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2006 DIGILAW 261 (PAT)

Chamru Kuma v. Devendra Kumar Azad

2006-03-24

body2006
S.M.M. ALAM, J.:- This Second Appeal has been preferred against the judgment and decree dated 24.2.90 passed by Sri Abhay Shankar Prasad, 5th Additional District Judge, Munger, in Title Appeal No.1 of 1980 whereby he has been pleased to set aside the judgment and decree dated 10.12.79 passed by Sri Rameshwar Narain Singh, Sub-ordinate Judge, Khagaria, in Title Suit No. 32 of 1978 and decreed the suit of the plaintiff. 2. Being aggrieved by the said judgment and decree the defendant-appellant has preferred this Second Appeal. 3. First of all, I would like to state the case of the respective parties. The case of the plaintiffs-respondents is that Late Shanti Sah after purchase of the suit land in auction sale sold the land to Gudar Sah through registered sale deed dated 22.12.1932 for consideration of Rs. Four hundred with stipulation that the vendee shall pay all the balance of the mortgaged money equivalent to rupees four hundred due on simple mortgage dated 14.2.29 (Exhibit-13) executed by Shanti Sah in favour of Baldeo Sah. After purchase of the suit land, Gudar Sah dedicated the property to Radha Krishna idol of Mauza Bachhauta vide registered deed of Arpannama (Exhibit-9) dated 29.4.35 and appointed himself and two other persons, namely, Baldeo Sahand Tilo Sah as Shebaits. The said Baldeo Sah and Tilo Sah, who were issueless predeceased Gudar Sah and after that Gudar Sah also died leaving behind him his son Sattan Sah, who became shebaits after the death of Gudar Sah. On 13.3.73, Sattan Sah executed deed exchange with ore Jagdambi Kunwar (original plaintiff and by virtue of the said deed of exchange he exchanged the suit land from the land of Jagadambi Kunwar. After exchange, original plaintiff Jagdambi Kunwar came in possession of the suit land, constructed thatched house thereon put Nad-Gori etc. and raised crops over the suit land. After some time the plaintiff came to know that defendant first party had managed to get a deed of exchange dated 2.9.1972 executed with respect to the suit land in his favour by bringing the defendant second party Khagan Sah son of Shanti Sah in his collusion and got his name mutated and on that basis the defendant first party started disturbing the possession of the plaintiff over the suit land which gave rise to filing of the suit. 4. 4. The case of the defendant first party as per their written statement is that the said deed dated 22.12.1932 is a sham transaction and the same is not a real document and it was without consideration. The said sale deed was executed by Shanti Sah in order to save his property from his creditors and for defeating the claim of his creditors. Further case is that even after the execution of the sale deed dated 22.12.32, the possession of the land and the custody of the deed remained with Shanti Sah and the alleged Arpannama of 1935 was also executed in order to give colour of bona fide to the sale deed dated 22.12.1932 and so this document was also a Sham and farzi document. Further case of the defendant is that the residential house of Shanti Sah fell down and at the time of reconstruction of the house Shanti Sah kept the sale deed dated 22.12.32 and Arpannama of the year 1935 with Sattan Sah for safety reason but Sattan Sah committed breach of trust and dishnoestly executed the deed of exchange dated 13.3.1973. The forged nature of the aforesaid sale deed and Arpannama is also apparent from the fact that Tilak Dhari Yadav had purchased 11 bighas, 30 katha, 2 dhur of land including 14 Katha 9 dhur of land of Plot No. 579 in auction sale in execution of a rent decree obtained by him against Patti Bhagat and others. Patti Bhagat was the Gotiya of Shanti Sah. Tilakdhari sold 14 katthas 9 dhurs of land to Sheikh Noor Mohammad. Further case of defendant first party is that the registered deed of exchange dated 2.9.72 executed by the defendant second party in his favour is a valid and operative document and he has acquired full right, title and interest in the suit land by virtue of the deed of exchange dated 2.9.72 and is in actual possession of the same. On the basis of the above pleadings, he has prayed to dismiss the suit. 5. The case of the defendant second party is more or less the same and in his written statement the defendant second party has fully supported the case of defendant first party. 6. On the basis of the above pleadings, he has prayed to dismiss the suit. 5. The case of the defendant second party is more or less the same and in his written statement the defendant second party has fully supported the case of defendant first party. 