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Madhya Pradesh High Court · body

2009 DIGILAW 229 (MP)

BIPTA BAI v. SHIPRA BAI

2009-02-16

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THIS appeal is directed by the appellant / plaintiff under Section 100 of CPC being aggrieved by the judgment and decree dated 30. 9. 1993 passed by Additional Judge of Hard to the District Judge Hoshangabad in Civil Original Appeal No. 11-A/90 allowing the appeal of respondent No. 1 and 2 and setting aside the judgment and decree dated 21. 1. 1992 passed by Additional civil Judge, Hard in C. O. S. No. 284-A/1989, whereby the suit of the appellant for declaration, possession and perpetual injunction was decreed by the trial court. ( 2. ) THE brief facts of the case which are necessary for adjudication of this appeal are that the appellant / plaintiff filed a suit for declaration, possession and perpetual injunction against respondent No. 1 and 2 for half share with respect to agricultural land bearing survey No. 163 area 9. 54 acre, situated at Village Karasni. As per averment of the plaint the appellant and respondent No. 1 being real sisters are daughters of deceased Mohan Singh who was the Bhumiswami of aforesaid agricultural land and also had a three Chasma house in the village. On account of his old age his agricultural operation was looked after by respondent No. 1 Shipra bai and her family members as he was residing with them in the village. The appellant became widow in the lifetime of Mohan Singh on which before his death she asked him to provide some help on which she was assured by him stating that she would take her share of the property from respondent No. 1. After demise of mohan Singh appellant demanded her share from respondent No. l then it was known to her that by taking advantage of old age of Mohan Singh Respondent no. 1 got executed sale deed of the aforesaid land from him in favour of her son respondent No. 2 on 5. 6. 1972 and also got mutated the land in his name. The alleged sale deed was executed by stating very lesser consideration i. e. only Rs. 4,000/ -. It is further pleaded that respondent No. 2 has not acquired any title or legal right in the aforesaid land. After death of the father the plaintiff is entitled for her share in the same. The alleged sale deed was executed by stating very lesser consideration i. e. only Rs. 4,000/ -. It is further pleaded that respondent No. 2 has not acquired any title or legal right in the aforesaid land. After death of the father the plaintiff is entitled for her share in the same. In addition it is pleaded that plaintiff does not want to raise any dispute with respect of the house property. With these pleadings by filling the suit plaintiff prayed for half of the share in the aforesaid land. ( 3. ) IN the written statement of respondent No. l and 2, the averments of the plaint are denied. In addition it is stated that in the year 1972 Mohan Singh sold the aforesaid land with his free consent and in consideration of Rs. 4,000/- to the respondent No. 2 through his mother respondent No. 1 as he was minor during that period. In order to perform the aforesaid sale he executed a sale deed and got it registered after receiving its due consideration. The plaintiff / appellant never visited the village Karsani to look after her father Mohan Singh on the contrary by raising some quarrel she had taken Rs. 1500/- from him after the aforesaid transaction. It is further pleaded that plaintiff / appellant did not have any right to demand as her share in the aforesaid land. As such at the time of death of mohan Singh he did not have any property in his name or title. On the strength of the aforesaid sale-deed the name of respondent No. 2 was duly mutated as bhoomiswami in the record of the rights kept by the Revenue Department. The plaintiffs suit is based on false allegation. In such premises the prayer for dismissal of the suit along with Rs. 500/- as compensatory cost is made. ( 4. ) IN view of the pleadings of the parties as many as four issues were framed, on which evidence was recorded by the trial court. On appreciation of the same the suit of the appellant was decreed for half of the aforesaid land with a direction to give its possession to her. The same was challenged by the respondent No. 1 and 2 before the lower appellate Court. On appreciation of the same the suit of the appellant was decreed for half of the aforesaid land with a direction to give its possession to her. The same was challenged by the respondent No. 1 and 2 before the lower appellate Court. On reconsideration by allowing their appeal the judgment and decree passed by the Trial Court was set aside and suit of the plaintiff was dismissed, on which the appellant / plaintiff come forward to this Court. ( 5. ) THIS appeal was admitted vide order dated 12. 4. 1994 on following substantial question of law: "whether the lower appellate Court erred in law in reversing the judgment and decree passed by the trial Court". ( 6. ) SHRI L. N. Sakle, learned counsel of the appellant assailed the judgment of the appellate Court saying that the alleged sale deed Ex. D. 1 executed by deceased mohan Singh in favour of respondent No. 2 was ab-initio void and the same was not acted upon at any point of time. By elaborating his argument he said that such sale deed was never executed by deceased Mohan Singh with free consent. The same was got executed by respondent No. 1 and 2 by practicing some misrepresentation and fraud with Mohan Singh only with intention to defeat the interest of the appellant after his demise. The consideration of aforesaid sale was never paid to Mohan Singh by the respondents and the possession of the land was also not delivered to the respondents by Mohan Singh in his life time. In the lack of consideration and delivery of possession it could not be inferred that the document was acted upon by the respondent in the lifetime of Mohan Singh. In such premises Mohan Singh was the owner of such land, thus, the appellant