In a second appeal under Section 100 CPC, the High Court dismissed the appellant's challenge to the concurrent findings of the trial court and lower appellate court. The lower courts held the plaintiff had no title to the property as her husband had validly sold his share during his lifetime.
The appeal was held devoid of merit and dismissed.
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.321 of 2012
====================================================== Most. Sayara Begum W/O Late Lakhi Mian Resident Of Village Akhalaspur, P.S. Bhabua, District Kaimur (Bhabua). .... .... Plaintiff/Appellant Appellant Versus 1. Issue Mian S/O Late Madina Mian Resident Of Village Akhalaspur, P.S. Bhabua, District Kaimur (Bhabua). 2. Sakina @ Guddi W/O Gaffar Mian Resident Of Village Akhalaspur, P.S. Bhabua, District Kaimur (Bhabua). 3. Nagina Mian @ Sarfuddin Mian S/O Late Amar Ali Mian Resident Of Village Akhalaspur, P.S. Bhabua, District Kaimur (Bhabua). ..Defendant 1st Set/Respondents/Respondents 4. Shanti Mian S/O Late Lakhi Mian Resident Of Village Akhalaspur, P.S. Bhabua, District Kaimur (Bhabua). …Defendant 2nd set/Respondent/Respondent ====================================================== Appearance : For the Appellant/s : Mr. Hari Shankar Roy Mr. Kumar Sunil ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 5 09-07-2014 The plaintiff of the suit has filed the present appeal under section 100 of the Code of Civil Procedure aggrieved by the judgment and decree dated 18.05.2012 and 31.05.2012 respectively passed by the learned Addl. District Judge, F.T.C.-2, Kaimur (Bhabua) in Title Appeal No. 38/2009/44/2010 affirming the judgment and decree dated 30.04.2009 and 15.05.2009 respectively passed by the learned Sub-Judge-1, Kaimur (Bhabua) in Title Suit No. 232 of 2001.
For the sake of convenience, this Court would refer the
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parties as they stood at the trial. The plaintiff (appellant herein) filed the suit for allotment of her share in the suit property detailed in schedule ‘ka’ and after such determination to prepare a separate ‘Takhta’.
According to the plaintiff, one Chhedi Mian was survived by three sons namely Pir Ali Mian, Shair Mian and Amar Ali Mian. Chhedi Mian died before revisional survey operation leaving behind his three sons in joint possession of the suit properties. Pir Ali Mian had one son namely Lakhi Mian to whom the plaintiff was married after the death of his first wife namely Rasulan Bibi from whom one Musafir Mian was born who died issueless leaving behind his wife Najama Begum who was married to some other person. The plaintiff thus claimed herself as the sole sharer of her husband Lakhi Mian. Shair Ali died issueless in the state of jointness. Ali Mian had two sons namely Madina Mian and Nagina Mian. The case of the plaintiff is that Lakhi Mian died in joint possession of the properties with Amar Ali Mian and after the death of Lakhi Mian the plaintiff got her share in the suit property and, therefore, sought partition of her share by appointing survey knowing Advocate Commissioner.
As per the written statement filed on behalf of the defendants first set the plaintiff was not the wife of Lakhi Mian
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and therefore not entitled to the share in his property. In fact Lakhi Mian died 18 years ago at Calcutta and his only daughter Jahuran Bibi was his heir. Shair Mian living in jointness with his brothers was denied. He died while living with Amar Ali Mian and schedule ‘ka’ property of the plaint is the property of defendants first set with which the plaintiff had no concern. Plot No.2085 carved out from old Plot No.1313 was the purchased land of the defendants first set through registered sale deed dated 10.03.1964. Plot No. 2056 measuring an area of 02 decimals and Plot No.2084 again measuring an area of 02 decimals were the ancestral property out of which 02 decimals of land were sold by Lakhi Mian in favour of defendants first set on 18.06.1977. Hence the defendants became owner of entire 06 decimals of land.
On a consideration of the pleadings of the parties the learned trial court framed diverse issues. The parties were permitted to adduce evidence. The plaintiff examined 05 PWs. and exhibited document vide Exts. 1, 2 and 3 whereas the defendants examined 06 DWs. and brought on record Ext. A, A/1, B to B/2(rent receipts), Ext. C (survey purcha) and Ext. C/1 and C/2 (copies of the khatiyan). Issue no.2, 3, 5, 6 and 7 were found interlinked and considered together by the learned trial court. Referring to and relying on the oral evidence of the rival
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parties the trial court held that there was partition between Lakhi Mian and the defendants inasmuch as Lakhi Mian had already sold 02 decimals of land allotted to him in favour of Nagina Mian and Madina Mian about 25 years ago. Similarly, 02 decimals of land was purchased by Madina Mian and Nagina Mian from Daljeera Devi about 40 years ago and as such they owned and possessed 06 decimals of land on which Pucca house was constructed. DW.3 Jahuran Bibi was examined on behalf of the defendant who being the daughter of Lakhi Mian supported the case of the defendant(s). The learned trial court also considered the documents exhibited on behalf of the parties to hold that Ext.A/1 was the valid document whereunder Lakhi Mian sold 02 decimals of land in plot no.2056 khata no.977 in the year 1977 in favour of Madina Mian and Nagina Mian and gave possession. Ext. 1 demonstrated that in the year 1964 Madina Mian and Nagina Mian purchased 02 decimals of land for valuable consideration under old khata no.181, plot no.1313 from Daljeera Devi. Accordingly the learned trial court held that the land(s) appertaining to plot nos.2084 and 2085 were the self acquired property of the defendant(s) and the land appertaining to plot no.2056 was acquired on partition by the defendant first set. They were also found in possession thereof for which reliance was
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placed on oral evidence as well as Ext. B to B/1 (rent receipts). Apprising itself of relevant provision of section 52 of the Mohammedan Law, the learned trial court found that although, on partition, Lakhi Mian got a share but during his life time he sold 02 decimals of land in favour of the defendant(s) for consideration and the plaintiff has no right, title and interest. Having held so, the learned trial court proceeded to consider the status of the plaintiff under issue No.4 and found that she indeed was the widow of late Lakhi Mian but acquired no interest in the suit land since her husband had already sold his share of land by a registered sale deed (Ext. A/1). During the life time of her husband the plaintiff had no title and interest in the suit property/land. Consequently, the suit was dismissed on contest.
