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2016 DIGILAW 2412 (ALL)

Rajendra Kumar v. Meenakshi Gaur

2016-07-12

RITU RAJ AWASTHI

body2016
JUDGMENT Heard learned counsel for the appellants as well as Mr.Upendra Nath Misra, Advocate, who has put in appearance on behalf of respondent no. 1, and files Vakalatnama, the same is taken on record. 2. This second appeal has been filed challenging the judgment and decree dated 4.4.2016, passed in R.C.A. No. 101 of 2012; Ram Lotan & others Vs. Meenakshi Gaur and the judgment and decree dated 2.2.2012 passed in Regular Suit No. 730 of 2009. 3. Learned counsel for the appellants submits that the appellants being respondents/defendants have filed this appeal mainly on the ground that the respondent/plaintiff has committed fraud by changing the boundaries of the property in question in order to harass and demoralize the appellants. 4. It is to be noted that the appellant no. 1 was a party before the Courts below, however the appellant no. 2 was not party before the learned Courts below. Learned counsel for the appellant makes a statement that he wants to press this appeal only on behalf of appellant no. 1. In view of this, the appeal shall be treated to have been filed by the appellant no. 1 only and the appeal on behalf of appellant no. 2 shall be treated to be dismissed as not pressed. 5. It is contended by learned counsel for the appellant that the property in question was initially purchased by one Smt. Meenakshi Gaur from one Sheetla Prasad vide sale deed dated 11.8.1978, who had acquired the same from his father who was in possession over 1362 sq. ft. The boundary in the sale deed 11.8.1978 mentions Kothari of Raghubar Dayal followed by road in the north. However, subsequently in the sale deed dated 27.4.1983 and the sale deed dated 23.10.1983, the mention of Kothari of Raghubar Dayal was intentionally omitted and in the north the land in question was shown as having road. 6. Submission is that Sheetla Prasad was in possession of 1362 sq.ft. land only, he could not have executed the sale deed in favour of Smt. Meenakshi Gaur of plot consisting of 1411 sq.ft. Smt. Meenakshi Gaur had subsequently executed the sale deed in favour of Ashok Kumar Verma who thereafter had executed the sale deed in favour of Manjari Gupta who thereafter had executed the sale deed in favour of the present respondent no.1/Smt. Meenakshi Gaur. Smt. Meenakshi Gaur had subsequently executed the sale deed in favour of Ashok Kumar Verma who thereafter had executed the sale deed in favour of Manjari Gupta who thereafter had executed the sale deed in favour of the present respondent no.1/Smt. Meenakshi Gaur. The learned Courts below have failed to appreciate that a fraud has been committed by the respondent and has wrongly decreed the suit for possession filed by the respondent no. 1 and the first appellate court without properly considering the contention raised by the appellant has rejected the appeal filed against the judgment passed by the trial court. 7. In support of his submissions, learned counsel for the appellant has relied on the judgment of this Court in the case of Shitla Prasad Vs. Banwari (since dead) & others; 2013 (11) ADJ 694 , wherein second appeal has been dismissed holding that the first appellate Court was justified in reversing the findings of the trial court when it has come to the conclusion that there was fraud committed in the sale deed. 8. Mr.Upendra Nath Misra, learned counsel has put in appearance on behalf of respondent no. 1. It is submitted by him that the instant appeal does not involve any substantial question of law. The appeal has been filed by the appellant by changing his stand from time to time. Before the trial court in the written statements the present appellant/defendant has stated that the land in dispute was allotted in the name of his grand father by the Nagar Nigam, however when the trial court had recorded its findings that the appellant/defendant has not produced any allotment order he has changed his stand and in the first appeal it was contended that the land in question was given by one Paragi to his grand father in lieu of the services rendered by him to Mr. Paragi. The first appellate court has recorded that the appellant/defendant has changed his stand from time to time and has failed to produce any document to show his right or title over the land in dispute. 9. It is submitted that now in the second appeal, the appellant has again changed the stand and has come with the new plea of commission of fraud by one Manorama Gaur? and Ashok Kumar Verma. 10. 9. It is submitted that now in the second appeal, the appellant has again changed the stand and has come with the new plea of commission of fraud by one Manorama Gaur? and Ashok Kumar Verma. 10. Submission is that substantial question of law has to be debatable, not previously settled by law of the land or a binding precedent and must have a material bearing on the decision of the case. 11. It is contended that to be a substantial question of law there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. In this regard he has relied on the judgments of the Apex Court in the case of Govindaraju Vs. Mariamman; AIR 2005 Supreme Court 1008 and Boodireddy Chandraiah & others Vs. Arigela Laxmi & another: AIR 2008 Supreme Court 380. 12. It is further submitted that in the sale deed dated 11.8.1978, the area of the land in dispute has been specifically mentioned as 1411 sq.ft., as such it is wrong to say that Sheetla Prasad had executed the sale deed only with respect to the 1362 sq. ft, as in the subsequent sale deeds it remained as 1411 sq.ft. 13. Learned counsel for the respondent no.1 also submits that the appellant/defendant has filed Regular Suit No. 76 of 2008 against the Nagar Nigam for grant of permanent injunction, claiming that the land in dispute was allotted to him and Nagar Nigam shall be restrained from interfering his peaceful possession. In the said suit no injunction was granted in favour of the appellant as he has not been able to establish his rightful possession and the Nagar Nigam has filed written statements wherein it has taken the stand that the land in dispute does not belong to Nagar Nigam and it is a private land. 14. Submission is that the appellant has no right or title over the land in dispute and the learned trial court has rightly came to the conclusion that the plaintiff/respondent no. 14. Submission is that the appellant has no right or title over the land in dispute and the learned trial court has rightly came to the conclusion that the plaintiff/respondent no. 1 has acquired the right over the land in dispute on the basis of the sale dated 10.11.2004 executed in her favour and she has a right of possession over the land in dispute. The learned first appellate Court has upheld the findings recorded by the learned trial court. 