Smt. Babuabati Devi and Others vs Bhola Yadav and Others

Mungeshwar Sahoo, J.—The defendants respondent appellants have filed this Second Appeal against the Judgment and Decree dated 06.05.1992 passed by the learned Addl. District Judge, Nawada in title appeal No. 20 of 1989 whereby the learned lower appellate Court allowed the appeal and thereby reversed the Judgment and Decree of the trial Court dated 28.04.1989 passed by the learned Addl. Munsif, Nawada in title suit No. 38 of 1982/19 of 1989. The plaintiff respondent filed the aforesaid suit for declaration of title over the suit property alleging that Mangar Mahto was the owner of the property. He had a wife and a concubine name Sukari and Parwati Devi. Tilak and Bundi are the sons of Parwati Devi from her first husband. Mangar Mahto and Parwati Devi both executed and registered a sale deed in favour of plaintiff No. 2 with respect to 3.25 1/2 acres of land of Khata No. 66 and 67. Sabia Devi was the daughter of Mangar Mahto. Manger Mahto sold some property to Sabia Devi and her husband. Both of them sold the said land to the plaintiff No. 1 by registered sale deed dated 18th July, 1968 and 28th January, 1969.

The defendant filed contesting written statement alleging that Sukari and Parwati Devi were the two wives of Mangar Mahto. Manger Mahto was the Khatiyani raiyat and recorded as such in the khatiyan. He gifted 1.80 acres of land to Tilak Yadav his son and 2.3 1/2 acres to Bundi Yadav his son by registered deed of gift dated 21.06.1956 and they were put in possession of the land. They came in possession after accepting the gift. Bundi Yadav died leaving behind Tilak Yadav as his legal heirs and, therefore, Tilak became the absolute owner of 3.83 1/2 acres land. Mangar Mahto also gifted 2.42 acres to his wife Sukari Devi through a registered deed of gift dated 24.7.1959 and Sukari Devi came and continued in possession of the property who later on gifted the land to Smt. Lakshiya Devi wife of Tilak Yadav by registered gift deed dated 12.08.1964. Subsequently, Tilak and Lakshiya both sold the property for valuable consideration in favour of defendant first set. The defendant first set although received the entire amount, he did not appear before the Sub Registrar for registration of the sale deed, therefore, a compulsory registration case was filed and the District Registrar directed to register the sale deed and accordingly, the sale deed was registered on 11.05.1982. According to the defendants, since the property had already been gifted to the vendors, the original owner had no authority to sell the same property to the plaintiff.

The trial Court after considering the evidences and materials available on record came to the conclusion that the sale deed executed by Mangar, Sabia and Amrit Mahto in favour of the plaintiff are not legal, valid and operative document and accordingly dismissed the plaintiff''s suit.

The appellant filed the title appeal before the lower appellate Court. The lower appellate Court recorded the finding that the names of the plaintiffs have been mentioned in the record of right and rent receipt had been (produced by the plaintiff, therefore, the gift deeds were showy transaction and not acted upon. Accordingly, the lower appellate Court reversed the finding of the trial Court and allowed the appeal and thereby the plaintiff''s suit was decreed.

At the time of admission of second appeal on 01.10.1992, the following substantial question of law was formulated:--

(i) Whether the findings arrived at by the trial Court on the basis of registered deed of gift and its cancellation after 9 years between the parties can be reversed only on the basis of the entry of the name of the plaintiffs in the revenue Shresta of the state.

The learned counsel, Mr. Mishra, appearing on behalf of the appellant submitted that the learned trial Court discussed all the evidences and materials and also the registered gift deeds produced by the defendant which are of the year 1956 and also considered the alleged cancellation deed and recorded the finding that the plaintiff got the sale deed executed by Mangar Mahto after getting the registered gift deeds cancelled after 9 years, therefore, the subsequent sale deeds are illegal and inoperative documents but the lower appellate Court without considering the evidences and without meeting the reasonings of the trial Court reversed the finding of the trial Court only on the ground that the name of the plaintiff is recorded in the revisional survey record of right and the plaintiff are paying rent. The defendant did not take any action for recording their name and that they did not produce any rent receipt which shows that they never came in possession as such the gift deeds are inoperative documents. According to the learned counsel, the Judgment of the lower appellate Court, therefore, is vitiated because of the fact that without considering the reasonings, the lower appellate Court on the basis of untenable grounds, reversed the finding of the trial Court. The learned counsel for the appellant submitted that the Judgment of the lower appellate Court is liable to be set aside and the substantial question of law formulated be answered in favour of the appellant. In spite of notice, none appeared for the respondents.

