IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.328 of 2009 Hemanti Devi & Ors Versus Rajendra Thakur & Ors ---------------------------------- O R D E R 12. 27/09/2011 1. I have heard the learned senior counsel Mr. S.S. Dvivedi on behalf of the appellants and Mr. Rajendra Narayan on behalf of the respondents under Order 41 Rule 11 C.P.C. 2. The plaintiffs appellants appellants have filed this second appeal against the judgment and decree dated 21.3.2009 passed by the Additional District Judge, Fast Track Court No.1, Siwan in Title Appeal No. 46 of 2003 confirming the judgment and decree dated 5.9.2003 passed by 2nd Munsif, Siwan in Title Suit No. 214 of 1989. 3. The plaintiffs appellants filed the aforesaid title suit for partition claiming 2/3rd share in the suit property. The suit property is only one plot i.e. Plot No. 642. 4. The plaintiffs’ case in short is that Raghunandan Thakur died leaving behind three sons namely, Sheodhari Thakur, Dharikchan Thakur and Nema Thakur. Sheodhari Thakur died leaving behind a son Bishwanath Thakur who in turn died leaving his son Rajendra Thakur, who is defendant No.1. The second 2 son namely Dhanikchan thakur died leaving behind his three sons who are plaintiffs 1 to 3. The 3rd son Nema Thakur who also died leaving behind Gouri Shankar Thakur who also died leaving behind his widow Ram Sawaro Devi. The three sons of Raghunandan Thakur have 1/3rd share in the suit property. The share of Dharikchan Thakur is in possession of plaintiff and the share of Nema Thakur was in possession of Ram Sawaro Devi. On 5.5.1976 Ram Sawaro executed a deed of gift of the property of Nema Thakur in favour of Sri Ram Sharma and Sri Ram Sharma came in possession and, therefore, the plaintiffs have got 1/3rd share of Dharikchan thakur and 1/3rd share of Nema Thakur and, prayed for 2/3rd share out of the suit property. 5. The defendants respondents respondents’ case in short is that Gouri Shankar Thakur son of Nema Thakur died leaving his widow Ram Sawaro Devi and on the death of Gouri Shankar Thakur his widow Ram Sawaro Devi became traceless. The gift deed dated 15.5.1976 is forged and fabricated and not executed by Ram Sawaro Devi. Some other lady might have impersonated her. The suit land i.e. Plot No. 642 is the purchased land of Nema Thakur. Defendant No.1 exchanged 2 kattha 10 dhur from Gouri Shankar Thakur out of this plot No. 642. The defendant Nos. 2 and 3 filed written statement alleging that Nema 3 Thakur had a son Gauri Shankar Thakur and one daughter Laxaminia Devi and defendant no.2 is the son of Laxaminia Devi and defendant No.3 grand son of Laxaminia Devi. Ram Sawaro Devi had no right, title to execute the land through gift deed. In the gift deed wrongly Sri Ram Sharma is described as adopted son of Gouri Shankar Thakur. The land was exchanged with defendant No.1. 6. After trial the learned court below found that the suit property is the self acquired property of Nema Thakur. The learned court below also found that Laxaminia Devi was the daughter of Nema Thakur. The learned court below also found that the alleged donee Sri Ram Shamra is not a party to the partition suit and, therefore, the plaintiffs have no right to claim any share in the suit property because on the death of Nema Thakur the property devolved on Gouri Shankar Thakur and Laxaminia Devi. On the death of Gouri Shankar Thakur the property was inherited by his widow Ram Sawaro Devi and the defendant Nos. 2 and 3 as Laxaminia Devi also died. The learned court below found that so far exchange is concerned it is between the defendant No.1 and defendant No.2 and 3. On these findings the suit was dismissed. The appellate court also found that Laxaminia Devi was the daughter of Nema Thakur and the defendant No.2 is son of Laxaminia Devi. The appellate court also found that PW 4 1 who has been examined as Ram Sawaro claiming herself to be the widow of Gouri Shankar Thakur is in fact wife of plaintiff No.1 Ramraj Sharma and their son is Sri Ram Sharma, the alleged donee. The appellate court found that the plaintiffs approached the court with uncleaned hand with ulterior motive. The learned court below also found that Ext.3 gift deed has not been acted upon. The learned appellate court also found that the plaintiffs did not make Ram Sawaro Kuer as party in the partition suit and Sri Ram Sharma the alleged donee is not party in the partition suit and the gift deed is doubtful. On these findings the appeal was dismissed. 