Rasal Devi & Ors. v. Vimla Devi

1. Vimla Devi, D/o Late Rambux Singh, W/o Gopal Singh, R/o Lapapa, Tehsil Rajgarh, Distt. Alwar, Presently Resid- ing At Village Gadh Binjari, Tehsil Rajgarh, Distt. Alwar.

2. Hameed Khan S/o Chhote Khan, R/o Village Lapapa, Tehsil Rajgarh, Distt. Alwar. ----Respondents For Appellant(s) : Mr. Hari Krishana Sharma For Respondent(s) : None present HON'BLE MR. JUSTICE MANEESH SHARMA

Order 26/05/2025

The present second appeal has been filed by the plaintiff/ appellants under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 27.10.2017 passed by the learned Additional District & Sessions Judge, Rajgarh, District Al- war in Civil Appeal No.11/2012, whereby the learned Appellate Court below has dismissed the appeal preferred by the plaintiff/ appellants against the judgment and decree dated 24.04.2012 in Civil Suit No.34/03/2001 titled as "Smt. Mangni Devi Vs. Smt. [2025:RJ-JP:22879] (2 of 12) [CSA-751/2017] Vimla Devi" passed by the learned Civil Judge (Sr. Division) Raj- garh, Alwar, whereby the learned Trial Court below has dismissed the suit filed by the plaintiff/appellants.

Brief facts giving rise to the present appeal are that on

21.05.2001, the plaintiff/appellants filed a suit for declaration and injunction in respect of two sale deeds. The first sale deed, dated

19.01.1998, with regard to land of Khasra No.246/837, situated at Lapapa, Tehsil Rajgarh, District Alwar, and was executed by the deceased Shri Rambux Singh Ji in favour of the defendant/respon- dent No.1-Vimla Devi. The second sale deed, dated 20.04.2001, was executed by the defendant/respondent No.1-Vimla Devi in favour of defendant/respondent No.2-Hameed Khan. In the plaint, it was pleaded by the plaintiff/appellants that the suit property was the ancestral property of the deceased Shri Rambux Singh Ji. Shri Rambux Singh Ji was survived by 5 (Five)heirs: Smt. Mangni Devi (wife of the deceased Rambux Singh), plaintiff/appellant No.1-Rasal Devi, plaintiff/appellant No.2-Sushila Devi, plaintiff/ap- pellant No.3-Supyar Bai, and defendant/respondent No.1-Vimla Devi. It was further pleaded that the deceased Shri Rambux Singh Ji expired on 24.09.1999. The plaintiff/appellants claimed that af- ter his death, the legal representatives of the deceased Shri Ram- bux Singh Ji, each held a 1/5th right in the property. It was fur- ther pleaded that the deceased Shri Rambux Singh Ji was facing age-related ailments, and defendant/respondent No.1-Vimla Devi collusively got the sale deed dated 19.01.1998 in her favor. On the basis of this sale deed, she also got the revenue record mutated in her favour and subsequently, she sold the said property to defen- [2025:RJ-JP:22879] (3 of 12) [CSA-751/2017] dant/respondent No.2-Hameed Khan, vide a registered sale deed dated 20.04.2001. It was further pleaded by the plaintiff/appel- lants that the deceased Shri Rambux Singh Ji had no right to exe- cute the sale deed dated 19.01.1998 in favour of defendant/re- spondent No.1-Vimla Devi. Accordingly, defendant/respondent No.2-Hameed Khan was also not having any title in the suit prop- erty. It was further pleaded by the plaintiff/appellants that the sale deed executed by the deceased Shri Rambux Singh Ji, with regard to the land Khasra No.246/837, was made without consideration and constituted a sham document because the deceased Shri Rambux Singh Ji had no legal necessity or legal debts to execute such a deed, and he was suffering from various ailments, there- fore, the sale deed executed by the deceased Shri Rambux Singh Ji in favour of the defendant/respondent No.1-Vimla Devi dated

19.01.1998, and subsequently, in favour of defendant/respondent No.2-Hameed Khan by defendant/respondent No.1-Vimla Devi dated 20.04.2001, be declared null and void. Furthermore, the de- fendant/respondents may be restrained to not dispossess the plaintiff/appellants from the property in question.