being one of his daughter has equal share in it with respondent No. 1. In such premises the appellate Court has committed grave error in reversing the findings of the trial court on re-appreciation of the evidence, which is not permissible under the law. According to him it is trite law that if the approach of the Trial Court on appreciation of evidence was probable one, the same could not be changed by the Appellate court on reappreciation of evidence. According to him it is trite law that if the approach of the Trial Court on appreciation of evidence was probable one, the same could not be changed by the Appellate court on reappreciation of evidence. With these submissions he prayed for setting aside the judgment and decree of the Appellate Court and restoring the judgment and decree of the trial court by allowing this appeal. ( 7. ) IN response of the aforesaid argument by justifying the findings of the appellate Court Shri Imtiaz Hussain, learned counsel for the respondent No. 1 and 2 argued that the same are based on proper appreciation of the evidence and also are in conformity with law. He further said that the substantial question of law as framed in this appeal is not covered under the provision of Section 100 of Code of civil Procedure. By elaborating this argument he said that the findings of the appellate Court even if erroneous the same could not be treated to be a substantial question of law as the same are based on factual matrix. In such premises, firstly he prayed to dismiss the appeal on this preliminary ground. In alternative he said that the appellant has no authority to challenge the sale deed Ex. D. 1 executed by mohan Singh in favour of respondent No. 2 in any manner, either in respect of consideration or with respect of its averments, in which the delivery of possession is also mentioned. Such document was executed in the year 1972 and Mohan singh had died in the year 1985 during this period in his lifetime he himself never challenged the aforesaid transaction of sale. Thus, the appellant has no authority to challenge such transaction after death of Mohan Singh. In any case the plaintiff did not have any cause of action to file the suit in the year 1986 or any point of time. He further said that the appellant had utterly failed to prove the circumstance showing that aforesaid sale deed was executed by Mohan Singh in favour of respondent No. 2 without consideration or without delivery of possession of the land. In the available circumstances, it could not be inferred that respondent no. 1 and 2 or any of them got executed the said deed from Mohan Singh by practicing any fraud or misrepresentation. ( 8. In the available circumstances, it could not be inferred that respondent no. 1 and 2 or any of them got executed the said deed from Mohan Singh by practicing any fraud or misrepresentation. ( 8. ) HAVING heard, after perusing the record of the Courts below and the impugned judgment, I am of the considered view that this appeal deserves to be dismissed because of following reasons. ( 9. ) IT is apparent on record that initially the disputed property was belonging to mohan Singh, the father of appellant and respondent No. l. As per pleadings of the parties and evidence available in the record it is apparent that aforesaid land was sold by said Mohan Singh to respondent No. 2 through respondent No. 1 (the mother of respondent No. 2) by registered sale deed dated 5. 6. 1972 in consideration of Rs. 4,000/ -. As per endorsement of Sub-Registrar on the sale deed deceased mohan Singh acknowledged before him to receive the consideration of Rs. 4,000/- of such transaction. It appears from the record that on the strength of such sale deed the land was also got mutated in the name of respondent No. 2. Such sale deed Ex. D-l was also proved not only by Sabbal Singh respondent No. 2 but also by one of its attesting witness Nathuram (D. W. 2 ). ( 10. ) AS per averments of such sale deed the possession of the land was also handed over to respondent No. 2 through his natural guardian respondent No. l. As per allegation of the appellant such document sale deed (Ex. D. l) got executed by respondent No. l and 2 by practicing the fraud and misrepresentation with mohan Singh and also by taking advantage of his old age but the same has neither been pleaded nor proved by the appellant with any cogent and reliable evidence. In the lack of pleadings, the appellant is not entitled for any relief on this ground as the law is well settled that in the absence of pleadings the evidence can not be looked into even if adduced on record. Although in order to prove such circumstance the appellant examined herself as Vipta Bai (P. W. 1) and Ranchhor (P. W. 2), the resident of village Kasarni. Although in order to prove such circumstance the appellant examined herself as Vipta Bai (P. W. 1) and Ranchhor (P. W. 2), the resident of village Kasarni. Appellant Vipta Bai in paragraph 8 of her deposition categorically stated that when she visited her fathers house lastly at that time he was 75 years of the age and was not ill. She also admitted that she was used to take money from her father and also deposed some occasions in that respect. But she categorically denied that out of said sale consideration she received Rs. 1,500/- from her father. But in entire deposition she could not state any incident, occasion or circumstance showing that by taking advantage of the old age of Mohan Singh any fraud or misrepresentation to get executed the sale deed from him was committed by any of the respondents. ( 11. ) IN the lack of such evidence it could not be inferred that such sale deed got executed in favour of respondent No. 2 by practicing any fraud or misrepresentation with Mohan Singh or without payment of any consideration. The execution of the sale deed by Mohan Singh appears to be admitted fact as per averment of the plaint. Besides this the same has been proved by witnesses as stated above. There was a heavy burden on the plaintiff to prove that sale deed was