) ------ 1. Kesto Mahto, aged about 64 years. 2. Tuleshwar Mahto, aged about v. Smt. Jirwa Devi, W/o Shei Chhendi Mahto, R/o village- Asia, pargana Champa, P.O. &
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.77 of 2021 ------ (Against the judgment dated 16.01.2020 passed by learned District Judge-VII, Hazaribagh in Civil Appeal No.21 of 2018) ------ 1. Kesto Mahto, aged about 64 years. 2. Tuleshwar Mahto, aged about 72 years. Both sons of Late Biru Mahto, r/o village- Asia, pargana Champa, P.O. & P.S. Ichak, District- Hazaribagh. .... .... …. Plaintiffs/Appellants/Appellants. Versus Smt. Jirwa Devi, W/o Shei Chhendi Mahto, R/o village- Asia, pargana Champa, P.O. & P.S. Ichak, District- Hazaribagh. .... .... …. Defendant/Respondent/Respondent For the Appellants ------ : Mr. Ramit Satender, Advocate Mr. Gaurav Manikesh, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- I.A. No.10149 of 2023 with I.A. No.10150 of 2023 Heard the learned counsel for the appellants. Learned counsel for the appellants submits that I.A. No.10150 of 2023 has been filed with a prayer to substitute the legal representatives of the deceased sole respondent namely Smt. Jirwa Devi who died on 17.08.2023 leaving behind her only three legal representatives whose names, parentages and addresses have been mentioned in para-5 of the I.A. No.10150 of 2023. It is next submitted that I.A. No.10149 of 2023 has been filed with a prayer for setting aside the abatement of this appeal against the respondent No.1. It is further submitted that the appellants were not aware about the detailed technicalities 1 S.A. No.77 of 2021 of the law, hence, they could not take immediate steps for substitution of the legal representatives of the deceased respondent No.1 which resulted in delay in filing the petition for substitution and the consequential abatement of the appeal against the respondent No.1. It is next submitted that unless the delay in filing the petition for substitution, is condoned, the abatement of the appeal against the respondent No.1, is set aside and the three legal representatives of the deceased sole respondent are substituted in her place as appellant No.1 (a) to 1 (c), the appellant will be highly prejudiced. Considering the facts and circumstances of this appeal, the delay in filing the petition for substitution is condoned, abatement of this appeal against the sole respondent No.1, is set aside and the prayer for substitution of only three
Legal Reasoning
legal representative of the deceased sole respondent namely Smt. Jirwa Devi, as prayed for, is allowed. Registry is directed to incorporate the names, parentages and addresses of only three legal representatives of the deceased sole respondent namely Smt. Jirwa Devi whose names, parentages and addresses have been mentioned in para-5 of the I.A. No.10150 of 2023 as respondent No.1 (a) to 1 (c) and to mention the word ‘Dead’ against the name of deceased sole respondent namely Smt. Jirwa Devi with red ink in the cause title of the appeal memo.
