Civil Appeal No. 21 of 2006 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.58 of 2012 ====================================================== Manju Prasad & Ors. Versus .... .... Appellants Indradeo Prasad & Ors. .... .... Respondents ====================================================== Appearance : For the Appellant/s : Mr. Parmanand Pd. Nr. Sahi For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO C.A.V. O R D E R 5 30-08-2013 Heard learned counsel Mr. Binod Kumar Singh appearing on behalf of the appellants and learned senior counsel Mr. S.S. Dvivedi appearing on behalf of the respondents under Order XLI Rule 11 of the Code of Civil Procedure. 2. The defendants-respondents-appellants have filed this Second Appeal against the judgment and decree dated 03.01.2012 passed by the learned Additional District Judge, Fast Track Court No.1, Khagaria in Civil Appeal No.21 of 2006 whereby the learned appellate court allowed the appeal and reversed the judgment and decree of the trial court dated 25.01.1997 passed by the learned Subordinate Judge-III, Khagaria in Title Suit No.06 of 1993.
Legal Reasoning
3. The plaintiffs-respondents have filed the suit for declaration of title and recovery of possession against the defendant 1st party i.e. defendant nos.1, 2 and 3. Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 2 4. The plaintiffs’ case, in short, is that the suit property was acquired by defendant no.1 out of his personal earning by registered sale deed dated 17.12.1952. He was a leading practicing advocate. After the death of his first wife, he married Radha Devi @ Anuradha Devi (defendant no.4) and was living with her as husband and wife. Out of love and affection he gifted the suit property, which was his self acquired property, to his second wife (defendant no.4) by registered gift deed dated 30.12.1971. Radha Devi @ Anuradha Devi came in possession of the property. She sold the said property on 26.11.1990 to the plaintiffs for Rs.1,35,000.00. After selling the property defendant no.4 vacated the house but defendant no.2 did not vacate. One Muslim Mansuri executed a mortgage deed with respect to 1 katha 3 dhurs land of plot no.5/323 in favour of defendant no.4 for Rs.8,000.00. Subsequently he sold the right of redemption to one Ishwar Sah. He deposited the money in the Court under Section 83 of the T.P. Act in Miscellaneous Case No.30 of 1983 and thereafter filed Title (Redemption) Suit No.50 of 1988. In that suit Radha Devi @ Anuradha Devi was defendant no.1 wherein she filed written statement. Jugal Kishore Mahto intervened in that suit and also filed written statement but he falsely stated that Anuradha Devi died on Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 3 26.11.1980. Defendant no.1 went in collusion with Jugal Kishore Mahto and Ishwar Sah and a collusive decree was passed in that suit. Subsequently Radha Devi filed title suit praying for setting aside the decree passed in Title Suit No.50 of 1988 on the ground that it was obtained by practicing fraud. The plaintiffs filed intervention application in that suit, which was rejected by the trial court and then Radha Devi withdrew the said suit. 5. The defendants filed contesting written statement alleging that in fact the suit property is the joint family property, therefore, the registered gift deed is void. The sale deeds in favour of defendant were brought into existence by setting up an imposture lady named Rana Devi wife of Ramswaroop Yadav. Deoki Devi was the only wife of defendant no.1 who died in the year 1973. Defendant no.4 is not Radha Devi @ Anuradha Devi. She was never married with defendant no.1. They never lived as husband and wife. She was the wife of Ramswaroop Yadav, who has three children. She came as maid servant in the house of defendant no.1 and died issueless on 26.11.1980. The defendant no.1 started practicing as an advocate at Khagaria in 1950 and shifted to Saharsa in 1978. He purchased the suit property from income of agriculture, horticulture savings and also after selling ornaments of his wife Deoki Devi. The defendant no.1 never Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 4 executed the deed of gift dated 30.12.1971, therefore, there is no question of acceptance. She never came in possession of the property. The property was joint Hindu family property. In fact, the gift never came into operation and never acted upon. The defendant no.1 got the mortgage deed executed in the Benami name of the maid servant Anuradha Devi describing her as his wife just in order to please and win the favour of that lady. 6. The trial court dismissed the plaintiffs’ suit finding that the plaintiffs failed to prove that the property is self acquired property of defendant no.1. The trial court also found that the second marriage during lifetime of first wife is void. On appeal the lower appellate court reversed the finding of the trial court and recorded the finding that the property is self acquired property of defendant no.1, who gifted the property by registered deed of gift in the year 1971 and defendant no.4 was alive on the date of execution of the sale deed in favour of the plaintiffs. Accordingly, the appeal was allowed.
