FIRST APPEAL No. 637 OF 1985 Against the judgment and decree dated 20.07.1985 passed by Sri Danial Borla, 3rd Additional Subordinate Judge, Gopalganj in Title Suit No. 133 of 1978. SAMPATI DEVI & OTHERS …… Defendants/Appellants Versus SMT. PHULPATI DEVI & OTHERS …… Plaintiffs/Respondents ******** For the appellants : Mr. Manan Kumar Mishra, Sr. Advocate. For the respondent No.1 : Mr. Y.B. Giri, Sr. Advocate. Mr. Raju Giri, Advocate. Mr. Nikhil Agrawal, Advocate. For the respondent No.3 & 4 : Mr. Nagendra Rai, Advocate. Mr. Prabhakar Nath Rai, Advocate. Mr. Navin Nikung, Advocate. =============================================== Dated : 20th day of September, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendant Nos. 2 to 5 have filed this appeal against the judgment and decree dated 20th July 1985 passed by Sri Danial Borla the learned 3rd Additional Subordinate Judge, Gopalganj in Title Suit No. 133 of 1978 dismissing the plaintiff respondent No.1’s suit for partition. 2. The plaintiff respondent No.1 Smt. Phulpati Devi filed the aforesaid Title Suit No. 133 of 1978 against Smt. Rampati Devi. Mungeshwar Sahoo, J. -2- Originally only Rampati Devi was the defendant. It appears that subsequently the purchasers from defendant No.1 Rampati Devi were added as defendant Nos. 2 to 5. It further appears that subsequently the defendants 2nd set namely Brija Lal, Bhukh Lal, Jugal Lal and Awadhesh Lal were also added. 3. The plaintiff Phulpati Devi filed the suit claiming half share in the suit property alleging that Rajbali Lal who is father of plaintiffs and defendant No.1 was owner of the suit property. He died in 1968 leaving behind his widow Phekna Kuer and the plaintiffs and defendant No.1. Subsequently Phekna Kuer also died and the plaintiffs and defendant No.1 became the joint owner of the suit property as Rajbali Lal and Phekna Kuer had no male issue. Therefore, the plaintiffs claimed half share in the suit property. 4. The defendant No.1 filed contesting written statement. Her main defence is that her mother Smt. Phekna Kuer succeeded to the entire property of Rajbali Lal after his death and then she gifted the land of Rajbali Lal to the plaintiff and defendant i.e. her two daughters by a registered gift deed and according to that gift the defendant No.1 Rampati Devi got 4 bigha 1 kattha 15 ¾ dhur out of the suit property and Phulpati Devi, the plaintiff got 18 kattha 14 ¼ dhur only. Therefore, there is no unity of title and possession between the parties. She has sold entire property which she got through the gift deed to the defendant No.2 to 5, who are in possession. 5. The defendant Nos. 2 to 5 also filed separate contesting written statement. Their main defence in short is that Rajbali Lal never died in 1968 rather he died 26–27 years ago. According to them he died prior to Hindu Succession Act, 1956 came into force. Therefore, Phekna Kuer only inherited the property. Thereafter after -3- coming into force of Hindu Succession Act, 1956 she became the absolute owner. On 31.3.1971 she executed a registered gift deed in favour of plaintiff and defendant No.1 as stated by the defendant No.1 in her written statement. The defendant No.1 sold her property which she got through the gift deed to the defendant Nos. 2 to 5 by executing two registered sale deeds dated 1.11.1978. After purchase they are coming in separate and exclusive possession of the property which they have purchased. There is no unity of title and possession between the parties. 6. The defendants 2nd set filed separate contesting written statement. Besides taking various legal pleas their main defence is that the father of Rajbali Lal were four brothers namely, Naubat Lal, Ganga Lal, Daulat Lal and Ram Baran Lal. There had been no partition between the said four brothers and still the khatiyan is joint. Naubat Lal gifted his 1/4th share to Rajbali Lal. The heirs of Daulat Lal and heirs of Ram Baran Lal sold their share to Bhukhal Lal. Lal Babu alias Lallan Prasad sold the land to Awadhesh Prasad. In view of these facts unless all of them are made party defendants in this suit, the partition suit will not proceed as it is bad for non-joinder of necessary party. Their further case is that Rajbali Lal had three daughters