Decision
This interlocutory application stands disposed of. (Anil Kumar Choudhary, J.) S.A. No.77 of 2021 This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of affirmance dated 16.01.2020 passed by learned District Judge-VII, Hazaribagh in Civil Appeal 2 S.A. No.77 of 2021 No.21 of 2018 whereby and where under the first appellate court being the learned District Judge-VII, Hazaribagh dismissed the appeal and confirmed the judgment and decree passed by the learned Civil Judge, (Senior Division)-I, Hazaribagh in Title Suit No.66 of 1992 whereby and where under the learned Civil Judge, (Senior Division)-I, Hazaribagh dismissed the suit of the plaintiffs on contest but without costs. 2. The brief facts of the case is that the plaintiffs filed Title Suit No.66 of 1992 in the court of Civil Judge, (Senior Division)-I, Hazaribagh with a prayer for declaration that the sale-deed No.4209 dated 20.03.1990 executed by the plaintiffs in favour of the defendant Nos.1 and 2 is illegal, void, inoperative and not binding upon the plaintiffs. Further, prayer for declaration of confirmation of possession over the suit land described in Schedule A of the plaint and a prayer for decree for permanent injunction, cost of the suit and other reliefs was made. 3. The case of the plaintiffs in brief is that the plaintiffs inherited the suit property along with their mother; after the death of their father. The defendants are own aunt and uncles of the plaintiffs and the defendants had a greedy eye on the suit property. The defendants, in order to grab the suit property, made a plan and offered the plaintiffs to purchase one of their lands. The plaintiffs got their mother also joined as executant of the sale-deed in question and the defendants got executed the sale-deed in their favour by giving the impression to the plaintiffs that they are signing the deed concerned for purchase of the land by them from the defendants. Plaintiffs further pleaded that the scribe was also in collusion. The plaintiffs subsequently learnt from the villagers that the defendant Nos.3 and 4 by practicing fraud and 3 S.A. No.77 of 2021 concealing the real facts obtained the sale-deed in the joint names of their respective wives. It was also pleaded that though the value of the land at the relevant time was not less than Rs.2,00,000/-, the sale-deed was executed for a consideration amount of Rs.4,000/- only. The plaintiffs were not given any consideration amount. Pyari Mahto being a close person of the defendants, played vital role in collusion with the defendants, for obtaining the signatures of the plaintiffs over the sale-deed, the Chirkut (registration slip) and thus, the sale-deed was executed without the knowledge and consent of the plaintiffs by suppressing the material facts. It is also the case of the plaintiffs that the defendants, by suppressing material facts and ensuring that no notice is served upon the plaintiffs, got their names mutated illegally, in the office of Circle Officer. Though the plaintiffs filed an objection but the same was not entertained, hence, the plaintiffs filed the suit. 4. The defendant No.1-8 filed their joint written–statement challenging the maintainability of the suit on various technical grounds and further pleaded that the daughters of Biru Mahto being the father of the plaintiffs never came in joint possession of the suit land along with the plaintiffs. The defendant Nos.3 and 4 along with Most. Musni executed sale-deed No.4207 dated 20.03.1990 in favour of the plaintiffs as per talk between them. Hence, the question of impressing the plaintiffs is incorrect and is not a fact. The defendants denied that the defendant Nos.3 and 4 got the sale-deed No.4207 of 20.03.1990 executed in collusion with the scribe or the witnesses, in favour of the defendant Nos.1 and 2 and it was also denied that the signatures of the plaintiffs were obtained falsely by representing that their signatures are required on sale-deed No.4207 dated 20.03.1990. The defendants pleaded that 4 S.A. No.77 of 2021 the plaintiffs knowing and understanding the contents of the document, have put their signature and therefore, the sale-deed No.4209 was legal, valid and genuine and by virtue of the same, right, title, interest has been accrued to the defendant Nos.1 and 2. The defendants denied that Pyari Mahto played any role in collusion with the defendants in obtaining the signature of the plaintiffs on the sale-deed concerned, as also the registration slip, which is also known as Chirkut, which was handed over to the defendants by the plaintiff No.1 after endorsing his own hand that the sale-deed be given to Chaman Mahto. Pyari Mahto was the identifier of both the sale-deeds and except that he has nothing to do with in respect of the subject matter of the sale-deed. It is then pleaded that the process of mutation of the suit land in favour of the defendant Nos.1 and 2 vide Mutation Case No.193/91-92, the general notice (Istehar) was published and after finding no objection from any corner, the name of the defendant Nos.1 was got mutated and since then the defendants are paying rent in respect of the suit land. The defendants further pleaded that for their misconduct of disturbing the possession of defendant Nos.1 and 2 in the Gram Kutchery vide Case No.01/1991 against the plaintiff No.2 and others, the plaintiff No.1 appeared and after hearing both the sides, the Sarpanch convicted Tuleshwar Mahto and Mushani Devi and directed them to pay fine. Aggrieved by the said decision, they filed an appeal before the C.J.M., Hazaribagh and gave an undertaking that they would not construct any house on the passage over plot No.1141 which was signed by the Mukhiya and other villagers on 05.04.1990. It is then pleaded that the defendant Nos.1 and 2 have been coming in Khas possession of the suit land and the plaintiffs had accepted execution of the sale-deed in favour of the defendant Nos.1 and 2, hence, the 5 S.A. No.77 of 2021 plaintiffs have no right to execute the deed of cancellation No.5248 dated 10.04.1990. 