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2012 DIGILAW 1220 (PAT)

Abdul Maroof v. Ram Sunder Sah

2012-08-31

MUNGESHWAR SAHOO

body2012
MUNGESHWAR SAHOO, J.:–The original defendant, Bibi Khodaija had filed this Second Appeal against the judgment and decree of the Appellate Court dated 06.03.1993 passed by 6th Additional District Judge, East Champaran at Motihari in Title Appeal No.108 of 1989/11 of 1992 allowing the appeal and thereby reversing the judgment and decree of the trial court dated 05.05.1989 passed by 3rd Additional Munsif, Sadar, Motihari in Title Suit No.80 of 1984/72 of 1989 dismissing the plaintiff-respondent’s suit. The original defendant-appellant, Bibi Khodaija died during the pendency of this appeal and her legal representatives have been substituted. 2. For the purpose of disposal of this Second Appeal, the cases of the parties may be briefly stated that the plaintiffs-respondents filed aforesaid title suit for declaration of title and confirmation/recovery of possession on the basis of the sale deed dated 15.11.1971 and for further declaration that the sale deed of the defendant dated 06.09.1975 is forged, fabricated, illegal and unjustified. According to the plaintiff, the owner, Ramjiwan Sah died in 1971 leaving behind his two widows namely Mostt. Chulhiya and Mostt. Dharohari. Both of them were issueless. The first wife Chulhiya executed a sale deed dated 15.11.1971 with respect to the suit land measuring 2 bighas 5 dhurs for the purpose of her husband’s shradh in favour of the plaintiff. The second wife, Dharohari had full knowledge about this sale deed. After execution of the sale deed, Mostt. Chulhiya handed over the same to the plaintiff for registration. The plaintiff filed a petition before the Sub-Registrar for her examination on commission which was allowed and the Commissioner went to examine Chulhiya but by that time, she had left the village for treatment so, the Commissioner returned back. Later on, Chulhiya died on 07.02.1972 then a Compulsory Registration Case No.41 of 1972 was filed. The second wife, Dharohari and the defendant appeared and filed objection so, the said case was dismissed. On appeal, the District Registrar passed order for compulsory registration of the deed dated 15.11.1971 as such it was registered. The defendant got sale deed from Dharohari on 06.09.1975 with respect to the suit land itself. This deed is forged and fabricated. 3. The defendants filed written statement taking various legal pleas including limitation. According to their defence, the sale deed alleged to have been executed by Chulhiya dated 15.11.1971 in favour of the plaintiff is forged, fabricated and without consideration. This deed is forged and fabricated. 3. The defendants filed written statement taking various legal pleas including limitation. According to their defence, the sale deed alleged to have been executed by Chulhiya dated 15.11.1971 in favour of the plaintiff is forged, fabricated and without consideration. Chulhiya had never executed the sale deed and the L.T.I. on the sale deed is not of Chulhiya. The plaintiff never came in possession. No step was taken for registration of the deed during the lifetime of Chulhiya. Chulhiya had lost her mental and physical soundness six months prior to her death and also lost eyesight. The defendant no.2 filed separate written statement supporting the case of the defendant no.1. 4. The trial court considered each and every evidence and recorded a finding that Exhibit 1, the sale deed is void transaction, illegal, ineffective and without consideration. On appeal, the appellate court set aside the trial court judgment and decreed the plaintiff’s suit reversing the findings of the trial court. 5. On 22.06.1994, the following substantial question of law was formulated:– “Whether the judgment of the appellate court is vitiated for not meeting the reasons and the findings given by the trial court.” 6. The learned senior counsel, Mr. Raghiv Ahsan appearing on behalf of the appellants submitted that the trial court while disbelieved the case of the plaintiff considered the evidences and has given cogent reasons for not believing the plaintiff’s case such as, P.W. 1 was not able to say perfectly that the lady who executed the deed, Exhibit 1 was Chulhiya or some one else. The story of plaintiff that Chulhiya went to Kataha and commission was issued for her statement for registration is totally falsified. The Commissioner was not examined. P.W.5 has stated that the stamp was purchased by Ram Sunder Sah himself which falsifies the entire story of plaintiff that the deed was executed at Motihari in the Registry office as P.W.5 stated that it was executed in the house of Chulhiya. P.W.2, the plaintiff himself stated in paragraph 51 that Ramjiwan died 15 days before execution of the sale deed dated 15.11.1971 which means that stamp was purchased while Ramjiwan was alive. If the land was sold for shradh of Ramjiwan then how the stamp was purchased prior to death of Ramjiwan. P.W.2, the plaintiff himself stated in paragraph 51 that Ramjiwan died 15 days before execution of the sale deed dated 15.11.1971 which means that stamp was purchased while Ramjiwan was alive. If the land was sold for shradh of Ramjiwan then how the stamp was purchased prior to death of Ramjiwan. P.W.2, the plaintiff himself admitted that prior to the execution of sale deed, Chulhiya never talked with the plaintiff. In Exhibit 3, the ordersheet of the compulsory registration authority, the case of the plaintiff was that he filed application for appointment of commission on the ground that Chulhiya is pardanashin as such, is unable to come to the registration office whereas the case pleaded in the court is that she went to another place for her treatment because she was ill. The learned counsel further submitted that the Lower Appellate Court without considering the material evidences and without meeting the reasonings of the trial court aforesaid reversed the finding on the ground that the registration authority has completed all the formalities and has registered the document and the defendants did not challenge the said order. According to the learned counsel, the registration authorities are not the court and, therefore, the finding recorded therein will not operate as resjudicata but the Lower Appellate Court on that ground alone, set aside the trial court judgment. 