namely Smt. Phulpati Devi, the plaintiff, Smt. Rampati Devi i.e. defendant No.1 and third daughter namely Panmati Devi. Lal Babu alias Lallan Prasad is the son of this third daughter of Rajbali Lal. Panmati Devi was married with Ayodhya Prasad who is own brother of Hridaya Lal. Hridaya Lal is the husband of defendant No.1 Rampati Devi. Rajbali Lal died in 1967 leaving behind his widow Most. Phekna Kuer and two daughters i.e. the plaintiff and defendant No.1 and grand son Lallan Prasad alias Lalbabu. Most. Phekna Kuer became mad and then she also died. The property of Rajbali Lal devolved equally on his two daughters and -4- grand son Lalbabu alias Lallan Prasad. Phekna Kuer never executed any gift deed nor she was competent to execute gift deed and the defendant Nos. 2 to 5 are not in possession of more than 1/3rd share. Rajbali Lal had sold plot No. 190 measuring 17 kattha 20 dhur to Narayan Chaudhari and in lieu thereof he exchanged plot No. 916 measuring 10 kattha 4 dhur, plot No. 896 measuring 11 kattha 17 dhur. 7. On the basis of the aforesaid pleadings of the parties, the following issues were framed : “I. Is the suit as framed maintainable ? II. Has the plaintiff any cause of action for the suit ? III. Is the court fee paid sufficient ? IV. Is the deed of gift executed by Phekna Kuer valid ? V. whether Panmati Devi was the daughter of Rajbali lal and whether Sri Lalbabu alias Lallan Prasad is son of the said Panmati Kuer ? VI. Is the suit bad for non-joinder of the parties and property ? VII. Is the plaintiff entitled to decree for partition of the suit properties ? VIII. To what other relief or reliefs the plaintiff is entitled ?” 8. After trial the learned court below found that Rajbali Lal had three daughters and the name of third daughter is Panmati Devi. Lalbabu alias Lallan Prasad is the son of Panmati Devi vide paragraph 15. The learned court below also found that gift deed the Ext.-C is not a valid and genuine document vide paragraph 16. The learned court below also found that the plaintiff has not joined many necessary parties and properties of the joint family and therefore, the suit is bad -5- for non-joinder of the necessary parties and properties. On these findings the plaintiff’s suit was dismissed. 9. It may be mentioned here that against this judgment the plaintiff did not file appeal. No cross-objection has also been filed by the plaintiff respondent No.1 the defendant Nos. 2 to 5 have filed this first appeal against the finding of the court below that Rajbali Lal had third daughter namely Panmati Devi whose son is Lalbabu alias Lallan Prasad. So far this finding is concerned neither the plaintiff nor the defendant No.1 is challenging this finding. It was neither the case of the plaintiff nor the case of the defendant No.1 that Rajbali had three daughters. It was the case of the defendant 2nd set who are purchasers from Lallan Prasad alias Lalbabu. Now therefore, this appeal is confined to this finding which is against the defendant Nos. 2 to 5 and in favour of defendant 2nd set. In other words this dispute is between inter se defendants except defendant No.1. 10. The learned senior counsel Mr. Manan Kumar Mishra submitted that the learned court below has wrongly found that Rajbali Lal had third daughter namely Panmati Devi and Lallan Prasad is her son. The defendant 2nd set failed to establish this fact that in fact Rajbali Lal had third daughter. This was neither the case of the plaintiff nor the case of defendant No.1. Phekna Kuer herself in Ext.-C clearly stated that except the two daughters i.e. plaintiff and defendant No.1 she had no other issue but the learned court below misunderstood the contents of the said Ext.-C, registered gift deed. The learned senior counsel submitted that the statement made in Ext.-C is the statement made by dead person and, therefore, it is admissible in evidence. The learned counsel next submitted that the learned court below has wrongly found that Rajbali Lal died in the year 1968 as overwhelming evidence has been produced by the -6- defendants to show that Rajbali Lal died prior to coming into force of the Hindu Succession Act, 1956. The trial court should not have relied upon a forge document Ext.