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2017 DIGILAW 1509 (ALL)

Noor Jahan Begum v. Noor Mohammad

2017-06-09

B.AMIT STHALEKAR

body2017
JUDGMENT : B. AMIT STHALEKAR, J. 1. This is the defendants' second appeal. 2. The plaintiff filed a suit for mandatory injunction restraining the defendants from interfering in the suit property marked in the plaint in Red Colour in words B, C, J, K, L, M, N and to deliver peaceful possession of the said property to the plaintiff. 3. The claim of the plaintiff was that the owner of the suit property was one Mohd. Yasin son of Munir Khan. After the death of Mohd. Yasin his wife Noor Jahan Begum (appellant no.1), his 2 sons Yamin, Raees Khan and his 3 daughters Chand Bibi, Shazia Begum, Shahida Begum became the joint owners of this property. There was a family partition and thereafter each person started living in his/her own section of the property. Out of the total property Yasin Khan was the owner of half of the property. He came into possession of the Western part of the property through a family partition between Suleman Khan, Abdul Saqoor Khan, Rashid Khan, Likko Begum, Kallo Begum and Raffo Begum. Thus, Mohd. Yasin became the sole owner and possessor of the said property. After his death his wife, 2 sons and 3 daughters became the joint owners of the property and among them there was a family partition. The Western half portion of this property came into joint possession of Raees Khan, Chand Bibi and Rashida Begum and the Eastern half portion of the property came into the joint possession of Yamin Khan, Shahida Begum and Noor Jahan Begum. After the family partition Raees Khan, Chand Bibi and Rashida Begum sold their Western half portion to the plaintiff Noor Mohammad through a registered deed dated 11.04.2002 and the plaintiff also came into possession of the said property. The Eastern half portion of Smt. Shahida was sold by her to the plaintiff through a registered sale deed dated 01.06.2005 and Yamin also sold his share of the Eastern half portion of the property to Noor Mohammad (plaintiff) through a registered sale deed dated 05.02.2003. Only Noor Jahan (defendant no.1) declined to sell her share of the property. The Eastern half portion of Smt. Shahida was sold by her to the plaintiff through a registered sale deed dated 01.06.2005 and Yamin also sold his share of the Eastern half portion of the property to Noor Mohammad (plaintiff) through a registered sale deed dated 05.02.2003. Only Noor Jahan (defendant no.1) declined to sell her share of the property. The property in question demarcated by the alphabets J,K,L,M was purchased by the plaintiff from one Fakkruddin and Anwar son of Kallu through a registered sale deed dated 26.06.2006 and thus the plaintiff is the owner of the said property demarcated by the alphabets J,K,L,M. It was alleged that the defendants with the ill intention of grabbing the said property described in the plaint as B, C, J, K, L, M, N has unauthorisedly occupied the said property even though the owner and titleholder of the property is the plaintiff. 4. The plaintiff in support of his contention has filed the original sale deeds dated 11.04.2006, 06.01.2005, 05.02.2003 and 27.06.2006 which is also supported by oral testimonies. 5. On behalf of the defendants, however, it was stated that there was no family partition but the two sons of the defendant no.1 used to consume Smack and were drug addicts and under the influence of intoxication the plaintiff with ulterior and ill motives got the sale deeds executed from her two sons in his own favour and therefore, the sale deeds made in favour of the plaintiff by her two sons was obtained by fraud and misrepresentation. 6. The trial court has, however, held that from the stand taken by the plaintiff it is, therefore, clear that the plaintiff is the titleholder and in possession of the suit property though according to the defendant no.1 the same has been obtained by him by playing fraud upon her two sons who were drug addicts. 7. The fact that the sale deeds were executed by the sons of the defendant no.1 in favour of the plaintiff was also admitted by DW-4, Sabir Khan, who is the defendants' own witness. It is further held that though the defendant no.1 alleged fraud and forgery in the matter of execution of the registered sale deed by her sons in favour of the plaintiff, however, no steps have been taken by her for cancellation of the sale deeds. It is further held that though the defendant no.1 alleged fraud and forgery in the matter of execution of the registered sale deed by her sons in favour of the plaintiff, however, no steps have been taken by her for cancellation of the sale deeds. Therefore, in view of the admitted position between the parties the registered sale deed in favour of the plaintiff cannot be ignored. The trial court has, therefore, decreed the plaintiff's suit. Aggrieved, the defendants filed appeal. The appellate court has also dismissed the defendants' appeal. 8. Hence the present writ petition. 9. The learned counsel for the appellants submitted that the appellate court has not framed any point for determination as required by provisions of Order 41, Rule 31 of the Civil Procedure Code and therefore, the judgment of the lower appellate court is not sustainable and is liable to be set aside. 