. This appeal is, therefore, dismissed .