-1 said to have been executed by Rajbali Lal in the year 1967. Since Rajbali Lal died prior to 1956 i.e. in the year 1953-54 his daughters had no share in the property. On his death his widow Phekna Kuer inherited his entire property and then she gifted to the plaintiff and defendant No.1 in the manner stated in the written statement of defendant No.1 and these appellants. According to the said gift the parties came in possession. Subsequently, the defendant No.1 in 1978 sold her property in favour of these defendant Nos. 2 to 5 appellants. 11. So far finding of the court below that the suit is bad for non- joinder of necessary party and properties which are joint family property is concerned the learned counsel submitted that he is not challenging the said finding as the suit was not filed by these defendant Nos. 2 to 5. They are the purchasers from defendant No.1. They are aggrieved only against the finding of the court below that Rajbali Lal had three daughters. This finding is directly affecting their right and the property which they have purchased will be decreased because of this finding. In such circumstances, the defendant Nos. 2 to 5 were compelled to file this first appeal against the said finding only. The learned counsel next submitted that the learned court below has wrongly found that Ext.-C, the registered gift deed to be invalid without there being sufficient evidence. On these grounds, the learned counsel submitted that the appeal is fit to be allowed and the finding recorded by the court below that Rajbali Lal had three daughters and Ext.-C is invalid is liable to be set aside. 12. On the other hand, the learned counsel appearing on behalf of the defendant 2nd set submitted that the learned court below has -7- considered all the evidences oral as well as documentary and has given the finding that Rajbali Lal died in the year 1968 leaving behind his widow, two daughters and a grand-son. Since Rajbali died in the year 1968 his widow, daughters and grand son being class-I heirs inherited his property. In such view of the matter, Phekna Kuer had only 1/4th share but she executed the gift deed regarding the entire property of Rajbali Lal. Considering this aspect of the matter the learned court below has rightly held that she had no authority to execute the gift deed with respect to the entire property and, therefore, it is invalid and illegal. So far finding of the learned court below that Panmati Devi is third daughter is concerned this finding is pure finding of fact based on only oral evidences and, therefore, this finding of fact should not be interfered with lightly by the first appellate court. 13. The learned counsel next submitted that since Ext.-C is invalid and void document any statement made in that Ext.-C cannot be looked into and moreover there is no such statement in Ext.-C that Rajbali Lal had only two daughters. It has been stated in Ext.-C only that Phulpati Devi and Rampati Devi are the daughters. Admittedly, on the alleged date of execution and registration of Ext.-C Panmati Devi was dead. 14. The learned counsel next submitted that the plaintiffs’ suit has been dismissed in its entirety and, therefore, the defendant Nos.2 to 5 have got no vested right to file appeal against a finding only recorded by the trial court. On these grounds, the learned counsel submitted that this first appeal is liable to be dismissed. -8- 15. Except the above ground raised by the parties no other point was raised. Therefore, in view of the submissions of the parties the following points arise for consideration in this appeal : (i) Whether Rajbali Lal had three daughters i.e. Phulpati Devi, the plaintiff, Rampati Devi, the defendant No.1 and Panmati Devi, mother of Lallan Prasad alias Lalbabu ? (ii) Whether Ext.-C, the registered gift deed is legal and valid and whether Phekna Kuer had the authority to execute the gift deed Ext.-C ? (iii) Whether the defendant Nos.2 to 5 can challenge the finding only in this appeal when the plaintiffs’ suit has been dismissed in its entirety ? 