7. The learned senior counsel Mr. Dwivedi submitted that the judgment of the courts below is vitiated because of the fact that the courts below accepted the case of exchange without there being any registered documents. According to the learned counsel value of the land exchanged is beyond Rs. 100/- therefore, it could be made only by registered deed and not otherwise. So far this substantial question of law raised by the appellant is concerned, in my opinion, it does not arise in this appeal. It has been held that the suit property is the self acquired property of Nema Thakur by both the courts below. On the death of Nema Thakur the property will devolve on his son and daughter i.e. Gouri Shankar Thakur and Laxaminia 5 Devi. On the death of Gouri Shankar Thakur his property will go to his widow Ram Sawaro Devi. According to the plaintiffs Ram Sawaro gifted the properties to Sri Ram Sharma. It may be mentioned here that Sri Ram Sharma was neither the plaintiff in the suit nor party before the first appellate court. In such circumstances, whether there was exchange or no exchange the property will never go to the plaintiffs. The plaintiffs have filed this suit for partition simplicitor. Before this Court at the time of hearing of this second appeal an application under Order 1 Rule 10 of the Code of Civil Procedure was filed by the appellant praying therein to add the alleged donee Sri Ram Sharam as appellant. In my opinion, because of the fact that Sri Ram Sharma has been added as appellant at the second appellate stage the impugned judgment and decree passed by the courts below cannot be set aside on the ground that the gift made by Ram Sawaro Devi will be valid to the extent of her share in favour of Sri Ram Sharma. From perusal of the impugned judgment it appears that the learned court below has given a finding that Ext.3 is doubtful as it was not acted upon. The learned court found that the defendant No.1 is in possession of the gifted property. For coming to these findings, the court below has considered the evidences and materials available on record. 6 8. The learned counsel next submitted that reasoning given by the learned appellate court is not acceptable. The finding regarding deed of gift Ext.3 is not only perverse rather shows the bias operating in his mind against the plaintiffs and, therefore, the judgment is vitiated in law. This substantial question of law has been formulated at paragraph 3 of the memo of appeal. So far this substantial question of law raised by the appellants is concerned also I find that it does not appear in the present appeal. Admittedly, the alleged donee Sri Ram Sharam was not the plaintiff or appellant in the lower appellate court. The lower appellant court specifically framed a point for consideration vide paragraph 11 (D) of the judgment. This point is “whether Ram Sawaro Kuer was the wife of Ramraj Thakur or Gouri Shankar Thakur”. After appreciation of evidences and materials available on record at paragraph 18 the appellate court considering the fact observed that this fact indicates that Ram Sawaro is not the wife of Gouri Shankar Thakur. The plaintiffs has presented ration card Ext.-5 wherein the name of Ram Sawaro Kuer stands as wife of Ram RaJ Sharma and, therefore, the point i.e. Point No. D has been decided against the appellants. In view of these findings of appellate court it may be mentioned here that PW 1 has been examined as Ram Sawaro Kuer claiming herself to be the wife of Gouri Shankar 7 Thakur. The learned lower appellate court considered the evidence of PW 1 and the evidences produced by the parties and found that PW 1 is not the wife of Gouri Shankar Thakur. This question is pure question of fact based on evidences available on record. Therefore, in second appeal this finding of fact cannot be interfered with. Now therefore, the finding of the lower appellate court is that PW 1 is not the widow of Gouri Shankar Thakur. The lower appellate court also at paragraph 14 found that the suit plot No. 642 is in possession of Rajendra Thakur. In such circumstances, it cannot be said that the finding of the learned lower appellate court is perverse. 9. In 2009 (11) SCC 1 Rur Singh (dead) through LRs. And others Vs. Bachan Kaur the Hon’ble Apex Court has held that a finding of fact arrived at by trial court and/ or first appellate court may be interfered with only when a substantial question of law arises for consideration. In that case, it appears that the question is as to whether a will had been duly proved and/ or otherwise genuine was under consideration. The Apex Court has held that the said question is essentially a question of fact. It is well settled principles of law that perversity itself is a substantial question of law. According to the learned counsel the finding of the court below is perverse. Here the substantial question No.2 framed by the appellants 8 is relating to the genuineness of the gift deed Ext.-3. Therefore, the finding regarding genuineness or otherwise of the gift deed is essentially a question of fact. In view of the finding of fact that the property is in possession of defendant No.1 and that PW 1 so called Ram Sawaro is not the wife of Gouri Shankar Thakur the only conclusion is that the gift deed executed by PW 1 in favour of Sri Ram Sharma will be invalid. Therefore, in my opinion, this substantial question also does not arise in this appeal. 