In this second appeal under CPC section 100, the Patna High Court dismissed the appellants' challenge to lower courts' findings on property title. The court upheld the determination that the property was self-acquired by the vendor and the sale to respondents was valid, finding no substantial question of law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.304 of 2000
.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Nawal Kishore Singh, Mr. Jitendra Nath Tiwary, For the Respondent/s : None ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER
7 12-04-2013 The present second appeal under section 100 of the Code of Civil Procedure (hereinafter to be referred to as the Code) has been placed before me for hearing under Order XLI Rule 11 of the Code. The appellants who were plaintiffs before the trial court are aggrieved by the judgment and decree dated 24.05.2000 passed by the learned Additional District Judge III, Nawadah in Title Appeal No. 18 of 1994/2 of 1996 whereby he has dismissed the appeal preferred against the judgment and decree dated 5.10.1994 and 16.11.1994 respectively passed by the
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learned Munsif, Nawadah in Title Suit No. 208 of 1990.
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eldest son of Jamuna Prasad Kaviraj for a total consideration money of Rs. 28,000/- whereafter the plaintiffs came in actual possession over the suit land. The plaintiffs claimed that they raised a boundary around the land so purchased immediately after purchase and also dug out foundation with a view to construct residential house whereafter the defendants started interfering with the peaceful possession of the plaintiffs which led to several proceedings including the proceeding under sections 144 and 145 of the Code of Criminal Procedure, 1973.
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Benami name by Jamuna Prasad Kabiraj in the name of his wife Smt. Girja Devi. The plaintiffs, therefore, claimed that Girja Devi did not have any right to make transfer in favour of the defendants.
“ 5. Whether the property in suit was the joint family property acquired by Yamuna Prasad Kabiraj out of joint Hindu family fund or it was the self acquired property and Stridhan of Girja
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Devi?
8. Whether the defendants have acquired title over the suit land on the basis of the sale deed alleged to have been executed by Girja Devi?
led their respective evidence before the trial court both oral and documentary. The plaintiffs placed heavy reliance on the show cause purported to have been filed by Jamuna Prasad Kabiraj in Title Suit No. 98 of 1979 which was the partition suit reference of which has been given here-in-below. Ext. 5 is the sheet anchor for the plaintiffs to prove their case that the suit land was property of joint family because in his show cause, Jamuna Prasad Kabiraj did not raise any dispute in the said suit that plot no. 3733 area 21 decimal was not the joint family property though said property was mentioned in the partition suit as joint family property. Before I refer to other aspects of the matter, I must indicate at this stage itself that in course of argument learned counsel for the appellants has placed heavy reliance on this exhibit and have contended that non consideration of this document of Ext. 5 by the court below resulted into perverse finding by him and the second appeal, thus, involves substantial question of law to the effect that the findings of the court below suffers from non consideration of documentary evidence available on record.
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(i) Whether the suit property is the self acquired property of Girja Devi or the same is joint Hindu family property purchased out of joint Hindu family fund by Yamuna Pd. Kabiraj as karta and manager of Hindu Family?
(ii) Whether the transfer made by Girja Devi in favour of defendant no. 2 Sitabi Devi is hit by doctorine of Lis Pendens?
(iii) Whether the suit is hit by provision of section 4(1) of Benami Transaction (Prohibition) Act, 1988?
(iv) Whether the plaintiffs/appellants have any right title interest in or possession over the suit land and entitled to the reliefs claimed for or any other relief?
of the trial court and rejected the plea of the appellants. After having held thus, decided point no. (ii). The learned 1st appellate court held that the findings of the trial court that the transfer made by Smt. Girja Devi in favour of defendant no. 2 is not hit by the doctrine of Lis pendens. The learned 1st appellate court further held in its judgment that the plaintiffs could not prove that the purchase of the suit land by Girja Devi, vendor of defendant no. 2
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was a Benami transaction. Having held so, the learned 1st appellate court also concurred with the findings of the learned trial court that the transfer made by Girja Devi in favour of defendant no.2 was but hit by lis pendens.
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law and on facts. As has been noted above, there is concurrent findings of fact of both the courts below. Learned counsel appearing for the appellants has not pointed out any findings to be without evidence or contrary to the evidence except Ext. 5 which according to him proved that the suit property was not self acquired property of Smt. Girja Devi. Over and above this submission, no perversity in the findings of both the courts below has been pointed out. The proposition needs no reiteration that concurrent findings of fact are binding on the court exercising power under section 100 of the Code unless such findings are shown to be perverse being without evidence or contrary to the evidence available on record. This has been held by the Apex Court that whether the property is a Hindu joint family property or not, per se, is not a substantial question of law. Reference may be made in this connection to the case of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi, reported in (2009) 3 SCC, 287. In my opinion, merely on the basis that husband of Smt. Girja Devi did not raise any objection over inclusion of the suit property in the list of joint family property in a partition suit, it cannot be concluded that the property purchased in the name of Girja Devi, his second wife, was necessarily a joint family property.
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erroneous concurrent findings of fact cannot be interfered with in exercise of power under section 100 of the Code. Law is also well settled that if two views are possible and one has been effected by the courts below on the basis of the evidence on record, such findings cannot be disturbed in exercise of power under section 100 of the Code.
(Chakradhari Sharan Singh, J)
Amin/-
3 issues framed by the court
Whether the concurrent findings of fact by the courts below regarding the nature of the property and the validity of the transactions are perverse.
Whether the second appeal involves a substantial question of law that would merit interference under section 100 of the CPC.
Whether the non-objection by the husband in a separate partition suit conclusively establishes the property as joint family property rather than self-acquired.
Colour shows how this judgement treated each authority
Narendra Gopal Vidyarthi Vs. Rajat VidyarthiReferred¶47
Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi, (2009) 3 SCC, 287 · Who else cites this
2 provisions across 1 enactments
Jagdish Singh
Smt. Mundarki Devi
Ashok Singh
Arbind Kumar
Chandrika Prasad
Bhola Prasad
CHAKRADHARI SHARAN SINGH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