16. Point No.1:- So far this point is concerned it is neither the case of the plaintiffs nor the case of the defendant No.1. This dispute is between the defendant Nos. 2 to 5 appellant and defendant 2nd set. According to the appellants Rajbali Lal had only two daughters who are plaintiffs and defendant No.1 whereas according to the defendant 2nd set Rajbali Lal had three daughters. The name of 3rd daughter is Panmati Devi who died leaving behind a son Lal babu alias Lallan Prasad. In support of their cases the parties have adduced evidences. While deciding this question it will be important here to mention that even if it is found that Panmati Devi was the daughter of Rajbali Lal then also she will not get any share in the property unless it is found that Rajbali Lal died after the commencement of Hindu Succession Act, 1956. Therefore, the first question will be when Rajbali Lal died. According to the plaintiffs Rajbali Lal died in the year 1968. According to the defendant 2nd set Rajbali Lal died in the year 1967. The defendant Nos. 2 to 5 who are the appellants stated that he died 26- -9- 27 years ago. Their written statement was filed in the year 1980. On calculation therefore, year of death of Rajbali Lal comes to 1953-54. The plaintiffs have produced Ext.-1 i.e. a deed of mortgage executed by Rajbali Lal in favour of Matar Bhagat on 3.6.1967. So far oral evidences are concerned PW 1, PW 2 both have stated that he died in 1968. The husband of plaintiff i.e. PW 3 no doubt has stated that Rajbali Lal died in 1967 but then it is also much after the commencement of Hindu Succession Act, 1956. On the contrary, the evidences adduced by the appellants i.e. DW 5 has stated that Rajbali Lal died in 1953-54. The other witnesses DW 8, DW 4 have stated that Rajbali died 29-30 years ago and 20-25 years ago respectively. Except these oral evidences i.e. the statement of the witnesses no documentary evidences has been produced by the appellants. In my opinion therefore, in face of the documentary evidences i.e. Ext. 1 which is dated 3.6.1967 the oral evidences of the appellants cannot be relied upon. I therefore find that the learned court below has right found that Rajbali lal died in the year 1968. 17. Now therefore, since Rajbali Lal died in the year 1968 on his death the property will devolve on his class-I heirs. Admittedly, he died leaving behind his widow Phekna Kuer, the two daughters plaintiffs and defendant No.1. The only dispute is whether Panmati Devi is his daughter or not. Plaintiffs and defendant no.1 had not stated a word in the plaint and written statement regarding third daughter of Rajbali Lal. This case has been set up by the defendants 2nd set. According to the defendants 2nd set Panmati Devi was third daughter of Rajbali Lal who was married to Ayodhya Lal. This Ayodhya Lal is own brother of Hridaya Lal. Hridaya Lal is the husband of defendant No.1. Lallan Prasad alias Lalbabu is the son of this Panmati Devi. DW 16, DW 17 both have stated that Panmati was -10- married to Ayodhya Lal and Lallan Prasad is the son of Ayodhya Lal through Panmati Devi. This Panmati was the daughter of Rajbali Lal. Ext. A-1/1 has been proved by the defendants which is a registered sale deed dated 17.6.1977. This sale deed has been executed by Lal Babu alias Lallan Prasad describing himself to be the son of Ayodhya Lal and that Panmati was his mother. DW 21, 23, 26 and 28 all have stated that Lal babu alias Lallan Prasad is the son of Panmati Devi daughter of Rajbali Lal. DW 29 is Lalbabu alias Lallan Prasad himself who has also claimed that he is son of Ayodhya Lal and his mother was Panmati Devi daughter of Rajbali Lal. Ext.-B-1 has been produced to show that his name appears in the voter list for village Sipaha. 18. It may be mentioned here that the defendant No.1 Rampati Devi has been examined as DW 7 and her husband Hridaya Lal has been examined as DW 8 who have only stated that they do not know Lalbabu alias Lallan Prasad. As stated above Ext. B-1 shows that Lallan Prasad is the resident of the same village where these DW 7 and DW 8 resides, they have not denied that Ayodhya Lal was not the brother of Hridaya lal DW 8. Therefore, their only denial is that they do not know Lallan Prasad. In view of the above facts, it becomes admitted fact that Panmati was married with Ayodhya Prasad who was own brother of Hridaya Lal and this Hridaya Lal is the husband of defendant No.1. In view of the above evidences adduced on behalf of the parties it is clear that Panmati was the daughter of Rajbali Lal and Lallan Prasad alias Lal Babu is the son of Panmati Devi whose husband was Ayodhya Lal. 19. The learned court below after appreciating the oral evidences as discussed above has given the finding that Rampati was the daughter of Rajbali Lal. This finding of the court below is the -11- finding of pure question of fact based on appreciation of oral evidences. 