On 17.07.2001, the defendant/respondents filed a joint statement wherein they have denied the averments made in the plaint. The defendant/respondents further stated that the de- ceased Shri Rambux Singh Ji was the absolute owner of the land. Therefore, Shri Rambux Singh Ji executed a sale deed in respect to the land of Khasra No.246/837, measuring 26 ares, in favour of the defendant/respondent No.1-Vimla Devi, for a total sale consid- eration of Rs.33,000/- and handed over the possession of the [2025:RJ-JP:22879] (4 of 12) [CSA-751/2017] same. Similarly, the deceased Shri Rambux Singh Ji also sold the land of Khasra No.192, measuring 0.34 ares to Kailash Singh, Jai Singh and Chhagan Singh Daroga, Gram Lapapa, and also handed over possession to them. The defendant/respondents further stated that the deceased, Shri Rambux Singh Ji, was never ill and was hale and hearty. Thus, the sale deed dated 19.01.1998 was executed validly for due consideration. After the execution of the sale deed, the mutation was also recorded in favour of the defen- dant/respondent No.1-Vimla Devi and the defendant/respondent No.1-Vimla Devi has validly alienated the said land in favour of the defendant/respondent No.2-Hameed Khan, vide registered sale deed dated 20.04.2001, and accordingly handed over the posses- sion of the suit property. They further stated that the plaintiff/ap- pellants are out of possession and that the suit is barred by limita- tion. Accordingly, they prayed for dismissal of the suit.

On the basis of the pleadings of the parties, the learned Trial Court has framed the following issues on 20.11.2003: ^^1- vk;k okn i= dh en la[;k 1 esa of.kZr lEifRr jkec[l flag dh iSr`d lEifRr Fkh ftl ij mlds thoudky esa o mldh e`R;q ds i'pkr~ ls oknh la[;k 1 dk gh crkSj okfjl dCtk Fkk\ 2- vk;k okn i= dh en la[;k 5 esa of.kZr rF;ksa ds vk/kkj ij oknhx.k la[;k 2 yxk;r 4 o izfroknh la[;k 1 jkec[l flag ds la; qDr fgUnw ifjokj ds lnL; gS rFkk fookfnr lEifRr dksikj'kujh lEifRr gS\ 3- vk;k izfroknh la[;k 1 us fcuk fdlh vf/kdkj ds okn i= dh en la[;k 7 o 8 esa of.kZr jhfr vuqlkj jkec[l flag dks cgyk&Qqlykdj vius gd esa olh;r djkbZ] rRi'pkr~ fookfnr vkjkth dk c;ukek vius gd esa rRi'pkr~ izfroknh la[;k 2 ds gd esa djk fy;k\ 4- vk;k okn i= dh en la[;k 9 esa of.kZr vk/kkjksa ds pyrs oknhx.k] izfroknh la[;k 1 ds i{k esa fd, x, [2025:RJ-JP:22879] (5 of 12) [CSA-751/2017] c;ukek fn- 19-01-98 dks ckfry o csvlj ?kksf"kr djk, tkus ds vf/kdkjh gS\ 5- vk;k oknhx.k] izfroknh la[;k 1 }kjk izfroknh la[;k 2 ds gd esa fd;k x;k c;ukek fn- 20-04-2001 dks okn i= dh en la[;k 10 esa of.kZr rF;ksa ds vk/kkj ij 'kwU; ?kksf"kr djk, tkus ds vf/kdkjh gS\ 6- vuqrks"k\ 6,- vk;k oknhx.k us ;g okn Lo- jkec[l flag th ds }kjk eq0 foeyk ds gd esa fd, x, foØ; i= ds rhu o"kZ ds xqtj tkus ds ckn is'k fd;k gS tks nkok vUnj fe; kn ugha gksus ds dkj.k [kkfjt fd, tkus ;ksX; gS\**

To substantiate the averments made in the plaint, the plain- tiff/appellants examined Sushila Devi (PW-1), Supyar Bai (PW-2), Kailash Singh (PW-3), Hajarilal (PW-4), Gangasahay (PW-5) and Omsingh (PW-6) and also produced documents.

To counter the evidence adduced by the plaintiff/appellants, the defendant/respondent No.-2 himself was examined as DW.1- Hameed Khan, along with DW.2-Mew Khan, DW.3-Hakim Khan, DW.4-Raja Babu.