From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court at paragraph 12 has held that merely because the said gift deeds had been executed by Mangar and his wife in favour of the said persons, it cannot be held that the said persons had acquired title by virtue of deed of gift. The revisional record of right relating to the suit land had been finally published on 19th December, 1980 as is evident from ext. 8 and 8/A. No efforts appears to have been made by the said donees or the persons who had purchased the suit land from the said donees to get the record of rights prepared in their name. Failure on their part either to get their name mutated in the Shresta of State of Bihar or to get records of right during revisional survey prepared in their names in respect of the lands which has been gifted to them and which they have later on sold to the defendant Ist party is suggestive of the fact that the said deed of gift was never acted upon. Only on this question the lower appellate Court has reversed the categorical finding of the trial Court that by registered gift deeds, title was conveyed to the donees and the same could not have been cancelled after 9 years.

From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court has neither considered all the evidences and also has not considered the reasonings assigned by the trial Court and then reversed the Judgment of trial Court only on this ground, i.e., either non-action of the donees or that the name of the plaintiff has been entered in the revisional survey record of right without considering the settled principle of law that the entry in revenue record of right neither creates title nor extinguish title in favour of any one. It is admitted fact that the registered gift deed is of the year 1956-59. The plaintiff never challenged the said gift deeds on any account. In view of Article U/S/58 of the Limitation Act, 3 years limitation is provided for cancellation or setting aside a document.

In the case of Prem Singh and Others Vs. Birbal and Others, , the Hon''ble Supreme Court at paragraph 28 has held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption. In the case of Md. Noorul Hoda Vs. Bibi Raifunnisa and Others, , the Hon''ble Supreme Court has held that when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise bind him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument, is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable.

In the case of Abdul Rahim and Others Vs. SK. Abdul Zabar and Others, the Hon''ble Supreme Court has held that a suit for cancellation of transaction whether on ground of being void or voidable would be governed by Article 59 of the Limitation Act. Admittedly, in the present case the plaintiff neither filed any suit for declaration that the gift deed in favour of vendors of the defendant appellant are either void or voidable and allowed the gift deeds to become final. It may be mentioned here that the donor also never challenged the voidability of the said gift deed within the limitation period prescribed by law. According to the Section 31 of the Specific Relief Act, the original vendor could have voided the gift deed within 3 years. The donor had no authority to cancel the same unilaterally as it is settled principle of law that once a gift deed is executed and registered the title vested on donee. In such circumstances, the gift deed which is alleged to have been cancelled after 9 years has got no meaning and is nothing but a illegal document executed by the donor unilaterally. On that day, the donor had no authority to deal with the property of the donees.

From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court in fact decided the validity or otherwise of the gift deed in favour of the appellants vendor although the validity or otherwise of the said gift deeds was never challenged as stated above. Moreover, while deciding this fact, the lower appellate Court only given the reasons as quoted hereinabove. In my opinion, for validity of gift, it is not necessary that subsequent to the gift deed, the donee must take step for getting his name mutated or getting his name recorded in the survey record of right and if no steps are taken, the title will never be conveyed.

In the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., the Hon''ble Supreme Court has held that while reversing a finding of fact, the appellant Court must assign its own reasons for arriving at a different finding. An additional obligation has been cast on the first appellate Court by the scheme of the present Section 100 substituted in the Court. The First appellate Court continues as before to be a final Court of facts, pure findings of facts remain immune from challenge before the High Court in Second Appeal. Now, the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in Second Appeal because the jurisdiction of the High Court has now ceased to be available to correct the error or law. It is also settled law that while reversing the Judgment the appellate Court must give reason as to why he do not agree with the reasons given by the trial Court. As stated above from the Judgment of the lower appellate Court, it appears that the lower appellate Court has reversed the finding only on this entry made in the revenue records of right, in my opinion, on this ground, the fining of the trial Court could not have been reversed by the lower appellate Court. In the result, the substantial question of law formulated is answered in favour of the appellant. This Second Appeal is, therefore, allowed. The impugned Judgment and Decree of the lower appellate Court is set aside and that of the trial Court is restored. Thus, the plaintiff respondent suit is dismissed. In the facts and circumstances of the case, there shall be no order as to cost.