Shrichand and another vs Jeet Lal and another

H.N. Tilhari, J.—This is defendants'' second appeal arising out of judgment and decree dated 301079 passed by Shri Ashok Kumar, Civil Judge, Pratapgarh in Civil Appeal No. 22 of 1978 allowing the plaintiffappellants'' appeal and decreeing the plaintiffs'' claim in Suit No. 306 of 1974 after having set aside the judgment and decree of the trial court dated 231277 passed by Shri Sushil Chandra Srivastava, Munsif Sadar, Pratapgarh. The plaintiffrespondents filed the suit for mandatory injunction against the defendants and to direct the defendants that they should within the time to be specified by the court get the southern and western wall of R3 and the roof demolished and removed and thereafter they should hand over the possession of the verandah GHEI lying to the north as well as in front of R3 referred to in the map. It was further prayed that a decree for prohibitory injunction be issued against the defendants directing them not to interfere in any mariner with the plaintiffs'' possession over the land in dispute and the verandah etc. and in the alternative it was further prayed that in case the plaintiffs are not found to be in possession on any of the part or portion of the disputed land then decree for delivery of possession be also given in favour of plaintiffs and against the defendants and a decree for damages in favour of plaintiffs against the defendants be granted. Costshave also been claimed by the plaintiffs.

According to the plaintiff''s case the house in dispute had been got built by the grandfather of Baij Nath. Baij Nath and his sons have been separate as well as their business and the family also had been separated from each other by partition. On 26366 Baij Nath executed a sale deed of the house in dispute in favour of the plaintiffs for a sale consideration of Rs 400/ and thus the plaintiffs claim to be the sole and exclusive owner in possession of the house in dispute on the basis of sale deed dated 26366. The plaintiffs have alleged in the plaint that till the date the cause of action has arisen the plaintiffs have been in possession and occupation of the property in dispute & in a portion of the said house i.e. the portion described by letters DEHGED the father of the plaintiffs used to have his shop and defendants have no concern with the house in dispute. The south west kothri of the house in dispute had fallen down which has been indicated by letter R3, to the south of that room R3. That on 101174 the defendants threatened to construct a wall and started collecting the building material for constructing the wall. The plaintiffs further alleged that on the land lying infront of the house defendants started keeping a shop which has resulted in depriving the plaintiffs of possession of two dhoors land described by letters GHIA and on account of being deprived of the possession the plaintiffs stated in the plaint that they have suffered a loss to the tune of Rs. 25/. The plaintiffs have further mentioned that during the pendency of the suit as well, after having committed violation or breach of the injunction order, the defendants raised a wall on the land to the south west of the room R3 and also put the tin shed thereon. The defendants further took possession of the constructions lying to the north of R3 and further started extending threats of taking possession of R3 as well as of the verandah and the land lying infront of verandah. The plaintiffs alleged that on account of these acts of defendants the need or cause for filing the suit has arisen and so was the suit filed.

The defendantappellants filed the written statement and denied the plaint case. The defendants gave a pedigree in the written statement which has been mentioned at page 3 of the lower court''s judgment. The defendants alleged that Baij Nath got the house in dispute by inheritance from his father. They further alleged that Ram Nath''s property has been separated and that the disputed house in the hands of Baij Nath had the ancestral property in which the plaintiffs and defend ants have got share and interest by birth. The property being the ancestral one and that Baij Nath had never been exclusive owner thereof. The defendants asserted that Baij Math, Baij Nath''s sons have for long been members of the joint Hindu family and, as such, had been carrying on the business and that the property in dispute has been joint family property of Baij Nath and his sons. The defendants further stated that Baij Nath and his sons started separate business about 18 years ago and they have been separate in mess also but there had been no partition of the immovable property. It was further asserted by defendants that as there has been good loss in business to Baij Nath and he had been indebted to a number of persons and had reached the stage of becoming insolvent so in order to save the property Baij Nath on 23458 executed a fictitious sale deed in favour of his soninlaw Bhola Nath and Bhola Nath on 13658 executed a fictitious sale deed of the said property in favour of Smt. Bittan & Smt. Savitri Devi who in their turn again executed a fictitious and forged sale deed of the house in dispute on 251159 in favour of one Salik Ram who was the real brotherinlaw (loser) of Baij Nath and on the determination of the insolvency proceedings on 1366 Salik Ram executed a sale deed of the property in dispute in favour of Baij Nath and, as such, all these sale transactions beginning from 23458 upto 1366 have been fictitious and were of no effect and they were made only with the object to save the house in dispute from the proceedings of insolvency. The defendants asserted the property in dispute to be a joint family property of Baij Nath and his sons. The defendants denied the execution of a sale deed by Baij Nath in favour of plaintiffs and further stated that if the sale deed dated 26366 even if is proved to have been executed by Baij Nath the said sale deed had been void as Baij Nath had no right 30 execute the same. The defendants asserted that the sale deed, if any, in favour of the plaintiffs the same is fictitious and void as the property in dispute has been the joint family property of Baij Nath and his children. Plea of jurisdiction as well as of undervaluation of the claim in suit and insufficiency of the court fee paid were also taken by the defendants.

