APPEAL FROM THE APPELLATE DECREE NO. 285 OF 1998 ---- Against the judgment and decree dated 17.04.1998 passed in Title Appeal No.116 of 1991 (14/1993) reversing the judgment and decree dated 05.08.1991 passed in Title Suit No.214 of 1990 (32/1991) dismissing the suit. ---- 1. Suraj Thakur son of Suba Thakur. 2. Budhram Thakur son of Ragh Nath Thakur. 3. Pitamber Thakur son of Dukhan Thakur. All resident of Village Goithaha P.O. Rai Karariya, District East Champaran. -- Defendants 1st Party-Respondents 1st Set-Appellants. Versus 1. Ram Chandra Mistri son of Adaya Mistri resident of Village Goithaha P.O. Baikarariya District East Champaran. -- Plaintiff-Appellant-Respondent 1st party. 2. Ramashray Thakur 3. Ram Sakal Thakur Both sons of Kapari Thakur. All resident of Village Bankatwa P.O. Bankatwa District East Champaran. -- Defendants no.4 and 5- Respondents 2nd Set- Respondents 2nd Set. ---- For the appellants : M/s Udit Narayan Singh, Poonam Kumari and Amit Kumar Singh, Advocates. For respondent no.1 : M/s Rajendra Kishore Prasad, Rohit Kishore Prasad and Priya Akhauri, Advocates. For respondents no.2 & 3: None. ---- P R E S E N T THE HON'BLE MR. JUSTICE S.N. HUSSAIN ---- S. N. Hussain, J. This second appeal has been filed by defendants 1st Party- Respondents 1st set-appellants challenging the judgment and decree of the learned court of appeal below. 2. The matter arises out of Title Suit No.214 of 1990 (32/1991) which was filed by the sole plaintiff-appellant-respondent 1st Set for the following reliefs:- (a) For declaration that Schedule III property was the purchased property of the plaintiff who was the absolute owner thereof. - 2 - (b) For declaration that sale deed dated 22.02.1955 executed by Hira Thakur in favour of Subba Thakur (predecessor of defendants 1st Set) was fraudulent, void, showy and illegal and was never acted upon and was not binding upon the plaintiff. (c) For declaration that sale deed dated 03.07.1990 executed by Ram Sakal Thakur in favour of defendant no.1 was forged, fraudulent, showy and without consideration and possession and not binding upon the plaintiff. (d) For confirmation of possession of the plaintiff over Schedule III land. (e) For permanent injunction restraining defendant 1st party from entering into any part of Schedule III property and also from disturbing the possession of the plaintiff and from cutting away trees standing thereon. (f) For recovery of cost of suit. (g) Any other relief to which the plaintiff is deemed entitled. 3. The said suit was contested by defendants 1 to 3 (defendants 1st Party). After considering the respective claims of the parties, learned trial court framed the following issues for deciding the title suit:- (i) Is the suit as framed maintainable? (ii) Has the plaintiff got cause of action for the suit? (iii) Is the sale deed dated 22.02.1955 executed by Hira Thakur in favour of Subba Thakur forged, illegal and inoperative? (iv) Is the sale deed dated 03.07.1990 executed by Ram Sakal Thakur in favour of defendants 1st Party showy? (v) Has the plaintiff got title to the land given in Schedule III of the plaint? (vi) Is the plaintiff entitled to confirmation of possession? (vii) Is the plaintiff entitled to an order of injunction restraining the defendants from coming over the suit land? (viii) To what other relief is the plaintiff entitled? 4. On the aforesaid issues evidences were led by the parties and arguments were made by their learned counsel, whereafter the learned 4th Additional Munsif, Motihari dismissed the suit on contest vide his judgment and decree dated 05.08.1991 after arriving at the following findings:- (a) There is nothing to show that sale deed dated 22.02.1955 (Ext.- B/1) is fraudulent and illegal and hence it is held to be illegal document. (b) Sale deed dated 03.07.1990 (Ext.B) is not a showy transaction. (c) No benefit can be derived by the plaintiff from deeds (Ext.-2 series) as he had himself made out a case that some mistake had - 3 - been committed by the scribe, but the said scribe was not examined. (d) Plaintiff has got no title over the suit land detailed in Schedule III of the plaint. (e) Plaintiff is not entitled to confirmation of possession. (f) There is no occasion to grant relief of injunction in favour of the plaintiff. 5. Against the aforesaid judgment and decree of the trial court, the plaintiff filed Title Appeal No.116 of 1981 (14/1993) and after considering the pleadings of the parties, the learned court of appeal below formulated the following issues for deciding the appeal:- (i) What was the area of suit land transferred to defendant nos.4 and 5 (defendants 2nd party) by maternal grand father Hira Thakur through the registered sale deed dated 06.01.1955? (ii) Whether defendant no.5 was minor on 25.01.1955 the date on which two kathas 11 dhurs of suit land was transferred to the plaintiff by defendant no.4 for himself and on behalf of the minor defendant no.5 as the Karta of the family? (iii) If it is so then whether the said sale deed dated 25.1.1955 (Ext.