7. On the contrary, the learned counsel for the respondents submitted that the Appellate Court has considered the conduct of the defendant who purchased the property during the pendency of the compulsory registration proceeding and even after registration of the sale deed, they did not challenge either the registration order or the sale deed in favour of the plaintiff. The learned counsel further submitted that the registered document has got presumption of its validity and, therefore, it was for the defendant to prove that in fact, it was not executed by the widow, Chulhiya but they did not file the suit nor they challenge the order, therefore, the judgment of the Lower Appellate Court is correct and cannot be interfered with in second appellate jurisdiction. The learned counsel further submitted that it is not necessary to meet all the reasonings of the trial court while reversing the finding of the trial court. The learned counsel further submitted that it is not necessary to meet all the reasonings of the trial court while reversing the finding of the trial court. In support of his contention, the learned counsel relied upon a decision of the Apex Court reported in AIR 1999 Supreme Court 2216 (Arumughamz Vs. Sundarambal). 8. In the present case, it is admitted fact that Ramjiwan died in the year 1971 issueless leaving behind his two widows, Chulhiya and Dharohari. According to the plaintiff, Mostt. Chulhiya executed the sale deed dated 15.11.1971 in favour of the plaintiff which was compulsorily registered by the order of the District Registrar. The second widow, Mostt. Dharohari executed the sale deed in favour of Hiralal Sah, defendant no.1 during the pendency of the compulsory registration case. It appears that the Lower Appellate Court instead of deciding the controversies between the parties as to whether the sale deed in favour of the plaintiff which was registered compulsorily was in fact executed by her or not, as the plaintiffs claimed title on the basis of the said sale deed, held that the learned District Sub-Registrar has elaborately and sufficiently discussed the entire aspect of the matter and took the evidence of the witnesses and the defendants were parties and on 30/31.08.1982, the order was passed for registration of the sale deed, Exhibit 1, therefore, Exhibit A executed by Dharohari in favour of defendant is not the valid document. While recording the finding at page 16 and 17, the Lower Appellate Court did not even consider the defendant’s evidences(D.W.1 and D.W.2) who have clearly stated that the sale deed, Exhibit 1 was never executed by Mostt. Chulhiya. It further appears that nowhere in the judgment, the Lower Appellate Court has met the reasonings of the trial court. 9. In the case of Santosh Hazari V. Purushottam Tiwari, (2001) 3 Supreme Court Cases 179, the Apex Court has held that while reversing a finding of fact, the appellate court must assign its own reasons for arriving at different finding. The First Appellate Court is also a final court of law and fact. The First Appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The First Appellate Court is also a final court of law and fact. The First Appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The findings of fact based on conflicting evidence arrived at by the trial court must weigh with the Appellate Court more so when the findings are based on oral evidence recorded by the trial court. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial judge. As a matter of law, if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises the Appellate Court is entitled to interfere with the findings of fact. This decision of the Apex Court has again been reiterated by the Apex Court in AIR 2008 Supreme Court 938 (Union of India and Anr. Vs. Ranchod and others) paragraph 7. In the present case, the Appellate Court instead of discussing the evidences adduced by the parties in support of their respective cases held that since the matter has already been concluded by the registration authority which was never challenged by the defendants, the plaintiff’s suit has been decreed. As stated above, while decreeing the plaintiff’s suit, the Lower Appellate Court has not met any reason assigned by the trial court. It is settled principles of law that the registration authorities are not the court and, therefore, any finding recorded by the registering authority will not be binding on the court. In such circumstances, it was the duty of the appellate court to have considered the evidences of the parties and should have recorded independent finding as to whether the plaintiff’s sale deed, Exhibit 1 was in fact, executed by Mostt. Chulhiya or not. This was the most important question which could not have been bypassed by the Lower Appellate Court on the ground that the registering authority has completed the formalities and witnesses have been examined by him. Therefore, in my opinion, the reason assigned by the Lower Appellate Court for setting aside the trial court judgment is erroneous, therefore, it is unsustainable in the eye of law. 10. Therefore, in my opinion, the reason assigned by the Lower Appellate Court for setting aside the trial court judgment is erroneous, therefore, it is unsustainable in the eye of law. 10. In view of the above facts, the substantial question of law is therefore, answered in favour of the appellants. Accordingly, the judgment and decree of the Lower Appellate Court is set aside and the matter is remanded back to the Lower Appellate Court for a fresh decision according to law. Both the parties are present before this court. Therefore, no further notice be issued. The parties are directed to appear before the Lower Appellate Court and the Lower Appellate Court shall try to dispose of the appeal according to law as soon as possible. Thus, this Second Appeal stands allowed with the aforesaid directions.