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2017 DIGILAW 390 (RAJ)

Gopal Bagdi v. Om Bagdi

2017-02-03

J.K.RANKA

body2017
JUDGMENT : J.K. Ranka, J. 1. The instant second appeal is directed against judgment and decree dt. 14.9.2016 passed by Additional District Judge No. 5, Kota, in Civil Appeal No. 17/2011, whereby the judgment and decree passed by the trial court has been affirmed. 2. The brief facts noticed for disposal of the appeal are that Gendi Lal, grandfather of the appellant and respondent, was the owner of disputed property and the entire property was gifted to his son Kalyan. Kalyan had two sons, namely Nathulal and Kishanlal, and the present appellant and respondent are sons of Nathulal and are real brothers. Kalyan executed his first will in favour of Gopal, Rajesh and Kanhaiyalal on 4.2.1970. On 3.3.1983 Kalyan executed his second will in favour of the present appellant and respondent Gopal Bagdi and Om Bagdi and cancelled the earlier will dt. 4.2.1970. Kalyan executed his third will which is registered on 11.6.1985 in favour of the respondent Om Bagdi and it is claimed that this is the last will executed by Kalyan. Kalyan allegedly executed a document dt. 16.9.1985 (Exhibit A.1) whereby he cancelled the will dt 11.6.1985 and agreed to sell the property to the present appellant. Respondent Om Bagdi filed a suit for possession and mesne profits on the basis of will Exhibit-1, dt. 11.6.1985 and thereupon in the proceedings Gopal Bagdi, appellant, produced alleged document Exhibit-A.1 by which the will dt. 11.6.1985 as aforesaid had been cancelled and it was claimed that the property was sold to the appellant by Kalyan, however, the trial court taking into consideration the material facts and evidence on record after hearing both sides, decreed the suit and held that the alleged subsequent document Exhibit-A.1 dt. 16.9.1985 was forged and fabricated and assigned reasons as well, in reaching to the aforesaid conclusion. 3. The matter was assailed before the appellate court which also upheld the finding reached by the trial court and thus by way of concurrent finding by both the courts below, the suit was decreed. 4. On the basis of the pleadings the trial court framed 9 issues including the issue of relief, DW. 1 Gopallal (defendant himself) and DW. 2 Sukhdev appeared on behalf of appellant as witness whereas PW. 4. On the basis of the pleadings the trial court framed 9 issues including the issue of relief, DW. 1 Gopallal (defendant himself) and DW. 2 Sukhdev appeared on behalf of appellant as witness whereas PW. 1 Om Prakash Bagdi (plaintiff himself) appeared on behalf of the respondent and after taking into consideration the evidence of both sides and hearing both sides, taking into consideration the material on record, issue Nos. 1, 2, 3, 4, 5, 6, 7 and 8 were decided in favour of the plaintiff and against the defendant, and decreed the suit as aforesaid. 5. Learned counsel for the appellant contended that the document Exhibit-A.1 dt. 16.9.1985 was executed by Kalyan and pursuant thereto the possession was handed over to the appellant and no right was conferred on the respondent and right, if any conferred by the purported will dt 11.6.1985, came to a close or revoked by the said Exhibit-A.1 being an agreement. Learned counsel further contended that neither the signatures of the executor nor contents of the said agreement Exhibit-A.1 had been disputed by the respondent, rather respondent plaintiff admitted that he is aware of the signatures being made by Kalyan and that the signatures on the said Exhibit-A.1 i.e. the agreement are of Kalyan. Thus, learned counsel contended that once respondent himself has accepted that the said agreement contains signatures of Kalyan, then the finding reached by both the courts below is perverse and not sustainable. Learned counsel further contended that both the courts below have gone wrong in holding that the document even otherwise being an agreement to sell, being unregistered, could not have been considered for proving the title of disputed property, and contended that it is a composite document by which while will dt 11.6.1985 had been cancelled and the property had been sold through an agreement to the appellant. 6. Learned counsel contended that Kalyan was a fickle-minded man and had executed several wills and in the agreement it was specifically observed that since he had not been receiving any assistance or support from anyone in the family, therefore, he needed funds and the property was sold to the appellant and the balance consideration was to be paid to Kalyan at the time of registration of the sale-deed, however, unfortunately Kalyan expired and the sale-deed could not be got registered but the agreement stands. Learned counsel also contended that the trial court had no pecuniary jurisdiction to conduct the trial of the case on account of valuation of the disputed property as stated by the respondent in the suit itself. 