5. On the basis of the rival pleadings of the parties, the learned trial court settled the following eight issues:- Whether suit as framed is maintainable? (i) (ii) Whether the plaintiffs have got any cause of action for suit? (iii) Whether the suit is bad for mis-joinder of party? (iv) Whether the suit is barred by law of estoppel, acquiescence and admission? (v) Whether impugned sale deed no.4209 dtd. 20.03.90 alleged to have been executed by plaintiffs in favour of def. Nos.1 & 2 is illegal, void, inoperative and plaintiffs are not bound by the same? (vi) Whether plaintiffs are entitled to a decree of confirmation of possession over Schedule ‘A’ property or to recovery of possession in case found dispossessed? (vii) Whether plaintiffs are entitled to a decree of permanent injunction as prayed for? (viii) To what relief or reliefs plaintiffs are entitled? 6. In support of the their case, the plaintiffs altogether examined nine witnesses and proved the documents which have been marked as Ext. 1 to Ext. 14/b. From the side of the defendants, ten witnesses have been examined besides proving the documents which have been marked Ext. A to Ext. F. 7. The learned trial court first took up issue Nos.(v) and (vi) together and after considering the evidence in the record came to the conclusion that the plaintiffs have not been able to establish their plea that the suit land in question was fraudulently got executed nor have they been able to establish their alleged possession over the land in dispute by way of any conclusive and reliable evidence. Hence, the relief prayed for in the suit cannot be allowed and decided the issue Nos.(v) and (vi) against the plaintiffs. 8. The learned trial court next took up the issue Nos.(iii) and (iv) together and considering the fact that no prayer for declaration has been made in the plaint, the suit is not bad for mis-joinder of necessary party and as the 6 S.A. No.77 of 2021 defendant could not produce any document to the effect that the suit is barred by law of estoppel, the learned trial court decided both the issue Nos.(iii) and (iv) against the defendants. 9. Thereafter, the learned trial court took up issue Nos.(i) and (ii) together and held that the plaintiffs are not entitled to the reliefs prayed for in the suit, as the plaintiffs failed to establish any fraudulent act in execution of the sale- deed in question and went on to hold that the defendants have been able to show their possession on the suit land, hence, the plaintiffs cannot have valid cause of action for institution of the suit, therefore, the suit, as framed, is not maintainable and decided both the issue Nos.(i) and (ii) against the plaintiffs. 10. The learned trial court next took up the issue No.(vii) and held that the plaintiffs are not entitled to the decree of permanent injunction. 11. Lastly, the learned trial court took up the issue No.(viii) and concluded that the plaintiff is not entitled to any relief and dismissed the suit. 12. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff preferred Civil Appeal No.21 of 2018 in the court of Principal District Judge, Hazaribagh which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment as already indicated above. 13. The learned first appellate court on the basis of the materials available in the record and the submissions made before it, formulated the following two points for determination:- “(1). Whether the plaintiffs have succeeded in establishing that the sale deed no.4209 dtd. 20/03/90 was got executed by the defendants in their favour by practicing fraud and suppressing real fact and as such impugned sale deed no.4209 dtd. 20/03/90 is liable to be declared illegal, void, inoperative and not binding on the plaintiffs? 7 S.A. No.77 of 2021 (2). Whether the plaintiffs have succeeded in establishing that they are still in possession of the suit property and therefore, they are entitled to a decree of confirmation of possession over schedule A property? 14. The learned first appellate court first took up the point for determination No.1 and after making independent appreciation of the evidence in the record took note of the fact that the sale-deed No.4207 is not immediately preceded by execution of sale-deed No.4209 because had that been the case, both the sale- deeds ought to have been numbered consecutively i.e. 4207 and 4208 and there ought not have been any gap between the same. Both the sale-deeds were executed on the same day. In view of Section 53 of the Registration Act, the learned first appellate court came to the conclusion that the plaintiffs/appellants have failed to prove that any fraud was committed and decided the point for determination No.1 against the appellants/plaintiffs. 