Surjit Singh and Another vs Lekhu Das and Others

Nawal Kishore Agarwal, J.—The instant appeal is directed against the judgment and decree dated 22nd November, 2005 passed in Civil Appeal No. 44-A/2003 by District Judge, Rajnandgaon whereby the judgment and decree dated 11-4-1996 passed by the find Civil Judge Class I, Rajnandgaon in Civil Suit No. 13-A/1995 has been set aside. Facts of the case in brief are as under:-

Plaintiffs (respondent No. 1 to 3 herein) filed a suit seeking relief of declaration of title and that the sale deed executed by the defendant No. 3 (respondent no. 4 herein) in favour of defendant No. 1 (appellant No. 1 herein) dated 21-12-1974 is not binding on them and for issuance of permanent injunction restraining the defendants No. 1 and 2 (appellants herein) from interfering with their possession. Initially the plaintiffs case was that they are absolute owner of the suit property bearing Khasra No. 106/4 area 1 acre situated in village Gathula, Rajnandgaon and are also in its possession. The defendant No. 3 executed a sale deed in favour of the defendant No. 1 on their behalf for a consideration of Rs. 2,000/- without any legal necessity. The said sale was not for their benefit. The said sale deed executed by the defendant No. 3 is illegal and is not binding upon the plaintiffs. Mutation case was also dismissed by the revenue authorities. Later on after filing of written statement by the defendants, the plaintiffs have pleaded that the suit property was funded by the plaintiffs'' maternal-grand-mother for their benefit and the defendant No. 3 did not pay anything for its purchase.

The defendants No. 1 and 2 filed their written statement separately. In nutshell the defence taken was that the suit land was purchased by the defendant No. 3 vide registered sale deed dated 3-4-1974 in the name of plaintiffs from Sardar Kartar Singh. The defendant No. 3 did not purchase the same in his own name in order to save the property from money lenders who have filed recovery suits against him. The plaintiffs are not real owner of the suit property. It was purchased benami and the same was sold by the defendant No. 3 validly to defendant No. 1 vide sale deed dated 21-12-74 which is binding upon the plaintiffs. It was further pleaded that it is immaterial whether or not the suit property was purchased benami in the name of the plaintiffs for their benefit because the purchase was benami and real owner was defendant No. 3. However, as per the written statement, it has been stated that they have been dispossessed from the suit property in the year 1976 by the plaintiffs and since then the plaintiffs are in its actual possession.

The defendant No. 3 by filing his written statement admitted the claim of the plaintiffs in toto and also pleaded that the defendant No. 2 is a money lender. There was a loan of Rs. 700/- on him, for its security, the said land was mortgaged by him in favour of the defendant No. 2. It was further stated that loan taken was personal loan and was not taken for any legal necessity of the family.

Learned trial court framed issues. Evidence was led by both the parties. Learned trial Court on appreciation of the evidence led, submissions made and material placed on record dismissed the suit.

The plaintiffs went in first appeal. The first appellate court after re-appreciating the entire material reversed the judgment and decree passed by the trial court and decreed the plaintiffs'' suit. Hence this second appeal.

The appeal was admitted for hearing on 3-5-2006 on the following substantial question of law:-

Whether the first appellate court was justified in reversing the well reasoned judgment and decree passed by the trial Court ?

Shri Rajeev Shrivastava, learned counsel appearing for the appellants by referring the statements of P.W. 1 Lekhudas, P.W. 2 Santram and P.W. 3 Khorbahara would submit, learned trial court has based its findings on proper appreciation of evidence but learned first appellate court without re-appreciating the above evidence in its proper perspective and ignoring the material contradictions found in the statement of above mentioned witnesses reversed the findings which is not sustainable in law in the light of para 15 of the judgment of Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., . The Supreme Court in para 15 of above judgments has held as under:-

A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, . The rule is-and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibilities lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, . Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact 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 errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.

On the other hand, Shri P.K. Verma, learned Sr. Counsel appearing for the respondents supported the judgment and decree passed by the first appellate court and would submit, the scope of second appeal is very limited. The first appellate court is competent to re-appreciate the entire evidence and material placed on record and to reverse the finding arrived at by the trial Court. The first appellate court after appreciating the entire evidence in its proper perspective and after considering the improbable fact that the suit land was purchased in plaintiffs name in the month of April, 1974 for a consideration of 3,000/- which was said to be sold on behalf of plaintiffs for a consideration of Rs. 2,000/- in the month of December, 1974, has properly reversed the finding of the trial Court. The findings are essentially findings of fact. No substantial question of law arises for determination and the instant appeal deserves to be dismissed.

I have heard learned counsel for the parties and perused the record of both the courts below.