-2) is legal and valid one and that too for what area? (iv) Whether the sale deed dated 22.02.1955 and 03.07.1990 are sham, farzy and showy document? (v) Over what portion of the suit land, the plaintiff is entitled to get the relief? 6. After hearing the arguments of the parties and the materials on record, the learned 5th Additional District Judge, East Champaran, allowed the title appeal on contest against respondents no.1 to 3 and ex parte against the remaining respondents vide his judgment and decree dated 17.04.1998 reversing the judgment and decree of the trial court and decreeing the claim of the plaintiff after arriving at the following findings:- (a) Hira Thakur executed sale deed dated 06.01.1955 (Ext.-2/a) conveying title of only 2 kathas of land and not of 2 kathas 11 dhurs. - 4 - (b) From the evidence of both the sides, it is proved that defendant no.5 was minor in the year 1955. (c) Transfer made through sale deed dated 25.01.1955 (Ext.2) by defendant no.4 for himself and his minor brother (defendant no.5) is good and valid one. (d) Sale deed dated 22.02.1955 (Ext.-B/1) is good and valid document and it conveys title of 11 dhurs of suit land to defendants no. 1 to 3. (e) There was no source of income of the family except the traditional job, i.e. hair cutting, shaving and attending and doing miscellaneous works of marriage and shradh. (f) In view of the aforesaid transaction, nothing remained in the family for transfer by defendant no.5 and hence whatever defendant no.5 had transferred through sale deed dated 03.07.1990 (Ext-B) was inoperative and ineffective as there was nothing subsisting with him with respect to the said land for transfer. (g) Sale deed dated 03.07.1990 (Ext.-B) is sham, showy and farzi document and it conveys no title to defendant 1st party. (h) Plaintiff has title over southern 2 kathas 10 dhurs out of 3 kathas 1 dhurs of the suit land and on the rest northern 11 dhurs of the suit land, the title of defendants no.1 to 3 is declared. (i) Plaintiff is entitled to get relief as claimed by him, but in part, i.e. only over southern 2 kathas 10 dhurs of suit land. (j) Title of defendants no.1 to 3 over remaining northern 11 dhurs of suit land is declared. (k) Sale deed dated 22.02.1955 (Ext.-B/1) is declared legal and valid but sale deed dated 03.07.1990 (Ext.-B) is declared sham, showy and farzi document which is ineffective and inoperative in law. - 5 - (l) Possession of plaintiff over 2 kathas 10 dhurs is confirmed and defendants are restrained from interfering with his possession by grant of perpetual injunction. 7. Against the aforesaid judgment and decree of the lower appellate court, defendant 1st Party filed the instant second appeal which was admitted by this court vide order dated 14.01.2000 after framing the following substantial questions of law:- (i) Whether the lower appellate court was justified in reversing the finding of trial court with regard to Ext.B sale deed dated 03.07.1990 without giving cogent reason, appreciating and discussing the evidence on the issues? (ii) Whether the lower appellate court was justified in holding the Ext.-B sham and showy in view of the fact that the learned lower appellate court affirmed the finding of the trial court that Ext.-B/1 sale deed dated 22.02.1955 is legal and valid? 8. Before hearing of the second appeal started learned counsel for the appellant filed three more questions claiming to be substantial questions of law which are as follows:- (iii) Whether the lower appellate court is justified in holding that defendant no.5 Ram Sakal Thakur was minor in the year 1955 on the sole statement of P.W.4 when the trial court has not framed the issue and also without discussing the material facts and giving cogent reason in deciding the case. (iv) Whether without any prayer by the plaintiff to declare defendant no.5 minor and leading evidence in support of the same to prove a particular fact the lower appellate court is justified in giving its finding on the same? (v) Whether pleadings are required to be proved by leading evidence and so long evidence is not led in support of the pleadings, no reliance can be placed only on pleading without there being any cogent evidence in support of the pleading and the burden to prove a particular fact is always on the person who alleges the same? 9. The learned court of appeal below after considering the entire facts and circumstances of the case and the pleadings and evidence of the parties has come to the specific conclusion that the owner of the entire 2 Katha 11 dhurs of land was Hira Thakur and registered sale deed dated 06.01.1955 (Ext.