Dismissed

Anil Kumar Chaudhary v. Smt. Rita Devi and Ors.

Patna HC12 Feb 2013SA/134/2010

Case brief

AI extract

What is this about?

In a second appeal concerning a title dispute over land, the Patna High Court declined to interfere with the First Appellate Court's finding that the property was joint family property. The Court held the appeal did not involve a substantial question of law.

What did the court decide?

The second appeal was dismissed.

What the court decided

Anil Kumar Chaudhary Vs Smt. Rita Devi and Ors. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.134 of 2010

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Anil Kumar Chauhdary son of Jawahar Chaudhary, resident of MohallaKurainch, Police Station and Post Office-Sasaram, Ward No. 4, DistrictRohtas.

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…Plaintiff/ Respondent/....Appellant

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Versus

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Smt. Rita Devi wife of Sudarshan Chaudhary.

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Deepak Chaudhary, minor son of Sudarshan Chaudhary, represented through his natural guardian father and next friend namely Sudarshan Chaudhary.

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Sudarshan Chaudhary son of Late Ram Janam Chaudhary.

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All resident of Mohalla-Kuraich, Police Station and Post OfficeSasaram, Ward No. 4, District-Rohtas.

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…Defendants/Appellants/Respondents.

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Jawahar Chaudhary son of late Sant Chaudhary resident of MohallaKuraich, Police Station and Post Office-Sasaram, Ward No. 4, District-Rohtas.

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…Defendant/Respondent/Respondent.

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====================================================== Appearance :

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For the Appellant : Mr. Md. Faiz Ahmad For the Respondents :

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI

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SHARAN SINGH

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ORAL ORDER

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6 12-02-2013 Heard learned counsel for the appellant.

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The appellant is aggrieved by the judgment and decree

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dated 02.02.2010 passed by learned Additional District Judge, V^th Rohtas at Sasaram in Title Appeal No. 64 of 2007 whereby he has reversed the judgment and decree dated 30.04.2007 passed by learned Munsif 1^st , Sasaram at Rohtas in T.S. No. 67 of 2002. The present appeal has been placed for hearing under Order 41 Rule 11 of the Code of Civil Procedure.

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The plaintiff is the appellant herein in whose favour the

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Patna High Court SA No.134 of 2010 (6) dt.12-02-2013

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suit was decreed. The suit land as described in Schedule „A‟ of the plaint appertains to Khata No. 43, Plot No. 17 admeasuring 16 ½ dismals situated at Mauza-Karmdihri, P.S. Sasaram, DistrictRohtas. The suit was filed for a declaration of plaintiff‟s title over the suit land and for further declaration that the sale deed dated 12.09.2000 executed by defendant No. 4 / respondent No. 4, father of plaintiff-appellant in relation to the suit land was void and also for a decree of confirmation of possession over the suit land as well as permanent injunction.

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The plaintiff‟s case before the Trial Court was that the suit land was purchased in his name in the year 1983 from the fund of the property of his maternal uncle. In the first week of May, 2002 the appellant/plaintiff learnt about execution of sale deed dated 12.09.2000 transferring the suit in favour of respondent Nos. 1 and 2 /defendant Nos. 1 and 2 showing himself as the appellant‟s guardian who was minor at the time of payment of consideration money. The plaintiff‟s case before the Trial Court was that there was no legal necessity for his father respondent No. 4 for disposal of suit land but he disposed of same and further that no consideration money was paid and the sale deed was mere paper transaction. The plaintiff pleaded that respondent No. 4 (Defendant No. 4) having not taken permission from the Court nor

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Patna High Court SA No.134 of 2010 (6) dt.12-02-2013

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having been appointed his guardian from Court was not entitled to sale the suit land in favour of respondents No. 1 and 2. Surprisingly, the defendant No. 4 / Respondent No. 4 supported the case of the plaintiff in his written statement and stated that the respondent No. 3 got the sale deed executed without any consideration of money and the respondents administered some intoxicating substance and got the sale deed executed without payment of even consideration money. It seems that the suit land was acquired by the Indian Railway and Respondents No. 1, 2 and 3 received the compensation money from the State of Bihar on the basis of the sale deed dated 12.09.2000.

