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2021 DIGILAW 1566 (ALL)

Sankata Devi v. Ram Deo

2021-12-15

JASPREET SINGH

body2021
JUDGMENT : Jaspreet Singh, J. 1. Heard Shri A. R. Khan, learned counsel for the appellant. None has put in appearance on behalf of the respondents, hence the Court has proceeded to hear the learned counsel for the appellant. 2. This is the plaintiff's second appeal being aggrieved against the judgment and decree dated 14.10.1980 passed by the Civil Judge, Sultanpur allowing the defendants First Civil Appeal Nos.354 and 389 of 1979 as a result the suit of the plaintiff bearing Regular Suit No.170 of 1977 which was decreed by Munsif South, Sultanpur vide judgment and decree dated 02.11.1979 has been set aside by the lower appellate court and the suit of the plaintiff has been dismissed. 3. During pendency of the instant appeal, the respondents no.1, 2 and 3 had expired and they have been substituted by the legal heirs. However, for the sake of convenience the Court has referred to the parties as they were impleaded in the suit. 4. The aforesaid second appeal was admitted by means of order dated 14.11.1980. However, at the time of admission, the substantial question of law was not framed. Subsequently a Co-ordinate Bench of this Court by means of order dated 22.07.1990 had framed the following substantial question of law, which reads as under:- 1. "As to whether the first appellate court below has rightly appreciated the evidence while reversing the finding of fact recorded by the trial court in the light of evidence available on record. 2. As to whether the sale deed impugned in the suit was rightly construed to be fraudulent by the trial court in the light of evidence on record." 5. Briefly the facts giving rise to the instant appeal are being noticed herein after. 6. The plaintiff-appellant Smt. Sankata Devi alongwith her mother Smt. Seopati instituted a suit for cancellation of a sale-deed before the court of Munsif South, Sultanpur registered as Regular Suit No.170 of 1977. Primarily the contention of the plaintiff-appellant was that the property in question belonged to Ram Sundar the father of the plaintiff no.1 and husband of the plaintiff no.2. It was pleaded that Ram Sundar wanted to execute a gift deed in favour of this two daughters, namely, plaintiff no.1 Smt. Sankata Devi and other daughter Smt. Phoola Devi the original defendant no.2 of the suit. 7. It was pleaded that Ram Sundar wanted to execute a gift deed in favour of this two daughters, namely, plaintiff no.1 Smt. Sankata Devi and other daughter Smt. Phoola Devi the original defendant no.2 of the suit. 7. It was further pleaded that the defendant no.1, namely, Ram Dev who is the husband of Phoola Devi the defendant no.2 instead of getting the gift deed done got a sale deed executed from Ram Sundar. It was also urged that no sale consideration was paid and as such the sale deed dated 27.06.1977 was an outcome of fraud and accordingly was liable to be cancelled. It was further pleaded that Ram Sundar expired on 17.07.1977 and thereafter the plaintiff instituted the aforesaid suit on 21.07.1977. 8. During the pendency of the suit, plaintiff no.2, namely, Smt. Sheopati wife of Ram Sundar made an application seeking her transposition as a defendant and further pleaded that the plaintiff had not brought the correct facts on record and Smt. Sheopati was not willing to contest the pleading as indicated in the plaint in suit including that Smt. Sheopati was shown as a lady of weak intellect and was impleaded as plaintiff no.2 through her next friend namely Ramhit Chaurasiya who is none other then the elder brother of the husband of the plaintiff no.1. In the aforesaid backdrop, the plaintiff no.2 Smt. Sheopati was transposed as defendant no.3. 9. The suit was contested by the defendant by filing a written statement wherein the contentions of the plaintiff was denied. It was specifically pleaded that the defendant no.1 is a man of means and had both agricultural and business income apart from the fact that the defendant no.1 was also in service. It was stated that he had given money for the treatment of his mother and father-in-law and had also given them money on other occasion, as a result a sum of Rs.24000/-had been paid by the defendant no.1 to Ram Sundar. In consideration of the aforesaid, Ram Sundar had executed a registered sale deed dated 27.06.1977 in his favour and as such the allegation in the plaint that Ram Sundar wanted to execute a gift deed in favour of his two daughters is incorrect. It was also stated that the plaintiff no.1 with a view to usurp the property as falsely instituted the suit which was liable to be dismissed. 9. It was also stated that the plaintiff no.1 with a view to usurp the property as falsely instituted the suit which was liable to be dismissed. 