10. The learned counsel next submitted that the judgment of the courts below particularly, the appellate court is vitiated on account of commission of errors of record, on surmises and conjectures as well as making out of a third case without there being any pleading therefore, the impugned judgment and decree are liable to be set aside. So far this substantial question is concerned it has been raised in paragraph 4 of the memo of appeal. In my opinion, this substantial question also does not arises in this case. In the present case, both the courts below found that the suit property is the self acquired property of Nema Thakur. In (2009) 3 SCC 287 Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi the Apex Court has held that issue whether property is joint Hindu family property is a question of fact and not a substantial question of law. The finding of fact arrived at by first appellate court 9 based on evidence cannot be termed as perverse. Therefore, the present finding regarding self acquisition is concerned it is pure question of fact. Now therefore, if the property was self acquired property of Nema Thakur then the property will devolve on the legal representatives of Nema Thakur who are either son or daughter or grandson or widow of Gouri Shankar Thakur. The property will never go to the plaintiff. The plaintiffs never claimed title on the basis of Ext.-3 gift deed. Moreover gift deed Ext.-3 in favour of Sri Ram Sharma who was not party to the suit or before first appellate court. For the first time before this court he has been added as appellant. In such circumstances, only because he has been added as party appellant it cannot be said that the impugned judgment and decree are perverse. Admittedly, the suit has been filed for partition only. As stated above the original plaintiff Nos. 1, 2 and 3 have no interest at all in the suit property. They have failed to prove that the suit property is the joint family property. Sri Ram Sharma is not claiming title on the basis of Ext.-3. Moreover, according to the plaintiff Ram Sawaro was alive but she was not added as party in the suit. Therefore, the finding of the court below that the plaintiff approached the court with uncleaned hand appears to be correct. 11. The learned counsel for the appellants submitted that no issue regarding genuineness or 10 correctness of Ext.-3 was framed by the court below but findings have been recorded. So far this submission is concerned also in my opinion, has got no merit because the parties were knowing the case of each other. The plaintiffs themselves asserted that Ram Sawaro gifted the property of Nema Thakur in favour of Sri Ram Sharma. This allegation was disputed by the defendants. Therefore, this is not a surprising defence taken by the defendants at the time of adducing evidence. The parties were knowing the case. In such view of the matter, only because the court below had not framed an issue no prejudice has been caused to the parties and/or therefore, it cannot be said that the learned court below made out a third case. 12. From perusal of the impugned judgment and decree it appears that the findings recorded by the courts below are based upon acceptable evidence and supported by cogent and convincing reasons and findings recorded are pure finding of fact. In such circumstances, the findings recorded by the court below cannot be interfered with on the ground that the findings are erroneous. In (2008) 17 SCC 638 Babulal and others Vs. Shankarlal and others the Apex Court has held that assuming that the finding of the first appellate court on the basis of the evidences was erroneous that itself was not a ground for the High Court to interfere with the judgment of the first 11 appellate Court particularly, in the absence of any substantial question of law that arise for consideration. In other words, even if the findings are erroneous it cannot be interfered with in second appeal. 13. The learned counsel relied upon (2010) 13 SCC 216 Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and others (paragraph 28) and submitted that the findings recorded by the court below are perverse. From perusal of this judgment of the Apex court it appears that the Hon’ble Apex Court has explained what is the meaning of perverse. In the present case at out hand from perusal of the impugned judgment and decrees it appears that the learned court below have considered all the evidences and materials on record. It is not the case that the finding of fact is based on no evidence or based on evidences which are inadmissible or that the findings are recorded on surmises and conjectures. 14. Considering the above facts and circumstances of the case, I find that the second appeal is concluded by finding of fact based on materials available on record. Therefore, no substantial question of law is involved. Accordingly, this second appeal is dismissed under Order 41 Rule 11 C.P.C. S.S. (Mungeshwar Sahoo, J.)