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Respondents No. 1, 2 and 3 disputing the facts alleged in the plaint, filed their written statement and contested the suit. It was pleaded that the suit property was not the self-acquired property of the appellant as it was not purchased from the money of his maternal uncle or maternal grandfather. They asserted that the property was sold for the legal necessity of joint family and full consideration money was paid to respondent No. 4 whereafter possession of the sold property was handed over to them. They pleaded that the dispute was being raised by the appellants only for the reason that the land had been acquired by the Railways for which considerable compensation money had been paid to the

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Patna High Court SA No.134 of 2010 (6) dt.12-02-2013

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respondents 1^st Set.

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On the basis of rival pleadings, learned Trial Court framed altogether six issues including issue No. 5. On the basis of the evidence available on record, learned Trial Court decreed the suit in favour of the plaintiff declaring the said sale deed dated 12.09.2000 as void. Learned Trial Court decreed the suit on the basis that permission of the Court was mandatory before execution of sale deed with respect to the land in question. Learned Trial Court, however, proceeded on the presumption that the suit land was the exclusive property of the appellants, on the basis of oral evidence adduced in course of trial.

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Learned First Appellate Court, however, upset the finding of the Trial Court on the basis of materials available on record particularly the documentary evidence. Learned First Appellate Court framed four points for adjudication including point No. II which reads as follows:-

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“(II) Whether the disputed property was the self acquired property of the Minor Plaintiff purchased from the money of his Maternal Uncle and Maternal Grandfather or the same was purchased by his father from the joint family fund of the family of the Respondent nos. 1 and 2 by the Respondent No. 2?”

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While dealing with the issue, learned First Appellate Court after scrutinizing the material evidence available on record

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Patna High Court SA No.134 of 2010 (6) dt.12-02-2013

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came to specific finding that the suit property was not the selfacquired property of the appellant rather the same was the joint family property of his family with his father respondent No. 4, Jawahar Choudhary as Karta of the joint family. Learned First Appellate Court further held that the sale deed dated 12.09.2000 could not be said to be void and illegal and, therefore, dismissed the suit.

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Learned counsel for the appellant has submitted that the present appeal involves substantial questions of law as to whether there was any legal necessity for disposal of a joint family property and in absence of any evidence to this effect such transaction is illegal and void. He also submits, referring to the judgments of Supreme Court reported in 1996 (9) SCC 53 Gangadharan V. Janardhana Mallan and Ors., and A.I.R. 1967 S.C. 574 Radhakrishnadas V. Kaluram, that it is the duty of the transferee before purchasing a joint family property to enquire and ensure that the transfer was in fact being made for the legal necessity and for the benefit of the joint family property and the property of minor.

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On perusal of the judgment of learned First Appellate Court, it appears that learned First Appellate Court has dealt with the aspect of legal necessity for sale of the joint family property as

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Patna High Court SA No.134 of 2010 (6) dt.12-02-2013

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per the recitals in the sale deed. He has taken note of the fact that the executant, the father of the appellant was an educated person and he could understand the contents of the sale deed.

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I am of the opinion that this Court in exercise of power under Section 100 of the Code of Civil Procedure can interfere with the findings of the fact only if such finding is found to be perverse, without any evidence or contrary to evidence available on record. This Court will not interfere in such exercise of power even if another view is possible as regards findings of fact on the basis of evidence available on record.

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I am also of the view that the present appeal does not involve any substantial question of law so as to merit admission. This appeal is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J.)

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Saif/-

Anil Kumar Chaudhary v. Smt. Rita Devi and Ors.

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Anil Kumar Chaudhary v. Smt. Rita Devi and Ors.

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