7. Learned counsel further contended that the respondent himself admitted in his cross examination that the value of the property at the time of filing of the suit was about Rs. 50,000/- whereas the respondent while filing the suit showed value of the property to be only Rs. 2,000/- and paid court fees accordingly and thus both the courts below have wrongly held that the appellant could not prove the valuation of the property when the respondent himself agreed or accepted the value to be more than 50,000/-. Learned counsel further contended that appellant is residing in the said property since birth and Kalyan expired in the year 1986 but the suit was filed in the year 1997 after a gap of almost 11 years, which is highly belated and beyond the limitation, thus contended that substantial question of law does arise which needs consideration by this court. Learned counsel relied on Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd., AIR 1966 SC 1652 , P.K. Mohan Ram v. B.N. Ananthachary & Ors. [2010] 2 RLW (RJ (SC) 1034, Mathai Samuel & Others v. Eapen Eapen (Dead) By LRs & Ors. (2012) 13 SCC 80 , Dr. Jagmittar Sain Bhagat & Ors. v. Dir. Health Services, Haryana, AIR 2013 SC 3060 , Sebastiao Luis Fernandes (Dead) Through LRs & Others v. K.V.P. Shastri (Dead) Through LRs. & Others, (2014) 5 SCC 180, Zarina Siddiqui v. A. Ramalingam alias R. Amarnathan, AIR 2015 SC 580 , Muddasani Venkata Narsaiah (D) Th. LRs v. Muddasani Sarojana, 2016 (2) WLC (SC) Civil 44, Haryana State & Anr. v. Gram Panchayat Village Kalehri, (2016) 2 WLC (SC) Civil 417. 8. Per contra, learned counsel for the respondent vehemently contended that the finding reached by both the courts below is just and proper and there being a concurrent finding of fact, no question of law can be said to emerge or arise and supported the finding reached by the courts below. 8. Per contra, learned counsel for the respondent vehemently contended that the finding reached by both the courts below is just and proper and there being a concurrent finding of fact, no question of law can be said to emerge or arise and supported the finding reached by the courts below. Learned counsel further contended that the will dt 11.6.1985 is the last will and admittedly duly registered with the Sub-Registrar and has not been revoked and the said will has been held to be valid in another proceedings by the trial court as well as first appellate court and probably a second appeal is pending before this court, but it will not make any difference insofar as will having been proved. Learned counsel further contended that though Gopal, the appellant, was a party in such other proceedings where the same will was in dispute but conveniently Gopal did not appear and insofar as Gopal is concerned, the contents of the will having been held to be proper and justified by a competent court, has become final and such finding regarding the will, attained finality. Learned counsel further contended that the so-called alleged Exhibit-A.1 i.e. the agreement which is the bone of contention, has been held to be forged and fabricated by both the courts and cogent and valid reasons have been assigned by both the courts below and such finding cannot be re-appreciated in second appeal. Learned counsel further contended that the respondent was merely shown the signatures of Kalyan to which he recognised but when the contents in the alleged agreement was shown, he denied. Learned counsel further contended that even the witnesses of the so-called alleged agreement had clearly expressed that signatures of Kalyan may have been made earlier and he is not aware of this fact and even the defendant Gopal stated that the said alleged agreement Exhibit-A.1 was signed at his residence. Learned counsel further contended that Kalyan during his life time, after making the will on 11.6.1985, had given a notice to the appellant but the appellant did not respond. Learned counsel further contended that the so-called alleged agreement has rightly been rejected by both the authorities as there are several discrepancies and inconsistencies proved on record and thus supported the impugned order. Learned counsel further contended that issue of valuation was correctly decided. 9. Learned counsel further contended that the so-called alleged agreement has rightly been rejected by both the authorities as there are several discrepancies and inconsistencies proved on record and thus supported the impugned order. Learned counsel further contended that issue of valuation was correctly decided. 9. I have considered the arguments advanced by the learned counsel for the parties and perused the material on record including the judgments cited by the parties. 10. In my view, no interference is required as both the courts below by a concurrent finding have taken into consideration the facts and material and analysed the evidence on record and have come to a correct conclusion which cannot be interfered in this second appeal. 