IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.89 of 2005 ---------- Kalawati Devi wife of Dadan Singh, alias Ajit Kumar Singh, resident of Village Nirmalpur, P.O. Barka Dumra, P.S. Ara Moffasil, District Bhojpur, at present residing at M.P. Bagh, Ara, P.S. Ara Town, District Bhojpur ( Bihar ). …Defendant no.1-Appellant-Appellant versus 1. Dipjharo Devi, wife of Balram Singh, resident of village Brka Lauhar, P.S. Barhara, District Bhojpur, at present residing at village Nirmalpur, P.S. Ara Moffasil, District Bhojpur. …Plaintiff no.2-Respondent no.2-Respondent 1st set. 2. Dadan Singh alias Ajit Kumar Singh, son of late Baleshwar Singh, Village Nirmalpur, P.O. Barka Dumra, P.S. Ara Moffasil, District Bhojpur, at present residing at Muhalla M.P. Bagh, Ara, P.S. Ara Town, District Bhojpur ( Bihar ). 3. Anant Kumar Singh, son of late Baleshwar Singh, resident of Village Nirmalpur, P.O. Barka Dumra, P.S. Ara Moffasil, District Bhojpur, at present residing at Muhalla M.P. Bagh, Ara, P.S. Ara Town, District Bhojpur ( Bihar ). 4. Ajay Kumar Singh, son of Anant Kumar Singh, resident of Village Nirmalpur, P.O. Barka Dumra, P.S. Ara Moffasil, District Bhojpur, at present residing at Muhalla M.P. Bagh, Ara, P.S. Ara Town, District Bhojpur ( Bihar ). ….Defendants-Respondents-Respondents 2nd set. ----- For the appellant : M/s Arun Kumar Singh No.4, Sushil Kumar Singh and Dharmendra Kumar Singh, Advocates. For the respondents: None. ------ 09/ 12.01.2010 Heard learned counsel for the appellant. 2. This second appeal has been filed by defendant no.1-appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 120 of 1991, which was filed by plaintiff-respondent-respondent no.1 for the sole relief of declaration that the deed of gift dated 08.12.1988 executed by Ramuni Kuer, said to be the widow of late Ram Lakhan Singh, 2 and Shyam Sundari Kuer, said to be the widow of late Triveni Singh in favour of Kalawati Devi, wife of Dadan Singh and Ajay Kumar Singh son of Anant Kumar Singh (defendants no.1 and 4) were fraudulent and fit to be set aside. The said suit was decreed on contest by the learned Execution Munsif, Arrah vide his judgment and decree dated 11.12.2002. 4. Against the aforesaid judgment and decree of the trial court, defendant no.1-appellant filed Title Appeal No. 05 of 2003, which was dismissed on contest by the learned 3rd Additional District Judge, Bhojpur vide his judgment and decree dated 11.11.2004. Against the aforesaid judgments and decree of the learned courts below in the instant second appeal has been filed. 5. Learned counsel for the appellant vehemently challenges the aforesaid judgments and decree of the learned courts below and raises four points for consideration claiming them to be substantial questions of law. The first question raised by learned counsel for the appellant is that the suit was barred by the provision of section 34 of the Specific Relief Act as plaintiff was not in possession of the suit land. The second question raised by learned counsel for the appellant is that the judgment of the learned court of appeal below was cursory without any specific issue and finding and it was violative of provision of Order LXI Rule 31 of the Code of Civil Procedure (hereinafter referred to as `the Code’ for the sake of brevity ). The third question raised by learned counsel for the appellant is that the learned court of appeal below had wrongly 3 assumed that the gift-deed was void as it was without any permission/sanction from the consolidation authorities, as P.W. 2 in paragraph no.3 of his cross-examination had admitted that in the year 1988 Ram Sundari Kuar executed a sale-deed in favour the said witness without permission of consolidation authority because final chak had been decided and as such there was no necessity of any permission from the authority concerned. The fourth question raised by learned counsel for the appellant is that the deed of gift was executed by Ramuni Kuar and Shyam Sundari Kuer, who were the owners of the suit property and hence there was no occasion for the learned courts below to declare it as a void document. 