© e ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR, C.G. iAL N0. <^£4 ^004 appeal Under section 100 of Civfl Procedure Code) PLAINTffT Smt- Kachara Bai, aged about 40 years, Abhiram Sahu, R/'o vitlage Daspur, Tahsil aad Distt. Ka&er. C.G. VERSUS )ENTS : D^VislmuR3m,agedabout50years DEFENDANTS S/o Dayaram R'o ViUage Daspur Tahsfl & Distt. Kanker. C.G. Stale of Chhattisgstrh fhrough Cotlector Kariker, Distt. Kanker (C.G.) ^yi ^f y^^" . .^A/-" ^. ^p ^?--' <^6e' v ^^ Sntf. Dhanwanti Bai, aged aboiit 25 years, Wife of Ishwarlal Sahu, Village Daspur, Tah & Distt Kanfeer, C.G. SECOND APPEAL UNDER SECTION 100 OF CFVIL PROCEDURE iti HIGH COURT OF JUDIGATURE AT BILASPUR(C.G) SECQND APPEAL No.266 OF 2004 Sm.t. Kachara Bai Vs. Visluiu Ram. & two oftiers QRDER Postfor (^-.12.2004. Sd/- Sunil Kumar Sinha Judge f.;. . . i '' "y HIGH COURT OF JUDICATURE AT BILASPUR(C. G) SECOND APPEAL No.266 OF 2004 Snit. Kachara Bai Vs. Vishnu Ram & two ofhers Shri Vishnu Koshta, counsel for fhe appeUaat Suail Kumar Sinha, J, JUDGMENT ( iy-12.2004) Heard on fhe question of adinission. (2) Being aggricved by fhe judginent aad decree dated 05.4.2004 passed in CivU Appeal No.41-A/2002 by fhe Third Additional District Judge (FTC) Kanker, arisin.g out ofjudginent and decree dated 16.1.2001 passed in Civil Suit No.2-A/1995 by fhe Civil Judge, Class-II, Kanker, the plauittffhas filed fhis second appealu/s 100 offhe CodeofCivilProcedure. The suit ofthe plaiutiffwas disinissed by fhe tnal Court and fhereafter the judginent aud decree passed by the trial Court was confinned by the lower appellate Court. As such, the plaintiff lost in. both the Courts. (3) The Plamtiff namety Kachara Bai filed a suit for settins aside the Registered Sale Deed dated 24.11.1986 executed by her fafher namely Abhiraai ia favour of defendant No.l in relation to KhasraNos. 115 and 116 area 2.00 acres situated at Vfflage Daspur, P.H.No.33, R.I. Circle KaiLker, Tahsil Kanker -'2-- •d u' (C.G). She also prayed for fhe reUefofrestoration ofpossession aad fhereafter pennanent iujunction. (4) The plaint aUegations are fhat the suit lands were self- acquired property of her father naiaely late Abhiram. The further aUegations are ffaat the aforesaid sale deed dated 24.11.1986 was got executed by defendaat no.l ia his favour by playiug sonie fraud against Tiim. The sale consideration was also not given to her fafher. It is also stated that his father was not iQentaUy fit to execute aay such docuiaent. It is also contended that when she caaie to kuow about the execution of fhe sale deed, a viUage Paachayat was held iu fhe year 1992 aad a docuinent was executed ia the said Panchayat which contains that iu fact the sale cousideration was not paid by the defendaut no. 1 to .her father. This docuuient contams the signature of defeadaat no. 1. (5) Defendaat no. 1 filed fhe written statenient denying fhe contentions of the plaintiff. He contended tbat the fafher of plam.tifi' naniely late Abhiram. was not a person of unsound iniad. He received the ftdl consideration aud then only a valid sale deed was executed in his favour. The possession of fhe land was also deUvered to hiia. He derded the Vfflage Panchavat axid also denied fhe docunients relied on bv ftie plainttff. (6) Leamed trial Court feamed various issues aad after recoidiug evidence of fhe parties, disinissed fhe suit of plaijitiff holding fhat neither fhesale deed was obtauied by fraud, aor fhe seUer was of unsound iniud. The sale deed dated '<•< -3- 26.11.1986 was a genuiae docuinent aad the sam.e cannot be set aside. The plauitiff was not entifled to the reUef of declaration or any ottier relief as has been claimed by her. (7) Against fhe judginent and decree passed by fhe trial Court, the plaiatiff ffled aa appeal before the loiwer AppeUate Court but fhe lower appeUate Court also disirdssed the appeal and confinned fhe judgnient and decree passed by fhe trial Court. (8) Havuig lost iu both fhe courts ,below, now fhe appellaiit/plaiutiff has conie up in second appeal before this Court. Leamed counsel for fhe appeUaat subinits that fhe findiag recorded by fhe two courts below ia relation to genuiaeness of tfae sale deed aiid also in relation to fraud as well as non-passing of consideration, are perverse. No valid docuiaent was executed by late Abhu-ain iu favour of defendant no. 1 aad no legal tifle has been transferred