Bhim Mali v. Damodar Yadav

2. The plaintiff filed T.S.No.35/85 seeking declaration that the sale deed dated 13.10.84 executed by Nagmati Devi widow of Ram Saran Mali in favour of the father of the defendant 1st set is voidable, fraudulent, sham and inoperative, not binding on the plaintiff and seeking permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the suit land.

3. The facts necessary to be frescoed for the purpose of present appeal is that Bhikshuk Bhagat had two sons Dev Narayan Bhagat and Baran Bhagat. Baran Bhagat died unmarried and issueless. Deo Narayan Bhagat was the father of the plaintiff. It is the case of the plaintiff that Bhikshuk Bhagat had kept a widow who already had a son Ram Saran Bhagat and a daughter Duliya Devi. Nagmati Devi the widow of Ram Saran Bhagat, had executed a sale deed dated

13.10.1984 in favour of the father of the defendant 1st set which has been assailed by the plaintiff firstly on the ground that Ram Saran Bhagat had no right, title and interest in the property left by Bhikshuk Bhagat as he was not his natural born son from his legally wedded wife and secondly on the ground that the sale deed in question was void for want of permission under Section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956(hereinafter referred as Act).

4. The defendant 1st set contested the suit by asserting that Ram 3 Patna High Court SA No.372 of 1991 dt.14-02-2013 Saran Bhagat @ Ram Saran Mali was the natural born son of Bhikshuk Bhagat from his second wife. It was further asserted that in partition Ram Saran Bhagat had been allotted the property subject matter of the sale deed dated 13.10.84 and he continued in possession of the same till his death after which his widow Nagmati Devi and son Lal Bihari came in possession by inheritance. It was also pleaded that there was no need for taking the permission under Section 5 of the Act before the execution of the sale deed in question.

5. The trial court returned the finding that Ram Saran Bhagat was the natural born son of Bhikshuk Bhagat from his second wife and was in possession of the property subject matter of the sale deed in question after the allotment of the same to him in partition. It was therefore held that Nagmati widow of Ram Saran Bhagat was competent to execute the sale deed in question transferring valid title and possession in favour of the purchaser defendant 1st set. The trial court also held that the suit had not abated under Section 4(c) of the Act as the suit property was admittedly an orchard and a house not connected with agriculture. However, the further finding of the trial court was that the sale deed in question had been executed without the permission under Section 5 of the Act from the consolidation authorities, and therefore, the same was void under Section 32 of the Act. The suit, therefore, was decreed holding that the sale deed in 4 Patna High Court SA No.372 of 1991 dt.14-02-2013 question was void and the purchaser defendant 1st set were permanently restrained from interfering in possession of the plaintiff over the suit land on the strength of the sale deed in question.

6. The plaintiff filed T.A.No.12/1990/87/1991 against the aforesaid judgment and decree assailing the findings of the court below regarding the status of Ram Saran Bhagat as legitimate son of Bhikshuk Mali and further finding that the sale deed in question was validly executed by Nagmati Devi. The defendants also filed T.A.No. 11/90/74/87 assailing the finding regarding the requirement of previous sanction under the Act before the execution of the sale deed and also the finding that the suit did not abate under Section 4(c) of the Act.

7. The aforesaid two appeals were heard together and by the impugned common judgment the appellate court below has affirmed the finding of the trial court regarding the status of Ram Saran Mali as the legitimate son of Bhikshuk Mali and also the finding that the suit property being orchard and house would not be hit by the provision contained in Section 4(c) of the Act on that basis. The appellate court below has further affirmed the finding that the prior permission under Section 5 of the Act was necessary for transfer of the suit land by the sale deed in question, and the sale deed in question has, thus, been held to be void under Section 32 of the Act for want of permission. 5 Patna High Court SA No.372 of 1991 dt.14-02-2013 Sequentially however, on the basis of the aforesaid finding that the document is void it has further been held that the suit would abate under Section 4(c) of the Act.

