Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 1043 (JHR)

Sunil Kumar Jaiswal v. Prem Kumar Jain

2006-08-10

N.N.TIWARI

body2006
ORDER N.N. Tiwari, J. 1. The plaintiff-appellant has preferred this appeal against the judgment and decree of affirmance passed in Title Appeal No. 56 of 1993 dismissing the appeal and upholding the judgment and decree dated 30.7.1993 passed by learned Munsif, Chatra in Title Suit No. 12 of 1984. 2. The plaintiff filed the suit for the reliefs, inter alia, for a decree declaring that the sale-deed dated 12.8.1972 executed by defendant No. 2 in favour of the defendant No. 1 and the deed of agreement of reconveyance of the same date is collusive, void, without consideration, inoperative and illegal. The plaintiff had further prayed for a decree for permanent injunction restraining the defendant No. 1 from disturbing the possession of the plaintiff and in case of dispossession, for delivery of possession or alternatively for a decree for redemption of the suit property. 3. The plaintiffs case was that there was amicable family partition in the year 1947 and the suit property was exclusively allotted to defendant No. 2 by virtue of a registered deed of partition. The suit property is a joint property of the defendant No. 2 and his sons. The defendant No. 2 was of luxurious habits. He had incurred heavy debts for meeting his expenses. In order to avoid the creditors and to pay off the creditors and to save the property, the defendant No. 2 executed a deed of sale in favour of the defendant No. 1 for a consideration of Rs. 2,400/- and the defendant No. 1 executed an agreement of reconveyance in favour of the defendant No. 2 on the same date. The deed of reconveyance was valid for two years. It was stated that the deed of sale was never given effect to and remained inoperative. The defendant No. 2 subsequently paid up the creditors and then requested the defendant No. 1 to execute the deed of reconveyance of the suit property, but the defendant No. 1 avoided and ultimately refused to do so. Hence the suit was filed. 4. The defendant No. 2 filed written statement supporting the plaintiff. 5. The defendant No. 1 contested the suit. In his written statement, he denied the allegations made, in the plaint and stated that the transaction was out and out a sale for a valuable consideration and after the execution of the deed, the same was given full effect. 4. The defendant No. 2 filed written statement supporting the plaintiff. 5. The defendant No. 1 contested the suit. In his written statement, he denied the allegations made, in the plaint and stated that the transaction was out and out a sale for a valuable consideration and after the execution of the deed, the same was given full effect. The defendant No. 1 was put in possession and has been in continuous possession of the suit land. The agreement of reconveyance was only for a period of two years and the plaintiff never showed willingness for reconveyance within the stipulated time. The defendant No. 1 has got his name mutated and he has been paying rent and getting receipts thereof. It has been submitted that the defendant No. 2 was the father of the plaintiff and the defendants No. 3 to 6, and was Karta of the family and natural guardian of minor and he had sold the property for repayment of family debts and for other legal necessities. 6. On the basis of the said pleadings several issues were framed. The parties led their evidences. Learned trial Court, after thorough appraisal and consideration of the facts and evidences on record came to the finding that the sale-deed dated 12.8.1972 was a pure sale and that the consideration money was passed to the vendor and that the sale-deed was perfectly legal and binding and was given effect to by the parties. The plaintiff then preferred appeal in the Court of District Judge, Chatra which was registered as Title Appeal No. 56 of 1993. The said appeal was finally heard and decided by the Additional District Judge-I, Chatra by the impugned judgment and decree. Learned lower appellate Court has also gone into the thorough details and has considered the evidences and materials on record issuewise and held that the saledeed dated 12.8.1972 was valid, legal and binding on the parties and that Shambhu Prasad Jaiswal sold the property as Karta of the family and that the said transfer was for the purpose of paying off the creditors and for other legal necessities. He also upheld the finding that the defendant respondent No. 1 has been in continuous peaceful possession of the land sold to him. Learned lower appellate Court, thus, concurred with the finding of facts arrived at by learned trial Court and dismissed the appeal. 7. Mr. He also upheld the finding that the defendant respondent No. 1 has been in continuous peaceful possession of the land sold to him. Learned lower appellate Court, thus, concurred with the finding of facts arrived at by learned trial Court and dismissed the appeal. 7. Mr. P.K. Prasad, learned Counsel appearing on behalf of the appellant tried to assail the impugned judgment and decree on the ground that the trial Court failed to take into consideration that the sale-deed was executed by defendant No. 2 followed by an agreement for reconveyance, which goes to show the intention of defendant No. 2. Learned Counsel submitted that in view thereof, learned Courts below failed to take into consideration that by the saledeed transfer of the property was not intended rather the same was by way of a security. He further submitted that learned Courts below failed to take into consideration that there was any recital in the sale-deed that the property was being transferred as a karta of the family and in absence of such recital, learned Courts below have committed an error of law in holding that the sale was valid and legal. Learned Counsel further submitted that at any rate defendant No. 2 could have sold his own interest without affecting any right, title and interest of the other co-sharers. The said aspect having not been considered and decided, the impugned judgment and decree are not sustainable and liable to be set aside. 8. Considering the said submissions of learned Counsel and on careful perusal of record, I find that the Courts below have thoroughly considered the said aspects and have come to the finding that the defendant No. 2 sold the said property for paying off the debts of the family and for other legal necessities and he has executed sale deed in the capacity of the father of the plaintiff and the defendant Nos. 3 to 6 and karta of the family. It has been further concurrently found and held by the Courts below that the agreement for reconveyance was valid only for a period of two years which came to an end in the year 1974 and that the sale-deed executed by the defendant No. 2 was given full effect. The defendant No. 1 has got his name mutated and has been in peaceful possession of the suit property. 9. The defendant No. 1 has got his name mutated and has been in peaceful possession of the suit property. 9. The said findings of the Courts below are based on due appraisal of the evidences and materials on record. I find no error or illegality giving rise to any substantial question of law to be framed and decided in this second appeal. This appeal is, accordingly dismissed.