Legal Reasoning
7. Learned counsel Mr. Binod Kumar Singh appearing on behalf of the appellants submitted that the trial court considering various documentary evidences Ext.O, Ext.S, Ext.J/11 and recorded the finding that Radha Devi @ Anuradha Devi died in the year 1980. The lower appellate court relied on Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 5 Ext.5, the death certificate, whereas while reversing the judgment of the trial court the lower appellate court has not considered these documentary evidences, therefore, the judgment is vitiated. The learned counsel submitted that P.W.19 and P.W.20 themselves admitted the fact that property in suit was acquired after selling the ornaments of his first wife, therefore, it was the joint family property acquired out of the sale proceed of ornaments and the ancestral agricultural land of the defendant no.1. The trial court on the basis of these evidences recorded the finding that the property is the joint family property, therefore, the gift deed of the year 1971 is illegal and void document but the lower appellate court has reversed the said finding without considering the above admission of the plaintiffs’ witnesses. The gift deed of the year 1971 was never acted upon and the defendant no.1 and his sons remained in possession of the property, as such possession was never delivered to the alleged Radha Devi. On these, learned counsel submitted that the judgment and decree of the lower appellate court is vitiated. 8. On the other hand, learned senior counsel Mr. S.S. Dvivedi appearing on behalf of the respondents submitted that the finding recorded by the lower appellate court is finding of Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 6 facts based on relevant and admissible evidences. Therefore, in exercise of jurisdiction under Section 100 of the Code of Civil Procedure the finding of facts cannot be interfered with. 9. From perusal of the trial court judgment it appears that the trial court has held at paragraph-23 that the plaintiffs have not been able to prove the sufficient nucleus for purchase of the suit property by defendant no.1 as his personal acquisition or self acquisition. It may be mentioned here that admittedly the sale deed stands in the name of defendant no.1. It is also admitted fact that he was practicing advocate much prior to the acquisition of the land. In such circumstances the presumption is that it was the self acquired property of defendant no.1. The onus is on the other side to prove the fact that it was the joint family property. The plaintiffs filed the suit alleging that it is the self acquired property of defendant no.1. Therefore, in such circumstances it was the onus on the defendants to adduce reliable evidence in support of the fact that the property was acquired out of the joint family fund or the nucleus. 10. The submission of learned counsel for the appellants that the plaintiffs’ witnesses have admitted that after selling the ornaments the property has been purchased by defendant no.1. So far this submission is concerned, it cannot be Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 7 presumed that because the defendant no.1 purchased the property after selling the ornaments of his first wife, the property is joint family property. The trial court has placed a wrong onus on the plaintiffs, therefore, rightly the lower appellate court reversed this finding and on the basis of the materials available on record, recorded clear finding that the suit property is the self acquired property of defendant no.1. Now, therefore, the question is whether the property is the self acquired property of defendant no.1 or is the joint family property. So far this question is concerned, in my opinion, it is pure question of fact as has been held by the Hon’ble Supreme Court in the case of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi, reported in (2009) 3 Supreme Court Cases 287. Since it is pure finding of fact in second appellate jurisdiction, this court cannot re-appreciate the evidence and substitute the finding of fact. 11. The other aspect of the matter is that the defendant no.1 executed a registered deed of gift in the year 1971 in favour of Radha Devi claiming that it was the self acquired property. This gift deed was never challenged by defendant no.1 or the other defendants on the ground that it was not self acquired property of defendant no.1, therefore, it is void document. On the contrary, the case of defendant no.1 is that to Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 8 please Radha Devi the document was executed by him. Therefore, the execution of this registered gift deed is admitted by the defendants. According to Article 58 and 59 of the Limitation Act, the defendants could have got it set aside