10.1 The will dt. 11.6.1985 being the last will, is admittedly a registered will and by the said will all prior wills were cancelled or revoked by the testator in his lifetime and admittedly no subsequent will has been brought on record except the said alleged agreement dt. 16.9.1985 (Exhibit-A.1). Both the courts below have also come to a correct conclusion that the alleged agreement dt. 16.9.1985 is forged and fabricated for the reason that the stamp paper was obtained for the purpose of some 'loan' and though the alleged agreement observes that the disputed house is bounded by all sides but the same does not find place in the alleged agreement. The alleged agreement simply states that an amount of Rs. 1,000/- out of the sale consideration of Rs. 10,000/- was given though it is stated that Kalyan was in need of funds as his children were not supporting or assisting him. Such a person in need of funds cannot agree to take just Rs. 1,000/- and agree the balance to be paid as per the convenience of Gopal Lal i.e. the appellant. Even the witness of the appellant DW-2 Sukhdev stated in the cross examination that he does not know, if the signatures of Kalyanji were already made and the stamp paper was drawn at the residence of Gopal or not. Thus, in my view cogent reasons have been given by both the courts while discarding and disbelieving the alleged agreement Exhibit-A.1. Even the witness of the appellant DW-2 Sukhdev stated in the cross examination that he does not know, if the signatures of Kalyanji were already made and the stamp paper was drawn at the residence of Gopal or not. Thus, in my view cogent reasons have been given by both the courts while discarding and disbelieving the alleged agreement Exhibit-A.1. 10.2 It is also a matter of fact taken on record by both the courts below that Kishan Lal who is another son of Kalyan Mal, filed a suit against Om Prakash and Gopal, the appellant and respondent here as well, and the same will dt. 11.6.1985 was held to be properly executed in favour of the respondent and even further appeal filed by Kishan Lal was dismissed by Additional District Judge No. 4, Kota, on 27.9.2002, as observed earlier. Though appellant was a party in the said suit, but it is a finding recorded by the courts that the appellant did not put in appearance or defended in any manner. This is only a fact to be mentioned though it is stated that further appeal is pending before this court, but insofar as this court or this matter is concerned, that hardly makes any material difference. It is also an admitted fact that on behalf of Kalyan who had executed the will dt. 11.6.1985 in favour of the plaintiff respondent, a notice was given by Pt. Ramsharan Sharma, Advocate, to the defendant appellant dt. 22.6.1985, mentioning the fact that due to his (defendant's) undesirable and ill behaviour towards Kalyan, the will which was executed in favour of the appellant Gopal dt. 3.3.1983 was cancelled and a last will dt 11.6.1985 was drawn in favour of the respondent Om Prakash, which had been duly registered. It was further stated that whatever rights were conferred in terms of the will dt. 3.3.1983 were all withdrawn. In the notice the appellant was asked to vacate the portion in his occupation within 15 days, and it was also indicated that in case the appellant does not vacate within 15 days, then appropriate legal action would be taken against him. Admittedly, the notice was received by the appellant, but not responded to. 11. Insofar as valuation of the suit is concerned, in my view both the courts have rightly held that the amount of Rs. Admittedly, the notice was received by the appellant, but not responded to. 11. Insofar as valuation of the suit is concerned, in my view both the courts have rightly held that the amount of Rs. 50,000/- was merely observed at the time when the cross examination was undertaken after several years though at the time when the suit was filed the appellant did not bring any material on record to even show, prima facie, that the valuation of the suit property was not Rs. 2,000/- but substantially more and both the courts below have rightly held that the valuation of the suit was just and proper and have correctly reached to the conclusion. Apart from this, as per sec. 21 CPC, no objection as to the competence of the court with reference to the pecuniary limits can be allowed by an appellate court unless there has been a consequent failure of justice and the appellant was unable to point out any such failure of justice. In my view, taking into consideration, what has been observed hereinabove, no question of law arise out of the impugned order. 12. The judgments relied upon by the learned counsel for appellant, are distinguishable on facts. 13. Consequently, the appeal being devoid of any merits, is dismissed.