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2012 DIGILAW 1466 (PAT)

Jugal Tanti v. Tarni Tanti

2012-10-16

MUNGESHWAR SAHOO

body2012
ORAL ORDER Heard the learned counsel, Mr. Abbas Haider appearing on behalf of the appellant and the learned counsel, Mr. Manoj Kumar appearing on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure. 2. The defendant-appellant appellant has filed this second appeal against the Judgment and Decree dated 14.12.2000 passed by 4th Addl. District Judge, Bhagalpur in title appeal No.34 of 1996 whereby the lower appellate Court dismissed the appeal and thereby confirmed the Judgment and Decree of the trial Court dated 24th February, 1996 passed by 7th Subordinate Judge, Bhagalpur in title suit No.121 of 1985. 3. The plaintiff-respondent filed the aforesaid suit for declaration of title over the suit property mentioned in detail in Schedule ‘A’ of the plaint and also for declaration that the municipal survey entries with respect to the suit land in the name of the defendant is illegal. The short case of the plaintiff is that the original owner of the suit land Tunna Gope sold the suit land by terms of registered sale deed dated 25.8.1932 to Darsan Tanti and Ram Tanti. On 14.9.1932 Darsan Tanti and Ram Tanti sold land to one Sheikh Ulfat by registered deed. On 3.1.1934 Sheikh Ulfat re-sold the suit land to Darsan Tanti by registered deed and therefore, Darsan Tanti became the absolute owner of the same. In 1953, Darsan Tanti sold 11 dhurs, i.e., Schedule ‘B’ out of Schedule ‘A’ land by registered sale deed to one Md. Yunus and Md. Yunus sold Schedule ‘B’ land to wife of Ram Tanti by registered sale deed dated 25.3.55. The defendants after partition of Schedule ‘B’ property are in separate possession. The defendant No.1 has sold his share, i.e., 5 dhurs to plaintiff No.3 by registered sale deed. In the municipal survey, new plots were carved out and name of Darsan Tanti, i.e., father of plaintiff was recorded regarding municipal plot No.944 (d) and 944 ([k) whereas the name of defendants was recorded so far municipal plot No.945 is concerned. The defendants got their name entered collusively, therefore, the suit was filed by the plaintiff for declaration of title. 4. The defendants got their name entered collusively, therefore, the suit was filed by the plaintiff for declaration of title. 4. The defendants filed contesting written statement and according to the defendant No.2, Darsan Tanti and Ram Tanti jointly mortgaged the property to Sheikh Ulfat and the deed dated 14.9.32 is not a sale deed rather it is mortgage deed in favour of the Ulfat. The so-called sale deed executed by Ulfat in favour of Darsan Tanti is deed of redemption and not sale deed. There was no partition between the defendant No.1 and 2. Therefore, the defendant No.1 had no right to transfer the land to the plot No.3. 5. After trial, the learned trial Court held that the property was acquired by registered sale deed dated 25.8.1932 ext.1/A. The registered deed dated 14.9.1932 ext.1/B executed by Darsan Tanti and RamTanti in favour of Sheikh Ulfat was a sale as claimed by the plaintiff and not a mortgage deed and likewise the deed dated 30.1.1934 ext. 1/C executed by Sheikh Ulfat in favour of Darsan Tanti was deed of sale and not redemption deed. On the basis of these findings, the trial Court decreed the plaintiff’s suit. On appeal, the appellate Court also recorded the same finding that the deed dated 14.9.1932 executed by both brothers to Sheikh Ulfat was not a mortgage deed rather it was sale deed and the deed dated 3.1.1934 executed by Sheikh Ulfat to Darsan was not a deed of redemption rather it was a sale deed. On these findings, the appellate Court dismissed the appeal. 6. The learned counsel, Mr. Abbas Haider, appearing on behalf of the appellant submitted that while dismissing the appeal the lower appellate Court did not properly consider the case of the parties and the evidences of the parties and recorded wrong finding that the said deeds are sale deeds. The subsequent conduct of the parties shows that Darsan Tanti had only half share in the property otherwise he should not have sold 11 dhur in favour of Md. Yunus. This shows that Darsan Tanti redeemed the property but the deed was written in the shape of registered sale deed. The defendants adduced evidences in support of the case that in fact the deed were mortgaged deed and redemption deed. Yunus. This shows that Darsan Tanti redeemed the property but the deed was written in the shape of registered sale deed. The defendants adduced evidences in support of the case that in fact the deed were mortgaged deed and redemption deed. The learned counsel for the appellant further submitted that the lower appellate Court had not independently considered the oral evidences of the parties. Therefore, the Judgment of the Court below is vitiated. 7. On the other hand, the learned counsel appearing on behalf of the respondent submitted that both the Courts below concurrently found that the deeds are sale deeds and not mortgage deed or redemption deed. Therefore, the said finding being the finding of fact cannot be interfered with in second appellate jurisdiction. So far non-consideration of the oral evidences independently is concerned according to the learned counsel, the lower appellate Court has considered the evidences of the parties and thereafter confirmed the finding of the trial Court. 8. From perusal of paragraph 9 of the lower appellate Court Judgment, it appears that the lower appellate Court has discussed the evidences of both the parties. It is not the case of total non-consideration of the evidences. Therefore, I do not find any force in the submission of the learned counsel for the appellant that the lower appellate court has not considered the evidences independently. 9. In the case of Girijanandani Devi Vs. Bijendra Narain Chaudhary A.I.R. 1967 SC 1124, the Apex Court has held that When appellate Court agrees with view of Trial Court on evidence it need not restate effect of evidence or reiterate reasons given by Trial Court - Expression of general agreement with reasons given by Court, decision of which is under appeal would ordinarily suffice. However, from perusal of the lower appellate Court Judgment in the present case as I have stated above, it appears that the lower appellate Court has discussed the evidences of the parties. 10. So far the submission of the learned counsel for the appellant that the Courts below have recorded wrong finding that the deeds are sale deeds without considering the subsequent conduct of the parties is concerned, it may be mentioned here that both the Courts below recorded the finding that the deeds are registered sale deeds and not mortgage deed or redemption deed. This submission of the learned counsel relates to the construction of the document, i.e., the deeds in question. So far the terms and condition of the deeds is concerned, it will not depend on the subsequent event or subsequent conduct of the parties. 11. In the case of Ramkishorelal vs. Kamalnarayan A.I.R. 1963 SC 890, the Apex Court has held that the golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. At paragraph 24 of the Judgment, the Apex Court has held the course of conduct of the parties is of no relevance for the construction of a document which is itself unambiguous and in the present case both the Courts below considering the deeds recorded the finding that the deeds are sale deeds. Therefore, the subsequent course of conduct of the parties cannot be taken into account. 12. In the case of Hero Vinod Vs. Sheshmal 2006 (5) S.C.C. 545 , the Apex Court has held that inference or appreciation of fact from recitals or contents of documents are question of facts. However, legal effect of terms of document, or construction of document involving application of any principal of law are question of law. At paragraph 20, it has been held that the mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. Therefore, here in the present case, the finding recorded by the Courts below regarding the contents of the documents are pure finding of fact and accordingly the same cannot be interfered with in second appellate jurisdiction. 13. In view of the above settled proposition of law laid down b the Apex Court, in my opinion, no substantial question of law is involved in this second appeal and the grounds raised by the learned counsel for the appellant are not at all substantial question of law. Thus, this second appeal is dismissed at the admission stage itself.