Jagdish Chandra vs Panna Lal and Others

Pratap Krishna Lohra, J—Appellant-plaintiff has laid this second appeal to question the impugned judgment and decree dated 15th of July 2011, passed by Addl. District Judge No. 3, Udaipur (learned lower appellate Court), whereby the learned lower appellate Court has affirmed the judgment and decree dated 19th of January 2009, passed by Addl. Civil Judge (Jr. Div.) No. 1, North, Udaipur (learned trial Court), dismissing suit of the appellant-plaintiff for cancellation of sale-deed and permanent injunction.

Appellant-plaintiff in the suit, inter-alia, averred that an agricultural land at Manwa Kheda, Araji No. 3 & 4, is in his possession and he is cultivating the said land. It is also averred in the plaint that in the revenue records appellant''s name is mentioned as Khatedar. In order to make out a case for cancellation of sale-deed, a specific fact is pleaded that appellant''s mother Radha Bai, an illiterate lady, was induced by Pannalal, whose legal representatives are respondents in this appeal, to execute a simple mortgage for a sum of Rs. 900/- pertaining to aforesaid agricultural land and thereupon she signed the document. It is also stated in the plaint that Smt. Radha Bai was kept in dark and Pannalal got a sale-deed executed for the disputed agricultural land in his favour on 27th June 1966. A specific relief is sought for declaring sale-deed dated 27th June 1966 as null and void vis-a-vis rights of the appellant. A further relief is also claimed that decree passed by Board of Revenue dated 9th January, 1980 be annulled and it may be declared ineffective vis-a-vis rights of the appellant. The relief of perpetual injunction is also sought against the then defendant Pannalal not to interfere with his peaceful possession and further not to make any effort for any alteration in the revenue record.

The suit was contested by defendant Pannalal, wherein it is averred that Smt. Radha Bai, as a legal guardian of the appellant, executed registered sale-deed on 27th of June 1966 and handed over possession of the land as such from the date of purchase he has acquired Khatedari rights over land in question. In the written statement, on behalf of defendant Pannalal, it is specifically pleaded that Smt. Radha Bai was given the aforesaid agricultural land for cultivating one crop but subsequently she declined to handover possession to him and therefore a suit is filed in the Court of SDO, Girwa for possession of the land in question. The SDO, Girwa dismissed the suit, whereupon appellant approached revenue appellate authority by way of preferring first appeal but the same also had the same fate inasmuch as it was also rejected. After rejection of first appeal, as per defendant Pannalal, he approached Board of Revenue Ajmer by laying second appeal which was allowed by the learned Board of Revenue and the suit was accordingly decreed. A specific fact is pleaded in the written statement that pursuant to the judgment of the Board of Revenue, due to operation of stay order, possession could not be delivered to him. Asserting in the written statement that sale-deed is executed by Smt. Radha Bai, as a natural guardian of the appellant, for which she had full authority, a plea of delay is also incorporated in the written statement by urging that suit is barred by limitation, therefore, merits dismissal.

During pendency of the suit, Pannalal died and therefore, his legal representatives, respondents were taken on record. The learned trial Court, on the basis of pleadings of the rival parties, framed two issues for determination. Appellant himself appeared in the witness-box as PW1 and also examined one more witness as PW2 Purshottamlal. Besides that, documentary evidence was also tendered by the appellant. On behalf of respondent, DW1 Sunder Bai appeared in the witness-box and testified on oath.

The learned trial Court, thereafter, heard final arguments and while analyzing the evidence tendered by rival parties threadbare, made sincere endeavour to appreciate documentary and oral evidence in the backdrop of facts and circumstances of the case. Eventually, the learned trial Court found that appellant-plaintiff has miserably failed to prove that sale-deed executed by his mother Smt. Radha Devi is void, and consequently decided Issue No. 1 against him. While switching on to Issue No. 2 relating to limitation, the learned trial Court has relied on Article 60(a) of the Limitation Act and recorded a definite finding that appellant was well within his right to file suit from the date he attained majority, i.e., from 15.08.1966. The learned trial Court has also taken note of the fact that defendant Pannalal filed civil suit for possession in the year 1968 and as appellant was party to the litigation, he had knowledge about the sale-deed and if there was any cause of grievance about its validity, he could have filed civil suit till 1971 but as the present suit is filed on 05.08.1989, therefore, it is barred by limitation. Accrual of cause of action shown as 21.07.1998 is also repudiated by the learned trial Court, treating the suit as barred by limitation, and taking note of evidence and conclusions on Issue No. 1, the trial Court dismissed the suit.