to him. (9) I have gone ttu-ough ftie records of fhe Courts below and have also perused fhe judginent and decree passed by theni. First ofall, I would Uke to refer to ajudgment, fhough available as a short-note (Note no. 154) m 1960 SSFLJ /Sundcrlal -Vs- Anap KvnuitV Bai) is. which it has been held that "an attack on the sale deed on account of fraud and want of consideradon, the grounds are only available to a party to fhe sale deed alone and fhe straager to ta-ansaction caanot attack the sale deed on fhese grounds." Adinittedly, iu fhe picsent case fhe sale deed was executed by the fafh.er of fhe appeUant and after the deafh of her father onfy, the appellant | has IIIUi -'l- challenged the vaMdity of the sale deed on tbe ground of fi-aud aud also on the ground of non-passiug of consideration. In fhe opiaion of fhis court, the appeUaat beiag the fhlrd party in the tiaasaction was haviug no ri^ht or authority to chaUenge the sale deed on account of fi-aud or on the grouiid of non passiag of consideration. Hence the siiit itselfwas not inaiatauiable on fhese grounds. (10) Not only fhis, I have also gone through the evidence in fhis case and have also perused fhe docuineilts. Thc trial Court has considered fhe entire evidence 'on record and has cqpie to conclusion fhat a valid docuiuent was executed by the father of plaiatiff ui favour of defendaat no.l and a valid title was traasferred to him. About fhe vUlage Pauchayat and fhe docuinent executed iu Paachayat (Ex.P.11) which bears signature of defendaat no. l, it would be sufScient &r fhis Court to say that fhe defendant no. l, in his cross examiaation vide para 3 has speciflcally stated that fhis signature was obtained by fhreateniag hun and by pressurizing Tiim (Please see para 3 of the stateiaent of D.W.l). In the light of above evidence, fhis dociunent has got no relevaace. So far as fhe plea of mental unsoundness of the seUer is concemed, no evidence has been led by the plaiutLff ia this regard. It is a frivolous ground taken by the plaiatiffiu her suit after such a long tune, which caruiot be sustaiued on fhe face of sale deed which has been produced as Exhibit D-1ia this case. The first appeUate Court also considered these aspects ofthe niatter and has concurreiitly agreed to the fmduigs recorded by fhe |tnal -9- •I" Court iu relation to fhe allegations of fi-aud aad also in relation to non passiag of consideration. These findings are fixidiags of facts and both fhe courts below have held fh.at neither fhe fraud was played nor it was estabUshed that the ainouat of consMeration was not given to fhe seller. Siace concurrent fiudiags have been recorded by fhe two Courts below, this Court is of fhe opiaion that the saiue should be upheld aad should not be disturbed as the learued counsel for the appeUarit failed to poitlt out aay perversity ui fhe said findiugs. (11) Admittedly, this^an appeal u/s 100 ofC.P.C. Hoa'ble the Apex Court has held fhat under Section. 100 of fhe Code of CivU. Procedure, the jurisdiction of flie Court to entertain a second appeal is coilfined only to such appeals which involve a substautial question of law aad it does not confer auy jurisdiction on fhe H^h Court to interfere wifh the pure questions offactwhile exercisiug its jurisdiction u/s 100 C.P.C (PIecise sce itoop Sin.gh IDecid) throush LRs -Vs- Ram. Slngh (Dead) throuah LRs reported ia 12000) 3 SCC 708. It is also to be noted that fhe existeace of substautial question oflaw is fhe sine qua non for fhe exercise of jurisdiction under fhe amended provisions of Section 100 of fhe Code of Civfl Procedure aad uiiless such questions are iavolved, the appeals are not to be entertaiaed (Pleeise see Thiagareifein and others Vs. Srl Venuaopeilciswtmw S. Koll <uid others reported iu (2004) S SCC 7'62t. (12) Havtng heard leamed couasel for the appellant aud considering fhe facts and circuin.staaces of the case, entire inaterial on record and ia view of fhe decisions of fhe Apex Coi.irt referred to above, in fhe opiaion of this Court, there is no perversity ia the findings of fact recorded by fhe two Courts below aad no substaatial questions bf law are involved for consideration in fhis second appeal. In fhe result, this appeal filed u/s 100 ofC.P.C. has no force aad the saiue is dismissed at the adnussion stscge itselfwith no orders as to the costs. Sd/- Sunil Kumar Sinha Judge ~ 'T'— c^cf