Aggrieved by the said judgment and decree passed by the learned trial court the plaintiff preferred appeal vide Title Appeal No.38/2009/44/2010. The learned lower appellate court noticing the case of the parties and the issue(s) framed by the learned trial court considered the submissions advanced by the plaintiff. The learned lower appellate court proceeded to consider the case of the appellant treating her to be the widow of late Lakhi Mian. Having re-appraised the evidence on record, both oral and documentary, the learned lower appellate court in the light of the
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statutory provision and the evidence on record concurred with the findings of fact recorded by the learned trial court. The appellate court on the basis of the evidence of PWs. 3 and 4 and Ext.1 found that the plaintiff never came in exclusive possession of the suit land. The plaintiff completely failed to demonstrate that the sale deed so executed by Lakhi Mian was forged and fabricated whereas the defendant by cogent evidence proved that by sale deed Ext. A/1 the same was sold by the husband of the plaintiff which was never declared null and void by any court inasmuch as no such prayer was made in the present suit. The plaintiff only showed her ignorance of such sale. The findings of fact recorded against the plaintiff by the learned trial court were affirmed resulting in dismissal of the suit.
Heard Mr. Roy for the appellant and perused the two judgments rendered by the court below.
It has been urged that the learned trial court in the facts and circumstances of the case ought to have framed an issue regarding the case of the plaintiff that the sale deed executed by Lakhi Mian was a sham transaction and never brought into existence and thereby allowing the parties to lead evidence thereon. Both the courts below have failed to appreciate the evidence adduced on behalf of the plaintiff in right perspective in
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order to negate her case.
In my view, none of the above submissions raise substantial questions of law. It is to be noted here that the plaintiff in her plaint showed ignorance about the said sale deed and did not pray for setting aside the same as a sham transaction. The learned trial court considering the case of the parties appropriately framed issue nos. 2, 5, & 6 and answered them against the plaintiff on the basis of the evidence on record. It further appears that all relevant evidence either oral or documentary were considered by the learned trial court and re-appraised by the learned lower appellate court while passing the judgment under appeal. I am unable to find any substance in submissions of learned counsel for the appellants.
Law is settled beyond cavil that in a case where the two courts below have concurrently decided the relevant issues recording a finding of fact the same are not interfered with while exercising jurisdiction under section 100 of the Code of Civil Procedure until and unless they are shown to be wholly perverse. Reference in this connection may be made to case of Viddyadhar vs. Manik Rao, (1999) 3 SCC 573 and the case of Abdul Rahim vs. Karnataka Electricity Board, (2007) 14 SCC 138 wherein it has been held that the High Court in a second
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appeal should not disturb the concurrent findings of fact unless it is shown that the findings recoded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. Simply because another view based on evidence on record is possible the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. The appellant has failed to demonstrate any perversity in those findings of the courts below in the backdrop of law enunciated in this regard by the Apex Court in (2010) 13 SCC 216.
The appeal is held devoid of merit. Dismissed.
(Kishore Kumar Mandal, J)
HR/-
U
3 issues framed by the court
Whether the concurrent findings of fact by two lower courts regarding the sale of the husband's share can be interfered with under Section 100 CPC.
Whether the plaintiff successfully demonstrated that the sale deed executed by her husband was a sham transaction or forged.
Whether the plaintiff had any title or interest in the suit property to claim partition.
Colour shows how this judgement treated each authority
Viddyadhar vs. Manik RaoFollowed¶29
Viddyadhar vs. Manik Rao, (1999) 3 SCC 573 · Who else cites this
Abdul Rahim vs. Karnataka Electricity BoardRelied on¶29
Abdul Rahim vs. Karnataka Electricity Board, (2007) 14 SCC 138 · Who else cites this
(2010) 13 SCC 216Followed¶32
1 provisions across 1 enactments
Most Sayara Begum W/O Late Lakhi Mian
Issue Mian S/O Late Madina Mian
Kishore Kumar Mandal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
