Dismissed

Smt Prema Devi Gadia v. Braj Bihari Choudhary

Jharkhand HC8 Jul 2019SA/108/2012

Case brief

AI extract

What is this about?

Dismissed an appeal under Section 100 CPC against a decree confirming defendants' title to property. Held that the transaction was genuine, consideration was received, the appellant was of sound mind, and the preference was barred by limitation as no condonation application was filed.

What did the court decide?

Appeal dismissed; original judgment and decree by District Judge-I, Godda confirmed.

Smt Prema Devi Gadia Vs Braj Bihari Choudhary — Succession and Inheritance | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 108 of 2012

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1. Smt. Prema Devi Gadia wife of Sri Shyam Sundar Gadia

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2. Prashant Kumar Gadia, minor son of Sri Shyam Sunder Gadia through his mother and natural guardian Smt. Prema Devi Gaida(Appellant No. 1), whose interest is not adverse to that of her minor son, the appellant No. 2.

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Both residents of Godda Town, P.O. and P.S. and District- Godda, Jharkhand. ............... Appellant(s).

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Versus -

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Braj Bihari Choudhary, son of late Kulanand Choudhary, resident of Shivpur, Godda Town, P.O. and P.S. and District- Godda, Jharkhand.

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Jai Narain Mehta, resident of Gukulpur, District Purnea, at present residing at Godda Town, Ward No. 1, Godda Town, P.O. and P.S. and DistrictGodda, Jharkhand

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Deepak Kumar Gadia, son of Shyam Sundar Gadia (Traceless), resident of Godda Town, Ward No. 1, P.O. and P.S. and District- Godda, Jharkhand

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Suman Kumari Gadia, daughter of late Shyam Sundar Gadia, resident of Godda Town, Ward No. 1, P.O. and P.S. and District- Godda, Jharkhand. .......... Respondents.

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CORAM: HON'BLE MR JUSTICE ANANDA SEN.

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For the Appellant(s) : M/s Amar Kr. Sinha and Aashish Kumar, Advocate. For the Respondents : Mr. Manjul Prasad, Sr. Advocate.

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Mr. Baban Prasad, Advocate.

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08/08.07.2019: I have heard the counsel for the appellant and I have gone through the

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record.

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This appeal under Section 100 of the Code of Civil Procedure, 1908, has been filed challenging the judgment dated 13.7.2012 and decree dated 24.7.2012 passed by the learned District Judge-I, Godda in Title Appeal No. 14/2000, by which, the appeal filed by the appellants has been dismissed and the judgment dated 5.5.2000 and the decree dated 17.5.2000 passed by the learned Sub-ordinate Judge-I, Godda in Title Suit No. 24/1985 was confirmed.

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The Title Suit No. 24/1985 was filed by Shri Shyam Sundar Gadia son of late Chaturbhuj Gadia, Prasant Kr. Gadia son of Shyam Sundar Gadia and Smt. Prema Devi wife of Shyam Sundar Gadia praying therein for declaration of right, title and interest over the land and house, described in Schedule A and B of the plaint and also prayed for confirmation of possession. It was also prayed that sale deed No. 1468 dated 8.5.1985 and sale deed No. 1049 dated 8.4.1985 for the land and house had been obtained by playing fraud and thus the same are illegal, inoperative and it does not confirm any title on the defendants. Therefore, these two deeds need to be declared as void. Further a prayer has been made for permanent injunction injunction on the defendants, who are claiming possession over the land and house described in Schedule A and B property.

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The plaintiff's case is that by practicing fraud, the defendants had fraudulently obtained signature of Shyam Sunder Gadia on blank papers and converted them into sale deed and got transferred the house and land of Shyam

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Sundar Gadia in their favour. It is further the case of the plaintiff that the sale deed does not confer any right over the property upon the defendants as the same was obtained fraudulently and the consideration money was also not been paid.

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The defendants appeared after notice to contest the suit. Their case as per written statement is that no fraud was played rather Shyam Sundar Gadia in his sound state of mind had executed the sale deed after receiving the consideration money. To prove the case, the plaintiff had proved some oral and documentary evidences before the trial court.

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On the pleadings of the parties, the trial court framed 08 issues, out of which, Issue Nos. (iv), (v), (vi) and (vii) are important, which are as follows:-

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(iv) Have the plaintiffs got right, title and possession over the suit property?