6. From the perusal of the judgment of the trial court it appears that on the basis of the pleadings of the parties the trial court framed as many as nine issues which are as follows: (i) Whether the suit as framed, is maintainable? (ii) Whether the suit is barred by General and Special Law of Limitation? (iii) Whether the plaintiffs have got cause of action for the suit? (iv) Whether the sale deed dated 22.12.1932 executed by Shanti Sah in favour of Gudar Sah is for consideration valid and operative? (v) Whether the Arpannama dated 29.4.1935 was genuine, valid and operative? (vi) Whether the plaintiffs came in possession of the suit land and constructed structure and put Nad, Gori on the suit land by virtue of exchange? (vii) Whether the exchange deed dated 2.9.72 is valid and operative. (viii) Whether the plaintiffs have got right, title and possession over the suit land? (ix) To what relief or reliefs, if any, are the plaintiffs entitled? 7. It further transpires that the trial court after making thorough discussion on Issue No. IV, V, and VI arrived at the conclusion that the sale deed dated 22.12.32 executed by Shanti Sah in favour of Gudar Sah and Arpannama dated 29.4.1935 executed by Gudar Sah are not valid and genuine documents and the same are without consideration and inoperative document. The learned trial court has further come to the conclusion that the plaintiffs had never come in possession of the suit land on the basis of the deed of exchange executed in his favour. The trial court has further come to the conclusion that the deed of exchange dated 2.9.72 is not a valid document and by virtue of the said deed of exchange the plaintiffs have not acquired right, title and interest in the suit property and on the basis of the above findings the trial court dismissed the suit of the plaintiffs. 8. Against the said decision of the trial court, the plaintiffs preferred appeal which was numbered as Title Appeal No.1 of 1980. 8. Against the said decision of the trial court, the plaintiffs preferred appeal which was numbered as Title Appeal No.1 of 1980. The appeal was heard by Sri Abhaya Shanker Prasad, Vth Additional District Judge, Munger, who delivered judgment in the said appeal on 24th February, 1990, whereby he reversed the findings of the trial court and decreed the suit of the plaintiff. Against the said judgment of reversal this Second Appeal has been filed by the defendants-appellants. 9. At the time of admission of this Second Appeal, only one substantial question of law was forrated for determination which is as follows:- "Whether the lower appellate court has failed to consider that Exts. 8 and 9 are merely farzi and fictitious documents and are not Benami transactions as there was no passing of the consideration from Shanti Sah to Gudar Sah, his father-in-law, as decided by the Hon'ble Supreme Court in the case of Sree Meenakshi Mills Ltd., Madurai Vs. The Commissioner, Income Tax, Madras (A.I.R. 1957 SC. 49)". 10. During the course of hearing of this Second Appeal, the learned Advocate of the appellants argued that the first appellate court while making discussion on Exhibit-8 wrongly interpreted that the document is not Benami and under law the defendants are not entitled to plead that the said sale deed, in question, (Exhibit-8) is a Benami transaction. The learned Advocate submitted that the word "Benami" is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies the transaction which is real but the donee is not a real purchaser, rather, the real purchaser is someone else who pays consideration money. The learned Advocate submitted that this type of transaction is usually termed as Benami. The learned Advocate submitted that the words 'Benami' is also used to refer to a sham and fictitious transaction and this meaning of Benami is applicable in this suit as the case of the defendants is that Exhibits-8 and 9 are sham and fictitious transaction for which no considerations were paid. In support of his argument, learned Advocate of the appellant has placed reliance upon the decision reported in AIR 1957 SC 49 (Sree Meenakshi Mills Ltd., Madurai Vs. The Commissioner, Income-Tax, Madras). In support of his argument, learned Advocate of the appellant has placed reliance upon the decision reported in AIR 1957 SC 49 (Sree Meenakshi Mills Ltd., Madurai Vs. The Commissioner, Income-Tax, Madras). Learned Advocate referred para 30 of the said decision which runs as follows:- ".....The word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In .one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the pruchaser here the sale itself is genuine, but the real purchaser is B, X beige is benamidar. This is the class of transactions which is usually termed as benami. But the words 'benami', is also occasionally sued, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid. ......" 