The trial court on the basis of the pleadings of the parties framed the following issues :

Whether the plaintiffs are the sole owners of disputed house ?

Whether disputed house is joint property of parties ?

Whether the alleged sale deed impugned is void and ineffective ?

Whether the suit had been undervalued and insufficient court fee has been paid ?

To what relief, if any, is the plaintiff entitled ?

Whether the suit had been undervalued and insufficient courtfee has been paid ?

Whether Tara Chand is also cosharer in the land in dispute.

Whether plaintiffs have been in possession within limitation ?

Whether the court fee paid is still insufficient ?

The trial court on consideration of the material evidence on record answered issue nos. 1, 2, 3, 7 and 8 against the plaintiffs and in favour of the defendants. The trial court answered issues 4, 6 and 9 in the negative The trial court found that the plaintiffs were not entitled to get any relief that was claimed in the suit and so dismissed the suit with costs.

Having felt aggrieved from the judgment and decree of the trial court the plaintiffs filed regular civil appeal i.e. Civil Appeal No. 22 of 78 and the same has been allowed by the Civil Judge, Pratapgarh by judgment and decree dated 301079. The learned lower appellate court after having considered the oral, documentary and circumstantial evidence on record held that Baij Nath was the exclusive owner of the house in dispute and Baij Nath had in 1958 executed a sale deed thereafter in favour of one Bhola Nath and later on he had purchased the same house from Salik Ram, the court held that the house in dispute did exclusively belong to Baij Nath but the property in dispute was in exclusive ownership of Baij Nath and he had fullright, as such, being exclusive owner thereof, to sell the same or to execute a sale deed in respect thereof in favour of the plaintiffs vide sale deed dated 26366. The house in suit not being ancestral house and Baij Nath being the owner of the house in dispute he having executed the sale deed in favour of the plaintiffs the plaintiffs have been entitled to claim a decree and the trial court committed error in dismissing the suit. With these observations the lower appellate court allowed the first appeal and set aside the trial court''s decree as well as decreed the plaintiffs'' suit for the reliefs claimed in the plaint.

Having felt aggrieved from the judgment and decree of the lower appellate court the defendants have come up on second appeal. I have heard Shri H.S. Sahai learned counsel for the appellants assisted by Shri Jaipal Singh. Advocate in the performance of the job. I have also heard Shri B.K. Saxena, learned counsel for the respondents. Learned counsel for the appellants submitted before me that the learned lower appellate court was wrong in taking the view that defendants could dispute the title of the vendor without first getting the sale deed set up by the plaintiffs cancelled, particularly, when the defendants were not party to the sale deed. Learned counsel for the appellants submitted that the court could look into the question of validity of the sale deed dated 2 366 and even challenged the same in course of the proceedings of the suit without filing a suit for cancellation thereof and the court could have examined the validity of that sale deed, if the sale deed dated 26366 is not valid the plaintiffs are not entitled to get the decree of injunction claimed, it be mandatory or prohibitory. Shri Jaipal Singh, appearing on behalf of the appellants submitted that it had been admitted as observed by the trial court that the plaintiffs had admitted that the sale deeds executed during the period from April 1958 to 131966 were all fictitious and admitted that the lower appellate court appears to have failed to take note of the same, and, as such, learned counsel submitted that the judgment and decree of the lower appellate court suffers from error of law.