9. Smt. Sheopati filed her separate written statement and disputed the contention of the plaintiff. In her written statement, she categorically stated that her husband namely Ram Sundar was an asthmatic patient and even her eye sight was impaired both Ram Sundar and she had taken help from the defendant no.1 from time to time. 10. It was also pleaded that in order to meet the marriage expenses of Smt. Sankata Devi the plaintiff as well as purchasing the house and a pair of bull. Ram Sundar had taken a friendly loan from the defendant no.1. It is in consideration thereof that the sale deed was executed in favour of the defendant no.1 and the suit has been filed with incorrect statement. It was also pleaded that the defendant no.3 was absolutely fine and had no mental disability. Only to maintain the suit surreptitiously the defendant no.3 had been impleaded as plaintiff no.2 earlier and in order that she does not know the same was filed showing the plaintiff no.2 Smt. Sheopati as lady of weak intellect through her next friend who is the Jeth (the elder brother of the husband of the plaintiff no.1) and as such the suit was liable to fail. 11. Upon the exchange of pleading, the trial court framed six issues. (i) Whether from the father of the plaintiff no.1, the defendant no.1 by resorting to fraud had got a sale deed executed, without any consideration ? (ii) Whether the plaintiff-defendant no.2 had the status and has rights as a donee of the property in question ? (iii) Whether in light of the averments made in paragraph 22 of the written statement of the defendant nos.1 and 2 whether the suit was maintainable? Three other issues were framed relating to the relief as well as whether the suit was barred by virtue of Section 49 of U.P. Consolidation of Holdings Act, 1953 and another issue relating to valuation of the rent. The trial court after considering the evidence found that the defendants could not establish that he had paid any consideration for the sale deed. Even the contention that he had loaned money to Ram Sundar from time to time, also could not be established. The trial court after considering the evidence found that the defendants could not establish that he had paid any consideration for the sale deed. Even the contention that he had loaned money to Ram Sundar from time to time, also could not be established. It was held that Ram Sundar did not have any knowledge that he was going to execute a sale deed while he wanted to execute gift deed in favour of the two daughters and thus the suit of the plaintiff was decreed by means of judgment and decree dated 02.11.1979. Against the aforesaid judgment and decree dated 02.11.1979 passed in Regular Suit No.170 of 1977 two regular civil appeals came to be filed. One Civil Appeal No.354 of 1979 was filed by Ram Dev and Smt. Phoola Devi whereas the second Civil Appeal No.389 of 1979 was filed by Smt. Sheopati. Both the civil appeals were connected and were allowed by means of judgment and decree dated 14.10.1980 as a result the suit filed by the plaintiff appellant which was dismissed. Against the aforesaid decision of the lower appellate court, the instant second appeal has been filed. Shri A. R. Khan, learned counsel for the appellant has urged that the lower appellate court has completely misdirected itself while evaluating the evidence available on record. It is urged that the lower appellate court did not consider the well reasoned findings of the trial court and has erred in setting aside the same resulting in sheer miscarriage of justice. It is also submitted that findings returned by the trial court were binding on the lower appellate court since no perversity could be found and even otherwise if on the given evidence available on record, another view is possible then the lower appellate court ought to have concurred with a view taken by the trial court and it has committed an error in setting aside the judgment and decree passed by the trial court, hence the instant second appeal deserves to be allowed. In support of his submission, he has relied upon the decision of the Apex Court in the case of Madhusudan Das Vs. Smt. Narayanibai and others reported in 1983 (1) SCC 35 and in the case of Laliteshwar Prasad Singh and others Vs. S. P. Srivastava reported in 2017 (35) LCD 7 (SC). In support of his submission, he has relied upon the decision of the Apex Court in the case of Madhusudan Das Vs. Smt. Narayanibai and others reported in 1983 (1) SCC 35 and in the case of Laliteshwar Prasad Singh and others Vs. S. P. Srivastava reported in 2017 (35) LCD 7 (SC). The Court has considered the submissions of the learned counsel for the appellant and have also perused the record. The controversy involved in the instant appeal is in respect of the manner in which the first appellate court has exercised its power conferred under Section 96 CPC. In order to ascertain whether the lower appellate court was justified in reversing the findings of the trial court and whether if on the given evidence another view was possible whether the lower appellate court has committed an error in not following the view of the trial court not ? 12. The record would indicate that the suit was filed by the plaintiff with the averments that the property in question belonged to Ram Sundar. He intended to give the property to his two daughters. The defendant no.1 namely Ram Dev by practicing fraud got a sale deed executed from Ram Sundar and that too without paying any consideration which has rendered the sale deed liable to be cancelled. In order to prove her case Smt. Sankata Devi examined herself as P.W.1 while Ram Ratan was examined as P.W.2. On the other hand, the defendant examined Ram Dev as D.W.1 and also Rajpati Pandey as D.W.2. 13. The trial court noticing the evidence of the respective parties has proceeded on the assumption that Ram Sundar intended to execute gift deed in favour of the two daughters. The ground for cancellation of the sale deed is two fold:-(i) Ram Sundar wanted to execute the gift deed while the defendant no.1 practiced fraud and got the sale deed executed; (ii) the alleged sale deed dated 27,06.1977 was without consideration and on this count also the deed was liable to be cancelled. The trial court while evaluating the evidence found that the defendant no.1 who was examined as D.W.1 could not establish that he had the means to loan a sum of Rs.24,000/- to Ram Sundar. 