11. On the basis of the decision cited above the learned Advocate of the defendants submitted that the first appellate court has committed error by presuming that the defendants were pleading that Exhibits-8 and 9 were Benami transactions. The fact is that those documents are sham and fictitious documents and are without consideration. He submitted that due to mininterpretation of the documents the first appellate court has committed mistake. He submitted that since the trial court has taken the correct view in interpreting Exhibits-8 and 9, as such, the learned trial court had arrived at right conclusion. 12. The fact is that those documents are sham and fictitious documents and are without consideration. He submitted that due to mininterpretation of the documents the first appellate court has committed mistake. He submitted that since the trial court has taken the correct view in interpreting Exhibits-8 and 9, as such, the learned trial court had arrived at right conclusion. 12. On the other hand, the learned Advocate of the respondents supported the views taken by the first appellate court with regard to Exhibits-8 and 9. 13. The question whether Exhibits-8 and 9 are merely farzi and fictitious documents or the same are benami, it is necessary to find out what is the case of the respective parties. According to the plaintiffs, both the documents are real transactions but according to the case of the defendants both the documents are farzi and fictitious documents as no consideration amount was paid and the same were executed in order to save the property from the hands of the creditors of Shanti Sah. Thus, the pleadings of the defendants shows that they do not claim the documents to be benami transaction in real sense but they claim that the documents are farzi, fictitious and without consideration. 14. At the very outset, I would like to say that farzi and fictitious transaction are different from benami transactions as in the former case consideration amount does not pass from one hand to another but in the later case consideration amount passes from one hand to another although the donee is not the real purchaser and he is simply a benamidaar of the real purchaser. Since the case of the defendants is that the Exhibits-8 and 9 are farzi and fictitious documents and the learned trial court has also found that Exhibits-8 and 9 are farzi and fictitious documents and are of without consideration, as such, I am of the view that both the documents cannot be called as "Benami" and, so, the question of applying The Benami Transactions (Prohibition) Act, 1988 does not apply. 15. From the perusal of the judgment of the trial court it appears that the trial court has come to the finding that Exhibits-8 and 9 are not real documents, rather, they are Farzi and fictitious documents and not binding upon the defendants. 15. From the perusal of the judgment of the trial court it appears that the trial court has come to the finding that Exhibits-8 and 9 are not real documents, rather, they are Farzi and fictitious documents and not binding upon the defendants. But, the judgment of the appellate court shows that such finding of the trial court was reversed and the appellate court held that both the documents are real documents before coming to the conclusion as to which of the views is correct, I would like to go through the definition of word "Sale" The word 'Sale' has been defined under Section 54 of the Transfer of Property Act, 1882, in the following manner: "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised". The very definition of Sale shows that the instant payment of consideration money is not essential for a valid sale. The payment can be deferred for future time but even then the sale is complete. The definition further contemplates how sale can be effected. According to the provision of Section 54 of the Transfer of Property Act, in the case of immovable property of the value of one hundred rupees and upwards, such Transfer or sale can be made only by a registered instrument but in the case of trangible immovable property of a value of less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of property. Thus, the very definition of the Sale establishes that the sale of immovable property of the value of one hundred rupees is complete by executing registered instrument. The consideration may be prompt or it may be