10. I have gone through the judgment of the lower appellate court. 11. The appellate court in its judgment has noted the issues framed by the trial court. It has dealt with all the issues independently. As regards issue no.1 as to whether the plaintiff is the owner of the property in question and that the defendants are in unauthorised possession of the same, the appellate court has referred to the sale deeds dated 11.04.2006, 06.01.2005, 05.02.2003 and 27.06.2003 and has held that these sale deeds were registered sale deeds executed in the office of the Registrar and duly registered. So far as the property in dispute mentioned in the plaint map is concerned, the appellate court has held that the plaintiff has proved the sale deeds not only by the evidence on record which are the registered sale deeds but also by the testimony of P.W.1, the plaintiff himself, P.W.2, Azizur Rahman, P.W.3, Kausar Khan and P.W.4, Anwar Firoz, who have also filed their sworn affidavits supporting the plaint averments and even in their cross examination they have supported the plaint averments. In respect of the property in dispute the defendant-appellant no.1 produced her own witnesses. She has given her own statement stating that the sale deeds were forged and fraudulent documents obtained by playing fraud. D.W.2-Hazi Dilnawaz, D.W.3-Wazahat Ali and D.W.4-Sabir Khan have also stated that there was a family partition. In respect of the property in dispute the defendant-appellant no.1 produced her own witnesses. She has given her own statement stating that the sale deeds were forged and fraudulent documents obtained by playing fraud. D.W.2-Hazi Dilnawaz, D.W.3-Wazahat Ali and D.W.4-Sabir Khan have also stated that there was a family partition. D.W.5-Fahmida Begum, D.W.6-Chand Bibi, D.W.7-Razda Begum have proved the photograph, signature as well as the thumb impression of the registered sale deeds. D.W.8-Shahida Begum in her cross examination submitted a sworn affidavit and has proved the thumb impression but alleged that the sale deed was got executed under the pretext of making available to her a government benefit of Rs.1 lac. 12. The Amin also submitted his report which is paper no.9Ga clearly stating that the property shown in red colour in the plaint map was occupied unauthorisedly by the defendants-appellants. The appellate court has, therefore, come to the conclusion that though the defendants continued to state that the sale deeds were got executed by the plaintiff through her sons by playing fraud on them but the sale deeds stand proved and besides the sale deeds are registered documents which continued to be valid as they have not been challenged by the defendants in any court. 13. So far as the issue no-2 is concerned, as to whether the suit has been properly valued and issue no.3 as to whether the court has jurisdiction these issues have been held in favour of the plaintiff and against the defendants-appellants and with regard to the issue no.4 as to whether the plaintiff-respondent is entitled to any relief, the appellate court has held in the affirmative. Accordingly the appellate court has dismissed the defendants' appeal. 14. Sri M.A. Qadeer, learned Senior Counsel, on the other hand, submitted that though Order 41, Rule 31 requires the appellate court to frame points of determination but if the lower appellate court has decided all the issues framed by the trial court and given his own findings and from a reading of the judgment it is seen that the points in issue between the parties have been duly considered and finally decided then it would be deemed to be substantial compliance of the provisions of Order 41, Rule 31 . He has placed reliance upon a judgment of the Supreme Court in 2006 3 SCC 224 (G. Amalorpavam and others v. R.C. Diocese of Madurai and Others). He has placed reliance upon a judgment of the Supreme Court in 2006 3 SCC 224 (G. Amalorpavam and others v. R.C. Diocese of Madurai and Others). Paragraph 9 of the judgment reads as under: "9. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41, Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41, Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41, Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC." 15. In the present case from a reading of the judgment of the lower appellate court there is absolutely no doubt that all the issues between the plaintiff and the defendants have been decided by the lower appellate court. The findings recorded by the trial court and the lower appellate court are pure findings of fact based upon the undisputed and unchallenged sale deeds executed in favour of the plaintiff in respect of the suit property and therefore, I do not find any ground for interference with the concurrent findings of fact recorded by the courts below. 16. Learned counsel for the appellants has not been able to show any perversity in the judgments of the courts below. No substantial question of law arises in the present second appeal. 17. The second appeal lacks merit and is accordingly dismissed.