8. The plaintiff has filed the second appeal aggrieved by the findings of the appellate court below that the suit would abate under Section 4(c) of the Act and further finding that Ram Saran Mali was the legitimate son of Bhikshuk Mali.

9. It appears that a cross objection was filed by the defendant- respondents assailing the findings of the appellate court below on the basis of Section 4(c) (1), 5 and 6 of the Act by asserting that these provisions were not attracted to the facts of the case. However, the said cross objection has been dismissed as not pressed by order dated

05.02.2013.

10. At the time of admission of this appeal the following substantial questions of law have been framed: (i) Whether the judgment of the appellate court is vitiated on account of non-consideration of the fact that under Section 2(3) of the Consolidation of Holdings Act orchard and house is exempted from consolidation proceeding and as such the suit challenging the sale deed in question would not abate? (ii) Whether the judgment of the appellate court is not in 6 Patna High Court SA No.372 of 1991 dt.14-02-2013 accordance with law since one of the issues decided by the trial court was not touched by the appellate court? (iii) Whether the sanction for transfer was necessary even if the house and orchard does not come within the purview of Consolidation Act but Section 5 of the Act prohibits all transfers?

11. Mr. Ganpati Trivedi, the learned counsel appearing for the appellant has at the outset submitted that additional substantial questions of law arise for consideration in this appeal regarding the finding by both the courts below that Ram Saran Mali was legitimate son of Bhikshuk Mali. It has been urged that the said crucial finding has been arrived ignoring the material evidence on record, and therefore, the same is perverse and requires consideration by this Court. It has been further submitted that before upholding the validity of transfer made by Nagmati Devi by the sale deed in question, it was necessary for the appellate court below to consider the point of partition between Ram Saran Mali and Deo Narayan Mali as the same has been considered by the trial court.

12. The learned senior counsel appearing for the contesting respondents, however, has submitted that additional substantial questions of law as proposed by the appellant do not arise for consideration. It has been pointed out that it was open to the appellant 7 Patna High Court SA No.372 of 1991 dt.14-02-2013 to raise these substantial questions of law also at the time of admission of this appeal but they have failed to do and now at the stage of hearing they cannot be permitted to raise the same.

13. Considering the submissions of the learned counsel for the parties, it appears that the legal status of Ram Saran Mali as legitimate son of Bhikshuk Mali is the core of the dispute between the parties, and therefore, it appears just and proper that the appellant’s prayer for framing an additional substantial question of law in that regard and hearing of this appeal on the same be allowed. However, another additional substantial question of law as proposed by the appellant with regard to the non-consideration of point of partition between Ram Saran Mali and Deo Narayan Mali does not arise in the facts and circumstances. It is by now well settled that even an undivided property of a family can be subject to sell/transfer as laid down by the Apex Court in the case of Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble & Ors., 2009(4)PLJR SC 225 and in the case of Jai Singh & Ors. Vs. Gurmej Singh, 2009 PLJR (4) SC 197. Thus, the following additional substantial question of law is framed for consideration in this appeal. (i) Whether the finding by both the courts below that Ram Saran Mali was the legitimate son of Bhikshuk Mali is vitiated due to non-consideration of material evidence led 8 Patna High Court SA No.372 of 1991 dt.14-02-2013 on behalf of the plaintiff?

14. Heard the learned counsel for the parties on merits of this appeal.

15. The plaintiff has filed the suit assailing the sale deed dated

13.10.84 executed by Nagmati Devi widow of Ram Saran Mali in favour of the father of the defendant 1st set mainly on two grounds firstly that Ram Saran Mali was not the legitimate son of Bhikshuk Mali and secondly that the sale deed in question has been executed without permission from the consolidation authorities as required under Section 5 of the Consolidation Act. The question of abatement of the suit under Section 4(c) of the Act had been raised on behalf of the defendant 1st set in the trial court which held that the provision of Section 4(c) of the Act would not be attracted as admittedly the suit property was orchard and a house not connected with agriculture. The appellate court below has also affirmed the said finding. During the course of hearing of this appeal the learned senior counsel appearing for the contesting respondents has accepted that the provision of Section 4(c) of the Act could not be attracted. The appellate court below, however, has held that the suit would abate under Section 4(c) of the Act as the sale deed in question was void under Section 32 of the Act for want of permission.

