Kailash Mahto And Ors vs Most. Sumri And Ors

Heard Mr. R.N. Sahay, learned senior counsel appearing for the appellants.

This Second Appeal has been filed against the judgment and decree dated 28.11.2016 and 13.12.2016 respectively, passed by the learned District

and Additional Session Judge-VIII, Giridih in Title Appeal No.03 of 2014 whereby and whereunder he has been pleased to dismiss the Title Appeal

No.03 of 2014 and affirm the judgment and decree dated 21.12.2013 and 03.01.2014 respectively passed by the learned Civil Judge (Sr. Div.)-II,

Giridih in Title Suit No.185 of 2002.

In brief, the case of appellants/plaintiff in the court below was that 2.91 acres of land of Khata No.29 of Mouja Khetko, Thana No.257, Bagodar,

District Giridih was recorded in the name of one Kewal Mahto. After the death of Kewal Mahto and his wife Gunjari Devi, the said land was

inherited by their only daughter, Mosmat Tekani Devi, who came in exclusive possession over the same.

It was further case that Mosmat Tekani Devi fell in need of money and she sold the said land to the appellants/plaintiff vide a sale deed dated

17.12.90 after receipt of consideration money of Rs.15,000/-. After the purchase, the appellants/plaintiff came into exclusive possession of the said

land and he executed two wells on plot no.4044, raised a compound wall around it and planted a Kathal tree and two bamboo clumps on plot no.4044.

The appellants/plaintiff also planted two bamboos clumps on plot no.4048.

The appellants/plaintiff was further made out the case in the court below that in the month of August, 2000 he went to the Anchal Office to get this

land mutated in his name, but he came to know that the defendants had already got their name mutated with respect to half of the land area i.e.

1.45.1/2 acres on the basis of a sale deed no.3098 dated 12.03.1991 executed by Mosmat Takani. The appellants/plaintiff also learnt that the sale deed

dated 17.12.90 executed in favour of the plaintiff was cancelled by a deed of cancellation dated 12.03.91. Thereafter the appellants/plaintiff obtained

certified copies of the deed of cancellation and the sale deed no.3098 dated 11.10.2001 and 09.11.2001 respectively and filed a demand cancellation

case no.67 of 2000-01. The appellants/plaintiff has further stated that on the basis of the sale deed dated 12.03.91, the defendants interfered in the

possession of the plaintiff on 15.11.02.

The cause of action for the suit as per the pleadings of the appellants/plaintiff, arose in the month of August, 2000 and also on 09.07.2001, 11.10.2001,

15.11.2002 and thereafter on day to day basis. The suit was valued at Rs.7,500/- for the purpose of jurisdiction.

On the basis of aforesaid pleadings, the appellants/plaintiff was prayed for the following reliefs:-

(a) For a decree declaring the sale deed no.3098 dated 12.03.91 executed by Mosmat Takani in favour of defendants Gango Mahto and Mohan

Mahto as illegal, inoperative, void and paper transactions, so far the suit lands is concerned.

(b) For the costs of the suit and the interest thereon pendentelite.

(c) For any other relief/reliefs to which the plaintiff is found entitled under the law and equity.

On receipt of summons, both the defendants appeared and filed their joint written statement. The defendants have contended that the suit is not

maintainable in present form and it is barred by the law of limitation, waiver, estoppel, and acquiescence. The appellants/plaintiff has no cause of

action to file the suit and it is grossly undervalued. According to the defendants, the suit is also hit by Section 34 of the Specific Relief Act.

The respondents/defendants denied the pleadings of the appellants/plaintiff and have stated that although the sale deed no.14551 dated 17.12.90 came

into existence but it was without consideration. Daulat Mahto only promised to pay the consideration money of Rs.15,000/- to Mosmat Tekani. Only

on the said promise, the sale deed was executed and registered. However, the plaintiff did not pay the consideration amount to Mosmat Tekani. As a

result, Mosmat Tekani cancelled the plaintiff’s sale deed dated 17.12.90 by a deed of cancellation no.3073 dated 12.03.91. On the same day i.e.

on 12.03.91 itself, Mosmat Tekani executed another sale deed no.3098 in favour of the defendants with respect of 1.45 ½ acres of land under Khata

No.29 for a consideration money of Rs.7500/-.