deferred. Thus, Section 54 of the Transfer of Property Act, 1882, says that the Sale of immovable property is complete by execution of registered instrument even though at the time of execution of sale full consideration amount was not paid. The question that a particular sale deed is benami or sham document and the apparent purchaser is not the real owner, the burden of proving that fact entirely rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character. The question that a particular sale deed is benami or sham document and the apparent purchaser is not the real owner, the burden of proving that fact entirely rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character. It would either directly prove the fact of benami or sham transaction unerringly and reasonably raising an inference of that fact. The essence of a person not being the real one can be proved by intention of the parties. So far Exhibits-8 and 9 are concerned, both the documents are registered documents and, as such, their genuineness cannot be doubted. Since the defendants have asserted that both the documents are not the real documents and the same are of without consideration, as such, onus lies upon the defendants to prove by legal evidence that the documents are sham and fictitious documents and of without consideration. According to the judgment of the trial court, the trial court has given following reasons in support of the findings that the documents are sham, colourable, fictitious and inoperative documents: (i) Exhibit-8 contains self contradictory statements. On the one hand, there is averment that there is charge on the property which is the subject matter of the Sale, on the other hand, there is averment that the property is altogether free from encumbrance. According to the trial court, this contradictory averments in Exhibit-8 condemns it as a real deed, rather, tends to expose it as a colourable one. (ii) Original of the simple mortgage bond dated 14.2.1929 of which certified copy has been marked as Exhibit-13, executed by Shanti Sah in the name of Baldeo Sah of Mohalla Vishwanath Ganj, Khagaria, has not been produced by the plaintiff. According to the trial Court, this fact goes to prove that the original mortgage was never redeemed and it never came in vendors custody. The court was further of the view that this fact further establishes that it was never the intention of the executant of the Exhibit-8 to redeem the mortgage bond dated 14.2.1929 (Exhibit-13). (iii) No hand note suit was ever filed against Shanti Sah nor there is any evidence that such suit was filed against Gudar Sah. According to the judgment of the trial court, this fact further establishes that Exhibit-8 was executed with intent to defraud the creditors of Shanti Sah. (iii) No hand note suit was ever filed against Shanti Sah nor there is any evidence that such suit was filed against Gudar Sah. According to the judgment of the trial court, this fact further establishes that Exhibit-8 was executed with intent to defraud the creditors of Shanti Sah. (iv) Although Dahmawala land relating to S.P. No. 579 under Khata No. 51 Kha measuring 14 Kattha 9 dhur forms part of the transaction evidenced by Exhibit-8 as well as Exhibit-9 (certified copy of Arpannama dated 29.4.35 executed by Gudar Sah in favour of Sri Ram Krishna Mandir of Bachauta) but Exhibit-K, the challan dated 13.11.1937 showing tender of earnest money of Rs. 267/- and 8 annas by Tilakdhari Sah of Bachauta in Execution Case No. 1401/1937 against Patti Sah, a separate agnetic relation of Shanti Sah, together with Exhibit-M (certified copy of the application dated 25.7.1951 by the said Tilakdhari Sah of Bachauta to the then Cess Officer, Munger, in Case No. 74/VIII of 1951-52 in respect of 11 Bighas 13 Katthas 2 dhur of land including the sad Dahmawala land measuring 14 Kattha 9 dhur) and forming part of Exhibit-8 side by side with the suit land and Exhibit-R (certified copy of the order dated 7.3.52 of the then cess Officer, Munger, allowing cess reduction application of Tilakdhari Sah in Case No. 74/VIII of 1951-52 together with Exhibit-A 18, rent receipt in the name of Tilakdhari Sah establishes beyond doubt that Dahmawala land which was also the subject matter of the Sale Deed (Exhibit-8) never came in-possession of the transferee of Exhibit-8, namely, Gudar Sah, rather the above documents establish that the said land was allotted to Patti Sah, a separate agnetic relation of Shanti Sah, in partion which was auction sold in a rent suit and one Tilakadhari purchased the land in auction sale who also transferred the same to one Sheikh Mohammad by a registered sale deed dated 