Umesh Yadav & Ors. v. Anuroodh Yadav @ Anurodh Yadav

For the Appellant/s : Mr. Shashi Nath Jha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 4 26-07-2012 1. Heard the learned counsel, Mr. Shashi Nath Jha appearing on behalf of the appellant.

2. This second appeal has been filed by the plaintiff-appellant appellant against the Judgment and decree dated 18.5.2011 passed by Addl. District Judge Fast Track Court No.II, Araria in title appeal No.51 of 2003 dismissing the appeal and confirming the Judgment and Decree dated 23rd August, 2003 passed by Sub Judge IV Araria in title suit No.42 of 1993 dismissing the plaintiff-appellant’s suit.

3. The plaintiff-appellant filed the aforesaid title suit for declaration that the sale deed dated 30.5.1989 executed by Birendra Yadav in favour of defendants is void, illegal, fraudulent and paper transaction and it was never acted upon and further that the same is not binding on the plaintiff. 2 Patna High Court SA No.355 of 2011 (4) dt.26-07-2012

4. The aforesaid relief was claimed alleging that Srilal Yadav purchased the suit property in the name of his minor son Birendra Yadav by registered sale deed dated 29.5.1982 ext. ‘A’ out of the joint family fund and after purchase, all the co-personers came in joint possession of the same. Subsequently, Srilal Yadav who was the owner of the property sold the suit property in favour of the plaintiffs through 3 sale deeds dated 5.1.1989,

22.5.1989 and 22.12.89 on payment of consideration in favour of the ancestor of the plaintiffs and plaintiff No.1, namely, Suryanand Yadav and Umesh Yadav (plaintiff No.1). The defendants brought the minor Birendra Yadav in their collusion and by playing fraud on the Sub Registrar, Araria got a sale deed executed and registered on 30.5.1989 describing Birendra Yadav as major. Although, he was minor. The plaintiff came to know about this existence of the sale deed on 11.1.1993 and then this title suit has been filed.

5. The defendant’s case in short is that the registered sale deed dated

29.5.1982 stands in the name of Birendra Yadav who was major. There was agreement to sell between the defendants and Birendra Yadav in the year 1988 and pursuant to the said agreement, Birendra Yadav had sold the property to the defendants. The case of the plaintiff is hit of Benami Transaction Act, 1988.

6. After trial, the learned Court below recorded a finding that Birendra Yadav was major when the property was acquired in the year 1982. The trial Court also recorded a finding that the property has been purchased by Birendra Yadav and the case of the plaintiff that Srilal Yadav purchased the property in the name of minor Birendra Yadav has been disbelieved. While recording this finding, the trial Court considered the fact that Maujilal 3 Patna High Court SA No.355 of 2011 (4) dt.26-07-2012 Yadav, Lakhan Yadav and Srilal Yadav sons of Amritlal Yadav who was the owner of the property are the vendor in ext.‘A’ i.e., father Srilal Yadav is one of the vendor who sold the suit property in the name of Birendra Yadav. Therefore, the trial Court found that the story of the plaintiff that Srilal Yadav purchased the property in the name of his minor sons appears to be absurd because Srilal Yadav himself was one of the vendor. The trial Court also considered the fact that it is admitted case that Amrit Lal Yadav was the owner of the property. He had already sold 40 decimal of land to father of the defendant and on his death, 3 sons Maujilal Yadav, Lakhan Yadav, Srilal Yadav sold 88 decimal to Birendra Yadav by ext.‘A’, the sale deed dated

9.5.1982. Accordingly, the trial Court dismissed the plaintiff’s suit. On appeal, the appellate Court also recorded a finding that there is no reliable and convincing evidence to show that when the property was acquired in the year 1982, Birendra Yadav was minor or that when he sold the property in favour of defendants on 30.5.1988 he was minor. Therefore, the plaintiff’s case was disbelieved by the appellate Court also and dismissed the case.

7. The learned counsel, Mr. Shashi Nath Jha appearing on behalf of the appellant submitted that ext.4 was filed by the plaintiff in support of the case of the plaintiff that in the year 1982, Birdnra Yadav was minor but on flimsy ground, the Courts below have discarded the ext.4. The learned counsel next submitted that the property was purchased when Birendra Yadav was minor and the consideration amount was paid out of the joint family fund as such all the co-personers came in possession of the suit property but both the Courts below have not considered this aspect of the matter.

8. So far the first question that is discarding of ext.4 is concerned, 4 Patna High Court SA No.355 of 2011 (4) dt.26-07-2012 from perusal of the Judgment of both the Courts below, it appears that the ext.4 is voter list filed by the plaintiff-appellants. Contrary to this, the defendant-respondent filed another voter list wherein also the age of father Srilal Yadav was mentioned. The trial Court as well as appellate Court compared the age and found that in 1989, the age of Srilal Yadav was mentioned as 50 years whereas in the voter list of the year 1995, i.e., after 7 years the age of Srilal Yadav has been mentioned as 40 years. In view of the above fact, both the Courts below held that on the basis of voter list, the age cannot be determined finally, and, therefore, the same was discarded. In my opinion, the reasoning assigned by both the Courts below cannot be said to be flimsy ground. Good reason has been assigned. Ext.’A’ is the sale deed produced by the defendants to show that only Birendra Yadav is the purchaser and in that sale deed, Birendra Yadav has not been described as minor.

9. So far the non-consideration of the case that Srilal Yadav purchased the property out of joint family fund is concerned, it may be mentioned here that the other two vendors are the brothers of Srilal Yadav. All the 3 brothers sold the property to Birendra Yadav. It is not the case of the plaintiff that the karta purchased the property in the name of a co-personer out of joint family fund. The case is that Srilal Yadav purchased the property in the name of Birendra Yadav. Both the Courts below recorded a concurrent finding of fact that Birendra Yadav was not minor then the case pleaded by the plaintiff to the above effect will be barred under Section 4 of the Benami Transaction and Prohibition Act, 1988. It further appears that the story that father sold the property to minor son and the said father also purchased the 5 Patna High Court SA No.355 of 2011 (4) dt.26-07-2012 same property appears to be absurd. The vendor and the purchaser cannot be same person. Therefore, in my opinion, this ground raised by the appellant is not a substantial question of law involved in the second appeal.

10. In view of the above facts and circumstances of the case, in my opinion, no substantial question of law is involved in this second appeal and accordingly, this second appeal is dismissed at the admission stage itself. Sanjeev/- (Mungeshwar Sahoo, J)