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2013 DIGILAW 563 (PAT)

Munilal Pandit @ Munilal Kulal v. Nuneshwar Pandit @ Nuneshwar Kulal

2013-04-29

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER The appellant was the plaintiff in the trial Court and is aggrieved by the judgment and decree dated 25.01.2010 and 11.02.2010 respectively passed by the learned Additional District and Sessions Judge F.T.C. IV, Banka in Title Appeal No. 73 of 97, whereby he dismissed the appeal and confirmed the judgment and decree dated 28.06.1997 passed by learned Munsif, Banka in Title Suit No. 3/89. The appellant is the son of the original plaintiff No. 1 Late Rohan Kulal. Respondent No. 1 was the defendant before the Trial Court. 2. The appellant filed the suit for a declaration that the Bajadavinama (deed of relinquishment or surrender of a claim) dated 17.12.1988 and sale deed dated 29.03.1989 executed by Rohan Kulal (plaintiff No. 1), in favour of the respondent No. 1/defendant was forged, illegal, null and void, inoperative and that the defendant did not acquire any right, title or interest over the suit land by virtue of the said Bajadavinama and the sale deed. 3. As per the plaintiff’s case, plaintiff No. 1, Rohan Kulal, along with one Bengu Kulal purchased 5.48¾ acres of land as described in Schedule-1 of the plaint through the registered sale deed dated 28.02.1941 for valuable consideration of Rs. 150/- from one Sibu Kulal and they came in joint possession over the property. Their names were jointly mutated in Serista of Ex-landlord and Jamabandi was created in the name of Rohan Kulal and others. Subsequently, on the basis of the return filed by the Ex-Zamindar, Jamabandi had been created in the Serista of State of Bihar, appertaining to Khata No. 34. 4. The plaintiffs pleaded in their plaint that the said land of 5.48¾ acres was purchased from the joint family fund in which the plaintiff No. 2 had got interest and accordingly plaintiff No. 1 and 2 both filed the suit. 5. It was pleaded by the plaintiffs that by playing fraud upon plaintiff No. 1, the defendant No. 1 managed to get the deed of Bajadavinama executed in favour of himself for 2.743/8 acres of land in collusion with others. The plaintiffs took the plea that plaintiff No. 1 Rohan Kulal was a simpleton and old man and taking advantage of his old age, the defendant got the deed executed in his favour. 6. The defendant contested the suit by filing written statement. The plaintiffs took the plea that plaintiff No. 1 Rohan Kulal was a simpleton and old man and taking advantage of his old age, the defendant got the deed executed in his favour. 6. The defendant contested the suit by filing written statement. The defendant took a plea that as a matter of fact, the purchase made by Rohan Kulal and Bengu Kulal in the year 1941 from Sibu Kulal itself was a Farzi transaction and that the sale deed dated 28.02.1941 was without any consideration nor said Rohan Kulal and Bengu Kulal came in possession over the said land on the strength of the sale deed dated 28.02.1941. The defendant denied of having obtained the deed of Bajadavinama or sale by playing fraud upon plaintiff No. 1. They asserted that good sense prevailed upon Rohan Kulal to execute the Bajadavinama deed and sale deed so that his heirs may not try to take advantage of the sale deed dated 28.02.1941. 7. The defendants pleaded that plaintiff No. 1 Rohan Kulal did not have the knowledge about filing of the suit and it was filed without his consent. A petition was also said to have been filed by plaintiff No. 1 himself in which the correct state of affairs and of the suit property and regarding execution of Bajidavinama was narrated by plaintiff No. 1. 8. On the basis of rival pleadings, learned trial Court framed altogether eight issues including issues No. 4, 5 and 7 which read thus:- “4. Is the deed of Bajidavinama dated 17.12.1988 is outcome of fraud, coercion, misrepresentation or voluntarily executed by Rohan Kulal? 5. Is the registered sale deed dated 29.03.89 is genuine, or illegal, without consideration inoperative and not binding upon the plaintiffs? 7. Whether the sale deed dated 28.02.1941 is farzi transaction executed in favour of Rohan Kulal by Sibu Kulal?” 9. After farming of the issues parties led their evidence both oral and documentary. 10. Dealing with issue No. 7, as to whether the sale deed dated 28.02.1941 transferring a total land of area 5.48¾ acres to Rohan Kulal and Bengu Kulal by Sibu Kulal was farzi transaction, learned trial Court rejected the plea of defendant and held it to be a valid transaction. 10. Dealing with issue No. 7, as to whether the sale deed dated 28.02.1941 transferring a total land of area 5.48¾ acres to Rohan Kulal and Bengu Kulal by Sibu Kulal was farzi transaction, learned trial Court rejected the plea of defendant and held it to be a valid transaction. However, learned trial Court decided two other issues, namely, issue No. 4 and 5 in favour of the defendant and held that Bajadavinama dated 17.12.1988 and the registered sale deed dated 29.03.1989 were not an outcome of fraud misrepresentation and registered sale deed dated 29.03.1989 was genuine and legal. 11. Against the judgment of the trial Court, the appellant preferred appeal by T.A. No. 723 of 1997 which was dismissed by the impugned judgment and decree passed by learned Additional Sessions Judge, F.T.C.-IV dated 25.01.2010 and 11.02.2010 respectively against which the present second appeal has been preferred. 