The respondents/defendants further pleaded that the Mosmat Tekani never delivered her khas possession of the suit land to the appellants/plaintiff on

the date of execution of the sale deed because of the non-payment of the consideration money by him. Rather, she remained in actual khas possession

over the suit land. The respondents/defendants have further stated that the appellants/plaintiff did not dig up any well or raised boundary wall on plot

no.4044 and also did not plant any Kathal tree or bamboo clumps. In fact, it was Gunjari Devi (the mother of the Mosmat Tekani) who had dug up

wells and planted Kathal tree and bamboo clumps over the suit land. After the purchase of 1.45 ½ acres of land from Mosamat Tekni, the two

defendants came into its possession and since then, they have been growing crops like potato, maize and paddy over it. The rest 1.45 ½ acres out of

total 2.91 acres of land remained in the possession of Mosamat Tekani and it was inherited by her legal heirs after her death. On the basis of these

grounds, the respondents/defendants have contended that the suit is liable to be dismissed.

On the above, the trial court has framed the issues and after discussing the evidences and the exhibits, dismissed the suit.

Aggrieved with the same, appellant/plaintiff has filed the appeal being Title Appeal No.03 of 2014 which was decided vide judgment dated 28.11.2016

by the learned District and Additional Sessions Judge-VIII, Giridih who affirmed the finding of the trial court.

Aggrieved with the same, the appellants/plaintiff has filed this Second Appeal.

Mr. R.N. Sahay, learned senior counsel appearing for the appellants submits that in the impugned judgment the issue with regard to the cancellation

of sale deed was not framed by the court below and that’s why there is perversity in the judgment of the court below.

He further submits that it is well settled proposition of law that when the sale deed is null and void there is no need of challenging the cancellation

deed.

Mr. Sahay, learned senior counsel appearing for the appellants relied upon the judgment passed by the Hon’ble Allahabad High Court in the case

of Ganga Prasad Vrs. Munna Lal & Ors. dated 21.12.2017. He further argues that there is perversity in the judgment and that is the substantial

question of law to admit the Second Appeal.

Mr. Sahay, learned senior counsel appearing for the appellants submits that so far as the Ext.3 is concerned, there is no finding of the trial court as

well as the appellate court below.

Having heard the learned counsel for the appellants, this Court finds that the trial court as well as appellate court framed the issues for deciding the

suit. The trial court as well as appellate court have framed the issues at paragraph 10 and 7 respectively of the judgment of trial court as well appellate

court. The appellant/plaintiff examined five witnesses and relied upon the documents which were marked as Ext.1 to 3. The respondents/defendants

examined six witnesses which were marked as Ext.A to D.

The trial court as well as appellate court while discussing the evidence of PW1, PW2, PW4 and documentary evidence, came to the finding that the

appellants/plaintiff was not in possession of the land in question at the time of filing of the suit. The court below further found that the

appellant/plaintiff ought to have made prayer for further relief regarding recovery of possession. The appellant/plaintiff ought to have asked for

positive reliefs in his favour like declaration of his title as well as to declare his own sale deed dated 17.12.90 (Ext.2) as legal and valid. Considering

the judgment rendered by this Court in the case of Rajasthan Bhawan Trust Vs. Most. Pradiya Devi & Ors. reported in (2003) (1) JCR 486 (JHR)

the court below came to the finding a declaratory suit without seeking the main relief is ineffective, infructuous and is hit by the provisions of Section

34 of Specific Relief Act and as such a suit is liable to be dismissed.

While deciding the issue no.7, the court below came to the finding that the appellant/plaintiff has not challenged the deed of cancellation dated

12.03.91 executed by Mosmat Tekani and without challenging the deed of cancellation, the subsequent sale deed dated 12.03.91 in favour of the

defendants cannot be questioned. As shown above, the defendants have acquired their right and entitled over 1.45 ½ acres of land by virtue of their

sale deed no.3098 dated 12.03.91 and they are in continuous possession over the same. The appellant/plaintiff in spite of knowledge, did not challenge

the subsequent sale deed of the respondents/defendants within the limitation period of three years. Under such circumstances, the sale deed no.3098

cannot be declared as illegal, void or improper and came to the finding that the defendants’ sale deed is valid and legal and they have good title

over the said land.

So far as the judgment relied upon by Mr. Sahay, learned senior counsel for the appellants is not applicable in the facts of this case particularly to the

effect that the cancellation deed was not under challenge in the court below had the court below would have come to the finding that the deed is void

the matter would have been different and the judgment relied by Mr. Sahay, may have some help to the appellants but in the facts of the present

appeal, the said judgment is not applicable.

This Court is also of the view that the jurisdiction of the High Court, in appeal under Section 100 C.P.C., is strictly confined to the case involving

substantial question of law and while deciding the second appeal under Section 100 C.P.C., it is not permissible for the High Court to re-appreciate 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. Reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of

Gurnam Singh (Dead) by Legal Representatives & Ors. Vrs. Lehna Singh (Deed) by Legal Representatives reported in (2019) 7 SCC 641.

In view of the above findings this Court finds that there is no substantial question of law involved in this Second Appeal, accordingly, the Second

Appeal stands dismissed.

I.A. No.7092 of 2017 also stands disposed of.