20. In Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh AIR 1951 SC 120 the Apex Court has held that the rule is that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. In another case of Madhusudan Das Vs. Narayanibai AIR 1983 SC 114 the Hon’ble Apex Court followed the decision of Sarju Pershad Ramdeo Sahu (supra). Again in (2001) 3 SCC 179 Santosh Hazari Vs. Purushottam Tiwari (Deceased) By LRs. the Hon’ble Apex Court relied on the aforesaid two decisions of the Apex court vide paragraph 15. 21. In view of the above settled principles of law no doubt first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on question of fact and law. However, according to the Hon’ble Apex Court the finding of fact based on conflicting evidences arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. This rule is a rule of practices. When there is conflict of oral evidences of the parties on -12- any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. 22. Here in the present case, as stated above this finding has been arrived at by the trial court on the basis of appreciation of oral evidences. From perusal of the impugned judgment I do not find any statement or important evidence of any witness has been escaped by the learned court below and it is also not the case of the appellants that had it been considered by the court below the finding of fact recorded by the court below would have been otherwise. I therefore, find that Panmati Dei was the daughter of Rajbali Lal and Lallan Prasad alias Lalbabu is her son. The finding of the trial court on this point is therefore, confirmed. 23. Point No.2. We have found above that Panmati Devi was the daughter of Rajbali Lal and Lallan Prasad alias Lalbabu is son of Panmati Devi. We have also found that Rajbali Lal died in the year 1968 therefore, on the death of Rajbali Lal the property will devolve on Phekna Kuer, the plaintiff, the defendant No.1 and the son of Panmati Devi i.e. Lal Babu alias Lallan Prasad equally i.e. 1/4th each. This is admitted fact that there was no partition between them. Ext.-C is alleged to have been executed by Phekna Kuer regarding the entire property. Since she had only 1/4th share in the joint property she could have executed the gift deed with regard to the share of plaintiff, defendant No.1, share of Lallan Prasad also. I therefore, find that the learned court below has rightly found that the Ext.-C is illegal and invalid. -13- 24. Point No.3:- As stated above here the plaintiffs’ suit has been dismissed in its entirety. The defendant Nos. 2 to 5 are challenging only the finding recorded by the trial court against them. The question is whether they can challenge the finding by filing the appeal. 25. In Deva Ram and another Vs. Iswar Chand and another (1995) 6 SCC 733 the Hon’ble Apex Court at paragraph 27 has held as follows : “27. Thus, an appeal does not lie against mere „findings‟ recorded by a court unless the findings amount to a „decree‟ or „order‟. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the appellate court.” 26. Here in the present case at our hand, this finding recorded by the court below which is being challenged by the appellants is neither a decree nor appealable order. Section 96 Code of Civil Procedure provides that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear the appeal from the decision of such court. Thus, sine quo non in the provision is the “decree” and unless decree is passed the appeal would not lie under Section 96 of the Code of Civil Procedure. Similarly, an appeal lies against an order under Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure. Here an appeal has been filed against the finding only. Moreover, this finding recorded by the court below is in dispute between the defendant Nos. 2 to 5 and the rest defendants except defendant