12. From the judgment of the first appellate Court, it appears that the first appellate Court formulated following two points for consideration:- “(1) Whether the suit property was purchased out of the income of the joint family fund by plaintiff No. 1 Rohan Kulal (since deceased)? And (2) Whether plaintiff No. 2 got any interest in the suit property acquired by his father?” 13. As is apparent from the judgments of the Courts below, the plaintiff No. 1, who happened to be father of the present appellant and defendant No. 2 before the trial Court, had filed a petition dated 15.05.1989 with a prayer for withdrawal of the suit before the lower Court. No order was, however, passed on such application. The plaintiff No. 2 did not take any step for transposing plaintiff No.1 as defendant. In the meanwhile, Plaintiff No. 1 died. This is to be noted that the defendant No. 1 had also filed a cross appeal before first appellate Court against the finding of the trial Court on issue No. 7 i.e. as to whether the sale deed 28.02.1941 was a Farzi document which was decided in favour of the plaintiff with a finding that the transaction dated 28.02.1941 was not an act of fraud or was a farzi transaction. 14. 14. Learned first appellate Court on the basis of analysis of evidence adduced in course of trial came to a finding that issue No. 7 was rightly decided in favour of the plaintiffs and thus concurred with the finding of fact arrived at by learned trial Court. Considering the plea raised on behalf of the plaintiff/appellant that Rohan Kulal had purchased the suit land from the income of joint family fund and, therefore, he did not have any authority to execute Bajadavinama deed or the sale deed in favour of defendant No. 1, learned first appellate Court, on the basis of analysis of the evidence available on record on this point, came to a finding that plaintiff No. 2 could not prove that in the year 1941, the plaintiff No. 1 had in his hands a considerable nucleous in the ancestral property so as to purchase the said land from joint family property. Learned first appellate Court held that that the plaintiff No. 2 failed to prove that the suit property having been purchased in 1941 was thrown in common stock of joint family property. 15. On independent appraisal of the evidence on record, learned first appellate Court also concurred with the finding of the trial Court on issues No. 4 and 5. 16. Mr. Bishwnath Choudhary, learned counsel appearing on behalf of the appellant has vehemently contended that once the Courts below came to reject the main claim of the defendants that the transfer of the land by Sibu Kulal to Rohan Kulal and Bengu Kulal by the alleged sale deed dated 28.02.1941 was a farzi transaction as a natural corollary, the Court should have held the Bajadavinama dated 17.12.1988 and sale deed dated 29.03.1989 as having been obtained by fraud. His submission is with reference to stand of the defendant No.1 taken in the written statement that the sale deed dated 29.03.1989 was executed by Rohan Kulal only because he wanted that his heirs did not take undue advantage of the fraudulent transaction on 28.02.1941. 17. From the judgments of the Courts below it appears that after having come to the conclusion that the sale deed dated 28.02.1941 was not a farzi document and was a genuine document, the Courts below considered the validity and legality of the Bajadavinama dated 17.12.1988 and 29.03.1989 on the basis of the evidence available on record. 18. 17. From the judgments of the Courts below it appears that after having come to the conclusion that the sale deed dated 28.02.1941 was not a farzi document and was a genuine document, the Courts below considered the validity and legality of the Bajadavinama dated 17.12.1988 and 29.03.1989 on the basis of the evidence available on record. 18. The Courts below came to a concurrent finding that the plaintiff No. 2 failed to prove that the Bajadavinama dated 17.12.1988 and 29.03.1989 was a fraudulent transaction and it was obtained by the defendants by misguiding or misrepresenting Rohan Kulal. The learned Courts below also took into account the fact that plaintiff No.1, who happened to be executant of sale deed dated 29.03.1989 filed an application for withdrawal of the suit and it does not appear as to whether he in fact supported the case of plaintiff No. 2. 19. The only plea which has been taken on behalf of the plaintiff-appellant in the present appeal is that the Courts below should have taken into account old age of Rohan Kulal and the fact that he was simpleton an illiterate person, before reaching to any specific finding. 20. It has also been submitted that the Courts below wrongly considered the question as to whether the suit land was purchased in the year 1941 from the joint family fund or not. 21. In my opinion, the question which has been raised are pure questions of fact. On the basis of analysis and appraisal of evidence, both oral and documentary, the Courts below came to a finding that the plaintiff No. 2 (Appellant) could not prove that the Bajadavinama dated 17.12.1988 and sale deed 29.03.1989 was obtained by fraud. This fact was required to be proved by plaintiff No. 2 by adducing sufficient evidence as it was he who alleged this. The question whether the said property was purchased in 1941 by Rohan Kulal and Bengu kulal from the joint family fund is also a question of fact. 22. In view of the above, there being concurrent finding of facts by Courts below and that such findings cannot be said to be perverse, contrary to evidence or without any evidence, I do not find any merit in this second appeal as it does not involve any substantial question of law. The second appeal is, accordingly, dismissed at this stage itself.