-2/a) along - 6 - with other evidence fully proved that Hira Thakur had transferred only 2 Kathas of land in favour of defendants no. 4 and 5 and hence registered sale deed dated 25.01.1955 (Ext.2) executed by defendant no.4 for himself as well as for minor defendant no.5 in favour of plaintiff was legal and valid with respect to 2 kathas only. It was also held that in the aforesaid circumstances registered sale deed dated 22.02.1955 (Ext.B/1) executed by Hira Thakur in favour of the predecessor of defendant 1st Party was legal and valid with respect to his remaining 11 dhurs of land. But thereafter no land remained to be transferred by sale deed dated 03.07.1990 ( Ext. B) which was thus illegal, inoperative and sham. 10. The learned court of appeal below also found from the evidence on record that the sale deed dated 14.02.1955 (Ext.-2/c) executed by the mother of defendants no.4 and 5 with respect to 2 kathas of suit land can at least be treated as an acknowledgement of the transfer made through sale deed dated 25.1.1955 (Ext.-2) and hence by that time the plaintiff was fully aware about the transfer of only two kathas of suit land to him, but in spite of the said knowledge, he did not take any step for rectification of the alleged mistake claiming 2 katha 11 dhurs, rather mutation with respect to only 2 kathas was done in his name and he has been paying rent to the Government to that effect. Hence, the learned court of appeal below held that the transfer made to defendants no.4 and 5 by Hira Thakur was only for two kathas and the plaintiff cannot make any claim for more than the said area and hence their claim over 2 kathas and 11 dhurs of land has been falsified and the plaintiff can raise claim only with respect to 2 kathas of land. 11. So far substantial questions of law no. (iii), (iv) and (v) are concerned, the learned court of appeal below has considered all the evidence on record, including oral and documentary, and only thereafter came to the conclusion that defendant no.5 was minor in the year 1955. Furthermore, the said issue was a very relevant issue for the said purpose on which evidences were led by both the parties and even if the trial court had not framed any issue with - 7 - respect thereto, it was necessary for the lower appellate court to decide the said matter on the basis of the pleadings and evidence on record, which was essential for considering the validity of the sale deed in question which was under challenge. Furthermore the said finding is a finding of fact arrived at by the learned court below after fully and properly considering the pleadings and evidence of the parties. Hence, it requires no interference. 12. So far substantial questions of law no. (i) and (ii) are concerned, it is quite apparent that the land involved was 2 katha 11 dhurs and the maternal grand father of defendants no.4 and 5, i.e. Hira Thakur, transferred only 2 kathas of the suit land vide deed dated 06.01.1955 (Ext.2/a) and hence 11 dhurs of the suit land remained with Hira Thakur which he subsequently transferred to the father of defendant no.1 vide deed dated 22.02.1955 (Ext.-B/1). Thus, it was rightly held that the said sale deed dated 22.02.1955 (Ext.B/1) was legal and valid with regard to 11 dhurs of suit land. It has also been found that sale deed dated 25.01.1955 (Ext.-2) with regard to two kathas was executed by defendant no.4 for himself and also on behalf of his minor brother defendant no.5 to meet the expenses of the family and repairing of the family house and the family had no source of income except the traditional profession of hair cutting, shaving etc. and hence it was necessary to transfer the suit property for meeting the legal expenses of the family. Defendant no.5 had never raised any objection to the said sale deed even after attaining majority. In the said circumstances, it is quite apparent that there remained nothing in the family out of the said 2 kathas 11 dhurs of land to be transferred and hence transfer made by defendant no.5 vide sale deed dated 03.07.1990 (Ext. B) was rightly held by the learned court of appeal below to be inoperative and ineffective as there was nothing subsisting with him in respect to the said land to be transferred. Thus, the learned lower appellate court rightly held that the said sale deed was sham, showy and farzi conveying no title to the defendants no.1 and 3. - 8 - 13. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgment and decree of the learned court of appeal below, nor the appellants have succeeded in substantiating the questions raised by them as mentioned above. Accordingly, this second appeal is dismissed, but in the facts and circumstances of this case, there will be no order as to cost. ( S. N . Hussain, J.) Patna High Court. Dated, the 22nd May, 2009. N.A.F.R. Sunil.