got executed in favour of the respondent No. 2 without consideration by practicing the fraud and misrepresentation. But the appellant had failed to discharge such burden. In such situation the trial Court was bound to dismiss the suit of the appellant but the same was decreed under wrong premises on which the the lower appellate court has rectified such mistake. ( 12. ) IT is a settled proposition of law that in the lifetime of the owner of the property his probable heirs or probable legal representatives do not have any right or title in his property and such owner may deal with it according to his own wish and choice. Therefore, if Mohan Singh being Bhoomiswami has sold his land to the respondent no. Therefore, if Mohan Singh being Bhoomiswami has sold his land to the respondent no. 2 with consideration by executing the above mentioned registered document and subsequent to it he never challenged such transaction his life time either on the ground of non-payment of consideration or practicing any fraud or misrepresentation with him then after his demise his heirs or legal representatives like appellant had no authority to challenge the same. There is sufficient evidence showing that since 1972 up to death of Mohan Singh in the year 1985 the land being in the possession of respondent No. 1 and 2 was cultivated by them. In such premises the appellant did not have cause of action to claim the aforesaid land contrary to the rights of the respondent no. 2. ( 13. ) AT this stage, I would like to mention here that the aforesaid transaction of sale took place on 5. 6. 1972 and the present suit was filed on 15. 12. 1986 i. e. after more than fourteen years. In any case it was barred by limitation as respondent No. 2 acquired the title of the aforesaid land by virtue of sale deed (Ex. D. 1) dated 5. 6. 1972. ( 14. ) BESIDES above as per provision of Benami Transaction Prohibition Act 1988, such sale transaction could not be said to be ab-initio void because the sale deed was executed by the then Bhoomi Swami in favour of respondent No. 2 who was not coparcener of his family. The aforesaid Act is made enforceable with retrospective effect, therefore, in view of provision of Section 4 of this Act aforesaid transaction of sale could not be held to be ineffective. ( 15. ) CONSIDERING all the aforesaid facts and available evidence on record, it could not be said that lower appellate court has committed any error in allowing the appeal of the respondents and dismissing the suit of the appellant by setting aside the judgment and decree of the trial court. Although on behalf of the appellant various case laws i. e. (i) AIR 1968 S. C. 200 (Commissioner of Income-tax, v. M/s. Motors and General Stores (P) Ltd.), (ii) AIR 1982 S. C. 84 (Prasad Vs. V. Govindaswami Mudaliar) (iii) 1960 MPLJ 879 (Sayyed Ibne Hasan Vs. Mehtab Latafat Hussain), (iv) 1993 MPWN (2) 105 (Spdhuram Vs. Ramadhar singh) and (v) 2008 (3) MPLJ 57 (Mahadev Prasad Vs. V. Govindaswami Mudaliar) (iii) 1960 MPLJ 879 (Sayyed Ibne Hasan Vs. Mehtab Latafat Hussain), (iv) 1993 MPWN (2) 105 (Spdhuram Vs. Ramadhar singh) and (v) 2008 (3) MPLJ 57 (Mahadev Prasad Vs. Mst. Rambai) are cited. Although this Court does not have any dispute with respect of the principles laid down in such cases but in the facts and circumstance of the case at hand the same are distinguishable not only on facts but also on the legal principles laid down in such cases and the nature of dispute involved in this appeal. Thus, same are not helping to the appellant. ( 16. ) BEFORE answering the said question or law I would like to state here that in view of the decision of the Apex Court in the matter of Hero Vinoth Vs. Seshammal reported in 2007 (1) MPLJ 17, the framed question is not covered under Section 100 of CPC. In other words it could not be treated to be a substantial question of law. While dealing with the issue the Apex Court has held as under : "19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily 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 interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in Second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where 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 pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. " ( 17. The High Court will, however, interfere where 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 pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. " ( 17. ) IN view of the aforesaid discussion it has been revealed that the findings of the appellate court are neither contrary to any mandatory provisions of law nor contrary to any pronouncement made by the Apex Court. In such premises, it is held that said framed question could not be treated to be substantial question of law under Section 100 of Code, of Civil Procedure. ( 18. ) IN the case of Radheshyam Vs. Ramakant (Deceased) through LRs. reported in 2004 (2) MPLJ 332 , it was held by this Court that the findings of the appellate Court if without flaw and fault and based on proper appreciation of the evidence then same does not give rise to any substantial question of law and the same could not be a ground to frame the substantial question of law. In view of this principles also the framed question in the light of aforesaid discussion could not be treated to be substantial question of law. ( 19. ) FOR the reasons stated above,the framed question could not be held to be substantial question of law as per requirement of Section 100 of the Code of Civil procedure and the same is held. Accordingly the aforesaid question is answered. Even otherwise in view of the aforesaid discussion in the available facts and circumstances, this appeal does not have any merits and deserves to be dismissed. ( 20. ) THEREFORE, by affirming the judgment and decree of the appellate court this appeal is hereby dismissed. In the facts and circumstance of the case there shall be no order as to costs. Decree be drawn up accordingly. ( 21. ) APPEAL is dismissed as indicated above. Appeal dismissed.