18.12.74. According to the judgment of the trial Court, all the abovementioned fact extablishes that Exhibit-8 is a farzi transactions. In support of his finding the trial court has further given reasoning that Exhibit-8 was never followed by application for mutation before the State of Bihar and Register II entry shows that Jamabandi was opened in the name of Khagan Sah, son of late Shanti Sah. In support of his finding the trial court has further given reasoning that Exhibit-8 was never followed by application for mutation before the State of Bihar and Register II entry shows that Jamabandi was opened in the name of Khagan Sah, son of late Shanti Sah. The trial court has also found that the rent receipts were also issued in the name of Khagan Sah son of Shanti Sah and all these fact establishes that Exhibit-8 was never acted upon and same was a farzi document. 16. From the perusal of the judgment of the appellate court, it appears that the first appellate court did not accept the reasonings given by the trial court in support of its finding rather the first appellate court held that Exhibits-8 and 9, are the real and genuine documents and the same were not executed with intent to defeat or delay the creditors. In the following paras I would like to see as to whether the view taken by the first appellate court is in accordance with law or the said finding of the first appellate court is perverse. 17. During the course of argument, the learned Advocate of the respondents has argued that this court sitting in Second Appeal is not empowered to interfere with the findings of the first appellate court unless the court finds that the findings of the first appellate court are perverse. 18. It is true that in Second Appeal this court has no jurisdiction to reappreciate the oral as well as documentary evidence of the parties and then come to the conclusion which may be different from the first appellate court unless this court finds that the judgment of, the first appellate court is perverse or based on no evidence. In support of my view, I rely upon the decision of the Supreme Court reported in 2005 (2) BBCJ (IV) 421 (Manicha Poosali (d) by Lrs. and Ors., Vs. Anjalai Ammal and Anr.] The relevant paragraph from the said decision runs as follows: "This judgment was followed by this Court in Civil Appeal No. 2292 of 1989 Govindaraju Vs. Marriamman (2005)2 S.C.C. 500 . and Ors., Vs. Anjalai Ammal and Anr.] The relevant paragraph from the said decision runs as follows: "This judgment was followed by this Court in Civil Appeal No. 2292 of 1989 Govindaraju Vs. Marriamman (2005)2 S.C.C. 500 . In Govindaraju case (supra) it has been held that the High Court while exercising its powers, under Section 100 of the Code of Civil Procedure on reappreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate court unless the High Court comes to the conclusion that the findings recorded by the first appellate court were perverse i.e. based on misreading of evidence of based on no evidence. 19. Let me see whether the finding of the first appellate court that Exhibit-8 and 9 are real and genuine documents is perverse or based on no evidence. It appears that for coming to the conclusion that Exhibits-8 and 9 are real and genuine documents the learned first appellate court has considered following facts: (i) The contradiction pointed out by the learned Sub-ordinate Judge with regard to the averments made in Exhibit-8 regarding charge on the property and simultaneously making statement that the property is free from all encumbrance is actually no contradiction and this has happened due to the style of writing of sale deed in Mufassil. (ii) The finding of the trial court that as the original mortgage deed (Exhibit13) was not produced by the plaintiff-appellant, which points out that Exhibit-8 was a farzi document, is not correct view because of the fact that not a single creditors of Shanti Sah including Baldeo Sah came forward to file any suit that Exhibit-8 was executed by Shanti Sah in order to defeat and defraud his creditors. (iii) According to Section 53 of the Transfer of Property Act, the transfer is valid and the same is voidable at the instance of the creditors. (iii) According to Section 53 of the Transfer of Property Act, the transfer is valid and the same is voidable at the instance of the creditors. (iv) From Exhibit-K, the challan dated 13.11.1937 showing tender of earnest money by one Tilakdhari in Execution Case No. 1401/1937 and Exhibit-M, Certified copy of the application dated 25.4.1951 filed by Tilakdhari before the Cess Officer, Munger, in Case No. 74/VIII/1951-52 and Exhibit-R, certified copy