6. So far the first question raised by learned counsel for the appellant is concerned, the suit was filed by plaintiff- respondent merely for a declaration that the deed of gift dated 08.12.1988 said to have been executed by Mostt. Ramuni Kuer and Shyam Sundari Kuer in favour of Kalawati Devi and Ajay Kumar Singh was void and fraudulent. No other relief having been claimed, the suit was merely a declaratory suit. Furthermore the legality or otherwise of a document was not dependent on possession only specially when no such issue was framed in the title suit or in the title appeal even at the instance of the defendants and there was also no finding of the learned courts below with respect thereto. In the said circumstances, the suit being only declaratory in nature, provision of section 34 of the Specific Relief Act in the facts and circumstances of the case is not attracted. 4 7. So far the second question raised by learned counsel for the appellant is concerned, from a perusal of the judgment of the learned court of appeal below it transpires that in paragraph no.7 of its judgment, it had framed two specific issues for deciding the title appeal and both the issues had been elaborately considered in accordance with law by the said court in paragraphs no.8 and 9 of its judgment. In the said circumstances, there is no violation of the provision of Order XLI Rule 31 of the Code. 8. So far the third question raised by learned counsel for the appellant is concerned, it is true that in paragraph no. 6 of its judgment, the learned trial court has found that P.W.2 Basant Kumar Singh stated in paragraph no.3 of his cross-examination that in 1988 Ram Sundari Kuer executed a sale-deed in favour of the said witness without permission of consolidation authorities because final chak was decided, therefore, there was no necessity of any permission from the authority. However, there was no occasion for the Court to accept the contention of the said witness when it was specifically against the specific provisions of law, which provides that when consolidation proceeding starts in the area, it continues up till the final publication under section 26A of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 ( hereinafter referred to as `the Act’ for the sake of brevity ) and up till then permission has to be taken for any transfer by way of sale or gift. However, in the instant case, the said witness had stated that final chak had only been decided, i.e. the proceeding only up till 5 section 13 of the Act had continued by then, but there is no mention at all that any publication under section 26A of the Act had been made with respect to the said village or area. In the said circumstances, no help can be taken by the appellant from the said statement of P.W.2 and the learned courts below were quite justified in holding that the deed of gift was in violation of the specific provisions of the Act. 9. So far the fourth question raised by learned counsel for the appellant is concerned, with regard to the sale deed dated 08.12.1988, the learned courts below have very carefully considered the reasons and evidence of the parties and, thereafter, had come to the specific finding that Ram Sundari Kuer was the widow of Triveni Singh, which was supported by the Pension Book (Ext.1) and Ration Card ( Ext. 4), whereas, there was no valid or reliable material to show that the said Triveni Singh had a wife by the name of Shyam Sundari Kuer and reliance of the appellant upon a voter list cannot be of any help in view of the aforesaid documents and also on the face of the fact that at no place Ram Sundari Kuer and Shyam Sundari Kuer had been mentioned together as widow of Triveni Singh. In the said circumstances, the learned courts below were quite justified in holding that Shyam Sundari Kuer, executant of the deed of gift in question, was not the widow of Triveni Singh, rather his widow was Ram Sundari Kuer. 10. The learned courts below also found that the other executant of the deed of gift in question, namely, Ramuni Kuer 6 neither appeared before the concerned officer nor appeared before the trial court for evidence or for any other purpose and it was fully proved by the evidence on record that she was missing for more than seven years at the time of execution of the deed of gift in question and merely some imposter had executed the document in question in favour of the defendants. These findings are concurrent findings of facts arrived at by the learned courts below on the basis of specific materials on record in accordance with the provisions of law. 11. In these circumstances this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code. MPS/ ( S. N. Hussain, J. )