Nawal Kishore Mandal and Another vs Most. Kaushalya Devi and Others

Chakradhari Sharan Singh, J.—Heard learned counsel for the parties. The present appeal u/s 100 of the CPC (hereinafter referred to as the Code) has been placed for hearing under Order 41 Rule 11 of the Code.

The appellants herein were defendants in the Title Suit Nos. 213 of 1991/9 of 1992 and are aggrieved by the judgment and decree dated 25.6.2010 and 9.7.2010 respectively, passed by learned Additional District Judge, Fast Track Court-V, Bhagalpur in Title Appeal No. 68 of 1997 whereby he has affirmed the judgment and decree dated 31.5.1997 and 17.6.1997 respectively, passed by learned Sub-Judge-IV, Bhagalpur in the said Title Suit Nos. 213/1991/9/1992. The appellants were defendants 2nd party before the trial court, who are the purchasers of suit property from respondent No. 7 (defendant No. 11, Rameshwari Devi). Suit preferred by respondents 1st set came to be decreed in their favour, first appeal against which preferred by appellants herein was also dismissed, hence this second appeal.

The plaintiffs had filed the suit for a declaration that the defendants first party (respondent No. 7) had no right to transfer the suit property to the defendants second party (appellants) and the sale deeds executed by defendants first party in favour of defendants second party with respect to the suit property did not confer any right on the defendants second party, the same being void ab initio, inoperative and not binding upon the plaintiffs. They also sought for a decree for permanent injunction restraining the defendants from interfering with their right, title and possession over the suit property.

Before coming to the main dispute, I consider it apt to refer to respective pleadings of the plaintiffs and defendants before the trial court.

According to plaintiffs one Kashi Modi died leaving behind his three sons, namely, Mishri Modi, Paro Modi and Rami Modi as also certain properties including the suit property. His sons, thereafter, mutually partitioned and came in possession over their respective shares. Mishri Modi died leaving behind his widow and a son Nathan Modi. The widow of Mishri Modi is said to have married her husband''s brother Paro Modi and, thus, Nathan Modi became absolute owner of the share of the property held by Mishri Modi. Nathan Modi also died before 1956 leaving behind his widow Rameshwari Devi (defendant No. 1) and four daughters. Rameshwari Devi inherited the entire share of her husband.

Without referring to other facts with respect to partition in the family, the plaintiffs'' case was further before the trial court that in the year 1958 Rameshwari Devi sold her share of 8 kathas 19� dhurs of khesra No. 34 to her son-in-law Fudi Modi who came in possession over the same. The specific case of the plaintiffs before the trial court was that after the said sale in the year 1958, Rameshwari Devi was left with no other land. The plaintiffs further pleaded that other son of Kashi Modi, namely, Paro Modi had only one son Bhola Modi who also held 8 kathas and 19� dhurs of khesra No. 34 and sold his share to the plaintiffs by sale deed dated 17.12.1960 and they came in possession over the same thereafter. The other son of Rami Modi also sold his share of 17 kathas 19 dhurs by sale deed dated 17.12.1960 to the plaintiffs. This is how the plaintiffs are said to have acquired title and possession over one bigha 7 kathas 18� dhurs in khesra No. 34. The plaintiffs further claimed that their names were mutated over two blocks, one purchased from Bhola Modi and other from Rami Modi.

The dispute arose in 1991 only when Rameshwari Devi (respondent No. 7/defendant No. 1) executed a sale deed dated 28.6.1991 in favour of defendants second party/appellants with respect to 8 kathas 19� dhurs of land. This is with reference to the specific case of the plaintiff that Rameshwari Devi, after having sold her share of 8 kathas 19� dhurs of khesra No. 34 in 1956 was left with no other land. The plaintiffs pleaded that when the defendants claimed their title over 8 kathas 19� dhurs of land on the basis of purchase through sale deed dated 28.6.1991, they enquired about the same and obtained true copy of the deed. The plaintiffs claimed that defendants first party had no right to transfer any portion to the defendants second party/appellants as she had already sold her entire share in 1958 to Fudi Mahto, her son-in-law, itself.

The defendant No. 1, Rameshwari Devi, filed her written statement. Defendants No. 7 and 8, who are appellants herein, also contested the suit by filing their written statement. It appears that defendant No. 1 took a plea in her written statement that defendants second party, who are the appellants herein, forced her to execute the sale deed with assurance that the consideration amount would be paid to her later on. She further pleaded that in fact she had sold her entire share to her son-in-law.

