Ramesh Kumar vs Sirdar Singh

K.K. Trivedi, J.—Heard on the question of admission.

This second appeal under Section 100 of the Code of Civil Procedure is by the defendant No.3 against the judgment and decree dated 18th January, 2005 passed in Regular Civil Appeal No.9-A/2004 by the District Judge, Damoh affirming the judgment and decree dated 14.12.1999 passed in Civil Suit No.214-A/1998 by the Civil Judge, Class-I, Hatta.

The respondent/plaintiff filed a suit for declaration that the sale deed executed on 3.8.1987 in favour of the appellant herein was bad to the extent of 1/2 share of the respondent/plaintiff and claimed back the possession of the said share. It was contended by the respondent/plaintiff that the suit property was purchased in the name of the plaintiff from one Gulabrani on 31.12.1979. Since the plaintiff was minor at that time, the sale deed was executed through the next friend/guardian. Half of the part of the property purchased in the name of defendant No.1, jointly with the plaintiff, was in possession of the defendant No.1. Both of them were having 1/2 share each in the said property. The said property could not be sold in the name of appellant herein by one of the share holders of the property without the consent of the others.

The defendants No.1 and 2 contested the claim of the respondent/plaintiff stating that the property was purchased out of the funds of defendant No.2 only and, therefore, the defendant No.2 was competent to transfer the said property to anybody. The plaintiff having no right or share in the said property was not entitled to any relief. The defendant No.3, appellant herein, also filed a separate written statement, and contended that the property was purchased from the erstwhile owner, the defendant No.2, and since the defendant No.2 has executed the sale deed as guardian of plaintiff, the sale deed was just and proper and was not to be declared as null and void. It was contended that since the property was purchased out of the funds of one person, and since the father of the respondent/plaintiff was not looking after him, the defendant No.2 acted as his guardian and, therefore, the name of the plaintiff was also added in the sale deed, when the property was purchased only for one person. It was contended that since for the purpose of fulfilling the requirement of livelihood of minors the property was sold by the guardian, to the appellant/defendant No.3, it could not be said that the sale deed was null and void. A prayer for dismissal of the suit was made.

The trial court framed the issues, recorded the evidence of the parties and reached to the conclusion that the defendant could not prove that the property was not purchased for the benefit of the respondent No.1/plaintiff. From the analysis of the evidence, the trial court reached to the conclusion that the respondent/plaintiff was entitled to 1/2 share in the suit property and, therefore, the sale deed so executed without the consent of the plaintiff was, held not binding on him. A decree of declaration to that effect and possession was granted by the trial court.

The appeal was preferred only by the appellant against the said judgment and decree, which was not challenged by other defendants No.1 and 2. The lower appellate court found that in fact the final decree should not have been passed by the trial court as without the partition of the property in suit, 1/2 share could not be delivered to the respondent/plaintiff. Therefore, modifying the decree to that extent it was decreed that the sale deed dated 3.8.1987 (Ex.D-1) so far it related to 1/2 share of the plaintiff was invalid and void and that half part of the house in the suit be delivered to the plaintiff, as was shown in the decree passed by the lower appellate court. Against this judgment and decree, this second appeal is filed.

Learned counsel for the appellant has contended that material evidence, if looked into, would indicate that the property was not joint and in fact it was exclusive property of defendant No.2, though purchased in the name of the plaintiff. This aspect was over-looked by both the courts below that even when the purchase was made in the name of the respondent/plaintiff and defendant No.1, both of them were minors and the property was purchased jointly. The suit as was filed on 28.3.1988 was not maintainable, as still the plaintiff/respondent No.1 was minor at that time and no permission was obtained under the law to file a suit for and on behalf of minors. Since the suit itself was not maintainable on the date of its initial filing, it ought to have been dismissed. Further, on the basis of the evidence available on record, it is clear that exclusive purchase was made though the names of the minors were mentioned and, therefore, the judgment and decree passed by the trial court was not sustainable in law. However, ignoring these facts, lower appellate court has also dismissed the appeal. Therefore, the judgment and decree is liable to be set aside.

The submissions made by the learned counsel for the appellant are misconceived inasmuch as a minor, if required to file the suit, is not required to obtain a sanction or order from the Court, but the minor is to sue by next friend that may be father or guardian. Of course, for the purposes of defending a suit in case the suit is filed against the minor, next friend is to be appointed by the courts, on an application. The natural guardian of the respondent No.1/plaintiff was his father Hari Singh and the suit was filed on behalf of minor by his father Hari Singh. No such objection at the initial stage was taken before the trial court. Therefore, such an objection at this stage is not acceptable. The other aspect is availability of evidence. No documentary evidence was produced before the courts below by the appellant, nor the same was proved. On the other hand, when the appeal was preferred by the appellant against the judgment and decree, no attempt was made to produce such evidence even with an application under Order 41 Rule 27 of the Code of Civil Procedure. Certain documents are tried to be annexed with the memo of second appeal, but, again, no application is made for taking additional evidence on record. What useful purpose would be served by producing those documents is not clear. It is not clear that as to, on the date of sale any right was left by the respondent/plaintiff in the suit property. Mere passing of an order on an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, it cannot be said that the suit property was exclusive property of defendant No.1 who executed the sale deed in favour of defendant No.3. That being so, it cannot be said that appreciation of such evidence by the courts below was not proper.

Re-appreciation of the evidence of parties in the second appeal stage is not permissible unless any perversity of finding on wrong appreciation of evidence is pointed out. None is alleged nor pointed out by the learned counsel for the appellant. The concurrent findings of the courts below do not suffer from any illegality, as the findings are based on appreciation of evidence available on record.

No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed.