BB'IWI s.^ Sjnfl^Bench rQ IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.t In the matter of Second Appeal No. /f 7 7 of 2006 7 Between Appellants: ^Defendants 1. Suraj Thakur, Son of Late Shri Chandrahas >) Thakur, itf' ?<-^ik^' 2- Sudeep @ Sujeet Thakur, Wc&^ ,••* t son ofLate Shri Chandrahas Thakur, \.i^< ^w" \>'w-\r' /^y ,^y ^•v ^ 0-"' (^ Both residents of Baldeo Bagh, Rajnandgaon, (C.G.) Versus Respondents: Plaintiffs .^^ nc; 1. Dayarani @ Dinu, Aged 43 years, 2. Govind, Aged 35 years, 3. Jethu, Aged 35 years, All sons of Late Chhotu Nai, 4. Srnt. Sonkunwar Bai, Aged 65 years, W/o Late Chhotu Nai, AU residents ofVillage Dhodia, Tahsil & District-Rajnandgaon (Chhattisgarh). S. Smt. Dhanwantin Bai, Aged 30 years, W/o Genduram Nai, R/o Grani Anjora, District-Durg (C.G.) 6. Narendra Nath, Aged 60 years, S/o Maheshwar Nath Thakur, R/o Chowki, District-Rajnandgaon (C.G.) 7. Ravindra Nath, Aged 45 years, S/o Maheshwar Nath Thakur, ^:il^i :.:;.n3!!ii 'sj W9SW !li:iB. 1^:^: wy^ ^ 8. </" 9. /' 10. 11. ^' 12,- 13. 14, ,//"' 1-5. 16. 17. 18. R/o Brahinanpara District-Rajnandgaon (C.G.) Parmanand, Aged 45 years, S/o Jai Dutt Mishra, R/o Gram-Tedwa, Post- Mohjurri, District-Balaghat (M.P.) Smt. Chahdrakala, W/o Anand Prakash, Aged 44 years. Smt. Anuradha Bal, W/o Madhav Prasad, Aged 40 years. Smt. Lakshmi Bai, W/o Prakash Thakur, Aged 34 years. Serial No. 9, 10 & 11 are the residents of Brahraanpara, Raipur, District-Raipur (C.G.) Smt. Saroj Thakur, W/o Akhilesh Thakur, R/o Gram-Chitmarg, Post-Chithra, District-Satna (M.P.) Smt. Chhaya Jha, W/o Upendra Jha, R/o Brahmanpara, District-Rajnangaon (C.G.) Dilip Kuraar, S/o Chhotelal Thakur, fr- Aged 40 years.Wo s&tdca 60^)1 Rw^inoMd yws" 3772^ -fl&.giw.^y^^^^'') Ashok Kuinar, S/o Chhotelal Thakur, . ft~- Aged 38 years. K/0 Salde-o B'n^' P.'yn&nc-l^iBcnn 3>Tsh fia)iiuu'")»c>4C_C- Manoj Kuinar, S/o Chhotelal Thakur, _ . fl— R.cynUMstgtJm JTiS^- ftjunwul^"'"4' Kumari ShefaU Thakur, D/o Late Shri Chandrahas Thakur, Aged 27 years. Kumari Deepali Thakur, D/o Late Shri Chandrahas Thakur, Aged 27 years. ,^: v-f 'fe 19. Serial No. 17 SE 18 are the residents of Baldeo Bagh, Rajnandgaon, District-Rajnandgaon (C.G.) State Of Chhattisgarh, Through the CoUector, Rajnandgaon, District-Rajnandgaon (C.G.) APPEAL UNDEjl SECTION 100 OF THE CODE OF CIVa PROCEDURE^ 1908. ;-a,__ 7-^'^t??^^^^'^-:^'~:-'-tf^;^^^'^>*^^-^Al ^^<^'"^^^'^l?:^^^rW^^A^''-^ nch: Hon'ble Shri Justice Prashant Kumar Mishra Second Aopeal No. 477 of 2006 rs. Dayaram @ Dinu & Ors. ORDER Postfor03.03-2010. Sd//- Prashant Kumar Mishra Judge ', \ ,\\ \ \ \ H1GH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'bte Shri Justice Prashant Kumar Mishra Appellants Defendants Second Anpeai No.477 / 2006 Sura) Thakur & Ors. Plaintiffe Dayaram @ Dinu & Ors. Shri Chandresh Shrivastava, counsel for the appeilants. Shri Sanjeev Kumar Agrawal, P.L. forUie State/respondent No. 19. None present for (rther respondents. Appeal Under Section 1fl0 ot the Code of Ch/il Procedyre ORDER (o9^.03.a)10) The present Second Appeal under Section 1(X) of C.P.C. has been preferred by the a^ellants/defendants who are LRs of originat defendant No. 5 Chandrahas Thakur. The trial court decreed the suit preferred by iriaintiTf Chhotu S/o Kuju Nai who is represented by respondents No. 1 to 4 herein as his LRs. The first appellate Court ^ dismissed the appeal preferred by the appellants and thus the appellants are sufferii^ judgment and decree passed by the two Courts below. (2) Ptaintiff Chhotu preferred the suit for declaration of his titte over plaint schedule A and B lands and for possession thereof on the pteadings that he has purehased the lands in Schedule A on 01-(%-1964 from defendant No. 1 Narendranath who was the Karta of the family acting on behalf of the ctefendant No. 2 and Ravindranath ^- who was lunatre brother. Similarly by another sale-deed dated 05-01 1965 lands eovered in Schedute B was purchased from different defendants No. 1,2 & 3 for valuabte consideration of Rs,2,800/-. It was further stated that the defendant No. 1 was Kaita of the family and was need of money for the mamage of his sister and for construction of the house and as such the transfer vrais made for legal necessity and is binding on rest of the members of joining family. Though the was in possessfon, the defendant No. 4 Chhotelal tried to interfere in his possession. The pteunt'rff made an application to the Offteer for mutation of his nanre to which the defendant No. 4 raised an objection on the ground that defendant No. 1 could not be the legal guardian of lunatic brother Virendranath therefore the transfer cannot (3) tt was further stated in the plaint that lunatic brother Virendranath died unmamed in 1973. It was further (rieaded that the transaction js binding on defendants No. 1,2 & 3 who, in any case, succeeded to the share of lunatte Virendranath and thus after his death they are bound by the transfer under equity. On 23-TO-1974 the defendants No.1,2 & 3 transfer the suit lands to defendant No. 5 Chandrahas who is the S/i defendant No. 4 Chhotelal. The transfer was thus iliega! and is not binding <m the plaintiff. (4) The defendants No. 1,2 & 3 in their written statement stated that mother Kamlabai was the Karta of the family and was the guardian of iunatic brother Virendranath they stated that the two sale deeds are not binding on the defendants and that the Revenue Officer rightly rejected the plaintiffs application for mutation. The sate deed executed in favour of defendant No. 5 is valkl and binding on the defendants as •»•«;• .1-{ •?>- well as the plainW. It was stated that the defendants No. 4 & 5 are in possession from the date of execution of agreement to sale dated 14- 04-1964 and there being no cause of action in favour of the plaintiff the suit deserves to be dismissed. (5) The defendants No. 4 & 5 namely Chhotelal and Chandrahas prefen-ed a separate written statement to deny the sale-dees executec in favour ofthe plaintiff. They relied on the agreement to sale executed by defendants No. 1,2 & 3 in favour ofdefendant No. 4 on 14-04-1964. According to these defendants no conskieration was pakJ to the defendant No. 1 by the plaintiff and that their possession in the property is in their independent right and the plaintiff was never in possession. They relied on sale-deed dated 23-09-1974 name of defendant No. 5 has been mutated in the suit property. (6) Ptaintiff Chlwtu himself examined as PW/1, Kunjlal PW/2, Kamal PW/3, Sukhram PWM, Ramshankar PW/5, Heeraman R/V/6, Vishram PW/7 and Fakira PW/8 on the (rtherhand defendant examined Narendra DW/1, Chandrahas Thakur DW/2, Prakash Chandra Thatajr DW/3 and Dukhurara CW14. Ex. P/1 is the Raiyatwari Bahi, Ex.P/5 is the sale-deed dated 05-( -1965 and Ex. P/10 is the saie-deed dated 01^)6-1964. Ex. P/10A is an agreement signed by Kamlabai evidencing consent for sale of Khasra No. 4/3 in favour of Chhotu and Ex.P/6 is the Dastbardar Patra (deed of relinquishment) executed by Kamlabai in favour of plaintiff Chhotu endorsing the sale deed dated 01-06-1964. Ex. P/8 is an appfcation submitted by Narendranath and Kamlabai before the TahsiUar, Rajnanc^aon mentioning therein that they have affected transfer of the lands in favour of pSaintiff and they ,>-* ..!. -^ have no objection in mutatbn the name of plaintiff. Similariy Ex. P/9 is the mutaticwn application moved by plaintiff Chhotu on which Narendranath has made endorsement of the fact that he has executed (7) Ex. D/1 is the agreement to sa!e dated 14-04-1^4 and Ex.D/2 is the sale-deed dated 230-1974 executed by Narendranath and Chandrahas. (8) Tte trial Court by its judgment dated 01-<K-19^ decreed the su'rt after finding Shat the lands covered under Schedule A and B were lawfully purchased by the plaintiff. The trial court also found that the subsequent saie-deed dated 23-09-1974 executed by defendants No. 1,2 & 3 in favour of defendant No. 5 are not binding on the plaintiff. White deckiir^ issue No. 5 the trial Court held that having admitted the sate deed at the time of mutation proceedings the defendants No. 1,2 & 3 are stopped from raising a different plea. It was also found by the is within (im'rtation. (9) The trial court discussed the entire evidence availabie on record in ctetari while dec'riing the main issue regarding vatidity of the sale deeds on the basis of which the plaintiffs are claimtng titte. The fria! Court fwind that the saM minor Ravindranath could have filed a suit within three years of attainir^ majority ih terms of Sectfon 8(3) of the Hindu Minority Guardianship Act and that no third person can chaltenge the sate-deed. Thus, the triat court hekt that the defendant No. 4 & 5 can not challenge the sale-deed on the ground that one of the verrior was a minor on the date of execution of sale-deed and ^/ ,/ .