of the order dated 7.3.1952 it is not established that the lands measuring 14 Katha 9 dhur appetaining to Khata No. 51 Kha, Khesra No. 579 which were also the subject matter of sale under Exhibit-8 alongwith the suit land were allotted to Patti Bhagat, one of the agnates of Shanti Bhagat on partition and later on the same were put on auction in execution of decree against Patti Bhagat. According to the view of the first appellate court, it is the specific case of the plaintiffs that the lands covered under Exhibits-8 and 9 were self acquired properties of Shanti Sah and this fact has not been controverted by the defendants either in the pleading or in the evidence, as such, it cannot be accepted that Dahmawala land was allotted to the share of Patti Bhagat, a gotia of Shanti Bhagat, against the pleadings of the parties. (v) The finding of the trial court that Exhibit-8 was farzi document is also not correct because of the fact that the original deed was produced by the plaintiff and the plea of the defendants-appellants that Sattan Sah had committed breach of trust is not acceptable. 20. The question before me is that whether the above findings of the learned first appellate court are in accordance with law. According to law, the very essence of farzi nature of transaction is non-payment of consideration money which can be established by production of original document by the transferor himself in order to prove that the intention of the transferor was not to pass the title of the property prescribed in the sale deed. According to law, the very essence of farzi nature of transaction is non-payment of consideration money which can be established by production of original document by the transferor himself in order to prove that the intention of the transferor was not to pass the title of the property prescribed in the sale deed. Admittedly, Shanti Sah was the executant of the sale deed dated 22.12.1932 (Exhibit-8) and there is no dispute on this point and if it is believed that the intention of Shanti Sah was not to transfer the ownership of the land to the transferee, namely, Guder Sah then in that situation the original sale deed (Exhibit-8) should have been in possession of Shanti Sah or his successor but the said sale deed (Exhibit-8) was admittedly produced by the plaintiff which establishes this fact that the deed was for consideration and the intention of the transferor (Shanti Sah) was to transfer the ownership of the property mentioned in the deed (Exhibit-8). The plea of the defendants that Gudar Sah was the father-in-law of Shanti Sah and the said Shanti Sah had given the original sale deed dated 22.12.1932 (Exhibit-8) and original Arpannama (Exhibit-9) to the said Gudar Sah for keeping the documents in safe custody as his house had fallen down is not acceptable in view of the fact that there is no documentary evidence that Gudar Sah was the father-in-law of Shanti Sah. 21. The plea of the defendants that Exhibit-8 was brought into existence by Shanti Sah in order to defeat and delay the claim of his creditors is also not acceptable because of the fact that not a single document has come on record to show that after execution of Exhibits-8 and 9 any creditor or creditors of Shanti Sah had brought any money suit against Shanti Sah or against his heirs. 22. Under Section 53 of the Transfer of Property Act, the plea that a particular deed is fraudulent one and the same has been executed with intent to defeat and delay the creditors of the transferor is available only to the creditor or creditors of such transferor and not to any of her person or persons. 22. Under Section 53 of the Transfer of Property Act, the plea that a particular deed is fraudulent one and the same has been executed with intent to defeat and delay the creditors of the transferor is available only to the creditor or creditors of such transferor and not to any of her person or persons. Section 53 reads as follows: "Fraudulent transfer-Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be avoidable at the option of any creditor so defeated or delayed." The very language of Section 53 establishes that such fraudulent transfer can be declared void at the option of such creditor or creditors. Admittedly, the defendants are not the creditors of Shanti Sah and, as such, I am of the view that the defendants are not entitled to take plea that Exhibit-8 i.e. sale deed of the year 1932 executed by Shanti Sah was a fraudulent transfer intended to defeat or delay his creditors. 