15. The learned first appellate court then took up the point for determination No.2 and considering the evidence in the record and considering the fact that the plaintiffs have conceded the possession of the defendants over the suit lands by preparing an agreement undertaking not to disturb the possession of the plaintiffs-respondents over the suit land; the learned first appellate court came to the conclusion that the evidence in the record is sufficient to establish the possession of the defendant Nos.1 and 2 over the suit land through registered sale-deed executed by none other than the plaintiffs and answered the point for determination No.2 also against the plaintiffs/appellants and dismissed the appeal. 16. Learned counsel for the appellants submits that both the courts below have committed a grave error in appreciating the evidence in the record and arrived at a wrong finding. It is next submitted that both the courts below 8 S.A. No.77 of 2021 ought to have held that the sale-deed No.4209 dated 20.03.1990 is illegal, inoperative and void. Hence, it is submitted that the judgment and decree passed by both the courts below, as already indicated above, in the foregoing paragraphs of this judgment, be set aside and the suit of the plaintiffs be decreed. 17. Having heard the submissions of the learned counsel for the appellants made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been reiterated by the Hon’ble Supreme Court of India in the case of Union of India vs. M/s Chaturbhai M. Patel & Co. reported in AIR 1976 SC 712 paragraph-7 of which reads as under:- “7. The High Court has carefully considered the various circumstances relied upon by the appellant and has held that they are not at all conclusive to prove the case of fraud.It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonabe doubt: per Lord Atkin in A. L. N. Narayanan Chettyar v. Official Assignee, High Court Rangoon, AIR 1941 PC 93. However suspicious may be the circumstances, however strange the coincidences, and however grave the doubts, suspicion alone can never take the place of proof. In our normal life we are sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said, truth is stranger than fiction. In these circumstances, therefore, going through the judgment of the High Court we are satisfied that the appellant has not been able to make out a case of fraud as found by the High Court. As such the High Court was fully justified in negativing the plea of fraud and in decreeing the suit of the plaintiff.” (Emphasis supplied) that it is a settled principle of law that fraud like any other charge of criminal offence whether made in civil or criminal proceedings must be established beyond reasonable doubts. 18. Now, coming to the facts of the case, both the courts below have arrived at the concurrent finding of fact that the plaintiffs have failed to establish fraud having been practiced. It is a settled principle of law that the finding of facts of 9 S.A. No.77 of 2021 the first appellate court cannot be interfered with by the High Court in exercise of the power under Section 100 of the Code of Civil Procedure unless there is a perversity in such finding of facts as has been reiterated by the Hon’ble Supreme Court of India in the case of Gurvachan Kaur & Others vs. Salikram (Dead) Through Lrs. reported in (2010) 15 SCC 530 para-10 of which reads as under:- “10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent.” (Emphasis supplied) 19. It is a settled principle of law that perversity, so far as it relates to interfering with the findings of fact by exercise of the jurisdiction under Section 100 and 104 of the Code of Civil Procedure, is that if a finding of fact is arrived at by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material or if the finding, so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law or if the finding of the court is based on no evidence or evidence, which is thoroughly unreliable or the evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person, would have arrived at those findings then the findings may be said to be perverse, as has been held by the Hon’ble Supreme Court of India in the case of Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Others reported in (2010) 13 SCC 216 para-28 of which reads as under :- 10 S.A. No.77 of 2021 “28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non- application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685].“ and the same has been reiterated by the Hon’ble Supreme Court of India in the case of Bharatha Matha and Another vs R.Vijaya Renganathan & Others reported in (2010) 11 SCC 483, has also been reiterated in the case of K.N. Nagarajappa and Others vs. H. Narasimha Reddy reported in 2021 SCC Online SC 694. 20. Now, coming to the facts of the case, this Court after carefully going through the materials available in the record finds that the finding of facts arrived at by both the courts below is not based on any inadmissible evidence nor the same has been arrived at by ignoring any admissible evidence and no perversity is involved in such finding of fact. 21. Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal. 22. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances without any costs. 23. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 30th of September, 2024 AFR/ Animesh (Anil Kumar Choudhary, J.) 11 S.A. No.77 of 2021