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(v) Are the registered deeds of sale, bearing Deed No. 1458 dated 8.5.1985 and deed No. 1049 dated 8.4.1985, fraudulent, void, illegal and inoperative?

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(vi) Have the aforesaid deeds been brought into existence by fraud and misrepresentation on Shyam sundar Gadia?

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(vii) Had the defendant second party fraudulently obtained some signatures of Shyam Sundar Gadia on some blank papers and has converted them into valuable documents?

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The issues were discussed after considering the evidences the trial court concluded that the sale deed is genuine and has not been obtained fraudulently and the consideration amount was also paid to the seller. The court also took note of the fact that the plaintiffs claimed that the defendants had obtained signature of Shyam Sundar Gadia on blank papers and the same was converted into sale deed, but the defendants in their evidence stated that the signatures were obtained in Court but the contents were never read. The court also concluded that Shyam Sunder Gadia was taken to Registry office for getting the deed registered. Since the issues were decided in favour of the defendants and against the plaintiffs, the suit was dismissed.

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Two appeals were filed against the judgment passed in title suit, one by Prema Devi and Prashant Kumar Gadia, the wife and son of Shyam Sundar Gadia and another appeal was filed by Shyam Sundar Gadia, Prashant Gadia, Piyush Gadia. The appeals were numbered as Title Appeal Nos. 14 of 2000 and 15 of 2000. The appeals were dismissed. Against dismissal of Appeal Number 14/2000, this appeal has been preferred. Admittedly, both the appeals were filed beyond the period of limitation without any application under Section 5 of the Limitation Act.

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In a situation, where an appeal is filed beyond the period of limitation without application under Section 5 of the Limitation Act for condoning the delay, the court has got no alternative than to rely upon Section 3 of the Limitation Act, which provides that ' subject to the provisions contained in Sections 4 to 24, every suit

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instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence' .

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Since there was no application for condoning the delay in preferring appeal, the first appellate court dismissed the appeal on the ground of limitation. 11. The first appellate court not only dismissed the appeal on the ground of limitation but also went on merit of the case and on the issues framed, came to an independent finding of facts. While deciding the appeal on merits, the first appellate court concurred with the findings of the trial court and held that Shyam Sundar Gadia had himself, on the sale deed, after taking full consideration amount, had put his signature and executed the sale deed. The first appellate court also gave a finding that wife of Shyam Sundar Gadia i.e. appellant No. 1 herein has also signed over the sale deed. The first appellate court also rejected the claim of the plaintiff that Shyam Sundar Gadia was of unsound mind and was of weak intellect. On this point, I would like to mention that the suit was filed by Shyam Sundar Gadia in personal capacity and not through any next friend. Further a separate appeal was filed by Shyam Sundar Gadia showing himself to be guardian of minor children. The first appellate court has also found from the record that Shyam Sundar Gaida was examined as court witness and found Shyam Sundar Gadia was of sound mind. Shyam Sundar Gadia had also deposed as P.W. 1, wherein, he states that he was a shopkeeper, therefore, the court had concluded that he was of sound mind and doing business and it was wrong to say that he was of unsound mind. Considering all facts, the first appellate court concurred with the findings that the trial court has rightly dismissed the suit.

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After going through the judgment of both the courts below and after hearing the counsel for the appellant, I find that no substantial question is involved in this case. The issues, which are involved before the court below, are that (i) whether the sale deed was obtained by fraud or not? (ii) whether the consideration money in lieu of sale was paid to the plaintiff or not? And (iii) whether Shyam Sundar Gadia was of unsound mind? The said issues are absolutely question of facts, which were decided by both the courts below against the plaintiff/appellant.

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Thus, I find no illegally in the judgment and decree passed by both the courts below and there is no substantial question of law which has been answered in favour of the plaintiffs. Accordingly, the appeal is dismissed upholding the judgment dated 13.7.2012 and decree dated 24.7.2012 passed by the learned District Judge-I, Godda in Title Appeal No. 14/2000.

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(ANANDA SEN, J.)

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Anu/C.P.2

Smt Prema Devi Gadia v. Braj Bihari Choudhary

Case brief

What is this about?

What did the court decide?

Smt Prema Devi Gadia v. Braj Bihari Choudhary

Case brief

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What did the court decide?

What the court decided

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