^ IS •i'HB HXGH (33UR1? Oi- CHHACT'XSGARHAT BXLASPUR S.A. NO. /-5'"2--/2oo4 Sngfe Bench APPa,LANT gEAINTIW Sagsai. S/o Dhadhu, aged about 67 years, R/e. vill. Hanumangarh, Tah, Surajpur, Bistt. Surgiija (G.G.). VERStJS BEa'ONBENTS DB^ENDANTS ^•' ^/ &!>- A'' .^' /T.f A'^" yA^' .^y/ /M;W •//s/ IW' .^ •s- /l. Nandaram S/o. Hansai, aged abeut 57 years. 2. Naval Sa± S/o. DhiiraB, aged ^ abou-fe 57 years. 3« Sonsai S/o Dhadhu, aged abou-fe 72 years. All are R/b. HanumangaEh, Tah| Surajpt.i.ir, Disttt. Surguja (e.Sj,). Ji, S-fea-te of c&hatfeAsgarit •Ehrough- 8olle@tor, Sa]rguja Blstrlet Surguja {@.Q. -^. SE03NB AP?EAI» UNBEB SEeKIIOW 3.00 OF CTCTI. ). A^< HIGH COURT OP JUDICATURE AT BIUUSPUR (C.GI SBCOND APPEAL N0. 152_OF 2004 Jagsai Vs. NnTirlnmm & ofhers JUDGEMENT Postfor /3 .12.2004 Sd/- Sunil Kumar Sinha Judge T HIGH COURT OF JUDICATURB AT BILA8PIIR (C.01 SBCOND APPEAL N0. 152 OF 2004 J^sal Vs. Nanduram. & others Shri J.K. Shastri, couiisel for the appellant, Sliri Neeraj Mehata and Sbri Sanjeev Kiimar Agrawyal, PaD.el Lawyers for the State. JUUGEMEMT (/3-12-2004) SUMIL KUMAR SINHA. J Heard on tbe question of adraission. This appeal has been filed. by the plaiatiff iinder section 100 of tTic Code of Civil Pt-occdiinR against thc jiidgment and decnie dated 31.01.2004 passed ia Civil Appeal No.7-A of 2003 by the Firat Additional Distnct Judge, Surajpnr, District Surguja (C.G) arismg out ofjuctgment & Uecrce dated 16.12.2002 passed in Civil Suit No.l82-A/1996 toy fhe Civfl Judge, Class-II, Surajpur, Distt. Surguja. The trial Court dismlssed the suit of fhe plaintiff, ttiereafter ttie appeBate Coiut Iiad also dismlssed lus appeal. In this way, tbe pltuutUTlost tu both. ttie Coui-ts' bclow. (2) Tbc plnint alfcgations aic that thc suit lands, two ia nuxnbcr, were self acquired property offhe fatherof plaintifF and defe.ndant .3-- no.3 naincly Dhadu. After dcafh of Dhadu, his cntirc propcrty was succeeded by these two brofhers, There was a partition between thein 15 years prior to the date of in.stitution of the auit and in. the said partition, fhese suit laiids were allotted ia fhe share of fhe pktinttff alone, Defendaats no, 1 and 2 are having no right, tifle or iaterest over these suit lands. The plaititiff further pteaded that he was peacefiiUy cultivating tbe siiit laads. However, iu the inonth of Noveiaber 1996, defeadaats no.l & 2 tried to iaterfere with tus possession which gave rise to a cause of action ui his favour to file the iastaut suit. The suit was ffled for declaration of title and also for permaneut iajimction. (3} Defendauts no. 1 & 2 filed th.eu· written stateinent denying the allegatlons of the plalnttff. It was pleaded by them that in fact, ffae fattier of ffae plaintiff aud defenda&t no.3 namely late Dhadu had sold fhcsc propcrtics to dcfendant ao, 1 cxccutiag a icgisteicd salc dccd dated 19.4.1985 (Ex.D-1) ia his favour for a considcration of Rs. 1000/ -. Hc also handcd ovcr thc poaacsaion of the suit properties to defen.dant no. 1 and frona. the date of sale defendaat no, 1 is ia peacefiil possession of the siut laads, (4) Th.e learaed trial Court Gsaned various issues and afber recording evndence of the parties, disinissed the suit