^£ fc! ^1 ,^^~^ ^" ^^- more SQ when ne'rther the minor nor the lunatte brother acting through )uardian has ctellenge the sale-deed. It was also foundthat the sale- deeds have been executed Tor l^al necessity like maniage of the si^er, constructton of house ete. Regarding the agreement to sate dated 14-04-1W4 Ex.D/1 ttie trial court, on anirsciation of evidence, found that this document was never submitted in Revenue Court though the matter r^arding mutation continued from 1965-66 to Maroh 1973 up to the Board of Revenue and thus the said dwumert appears So be susptofous and further that it appears to have been prepared after frtii^ of the suit. The question as to the suft being barred by limitation was decided as issue No.2 and the trial Court recorded that the suit been fited <Mt 27-07-1976 t.e. wfthin 12 years from subsequent sale-deed dated 23-09-1974 and when the plaintiffe : II X The first appellate Court has confumed the ju^ment and decree by the trial Court and has concurred with the findings recordec by the trial Court on all materiate issues. (11) The appettate Court has ateo discussed the material evidence availabte on record and has come to an sndeperrient finding that the sale-deed tn favour of the f^airtiff has not been set-aside by any competenl Court, that the sale-deed were executed by the Karta of the family fw legal necessity arel that the executant's Narendranath has not chaltenge sale-deed at any point of time, that Ex.D/1 appears to have been prepared aftenwards and is a suspicious dccument, that it js not proved that Narendranalh was not paid any consideration at the N^ time of execution of sale-deed, that the conduct of the defendanl in •fc- getting executed the saie-deed Ex.D/2 on 23-09-1974 wfthout obtainin$ permission from the Court for its execirtion on behalf of tunatic brother Virendranath rerwters their simiSar ptea to chaltenge the sate-deed in favour of the plainttff as not havir^ any substance, that neither minor Ravindranath nor on behalf of lunatte Virendranath any efforts was ever made to get the saie-deeds in favour of plaintiff to be declared as void and that the statement made by Narendranath and Kamlabai in the Revenue Court accepting the execution of sale<ieed in favour of ^aintiTf precludes them from challer^iF^ the sale-deed. Thus the appellate Court, by the impugned judgment has considered at length the evidence available on record and has Tound that the judgment and (12) Havir^ heard leamed counsel for the appeliants and upon perusal of the entire record this Court finds that the Courts below have considered all the evklence both oral as well as documentary to recorc concurrent findings »n favour of the plaintiff while decreeing his suit. The findings are not penerse. Ptea regarding the execution of sate- deed on behalf of minor and on behalf of lunatic brother has also been dealt w'rth by the Courts below extensively and the law as well as evidence in this regard has been considered to hold that the sale- deeds in favour of pteintiff are legal and valid. This Court does not find any error of law in the finding recOTded by the Courts teiow regardin^ validity of the sale-deed Ex.P/5 and Ex.'PrtO in favour of the plaintiffs. (13) The Supreme Court in the case of State Bank ofindia and otfters Vs. SM.GoyaS, ^2008) 8 SCC has reiterated and settled the law as to what is substantial question of tew. Conadering the submission made /'.•' Si ",. S fe -• ?.,.. % ^.Al;'-"""*1® -7 by the leamed counsel for the appeltants in not find any substantial que^ion of !aw arisii^ for determinatiQn in this appeal. As a consequence the instant Second Appeal faite and is Mishra Sd//- prashantKumar Judge ^wll«-