Defendants No. 7 and 8 in their written statement, on the other hand, claimed that in fact in the mutual partition each branch of three sons of Kashi Modi, namely, Mishri Modi, Paro Modi and Rami Modi got equal share in khata No. 15KH, khesra No. 34 and each of them got 11 kathas 16� dhurs of land. They claimed that defendant No. 1 never sold any property to Fudi Modi in the year 1958 and asserted that the sale deeds dated 28.6.1991 were validly executed. The defendants specifically claimed that they have been coming in peaceful possession over the suit land since the date of purchase.

On the basis of rival pleadings learned trial court framed altogether eight issues including issues No. v and vi which read as follows:--

(v) Had Rameshwari Devi any subsisting right in the suit property convey (sic) to the defendant 2nd party?

(vi) Are the sale deed executed in favour of defendant Nos. 7 and 8 or the defendant 2nd party legal and valid?

After issues having been framed, the parties adduced their evidence both oral and documentary. From the judgments of the courts below, it appears that the defendants developed a case that the land which was sold by Rameshwari Devi to Fudi Modi in 1958 was not the same which they purchased in 1991. The defendants claimed that by 1958 sale deed Rameshwari Devi in fact sold her share of plot in khesra No. 39 and not in 34. This point was taken on behalf of the defendants second party as in 1958 sale deed land appertaining to khesra No. 39 was sought to be sold.

On the basis of evidence and respective pleas of the parties, the trial court was of the view that the only question which was required to be decided in the entire suit was whether the land which Rameshwari Devi had sold being her share to her son-in-law Fudi Modi appertained to khesra No. 34 or Khesra No. 39. After analyzing the evidence on record, learned trial court came to specific finding that in place of khesra No. 34 khesra No. 39 had been written in the sale deed executed by Rameshwari Devi (defendant No. 1) in favour of Fudi Modi. The trial court, on that basis, came to a finding that Rameshwari Devi had sold her entire share to Fudi Modi and was left with no land to be transferred to anyone thereafter. The trial court disbelieved the dispute as regards the partition in the family developed on behalf of defendants. The trial court further held that the plaintiffs were coming in possession over the suit land and had right, title and interest over the same.

Learned first appellate court, on the basis of grounds taken on behalf of the appellants and in view of evidence available on record, formulated three points for consideration which are as follows:--

(i) Whether partition took place amongst Mishri Modi, Paro Modi and Rami Modi or it took place in between Nathan Modi and Bhola Modi in the year 1950 and Ext.-2 is genuine, valid and admissible in law?

(ii) Whether Rameshwari Devi ever sold land of plot No. 34 to Fudi Modi in 1958 and he acquired right, title and possession over the plot No. 34?

(iii) Whether Rameshwari Devi had any right to sell the suit property to the appellants (deft. Nos. 7 and 8) and they acquired right, title and possession over the same?

Learned first appellate court dealing with point No. (i) accepted the plea of partition as put forth by the plaintiffs that there was mutual oral partition long before 1950 among the three sons of Kashi Mahto in which only Rami Modi had separated and later on Nathan Modi, son of Mishri Modi and Bhola Modi son of Paro Modi partitioned the property by metes and bounds.

Dealing with the main point being point No. (ii), in detail, learned first appellate court, after having analyzed the evidence on record, came to a finding that Rameshwari Devi had sold the land of plot No. 34 to her son-in-law in the year 1958 and thereafter there was no land left to her. Learned first appellate court while dealing with this issue recorded that there was no other plot in the concerned mauza in which lands of the family of the vendors of the plaintiffs and defendants No. 7 and 8 existed except khesra No. 34 and further there was nothing on record to suggest that any other khesra bearing No. 39 was in existence in the concerned mauza in the name of vendors of plaintiffs or defendants. Learned first appellate court came to specific finding that khesra No. 34 had been sold by Rameshwari Devi and she did not sale land of khesra No. 39.

Dealing with point No. (iii) learned first appellate court concurred with finding of the trial court recording that after having sold her share to her son-in-law, Rameshwari Devi was left with no other land and, therefore, there was no question of legality of any sale subsequent to the earlier sale. Learned first appellate court also held the sale deed dated 28.6.1991 to be not genuine and valid.