Feeling aggrieved by the judgment and decree of the learned trial Court, appellant approached first appellate Court. The learned first appellate Court made endeavour to examine the matter afresh and after appreciating the evidence de novo, the learned lower appellate Court fully concurred with the learned lower Court with respect to the findings and conclusions on Issue No. 1 & 2. The learned lower appellate Court also placed heavy reliance on the verdict of learned Board of Revenue dated 09.01.1980 wherein it clearly recited that if appellant was having any grievance about the sale-deed, he could have filed appropriate civil proceedings for its annulment on attaining majority. The finding to this effect is clearly recorded in the order of the learned lower appellate Court, therefore, treating 9.01.1980 as the crucial date for the alleged accrual of cause of action, the learned lower appellate Court has also opined that suit filed by the appellant in the year 1989 is clearly barred by limitation and accordingly upheld the finding of the learned trial Court on Issue No. 2.

I have heard learned counsel for the parties, perused the impugned judgments of both the Courts below and also scanned the entire record of the case.

Upon perusal of the impugned judgments and record of the case, there remains no quarrel that both the Courts below have recorded a finding of fact concurrently against the appellant on merits of the case as well as on the law of limitation. Article 60(a) of the Limitation Act clearly envisages the period of limitation vis-a-vis the ward, who attained majority, to set aside a transfer of property made by the guardian of the ward. As per Article 60(a), period of limitation is three years from the date the ward attains majority. The complete text of Article 60 is reproduced as under with emphasis on Article 60(a).

The learned lower appellate Court has elaborately dealt with the issue relating to limitation and has also relied on the recitals contained in the judgment of learned Board of Revenue dated 09.01.1980, wherein the learned Board of Revenue has given liberty to the appellant to lay appropriate civil proceedings against the sale-deed if it is a dubious and fraudulent transaction. The observations in vernacular read as under:

In this view of the matter, findings of fact recorded by both the Courts below cannot be faulted. Moreover, on merits also, both the Courts below have examined the matter thoroughly and therefore findings and conclusions on issue No. 1 are also neither infirm nor perverse or dehors the law. It is trite that, while exercising jurisdiction under Section 100 CPC, this Court is not obliged to investigate the grounds on which findings are arrived at by the last Court of fact being first appellate Court. In totality, the findings and conclusions of both the courts below, and more particularly learned lower appellate Court, are just and proper warranting no interference by this Court because wherefrom a given set of circumstances two inferences of fact are possible, one drawn by the Lower Appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. Interference of this Court is called for where it is found that the conclusions drawn by the Lower Appellate Court are erroneous being contrary to the mandatory provisions of law applicable or against settled position of law on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. No such eventuality is available in the instant case.

Well it is true that there is no absolute bar that second appellate jurisdiction cannot be exercised in the event of concurrent finding of fact but then presence of substantial question of law is sine qua non for maintainability of second appeal. The phrase "substantial question of law", as occurring in Section 100 CPC, is not defined in the Code. The word substantial, as qualifying "question of law", means having substance, essential, real, of sound worth, importance or considerable. It is to be understood as something in contradiction with technical, of no substance or consequence, or academic merely. Upon delving deep into the matter, I am unable to find any question of law, which is fairly arguable, and as such the instant second appeal is bereft of any substantial question of law. The substantial questions of law proposed by the appellant are also not satisfying the requirements enumerated hereinabove and therefore, on the strength of these proposed substantial questions of law, I am not persuaded to entertain this second appeal.

Resultantly, the instant appeal fails and the same is accordingly dismissed.