After hearing the arguments of the respective parties, the learned Trial Court, vide its judgment and decree dated

24.04.2012, dismissed Civil Suit No.34/03/2001. The Court held that the plaintiff/appellants failed to prove that the deceased Shri Rambux Singh Ji was not competent to execute the sale deed. They further failed to prove that the sale deed was executed with- out consideration. It was also held that the present suit was filed on 21.05.2001, where the sale deed was executed on 19.01.1998. Therefore, the suit for declaration was not filed within three years, thus, the suit is held to be time barred. [2025:RJ-JP:22879] (6 of 12) [CSA-751/2017]

Aggrieved by the dismissal of the suit, the plaintiff/appellants preferred an appeal under Section 96 of the Code of Civil Proce- dure, 1908. The learned Appellate Court, after carefully examining the pleadings and the evidence available on record, dismissed the appeal vide the impugned order dated 27.10.2017, and confirmed the judgment and decree dated 24.04.2012 passed by the learned Trial Court.

Feeling aggrieved by these decisions, the plaintiff/appellants have preferred a second appeal. The learned counsel for the plain- tiff/appellants submits that the learned Courts below seriously erred by not granting a decree for declaration and injunction in favour of plaintiff/appellants, despite the deceased Shri Rambux Singh Ji not being competent to execute the sale deed, and the sale deed was executed without consideration.

Learned counsel for the plaintiff/appellants submits that the learned Court below seriously erred in holding that the suit filed by the plaintiff/appellants was time barred. He further submits that with regard to the submissions made hereinabove, the impugned order dated 27.10.2017, passed by the learned Appellate Court and the judgment and decree dated 24.04.2012 passed by the learned Trial Court, are liable to be set aside, and the suit filed by the plaintiff/appellants should be decreed in terms of the relief claimed therein.

Despite the service of notice upon the defendant/respon- dents on 06.10.2022, no one was present on behalf of the defen- dant/respondents. [2025:RJ-JP:22879] (7 of 12) [CSA-751/2017]

Heard learned counsel for the plaintiff/appellants and pe- rused the material available on record.

From a bare perusal of the record, it is evident that the sale deed was executed by the deceased Shri Rambux Singh Ji in favour of his daughter Vimla Devi who is respondent/defendant No.1 on 19.01.1998. Therefore, it cannot be said that the sale deed executed by the deceased Shri Rambux Singh Ji in favour of Vimla Devi is in any way affected by the amendment under Sec- tion 6 of the Hindu Seccession Act, 1956, which reads as under :-

6. Devolution of Interest in coparcenary property; (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall; (a) by birth become a coparcener in her right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a refer- ence to a daughter of a coparcener; Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testa- mentary disposition of property which had taken place before the 20th day of December, 2004." A bare perusal of the aforesaid Section reveals that nothing con- tained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of [2025:RJ-JP:22879] (8 of 12) [CSA-751/2017] property which had taken place before the 20th day of December,

In the present case, the deceased Shri Rambux Singh Ji ex- pired on 24.09.1999. He executed the disputed sale deed in favour of his daughter Vimla Devi in 19.01.1998. Therefore, the submission made by the learned counsel for the appellant that the deceased Shri Rambux Singh Ji was not competent to execute the sale deed lacks merits.

A bare perusal of the findings recorded by the learned trial Court shows that the deceased Shri Rambux Singh Ji executed two sale deeds. One relates to Khasra No.246/837, measuring 26 ares, in favour of the defendant/respondents and another pertains with regard to Khasra No.192, measuring 0.34 ares, in favour of Kailash Singh, Jai Singh, Chhagan Singh. Admittedly, the plain- tiffs/appellants have not challenged the sale deed with regard to land bearing Khasra No.192, measuring 0.34 ares, executed in favour of Kailash Singh, Jai Singh, Chhagan Singh. Furthermore, the learned trial Court has considered that the sale deed has been executed validly.

From the record, it is also revealed that the sale considera- tion was Rs.33,000/-. Therefore, the contention of the plaintiff/ap- pellants is that the sale deed was executed without consideration is untenable in the eyes of the law. The learned trial Court further observed that, from the cross examination of Sushila Devi (PW-1) and Supyarbai (PW-2), there is an admission by the said plaintiff/ appellants that they got the knowledge about the disputed sale deed within three days from its execution, as their father informed [2025:RJ-JP:22879] (9 of 12) [CSA-751/2017] their mother about the execution of the said sale deed, this means that the execution of sale deed came to the knowledge of the plaintiff/appellants, Sushila Devi (PW-1) and Supyarbai (PW-2) within three days of its execution. The present suit has been filed on 21.05.2001, after the period of limitation. Therefore, the learned trial Court dismissed the suit on both grounds.