23. According to Section 53(2) of the Transfer of Property Act, every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. Admittedly, the defendants are the subsequent transferee and the case of defendants is that the previous transfer made by Shanti Sah was, without consideration and, therefore, I am of the view that the proper course for the defendant 1st party was to file a suit for declaration that Exhibits-8 and 9 were void documents but the defendant 1st party or his donor (defendant second party) did not file any such suit and, therefore, I am of the view that under law the defendants cannot take plea that Exhibits-8 and 9 are void documents. 24. It appears that the first appellate court has not accepted the plea of the defendants that 14 Kattha 9 dhurs of land of Plot No. 579 forming subject matter of sale deed dated 22.12.1932 (Exhibit-8) and Arpannama of the year 1935 was allotted to the share of Patti Lal Bhagat, a Gotiya of Shanti Sah in Partition and the same was put in auction sale in execution of rent decree and purchased by one Tilakdhari. I am of the opinion that the view taken by the first appellate court is perfectly correct because it is the undisputed case of the parties that both the lands mentioned in sale deed dated 22.12.32 are the self acquirerd land of Shanti Sah and there is no such case of the defendants that the lands covered under Exhibits-8 and 9 were the joint family property of Shanti Sah and were acquired from joint family fund. In this regard, the evidence of Khagan Sah son of Shanti Sah, who has been examined as D.W. 5 for the defendant second party is very relevant. He has deposed at [para 2 of his deposition that the disputed land was the self acquired property of his father and after his death the land came in his possession and for the last 32 years the land is in his possession. At para 9 of his cross-examination, this witness has deposed that his father Shanti Sah was separate from Patti Bhagat and Ram Lal Sah and he died in the estate of separation. He has further deposed that he is unable to say in which year his father had separated from Patti Sah and others but the said separation had taken place before his attaining HOSH. Further, it appears that the specific suggestion had been given to D.W.5 that his father Shanti Sah had separated from his Gotiya prior to 1928 and this suggestion was not categorically denied by D.W.5 and, therefore, there is no reasonable ground to discard the plea 6f the plaintiff that partion amongst the brothers of Shanti Sah had taken place of the plaintiff that partition amongst the brothers of Shanti Sah had taken place prior to 1928 and, so, the finding of the first appellate court that suit property as well as dahmawala property were self acquired property of Shanti Sah cannot be said to be perverse finding and when it is established that both the properties were self acquired property of Shanti Sah who was separate from his other gotias at the time of said acquisition, no question of allotment of Dahmawala property to the share of Patti Bhagat, a gotia of Shanti Sah, arises. Under the above circumstances the plea of the defendants that even after the execution of the sale deed, the properties mentioned in Exhibit-8 remained in the family of Shanti Sah cannot be accepted. Under the above circumstances the plea of the defendants that even after the execution of the sale deed, the properties mentioned in Exhibit-8 remained in the family of Shanti Sah cannot be accepted. It is true that some rent receipts have come from the side of the contesting defendants in order to prove that the suit property always remained in the family of Shanti Sah but mere possession of rent receipts cannot be a proof of the fact that Shanti Sah had never intended to transfer the land mentioned in Exhibit-8. It is admitted position that by virtue of Exhibit-9 the lands were transferred to the deity meaning thereby that no individual had any interest in the property and therefore, there is every possibility that by lapse of time the heirs of Shanti Sah in collusion with some persons started manufacturing documents to show that Shanti Sah had no intention to transfer the land. Thus, mere possession of rent receipts with respect to the suit land cannot establish that Exhibits-8 and 9 are sham and fictitious documents. 25. I am of the view that all the above facts establish beyond doubt that the view taken by the first appellate court is correct and according to law. I, therefore, hold that Exhibits-8 and 9 are not farzi and fictitious documents, rather, the same are real and for consideration. Accordingly, this substantial question of law is decided against the appellant. 26. In the result, I find no merit in this Second Appeal. Hence, the same is hereby dismissed but with costs.