Dr. Nilima Roy v. Indra Sinha

3. The defendant is the appellant before this Court who lost before both the Courts below. Facts are short and not much in 2 Patna High Court SA No.732 of 2010 (9) P2 / 10 controversy. The suit property appertains to M.S. Plot No. 70 Ka from west containing four rooms under M.S. Khata No. 172 of Mauza Durgapur Thana No. 104 situated within Katihar Municipal area under Police Station and District Katihar.

4. The plaintiff filed the suit for declaration of her title over the suit on the basis that she purchased the same being share of Dropadi Devi defendant 2nd party / respondent 1st party through registered sale deed dated 16.10.1998. She also sought for a declaration that the sale deed dated 05.11.1998 executed by Laxmidhar Sharma, defendant 1st party / respondent 1st party in respect of the very suit land and land of other co-sharers measuring 0.90 point in favour of the appellant /defendant No. 1 was wrong, illegal and by virtue of such sale deed no right title and interest had accrued in favour of the appellant / defendant No. 1.

5. The plaintiff asserted in her plaint that M.S. plot No. 70 Ka, 70 Kha and 70 Ga appertaining to M.S. Khata No. 172 admeasuring 0.90 point were owned and possessed by Late Bishwanath Maharaj and Baidyanath Maharaj, who were uncle and nephew respectively and have equal share. They were jointly recorded as Raiyat in Municipal record of right. Dropadi Devi is the widow of Bishwanath Maharaj and they had no issue. Thus, 3 Patna High Court SA No.732 of 2010 (9) P3 / 10 Dropadi Devi inherited share of her husband Late Bishwanath Maharaj covering an area of .45 point in the said M.S. Plot No. 70 Ka 70 Kha and 70 Ga measuring total area of 0.90. The rest 0.45 points of the property in the share of Baidyanath Maharaj was inherited by his sons Laxmidhar Sharma and daughter Anjana Sharma in equal shares i.e., 0.22 ½ point each.

6. This being the situation, Dropadi Devi respondent No. 4 sold her share which included 4 Pucca rooms on payment of consideration amount by two registered sale deeds dated

16.10.1998 (Exhibits 3 and 3-A) and since the date of said purchase plaintiff has been in possession over the said property. However, as per the plaintiff‟s case, defendant No. 1 started creating disturbance in peaceful possession of the said purchased land in which her husband had established his library in one of the four rooms before execution of sale deed by Dropadi Devi in favour of the plaintiff.

7. The plaintiff asserted that the appellant / defendant No. 1 Dr. Nilima Roy has a clinic adjacent to the piece of land measuring area of 0.90 point and Laxmidhar Sharma respondent No. 2 (defendant 1st party) in league with her, executed a sale deed in respect of the entire 0.90 points of land appertaining to the plot in question though the said Laxmidhar Sharma had no right title 4 Patna High Court SA No.732 of 2010 (9) P4 / 10 and interest over the property, over and above 22 ½ points of the land in question. The sale deed dated 05.11.1998 executed by Laxmidhar Sharma in favour of the appellant was accordingly questioned before the Trial Court as wrong, illegal and invalid beyond his ¼ share of the property (.22 ½ points).

8. The defendant No. 1 / respondent No. 1 contested the suit. She filed her written statement to the effect that in a Panchayati the said Dropadi Devi (wife of Late Bishwanath Maharaj) and Anjana Sharma, sister of defendant No. 1, had relinquished their interest in respect of share in the said land in favour of Laxmidhar Sharma. It was further pleaded that in lieu of relinquishment Dropadi Devi and Anjana Sharma received some consideration amount and thus, Laxmidhar Sharma (respondent No. 2) became the full owner of the entire area of land i.e., 0.90 point.

9. In such view of the matter, the defendants contended that Laxmidhar Sharma lawfully transferred the entire property in favour of defendant No. 1 on payment of consideration amount of Rs. 112500/-. The appellant though admitted that the two sale deeds had been executed by Dropadi Devi respondent No. 4 in favour of respondent No. 1, the plaintiff, but contended that the same was not valid as Dropadi Devi was left with no share after 5 Patna High Court SA No.732 of 2010 (9) P5 / 10 relinquishment of her interest and receiving the consideration amount from Laxmidhar Sharma in token of relinquishment and after signing as attesting witness on the agreement of sale executed by Laxmidhar Sharma in favour of defendant No. 1.

10. This is to be noted that respondent no. 4 Dropadi Devi and respondent No. 3 Anjana Sharma, sister of Laxmidhar Sharma also filed a joint written statement supporting the case of plaintiff. Laxmidhar Sharma respondent No. 2, on the other hand neither appeared in the suit nor deposed supporting the case of the appellant.

11. On the basis of the rival pleadings learned Trial Court framed altogether ten issues out of which issue No. (IX) and (X) are relevant and are being quoted hereinbelow:- “(IX) Has (sic) Laxmidhara Sharma S/o late Baidynath Maharaj entitled into sell agreement with the defendant no. 1 Nilima Roy in respect of the entire land or property of the suit M.S. Khata No. 172 M.S. Plot No. 70 ka, 70 kha and 70 ga having total area 0.90 Points? (X). Is registered sale-deed dated 05.11.98 executed by Laxmidhar Sharma in favour of Dr. Nilima Roy defendant No. 1 in respect of 0.90 points of land of suit M.S. Khata No. 172 including the suit property is fraudulent collusiver and void and has it effected the interest of the plaintiff acquired by virtue of sale deed dated 16.10.1998?”