14. It further noticed that in the cross-examination the D.W.1 stated that he had paid the money to Ram Sundar and his wife from time to time. 14. It further noticed that in the cross-examination the D.W.1 stated that he had paid the money to Ram Sundar and his wife from time to time. However, if the aforesaid amount as indicated by the witness is added, it would indicate that merely a sum of Rs.14,000/-had been paid whereas the sale consideration in the deed was mentioned as Rs.24,000/-. It is further urged by the learned counsel for the appellant that in the cross-examination the defendant no.1 had indicated that he was earning around Rs.650/-per month while working in Bombay. The emphasis was that he could not have the requisite means to pay a sum of Rs.24,000/- to Ram Sundar. It was also urged that since the defendant no.1 was staying with his family members. It would be very difficult that from the amount so earned as salary he could maintain his family in a metropolis like Bombay and even save money to pay for the treatment of his father and mother-in-law respectively. It is also urged that the defendant no.1 also did not maintain any proper account as to when and how he paid the alleged sum of Rs.24,000/-to Ram Sundar and thus in the aforesaid circumstances, the trial court has rightly arrived at the conclusion that the defendant no.1 did not have the means nor he could pay the requisite sum of Rs.24,000/-. Thus, the sale deed was without consideration and bad in the eyes of law. It is also urged that the plaintiff being the daughter who was residing with her father and taking care of him and who had indicated that he was willing to execute a gift deed in favour of two daughters clearly indicated the intention of Ram Sundar and that since Ram Sundar himself was a man fully competent to take care of his own needs as well as that of his family he did not require any finance or loan from any other party, accordingly the entire defence was a sham and it has not been considered by the lower appellate court while dealing with the evidence. Moreover, these findings of fact based on evidence, it was incumbent upon the lower appellate court to have followed the same. In any case there was no major reason to discard the such findings as there was no perversity. Moreover, these findings of fact based on evidence, it was incumbent upon the lower appellate court to have followed the same. In any case there was no major reason to discard the such findings as there was no perversity. In the aforesaid circumstances, normally the lower appellate court should have followed and accepted the findings returned by the trial court and this aspect of the matter has escaped the attention of the lower appellate court resulting in mis-appreciation of the evidence resulting in sheer miscarriage of justice and the judgment of the lower appellate court deserves to be set aside. Noticing the aforesaid submissions and also perusing the findings returned by the trial court in contra distinction to the findings returned by the lower appellate court, this Court finds that the lower appellate court has given strong reason to disagree with the findings recorded by the trial court. It was specifically noticed that the initiation of the suit by the plaintiff was conceived with mala fide. Since the plaintiff no.2, namely Sheopati wife of Ram Sundar was impleaded as plaintiff no.2 and shown to be a lady of weak intellect and was impleaded through her next friend who was the Jeth of the plaintiff no.1 (elder brother of husband of the plaintiff no.1). It further noticed that the land in question was agricultural land and the consolidation operation were in progress in the village. In order to sell/transfer the land permission of the Settlement Officer of Consolidation was required under Section 5(1) of the U.P Consolidation of Holdings Act, 1953. It noticed that Ram Sundar had applied for the aforesaid permission. The said permission has been brought on record as Exhibit No.A-4 date 18.06.1977. The said permission to sell from the Settlement Officer of Consolidation was valid for a period of one month and in furtherance thereof, the sale deed was executed on 27.06.1977. The lower appellate court noticed from the evidence on record that there are no allegation made by the plaintiff that the defendant no.1 had exercised undue influence or had played fraud while Ram Sundar applied for the permission before the Settlement Officer of Consolidation. The lower appellate court noticed from the evidence on record that there are no allegation made by the plaintiff that the defendant no.1 had exercised undue influence or had played fraud while Ram Sundar applied for the permission before the Settlement Officer of Consolidation. It also noticed that once Ram Sundar had obtained the permission to sell from the Settlement Officer of Consolidation clearly indicating that he wanted to sell his property there was no reason why it should be construed that Ram Sundar did not want to sell the land. The lower appellate court also noticed that P.W.1 clearly indicated in her cross-examination that the defendant no.1 was a man of means as in his family they had shop of betel (Pan Shop) in the city. They even had agricultural land and the defendant no.1 was also serving in Bombay. The lower appellate court also noticed that since defendant no.1 was not a stranger to Ram Sundar but was his elder son-in-law. The lower appellate court also considered the evidence by D.W.2 who was a witness to the sale deed dated 27.06.1977. the said witness Rajpati Pandey was government employee and even in his evidence he deposed that Ram Sundar had executed the sale deed. He understood the contents and even the Registrar before whom the attestation and registration was done had explained the contents. 