The core question before both the courts below was that, who was the real owner of the suit property purchased by registered sale deed dated 3-4-74 i.e. whether real owner is plaintiffs or the defendant No. 3.

Indisputably as per the sale deed dated 3-4-74, the suit property was purchased by the plaintiffs through their father/defendant No. 3 and the suit property was sold by the defendant No. 3 on behalf of the plaintiffs as their guardian vide sale deed dated 21-12-74. Whether or not the suit property was sold for legal necessity was really not the question before the trial court as well as the first appellate court. The defence put forth by the defendants No. 1 and 2 was specific that the owner of the suit property was defendant No. 3 and the same was legally and validly sold by him to them. The trial court based its findings mainly considering the contradictions in the statement of P.W. 2 Santram Soni and P.W. 3 Khorbahara regarding presence of Sugandhibai i.e. plaintiffs'' maternal-grand-mother before the Registrar; and maternal grand mother was not shown as plaintiffs guardian in the sale deed.

Purchase of the suit land vide sale deed dated 3-4-74 was in the name of plaintiffs through their father guardian defendant No. 3. The suit land stands mutated in plaintiffs'' name. The sale deed dated 21-12-74 was also executed by plaintiffs through their father guardian defendant No. 3. Had there been any benami transaction, instead of executing the sale deed by plaintiffs, it would have been executed by the defendants No. 3 directly being benami owner of the property. Evidence discloses the fact that Sardar Kartar Singh from whom the suit land was purchased by plaintiffs was real brother of the defendant No. 2 and the transaction took place between Kartar Singh and the plaintiff was known to the defendant No. 2 therefore, if the purchase was benami then the defendant No. 2 should not have obtained the sale deed from plaintiffs through guardian defendant No. 3. No explanation has been placed by the defendant regarding this fact. Further the suit land was purchased for a consideration of Rs. 3,000/- and was alleged to be sold for a consideration of Rs. 2,000/- which is improbable and very difficult to believe. As per the statement of Paramjeet Singh/defendant No. 2, Rs. 3,000/- was paid by defendant No. 3 to Kartar Singh in the shop of Kartar Singh and it was also decided at that time that registry would be executed in plaintiffs name. Therefore, the presence of Sugandhibai i.e. maternal-grandmother before the Registrar was not material at all and the fact that the sale deed was executed not through material-grand-mother but through guardian father would not confer title upon the defendant No. 3. One more fact which trial court escaped consideration was that the trial court did not look into the reply filed by defendant No. 3 and evidence adduced by him who totally supported the plaintiffs'' case.

Further, as per defendants'' own case, they have been dispossessed by the plaintiffs in the year 1976 and their mutation application was also rejected, still they have not filed any suit for possession of the suit property till now. All these facts go to show that the plaintiffs are the real owner of the suit land and the source of purchase money was their maternal-grand-mother. Therefore, the first appellate court has rightly re-appreciated the entire evidence and rightly held that the defendant No. 3 was not benami owner of the suit property and the plaintiffs were its real owners.

The matter can be looked from other angle also. Prior to coming into force of the Benami Transaction (Prohibition) Act, 1988, benami transactions were recognized species of legal transactions pertaining to immovable properties under the Indian Trust Act 1882, the then Legislature enacting the law laid down in Section 82 as under:-

Transfer to one for consideration, paid by another.-Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.

According to above provision, the real owner has to prove that the said consideration was not paid by him for the benefit of transferee then only it can be held that the transferee is holding the suit property for the benefit of person paying or providing the consideration.

Here in the instant case, there is a specific pleading by the defendants that the question for whose benefit the property is purchased is immaterial. The defendant No. 3 has categorically admitted that he is not the real owner of the suit property and supported the plaintiffs claim.

It is trite law that the first appellate court has jurisdiction to reverse or affirm the findings of the trial Court. The judgment of first appellate court also reflects its conscious application of mind while reversing the finding which is supported by reasons on the issues arising along with the contentions put forth and pressed by the parties for decision of the case. The first appellate court while reversing the finding of fact arrived at by the trial court has assigned its own reasons which appear to be sound and legal. On a careful perusal of the pleadings of the parties and evidence adduced, I do not find any perversity, illegality or absurdity in reversal finding of the first appellate court. The judgment cited by Shri Shrivastava, in the facts and circumstances of the case, is of no help to him.

Therefore, the substantial question of law framed in the instant case is answered accordingly in plaintiffs favour and it is held that the first appellate court has rightly reversed the judgment and decree passed by the trial court and rightly decreed the suit.

In view of the above, the appeal being devoid of substances deserves to be and is hereby dismissed. No order as to costs.