12. From the judgment of the learned Trial Court it will 6 Patna High Court SA No.732 of 2010 (9) P6 / 10 appear that the learned Trial Court took into account, the oral evidence as well documentary evidence adduced by the parties in course of the trial while rejecting the plea of the appellant that Anjana Sharma and Dropadi Devi relinquished their share in favour of Laxmidhar Sharma and Laxmidhar Sharma had become exclusive owner of the entire land. Learned Trial Court pointed out that there was neither any documentary evidence on record nor any of the co-sharers especially Anjana Sharama and Laxmidhar Sharma, came before the Court to support the case of relinquishment. Learned Trial Court further held that the plaintiff had acquired valid, right, title and interest over the suit land i.e.,

0.45 Point appertaining to M.S. Plot No. 70 Ka from the west containing four rooms and he was also entitled to the Pucca rooms along with the said land.

13. Learned Trial Court also took into account the fact that the sale deed executed by Dropadi Devi respondent No. 4 in favour of the respondent No.1, the plaintiff, dated 16.10.1998 in respect of suit land was prior in time than the one executed by Laxmidhar Sharma dated 05.11.1998 whereby he sold entire land including the land sold by Dropadi Devi herself and in such view including the abovenoted facts, the learned Trial Court decreed the suit holding that the sale deed dated 16.10.1998 executed by 7 Patna High Court SA No.732 of 2010 (9) P7 / 10 Droppadi Devi (respondent No. 4) in favour of the plaintiff was a valid and genuine document and the same conferred good title on respondent No. 1, the plaintiff.

14. The appellant herein thereafter preferred an appeal against the judgment and decree passed by the Trial Court. Learned First Appellate Court considering all the evidence available on record independently and apprising the same in the light of the law laid down by this Court and the Supreme Court dismissed the appeal concurring with the finding of appeal arrived at by the learned Trial Court vide its judgment and decree dated

18.09.2010 and 30.09.2010 respectively.

15. Mr. Rajeeva Roy, learned counsel appearing on behalf of the appellant has submitted that the judgment and decree passed by the learned Courts below are erroneous for various reasons and submitted that the learned Trial Court did not frame the issue in its correct perspective on the basis of the rival pleadings made by the contesting parties. He has submitted that the learned First Appellate Court just reiterated the findings of the Trial Court without re-apprising the evidence on record himself which the appellate Court was required to do as per law. In addition to the substantial questions of law as set out in the memo of appeal Mr. Rajeeva Roy, learned counsel has raised two substantial questions 8 Patna High Court SA No.732 of 2010 (9) P8 / 10 of law to the effect:- A. “Whether the case of relinquishment could be disbelieved and rejected when Respondent No. 4 was not examined, to deny her being the attesting witness, only on the basis of statement of witnesses on the point of partition and B. Whether the partition might have taken place prior to attestation?”

16. From the facts based on the pleadings of the contesting parties as has been noted hereinabove, this is not in dispute that the appellant being the contesting defendant raised the plea before the Courts below that her father got the title over the entire 0.90 points area on the strength of the relinquishment by Respondent No. 4 Dropadi Devi in favour of Laxmidhar Sharma. The said case of relinquishment developed by the appellant / defendant No. 1 could not be proved in the absence of evidence available before the Courts below. It is not that non-examination of Dropadi Devi, the Respondent No. 1 was the only reason for rejecting the case of relinquishment developed by defendant No. 1. It was on the basis of the entire material available on record that the learned Courts below came to the concurrent finding to this effect. In such view of the matter, I am of the view that substantial questions of law or the additional substantial questions of law as raised by Mr. Rajeeva Roy, learned counsel for the appellant could not be 9 Patna High Court SA No.732 of 2010 (9) P9 / 10 termed to be substantial questions of law within the meaning of Section 100 of the Code.

17. Section 100 of the Code of Civil Procedure envisages that a Second Appeal would lie to the High Court from a decree passed in appeal by any court sub-ordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. In order to re-assert the mandatory requirement of involvement of substantial question of law for a second appeal to be maintained under Section 100 of the Code, Section 101 of the Code provides that no second appeal shall lie “except on the ground mentioned in Section 100 of the Code”. Such being the legislative mandate, the superior courts have on several occasions laid down law as to what would constitute and what would not, a “substantial question of law” within the meaning of Section 100 of the Code while scrutinizing scope of the Section. By now, it is settled position of law that the High Court cannot interfere with the concurrent finding of fact unless the same is found to be perverse being based on no evidence or contrary to material available on record or that on the evidence on record no reasonable person could have come to that conclusion. Reference may be made in this regard to the Supreme Court judgments in the cases of Vidyadhar Manik Rao, (1999) 3 SCC 573; Sugani (mst.) 10 Patna High Court SA No.732 of 2010 (9) P10 / 10 v. Rameshwar Das and another, (2006) 11 SCC 87; Gurudev Kaur v. Kaki, (2007) 1 SCC 546; Prakash Kumar v. State of Gujarat (2004) 5 SCC 140; Thingarajan and ors. V. Venugopalaswamy B. Koil and others (2004) 5 SCC 762 and Narayanan Rajendran and another v. Lakshmi Sarojini and others.

18. In view of the above, the present Second Appeal does not merit admission and is, accordingly, dismissed. (Chakradhari Sharan Singh, J.) Saif/-