15. The lower appellate court has also noticed that there is a presumption that if any official work is done, it is done in accordance with law. The sale deed clearly recites that the Registrar had examined the executant regarding the contents of the sale deed. It is in the aforesaid backdrop of reasons that the lower appellate court reversed the findings of the trial court. 16. This Court does not find that there is any error committed by the lower appellate court in reversing the findings of the trial court nor it has misconstrued the evidence. It is to be noted that the evidence in civil cases are sifted on the basis of preponderous of probability. The inference drawn by the lower appellate court by analyzing the evidence available on record is just and proper. 17. As far as the exercise of power by the lower appellate court is concerned, it is now well settled that the lower appellate court is entitled to re-appreciate the evidence available on record. The inference drawn by the lower appellate court by analyzing the evidence available on record is just and proper. 17. As far as the exercise of power by the lower appellate court is concerned, it is now well settled that the lower appellate court is entitled to re-appreciate the evidence available on record. It has the power to re-appreciate the evidence and record its own findings after setting aside the findings of the trial court. 18. The Apex Court in the case of Nazir Mohamed vs. J. Kamala and Others, 2020 SCC OnLine SC 676 has held as under:- "36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam, AIR 1963 SC 302 . 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. 37. The principles relating to Section 100 CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. (iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 19. In Gurnam Singh (Dead) by Legal Representatives & Ors. vs. Lehna Singh (Dead) by Legal Representatives, (2019) 7 SCC 641 , the Apex Court held as under:- "14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain [Ishwar Dass Jain v.Sohan Lal, (2000) 1 SCC 434 ]. In the aforesaid decision, this Court has specifically observed and held: (SCC p. 437) "Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise." xxx -------- xxx --------xxx --------xxx --------xxx --------xxx 19. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the courts below and/or the first appellate court and if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. We have noticed and even as repeatedly observed by this Court and even in Narayanan Rajendran v. Lekshmy Sarojini [Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264 : (2009) 2 SCC (Civ) 500], despite the catena of decisions of this Court and even the mandate under Section 100 CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the first appellate court, either without formulating the substantial question of law or on framing erroneous substantial question of law." 20. In Thulasidhara & Anr. vs. Narayanappa & Ors., (2019) 6 SCC 409 , the Apex Court held as under:- "7.1.. . . It cannot be disputed and even as per the law laid down by this Court in the catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. 7.2. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. 7.2. As observed and held by this Court in Kondiba Dagadu Kadam v.Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 ], in the second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being: 1. (i) Contrary to the mandatory provisions of the applicable law; or (ii) Contrary to the law as pronounced by the Apex Court; or (iii) Based on inadmissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in the second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal." 21. In view of the law as noticed above, it will be relevant to state that the proposition laid by the Apex Court in the case of Madhusudan Das's case (supra) is not in quarrel. However, it cannot be said that it is applicable in the present case as the lower appellate court has reappraised the evidence and has reversed the findings giving reason for its disagreement with the findings of the trial court. Even the case of Laliteshwar Prasad Singh's case (supra) has no applicability; inasmuch as in the said case certain parties have been impleaded and the appellate court without noticing the newly impleaded parties and without affording an opportunity of hearing to them had passed the impugned judgment and decree and it is in the aforesaid backdrop that the decision was rendered by the Apex Court which with respect, is not applicable to the present facts situation. 22. 22. Taking a holistic view of the matter, this Court is of the considered opinion that the findings of the lower appellate court are based on proper appraisal of the evidence available on record and the findings of fact recorded by the lower appellate court is in exercise of power under Section 96 CPC and it does not suffer from an error to persuade this Court to interfere in exercise of power under Section 100 CPC. 23. In view of the above discussions, this Court finds that there is no error in the judgment and decree passed by the lower appellate court dated 14.10.1980. Accordingly, the instant second appeal is dismissed. The judgment and decree dated 14.10.1980 passed in Civil Appeal No.354 of 1979 connected with Civil Appeal No.389 of 1979 is affirmed. In the facts and circumstances, there shall be no order as to costs. The record of the lower court be remitted to the court concerned forthwith.