16. It is manifest from the pleadings of the parties as well as 9 Patna High Court SA No.372 of 1991 dt.14-02-2013 the issues framed in the suit that one of the questions to be determined was the status of Ram Saran Mali as legitimate son of Bhikshuk Mali. The assail in the suit to the sale deed in question was not confined to the question of its validity for want of permission under the Act rather the right, title and interest of Ram Saran Mali in the suit property as legitimate son of Bhikshuk Mali was directly under challenge. This also transpires from the fact that even after the decree of the suit by the trial court, the plaintiff filed the appeal challenging the finding regarding the status of Ram Saran Mali and when the appellate court below also concurred with the finding of the trial court, the present appeal has been preferred by the plaintiff assailing the said finding and also the finding by the appellate court that the suit would abate under Section 4 (c) of the Act. In such a fact-situation where the appellant has assailed the judgment and decree of the appellate court below also to the extent of holding the abatement of the suit and the learned senior counsel for the respondent, as aforementioned, has also agreed that such suit would not abate, there is no difficulty in holding that the finding by the appellate court regarding the abatement of the suit under Section 4(c) of the Act no more survives and needs no adjudication.

17. Criticizing the finding regarding the status of Ram Saran Mali, it has been submitted by the learned counsel for the appellant that the courts below have not considered the deposition of P.W.2,3 & 10 Patna High Court SA No.372 of 1991 dt.14-02-2013 4 and D.W.10 in correct perspective and have wrongly discarded the same. From the perusal of the judgments of both the courts below it transpires that the depositions of P.W. 2, 3 and 4and D.W.10 have been considered by both the courts below alongwith the other evidence. The emphasis has also been laid on behalf of the appellant on the deposition of P.W.2 on the ground that she is sister of Ram Saran Mali, and therefore, her deposition should have been believed. It appears that both the courts below dealt with the testimony of P.W.2 and have refused to rely on the same. Therefore, there is no substance in the submission on behalf of the appellant that the finding of the courts below on the status of Ram Saran Mali as legitimate son of Bhikshuk Mali has been recorded ignoring the material evidence of the plaintiff. In fact the submission on behalf of the appellant in this regard centers around reappreciation of the oral evidence by this Court in order to upset the concurrent finding of both the courts below. It is well settled by now that the second appellate court has limited jurisdiction in this regard as reappreciation of the evidence is restricted to the cases where the finding is shown to be perverse in any manner. The impugned judgments of both the courts below reveal meticulous examination of the evidence led by both the parties and the finding that Ram Saran Mali was the legitimate son of Bhikshuk Mali has been arrived at after appreciating the cumulative effect of the evidence. I do 11 Patna High Court SA No.372 of 1991 dt.14-02-2013 not find any perversity in this finding, and therefore, the additional substantial question of law in this regard is answered against the plaintiff appellant.

18. Both the courts below have come to the concurrent finding that the sale deed in question is void under Section 32of the Act for want of necessary permission as required under the Act. The defendant-respondent, though have filed T.A.No.11/90 in the appellate court below assailing the judgment and decree against them on this score but after their appeal failed, they did not prefer any further appeal. The cross objection filed by them in this appeal has also been dismissed as not pressed. In this view of the matter the decree of the suit on the ground of invalidity of the sale deed dated 13.10.84 for want of permission under Section 5 of the Act is no more under challenge and has attained its finality.

19. In view of the aforesaid discussions and findings, the substantial questions of law as raised in this appeal are decided accordingly and this second appeal is allowed in part only to the extent that the finding by the appellate court below regarding abatement of the suit under Section 4(c) of the Act is set aside while the rest part of the judgment and decree of the appellate court below is hereby affirmed. Nitesh/- (V. Nath, J)