Prabhudas And Another vs Kalibai And Others

Heard on the question of admission.

The appellants/plaintiffs have filed the present appeal being aggrieved by the judgement and decree dated 01.11.2013 passed by 2nd Civil Judge, Class-II, Jaora and judgement dated 12.09.2017 passed by the Additional District Judge, Jawar, District Neemuch whereby Civil Suit and first appeal both have been dismissed.

The plaintiffs filed the suit for declaration and permanent injunction of the land bearing survey No.43/2 area 0.750 hectare of Gram Medhpura Chouhan, Tehsil Singoli (hereinafter referred as suit land). According to the plaintiffs, late Narsingh Das being a grand father was owner of land area 4.234 hectare. The details of the land are mentioned in para

After the death of Narsingh Das his three son namely Bhawardas, Pyardas and Kishandas became the joint owner by way of succession. The partition took place between three brothers and they started cultivation. After the death of Bhawardas the present plaintiffs became the owner and they have partitioned the land between them. According to the plaintiffs, Pyardas had two daughters namely Kali Bai and Prem Bai. The plaintiffs are in possession over the suit land and they are cultivating the same. It is further pleaded that father of the plaintiffs - Bhawardas had 1/3rd right over total land 4.234 hectare. Pyardas during his lifetime sold his share to the plaintiffs vide unregistered sale deed dated 28.05.1977 in Rs.3,000/-and the possession was handed over but due to some reasons sale deed could not be executed. Pyardas left the village 10 years ago from his death and his two daughters had no possession over the suit land.

It is further pleaded that after the death of Pyardas the defendant No.1 Kali Bai got mutated her name but she was never in possession. According to the plaintiffs, the defendant No.1 took an undue advantage of mutation of her name executed sale deed in favour of defendant Nos.2 and 3 and sold the land Survey No.43/2 area 0.75 hectare and 43/3 area 0.02 hectare (1/3rd). According to the plaintiffs, no sale consideration was passed on to the defendant No.1 and the possession was not handed over to defendant Nos.2 and 3, therefore, the sale deed is void and not binding on the plaintiffs and now the defendants are trying to dispossess the plaintiffs illegally and forcefully, hence, the cause of action arose for filing the suit.

After receipt of summons, all the defendants jointly filed the written statement denying the averments made in the plaint. The possession of the plaintiffs have specifically been denied by the defendants and execution of unregistered sale deed dated 28.05.2017 has also been denied. It is pleaded in the written statement that defendant No.1 being a daughter of Pyardas became the owner after his death and her name had been mutated in the revenue record, therefore, she has a right to execute the sale deed dated 06.07.2012. The defendants have also raised the issue of improper valuation and inadequate amount payment of ad valorem court fees paid by plaintiffs.

On the basis of pleadings the trial Court framed 5 issues for adjudication.

The plaintiffs examined Jamuna Das as PW1, Shyamdas as PW2, Radheshyam as PW3, Radhe Shyam S/o Narayan Ji as PW4, Mohanlal as PW5, Bherulal as PW6, Shambhulal as PW7 and they got exhibited ten documents as Exhibit P/1 to P/10. The defendants examined Kali Bai as DW1, Kanhaiyalal as DW2 and they got exhibited 6 documents as Exhibit D/1 to D/6.

After appreciating the documentary as well as oral evidence came on record, the learned Civil Judge vide judgement and decree dated 25.07.2015 has dismissed the suit. Being aggrieved by the aforesaid dismissal, the plaintiffs filed a first appeal No.12-A/2017 which has also been dismissed judgement dated 12.09.2017, hence, the present second appeal before this Court. Shri Yashpal Rathore, learned counsel for the appellants/plaintiffs submits that the defendant No.1 was never in the possession on the suit land and therefore, at the time of execution of sale deed dated 06.07.2012 no possession was handed over to defendant Nos.2 and 3, hence, such a sale deed is not a complete sale and same is void and not binding on the plaintiffs. He further submits that the plaintiffs had already purchased the suit land from Pyardas in the year 1977 and since then they are in possession over the suit property. No partition had taken place. The share of the defendant No.1 in the suit land is not ascertain, therefore, she could not have sold the suit land to the defendant Nos.2 and 3. In support of his contention, he has placed reliance over the judgement passed by this Court in case of Dayawantibai W/o Tulsiram Lodhi Vs. Smt. Sarula Bai & Others, reported in (2006) 4 MPLJ 346.

I have learned counsel for the appellants at length and perused the record.

It is not in dispute that the entire land area 4.234 hectare was owned by Narsingh Das and after his death his three sons Bhawardas, Pyardas and Kishandas succeeded the said land and became the owner. According to the plaintiffs, the partition took place between three brothers and thereafter they started cultivating in their respective share. The plaintiffs are son of Bhawardas and defendant No.1 is daughter of Pyardas. According to the plaintiffs, the Pyardas had sold the suit land to Bhawardas by unregistered sale deed. Admittedly, the said deed being an unregistered sale deed, the title had not been passed to the plaintiffs. By way of concurrent finding both the Courts below have held that the plaintiffs have failed to prove the said sale deed. The main contention of the plaintiffs is that Pyardas was never into the possession and defendant No.1 Kali Bai was also not in possession over the land and she was owner only on papers. After the death of Pyarlal the name of defendant No.1 was mutated in the revenue record and the said mutation was not challenged by the plaintiffs. They filed the suit only when the defendant No.1 sold the suit land to the defendant nos.2 and 3. In the sale deed, there is a recital of handing over the possession. Both the Courts below have concurrently recorded the finding that the plaintiffs have also proved their possession over the suit land. The title of defendant No.1 is not in dispute. Her name had been mutated in the revenue record long back and thereafter she had a right to execute the sale deed in favour of defendant Nos.2 and 3. Rin Pustika of defendant No.2 has also been prepared. Exhibit D/1 to D/5 have been filed by the defendants to prove the ownership and transfer of title by way of registered sale deed. So far as the judgement passed by this Court in case of Dayawantibai (Supra) is concerned, in which the sale consideration was not passed on to the seller and he retained the possession of the suit property to enjoy the same, therefore, this Court has held that it cannot be said to be sale of the immovable property. In the present case, the seller is defendant No.1 who is not disputing the accepting of money by her and transfer of possession of land to defendant Nos.2 and 3. She has specifically deposed in the witness box that she received the sale consideration and handed over the possession to the defendant Nos.2 and 3, therefore, the facts of this case are totally different from the facts of Dayawantibai (Supra), hence, the same is not applicable in this case. The title of Pyardas is not in dispute over the suit property and thereafter the defendant No.1 succeeded after the death of Pyardas, therefore, being an owner she executed the sale deed in favour of defendant Nos.2 and 3. The plaintiffs have failed to prove their possession as well as their title over the suit land. The plaintiffs has only filed the suit challenging the sale deed dated 06.07.2012 but they never claimed the declaration of title over the suit land by virtue of unregistered sale deed dated 28.05.1977. They have also not claimed the title by way of adverse possession in the suit, therefore, both the Courts below have not committed any error of law while dismissing the suit as well as first appeal. I do not find any substantial question of law involved in this appeal.

Even otherwise, the Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, reported in (1999) 3 SCC 722, has held as under:

It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

If the question of law termed as a substantial ques-tion stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR 1976 SC 830] held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

In case of Laxmidevamma v. Ranganath, reported in (2015) 4 SCC 264, again the Apex court has held as under:

Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiffs has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffss' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.

Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others, reported in (2017) 9 SCC 586 has held as under:

"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.

It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."

The appeal is devoid of merits and question of law, hence, hereby dismissed.