according to law within three years on the ground that it was never acted upon or that it was a showy document. It was never done. The gift deed has been produced by the plaintiffs. In this case, therefore, only to overreach the effect of the registered gift deed, the defendants have taken plea that it was joint family property, therefore, the gift deed is void document or that the gift deed was a showy document and never acted upon. 12. The learned counsel for the appellants submitted that the defendants remained in possession of the property and the said Radha Devi never came in exclusive possession of the property. So far this submission is concerned, it may be mentioned here that Radha Devi was the wife of defendant no.1. When the execution and registration of the gift deed is admitted, there is no question of giving exclusive possession to Radha Devi arises and because of the fact that the defendants were also residing in the property, it cannot be said that the gift deed was not acted upon. 13. The submission of learned counsel regarding Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 9 non-consideration of Ext.O, Ext.J/11 and other documentary evidences produced in the earlier title suit is concerned, from perusal of the judgment of lower appellate court it appears that the lower appellate court has considered the relevant documentary evidences vide paragraph-16 wherein the lower appellate court has considered Ext.9/A, the written statement filed by Radha Devi on 16.12.1988 in Title Suit No.50 of 1988, Ext.10, Solemn Affirmation of Radha Devi in Title Suit No.50 of 1988, Ext.17 and Ext.19, which are cross-examinations made by Jugal Kishore Mahto to Radha Devi in Title Suit No.25 of 1990 and other various documents and recorded the finding that in the year 1990 Radha Devi was alive. The documents have been produced by the defendants i.e. Ext.O, Ext.J/11 and other related documents to prove the fact that Radha Devi died in the year 1980 which have not been considered by the lower appellate court according to the appellants. It is not the case of the appellants that these documentary evidences produced by the plaintiffs in this case are inadmissible or that these documents are not relevant documents. In such circumstances, when the lower appellate court based his finding on the basis of relevant and admissible evidence, the insufficiency and inadequacy of evidence in support of the finding are not substantial questions Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 10 of law as has been held by the Hon’ble Supreme Court in case of Madamanchi Ramappa and another Vs. Muthaluru Bojjappa, reported in A.I.R. 1963 SC 1633. When these documents considered by the lower appellate court clearly prove that Radha Devi was alive in the year 1990, then for not considering the documents produced by the appellants to show that Radha Devi died in the year 1980 will never vitiate the judgment of the lower appellate court. If Radha Devi had died in the year 1980 then who was that Radha Devi alive in the year 1990 and was cross-examined in the witness box by defendant no.1 himself. Moreover, this finding that Radha Devi, the vendor of the defendants, was alive in the year 1990 at the time of execution of the sale deed is pure finding of fact. In such circumstances this finding of fact, which is based on relevant and admissible evidence, cannot be said to be perverse finding. So, the finding cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure because whether she was alive in the year 1990 or she died in the year 1980 is a pure question of fact. 14. Regarding submission of learned counsel for the appellants that the reasonings of the trial court have not been considered is concerned, it may be mentioned here that in the Patna High Court SA No.58 of 2012 (5) dt. 30-08-2013 11 case of Arumugham and others Vs. Sundarambal and another, reported in A.I.R. 1999 SC 2216 the Hon’ble Supreme Court has held that the first appellate court has the right to appreciate the evidences independently and give independent reasonings for the finding and for accepting the testimony of witness or rejecting the same. Therefore, merely because the lower appellate court has not met the reasonings of the trial court, the judgment of the lower appellate court cannot be said to be vitiated because here the lower appellate court for giving finding independently considered the evidences of the witnesses and also documentary evidences and then recorded the finding of fact. 15. In view of these facts, the grounds raised by the learned counsel for the appellants are not at all substantial questions of law. I, therefore, find that no substantial question of law is involved in this Second Appeal. Thus, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Harish/-