15. I have considered the submissions made by the parties' counsel and gone through the records. 16. The learned trial court while deciding the suit of possession filed by the respondent no. 1 had framed certain issues. While recording its findings on the said issues it has come to conclusion that respondent/plaintiff had purchased the land in dispute vide sale deed dated 10.11.2004 consisting of total area of the land in dispute as 1411 sq.ft. 17. The trial court has dealt with in detail the boundaries to the land in dispute and has come to the conclusion that the present appellants/defendants has failed to establish their stand that the land in dispute was allotted in their favour by the Nagar Nigam. Moreover, the appellant/defendant has not been able to establish that the land in dispute is his ancestral land. The learned trial court has also recorded that the land in dispute does not belong to Nagar Nigam and it has never been allotted in favour of the appellants/defendants or his ancestors. The learned first appellate court has also, in its findings come to conclusion that the appellant has been changing his stand. In the appeal he has come with the pleading that the land in dispute was given to the grand father of the appellant by one Paragi for the services rendered by him but has not been able to prove the same. Further he has not been able to establish his right or possession over the land in dispute. The appellant has not produced any documentary evidence to establish his right and title over the land in dispute. The first appellate court, therefore, has upheld the findings recorded by the trial court and rejected the first appeal filed by the present appellant. 18. The appellant has not produced any documentary evidence to establish his right and title over the land in dispute. The first appellate court, therefore, has upheld the findings recorded by the trial court and rejected the first appeal filed by the present appellant. 18. So far as the contention of learned counsel for the appellant that fraud has been committed by which boundaries of the property have been changed intentionally just to harass and demoralize the appellant is concerned, needless to observe that no such pleading was taken before the trial court or the first appellate court. For the first time, the appellant has taken this new plea in the second appeal. At the stage of second appeal the Court is required to consider substantial questions of law involved in the case. The Apex Court has consistently held that an entirely new point raised for the first time before the High Court is not a substantial question involved in the case unless it goes to the root of the matter. 19. In the case of Govindaraju Vs. Mariamman (Supra), the Apex Court has observed as under: "As to which would constitute a substantial question of law, it was observed: - "A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case'there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a sustainable one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life any lis." 20. In the case of Boodireddy Chandraiah & others Vs. Arigela Laxmi & another (Supra), the Apex Court while dealing with the question of substantial law has observed as under: "To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will therefore, depend on the facts and circumstances of each case whether a question of law is a sustainable one and involved in this case, or not: the paramount overall consideration being the need for striking a judicious balance between the indispensable of litigation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 ." 21. In the present case it is to be noted that in the sale deed dated 11.8.1978 the area of the plot has been specifically mentioned as 1411 sq.ft. which remained the same throughout in the subsequent sale deeds dated 27.4.1983, 23.10.1983 and 10.11.2004. (See Santosh Hazari Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 ." 21. In the present case it is to be noted that in the sale deed dated 11.8.1978 the area of the plot has been specifically mentioned as 1411 sq.ft. which remained the same throughout in the subsequent sale deeds dated 27.4.1983, 23.10.1983 and 10.11.2004. The respondent no.1 has acquired the right over the land in dispute on the basis of the sale deed dated 10.11.2004, which clearly mentions the area of the land in dispute as 1411 sq.ft. On the basis of said sale deeds the purchasers had acquired possession over the land in dispute. 22. So far as the boundary to the said land is concerned, suffice is to observe that the boundaries in the sale deed are mentioned on the basis of the existing position at the time of execution of the sale deeds, it appears that in the subsequent sale deeds, the Kothari of Raghubar Dayal was not in existence hence it was not mentioned in the boundaries of the land in dispute. The respondent/plaintiff cannot be said to be in any manner beneficiary in case the mention of Kothari of Raghubar Dayal was not made in the earlier sale deeds dated 27.4.1983 and 23.10.1983. The appellant/defendant has failed to establish his right or possession and title over the land in dispute as has been rightly recorded by the trial court and upheld by the first appellate Court. 23. The judgment cited by learned counsel for the appellant in the case of Shitla Prasad Vs. Banwari (since dead) & others (Supra), will not be applicable in the facts and circumstances of the present case, as such, it will not be of any assistance to the appellant. 24. I do not find the pleading raised with respect to the commission of fraud goes to the root of the case and, as such, it does not involve any substantial question of law. 25. In view of above, this second appeal does not involve any substantial question of law. 26. The second appeal, as such deserves to be dismissed at the admission stage. 27. It is accordingly dismissed.