From the above, it would appear that there are concurrent findings of fact by the courts below to the effect that the land which was sold by Rameshwari Devi in 1958 to her son-in-law, Fudi Modi appertained to khesra No. 34 and not 39. There is also a concurrent finding of fact that the plaintiffs had possession over the suit land ever since sale in their favour in 1960. These two findings of fact are based on analysis of the evidence available on record by the courts below.

Learned counsel for the appellants has vehemently contended that the courts below wrongly came to the finding that the land which was sold by Rameshwari Devi in favour of Fudi Modi appertained to khesra No. 34 though khesra No. 39 was mentioned in the sale deed. He submits that the courts below wrongly construed and interpreted the two sale deeds and, thus, came to erroneous finding. Learned counsel for the appellants has placed reliance on a judgment of the Supreme Court reported in Shri Hafazat Hussain Vs. Abdul Majeed and Others, in order to contend that even the concurrent findings can be disturbed in exercise of power u/s 100 of the Code if such findings suffer from serious infirmities and illegalities in order to prevent miscarriage of justice. He has submitted that misconstruction of a document involves a substantial question of law which has prejudicially affected the appellants'' case.

Learned senior counsel appearing on behalf of the respondents, on the other hand, submitted that the only question of fact which was involved in this case before the courts below was as to whether by the sale deed executed by Rameshwari Devi in favour of Fudi Modi in the year 1958 was for the same land which was sought to be transferred by her by a subsequent sale deed dated 28.6.1991. He has submitted that the courts below came to a concurrent finding of fact to the effect that Rameshwari Devi had got in her share 8 kathas 19� dhurs of khesra No. 34 and not of 39 and, therefore, even if 39 was mentioned in the deed executed in the year 1958, it was a mere wrong description of the land. He would further submit that there being concurrent finding of fact of the courts below that the plaintiffs have been continuing in possession over the suit land ever since the date of purchase by them, the defendants'' claim of purchase of the same land from Rameshwari Devi has rightly not been sustained by the courts below.

After having gone through the judgments of the trial court and first appellate court, I am of the view that the short issue which the courts below were required to decide was as to whether the land which Rameshwari Devi had sold in the year 1958 to her son-in-law was of khesra No. 34 or khesra No. 39. The courts below have concurrently held that it was of khesra No. 34 which was sold by Rameshwari Devi in 1958 in favour of her son-in-law. It is not the contention of learned counsel for the appellants that such finding of fact is contrary to the evidence available on record or there was no such evidence before the courts below to come to such finding. Learned counsel for the appellant, therefore, could not submit that the findings of the court below are perverse. The only submission which learned counsel for the appellants has attempted to develop is that findings are based on misconstruction/misinterpretation of the two sale deeds one of the year 1958 and other of the year 1991.

After having gone through the impugned judgments and decree and having heard and considered rival submissions made on behalf of parties at the bar, I am of the view that this is purely a question of fact as to whether khesra No. 39 was wrongly mentioned in the sale deed executed by Rameshwari Devi in 1958. This dispute has been adjudicated upon by the courts below on their appreciation of evidence available on record. This court in exercise of power u/s 100 of the Code cannot reappreciate the evidence unless findings of both the courts below are found to be apparently perverse.

In my opinion, the Supreme Court judgment reported in Shri Hafazat Hussain Vs. Abdul Majeed and Others, does not come in aid to the case of the appellants. The Supreme Court in that case upheld the judgment passed by the High Court in second appeal whereby the High Court had upset finding of fact on the ground that there were serious illegalities and infirmities committed by the learned trial Judge.

Over and above the submission regarding the findings of fact arrived at by the courts below in respect of the description of the suit land in two sale deeds, no serious illegality or infirmity has been pointed out or argued on behalf of the appellants on the basis of which it could be said that the appeal involved a substantial question of law. Learned counsel for the appellants has also placed reliance upon a Supreme Court judgment reported in Jagdish Singh Vs. Natthu Singh, so as to contend that the High Court is not precluded from recording proper findings if the findings by the courts below on fact is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter. This judgment will also be of no help to the appellants inasmuch as nothing has been pointed out that any relevant evidence has not been considered by the courts below and on that ground the findings are vitiated, being perverse.

For the reasons abovementioned, I am of the view that the present second appeal does not merit admission and is, accordingly, dismissed.