I have considered the arguments of the learned counsel for the parties and have gone through the record of the case. As regards the two contentions raised by the learned counsel for the appellants, the said contentions are based on total misconception. The lower appellate court while recording finding to the effect that the property in dispute exclusively belonged to Baij Nath and that it was not the joint family property of Baij Nath and his sons, took a circumstance into consideration and that circumstance was to the effect that in 1958 Baij Nath had executed the sale deed of this very property in dispute in favour of Bhola Nath who transferred the same in favour of Smt. Bittan and Smt. Savitri Devi on 13658 and so on. Smt. Bittan and Smt. Savitri Devi transferred the same to Salik Ram in November, 1958. The lower appellate court referred to these transactions and in particular the sale deed dated 23458 and observed that the conduct of the sons in not filing any suit for cancellation of the sale deed dated 23458 executed by Baij Nath on the ground that the property in dispute was ancestral property is a circumstance that leads one to think that the claim of the defendants that property in dispute is the ancestral property is false and farce, the lower appellate court did not refer to the sale deed dated 26366. secondly it also observed that failure or inaction on the part of the present defendants to challenge the sale deed executed by Baij Nath on 26366 for aperiod of 12 years and without doubt it be taken as a circumstance against the defendantappellants as to why for 12 years they kept silent and did not file any suit challenging that sale deed. In raising an inference from this circumstance, in my opinion, the learned lowerappellate court did not commit any substantial error of law or of jurisdiction. It may be another thing that there may be two opinions with reference to appreciation of evidence, it may even be said that the finding has been erroneous. For a moment if it be taken without holding like that there is or has been an erroneous finding on the basis of wrong appreciation of evidence, that cannot be a ground for interference with the finding of fact recorded by the court of fact. It is well settled principle of law as laid down by the Privy Council in the Case of Mst. Durga Chandrani v. Jawahar Singh (17 IA 122) and in the case of Ram Ji Patel v. Rao Kishore (AIR 1929 PC 190(193) as well as by the Supreme Court in the cases of Deity Pattabhiramswamy v. S. Hanymayya Si others reported in ( AIR 1959 SC 57 ), Bishwanath v. Radhaballabh reported in ( AIR 1967 SC 1C 44 ), Ram Chandra Pandurang

Sonar v. Murlidhar Ram Chandra Sonar reported in ( AIR 1990 SC 1973 ) and Kehar Singh v. Yash Pal reported in (AIR 1990 SC 2213).

A finding of fact howsoever erroneous may it be, even grossly cannot be interfered with in a second appeal until and unless it is shown that it suffers from error of law of substantial nature. If a finding of fact has been arrived at on the basis of an erroneous legal approach or on the basis of some evidence which has not been admissible in law or it has been arrived at after having ignored certain piece of legal admissible evidence then that finding may be challenged otherwise, as mentioned earlier the finding of fact is binding on a court of second appeal and it is not open to interference. The second submission that had been made by Shri Jaipal Singh is also based on misconception. The learned trial court has stated and has incorrectly stated in its judgment that P.W. 1 has admitted that fictitious sale deeds had been executed. A perusal of statement of P.W. 1 is that he does not know that fictitious sale deed has been executed, so it does not amount to an admission that fictitious sale deeds have been executed. I think it proper to refer to a part of the statement of P.W. 1 where he states, "It is wrong to say that my father had become insolvent and had been overburdened with debts so he executed the above mentioned sale deeds fictitiously." This clearly indicates that P. W.1 had never admitted that the sale deeds were fictitious, instead he denied the sale deeds executed by his father to be fictitious. He asserted and intended to indicate that the sale deeds executed by his father were genuine and, as such, the learned trial court as well as the learned counsel for the appellants both acted under misconception when they assumed that P.W. 1 had admitted that Baij Nath had executed fictitious sale deeds either in 1958 or in 1966.

Thus considered I find that the present appeal is concluded by pure and simple finding of fact to the effect that the property in dispute exclusively belonged and had been acquired to Baij Nath and when it exclusively belonged to Baij Nath as held by the lower appellate court, Baij Nath was fully entitled to execute the sale deed and on the basis thereof the plaintiffs could claim the reliefs and was rightly granted by the lower appellate court. The judgment and decree of the court below i.e. lower appellate court decreeing the plaintiffrespondents'' suit does not suffer from any error of law or of jurisdiction, much less error of law of substantial nature. The second appeal being devoid of force and merits is hereby dismissed. Costs of the second appeal are made easy.

Second Appeal dismissed.