Patna High Court · 2008
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.296 of 2008 ====================================================== Lal Bahadur Yadav & Ors .... .... Appellant/s Mohar Yadav & Ors Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Abhitabh Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 6 22-07-2013 Heard the learned counsel Mr. K.K. Tiwari appearing on behalf of the appellants under Order 41 Rule 11 of the Code of Civil Procedure.
Facts
The plaintiffs-appellants-appellants have filed this second appeal against the judgment and decree dated 10th July 2008 passed by the learned 1st Additional District Judge, West Champaran Bettiah in Title Appeal No. 88 of 1996 whereby the lower appellate court dismissed the appeal and confirmed the judgment and decree dated 17.12.1996 passed by the learned Munsif, Bagha in Title Suit No. 95 of 1992. The plaintiffs-appellants filed the suit for declaration that the sale deed executed by defendant No.4 in favour of defendant No.3 on 27th August 1984 is illegal and not binding on the plaintiffs. The plaintiffs prayed the aforesaid relief alleging that one Jag Yadav had five sons. The plaintiffs are the four sons of Jag Yadav and defendant No.4 is Chhathu Yadav, the 5th son. Patna High Court SA No.296 of 2008 (6) dt.22-07-2013 2 Chhathu Yadav separated himself from the joint family in the year 1963 after taking his share and the suit property was in possession of the plaintiffs. The defendant No.4 sold the suit property on 27.8.1984 in favour of defendant No.3, Dhrub Yadav, a reputed well known criminal, who in tern sold the said property to the defendant Nos. 1 and 2 by terms of registered sale deed dated 14th July 1990. On the contrary, the defendants’ case is that in fact there was no partition between the parties and the defendant No.4 sold the property in favour of defendant No.3 after taking permission from the Collector and the sale deed is valid document and consideration passed. The defendant No.4 Chhathu Yadav filed a supporting written statement stating that he has already separated from the brothers and father in the year 1963 and on the pressure of the criminal Dhrub Yadav he has executed the sale deed in favour of the defendant No.3. On the basis of the materials available on record the learned trial court came to the conclusion that the plaintiffs failed to prove partition and further held that the sale deed executed by defendant No.4 in favour of defendant No.3 on 27.8.1984 is valid legal and binding on the plaintiffs. On appeal, the lower appellate court confirmed the findings of the trial court and dismissed the appeal. Patna High Court SA No.296 of 2008 (6) dt.22-07-2013 3
Legal Reasoning
Act. Relying on this decision this Court in the case of Sita Saran Prasad vs. Manorama Devi 2012 (2) BLJ 165 has held that once plaintiff has chosen to file the suit for declaration that sale deed be adjudged as sham and inoperative document three years of limitation as provided in Article 58 or 59 would become applicable. In the present case, the finding is that there has been no partition between the parties. In such circumstances, the defendant No.4 had the right to sell the property. The point raised by the defendant No.4 in his pleading or in his evidence is not admissible and cannot be used against the purchaser defendant No.3 or defendant No.1 and 2. From perusal of the judgment of the lower appellate court it appears that the defendant No.4 after getting permission from the Collector, Bettiah West Champaran by Memo Patna High Court SA No.296 of 2008 (6) dt.22-07-2013 5 No. 231 dated 5.4.1984 executed the sale deed Ext. (C)/2. It appears that both the courts below held that to avoid the transaction made by the defendant no.4 this statement has been made by the defendant no.4 against the defendant nos. 1 and 2. Further since both the courts below have concurrently found that the plaintiffs failed to prove partition, the said finding being finding of fact cannot be interfered with in second appellate jurisdiction. Likewise the admission made by defendant No.4 cannot be used against the defendant Nos. 1, 2 and 3. Likewise since the defendant No.4 did not challenge the sale deed dated 27.8.1984 within three years from the date of execution of the said sale deed became final and plaintiffs have no locus standi to challenge the same after expiry of period of limitation. In view of the above facts and circumstances of the case, the point raised by the learned counsel for the appellants is not at all substantial question of law and, therefore, I find that no substantial question of law is involved in this second appeal for decision. Accordingly, this second appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) S.S./-
Arguments
The learned counsel Mr. Tiwari, appearing on behalf of the appellants submitted that while dismissing the appeal of the plaintiffs the lower appellate court has not at all considered the evidence of DW 4, the pleading of the defendant No. 4 and the letter (Ext. F) sent by the Dhrub Yadav giving threatening to the defendant no.4 for execution of the sale deed and, therefore, the judgment of the lower appellate court is vitiated. From perusal of the judgment of the trial court it appears that the trial court recorded the finding that the suit has been filed in the year 1992 after six years of the execution of the sale deed in the year 1984. The trail court recorded the finding that the plaintiffs failed to prove partition. The lower appellate court considered the evidences available on record at paragraph 15 of the judgment and thereafter recorded the finding that the plaintiffs failed to prove that defendant No.4 Chhathu Yadav was separated in the year 1963 from his father and the brothers. Now therefore, this finding is concerned, it is pure finding of fact. The only submission of the learned counsel for the appellants is that while making this finding both the courts below have not considered the written statement and the evidences and Ext.-F, the letter issued by Dhrub Yadav the criminal is concerned, it may be mentioned here that the defendant No.4 although supported the case that he had no right, title and possession to transfer the property in favour of the Patna High Court SA No.296 of 2008 (6) dt.22-07-2013 4 defendant No.3 in the year 1984 because he had already separated in the year 1963 but on this facts he did not challenge the sale deed executed by him. It is not his case that he was not knowing this fact that he had executed a sale deed. Now therefore, on the date of institution of the suit in the year 1992 the sale deed of the year 1984 had already attained its finality. In the case of Abdul Rahim and other vs. Sk. Abdul Zabar and others AIR 2010 SC 211 the Hon’ble Supreme Court had held that a suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 58/59 of the Limitation