The findings of the learned trial Court have been discussed by the learned Appellate Court in detail. After a careful examina- tion of the pleadings and the evidence on record, the learned Ap- pellate Court has reiterated these findings and observed that the plaintiff/appellants have failed to prove any ground to seek the declaration as requested. Accordingly, the Appellate Court found no illegality in the order passed by the learned Trial Court. Thus, the learned Appellate Court has confirmed the said dismissal of the suit vide its impugned order dated 27.10.2017.

It is evident that from the evidence of Sushila Devi (PW-1) and Supyarbai (PW-2), that despite having full knowledge about the execution of the sale deed dated 19.01.1998, the present suit was filed on 21.05.2001, which is beyond three years. Therefore, both the Courts below rightly dismissed the suit as barred by limi- tation.

Furthermore, the suit is not affected by the amendment in Section 6 of the Hindu Succession Act, 1956 as in the present case, the deceased Shri Rambux Singh Ji executed a registered sale deed dated 19.01.1998 in favour of her daughter Vimla Devi. Therefore, the said amendment, does not invalidate such alien- ation or transfer. [2025:RJ-JP:22879] (10 of 12) [CSA-751/2017]

The arguments of the learned counsel for the defendant/re- spondents are that the sale deed has been executed without sale consideration, are not tenable because, from the evidence on record, it is established that the sale deed was executed for a sale consideration of Rs.33,000/-.

Apart from all the above, the facts of the case also reveal that the plaintiff/appellants have challenged only the sale deed dated 19.01.1998 and the subsequent sale deed executed by the defendant/respondent No.1-Vimla Devi in favour of defendant/re- spondent No.2-Hameed Khan dated 20.04.2001, whereas the plaintiff/appellants have not challenged the other sale deed exe- cuted by the deceased Shri Rambux Singh Ji with respect to the land bearing Khasra No.192, measuring 0.34 ares, in favour of Kailash Singh, Jai Singh, Chhagan Singh.

The learned counsel for the plaintiff/appellants fairly con- ceded that the documents filed along with the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908, on

26.06.2013, merely relates to the acquittal of Kailash Singh, Oms- ingh, Chhagan Singh, Rajendra and Jai Singh passed by the learned Additional Chief Judicial Magistrate, Rajgarh, District Al- war, and does not have any material bearing on the present case.

A bare perusal to the findings recorded by the learned trial Court as well as of the learned First Appellate Court reveals that both the courts below have considered the pleadings of the parties and evidence on record at length and from the bare perusal of the impugned orders, it is evident that there is no illegality or perversity in the impugned orders. [2025:RJ-JP:22879] (11 of 12) [CSA-751/2017]

Further, the question of law proposed in the second appeal falls within the realms of questions of fact and does not fall within the purview of the substantial questions of law.

That in the decision reported as AIR 2020 SC (4321), Nazir Mohamed vs J.Kamala And Ors., the Hon'ble Apex Court held that the condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujjar reported in (199 9 ) (3) SCC 722 , the Hon'ble Apex Court held that after the amendment, a second appeal can be filed only if a substantial question of law is involved in the case and it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. As such, second appeal cannot be decided on equitable grounds rather conditions mentioned in section 100 of Code of Civil Procedure, 1908 must be complied with to admit and maintain a second appeal. In Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166, it was held that the High Court should not re-appreciate the evi- dence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate court.

In view of the discussions made herein above, no question of law much less any substantial question of law is involved in the second appeal requiring interference by this court in exercise of its jurisdiction under section 100 of Code of Civil Procedure.

In view of the aforesaid facts and circumstances, this court is of the considered opinion that the findings of the learned trial [2025:RJ-JP:22879] (12 of 12) [CSA-751/2017] court as well as appellate court are based on a proper appreciation of oral and documentary evidence. Hence, concurrent findings of the learned trial court as well as the appellate court are found im- maculate and infallible in the eye of law. Accordingly, no substan- tial question of law is made out, the impugned judgment and de- cree passed by learned courts below are hereby affirmed and in result thereof, the second appeal being devoid of merits, is hereby dismissed.