of fhe plaiatiEf holding that in fact, the father of fhe plaintiff and defendant no.3 had lawfiitly alieiiated fhis property by executmg a sale deed dated 19.4.1985 (Ex.D-1) iu favour of deiendaat no.l. Itwas also held 1 -'b- that thc suit lauds arc in posscssion of dcfendant no, I and thc planitiffwas having no right Or ttfle over the suit property. (S) Agauist fhe aforesaid judgiaent and decree passed by the trial Court, fh.e plaintiff filed aii appeal before the lower appellate Court but fhe lower appellate Court also disxnissed fhe appeal of the plauitiff nffirmiTig tbe judginent aad decree passed by the trial Coiut. In fhis maoner the appeUaat/plamtiffhaviug lost in both the Courts below has filed fhis Second Appeal imder sectioa 100 of the Code of Civil Procedure. (6) Leamed counsel for tbe appeUant submits that ftie two Courts below cominltted an error of law ta Iioldmg that a valid sale deed dated 19.4.1985 (Ex.D-l)was executed m favourofdefeadant iio. 1 and thc findiiigs in. fhis rcgaid arc pcrwcisc. Hc furfhcr subiaits tbat in fact, dcfendant no.l couH not provc fhc valid cxccution oftfac salc dccd and in abscncc ofthc aanic, fhc suitwas required to be decreed. In fa.et, duiing the course of ai^uin.ents he tried to inake out a cose of fraud being played by defendant no, 1 agaiast his father aud ateo a case of nonpayinent 6f coiisideratk>n by the said defeiuiant to him. (7) I liave gone thiough the iccords of the two Coiirts and faave also perused the judgment and decree passed by fhem. Neither in' the trial Court nor ia the First AppeUate Court. the plamtiff raised fhe plea of fi'aud. Even a singte word ia relatkai to ifcaudjbeiug ^- playcd by dcfendaat no, 1 agaisist his fafhcr has not bccn plcadcd. The only pleading taken by the plaiatifF by way of aaiendinent before the trial Court ofter filing of tlie written stateinent by fh.e d.efetidan.ts reeuls as itader; 'T?T'crR'^ir^t^t^^t^ft?TT^r. ^ WT grar ?rf^. ^. 1 ^ teq ^ f^lT -IPTT t I 'qf^fff^. % 1 ^ 1TRT ^iN fi zf Tra t Tfr ^i? ^TRft ^ 'viSt t, ^RT te?[ Tra i> snqN T? !.rf?T. % 1 'g?t 'cf^ '^cRtT ^ StteR OT<T ^t ?t(TT t I" In thc said situation, this Court is not in.clincd to considcr such a plca for thc fiist tiinc at thc sccond appcllatc stegc. Morc ovcr, thc plea of fi-aud aad also the plea of non-passiag of consideiation are the pleas available to fhe parties to fhe dociunent. A third party cannot inaintam. fhe suit on fhese groun.de by raisiag fh.ein even fbr the first tiine in secoiid appeal. Thfise grounds require clear aad defiuite pleadjngs disclosiag tiine, place sind the Tnanner in which the fraud was played alongwitli its particulars aad positive aUcgatious ia this regard. I am fortiSed in. my views by a Judgment of the M.P. High Court pronounced by His Lordship Justi.cc T.C. SIuivastava, Judgc (as he ftien was) in the matter of Sunderlal -Vs- Anup Kunwarbai reported in 1960 MPLJ Short Note 154 whlcti clearly tadlcates fhat an attaclc on sale deed on account offl-aud and want of conslderation tfae grounds are avaUableito ftie party to fhc sate deed aloiic and thc straagcr to transaction caniurt attack thc dcal on. fbcsc grouads. Thcrcforc, I am not tiiclincd to 3 ^;' -5- cntertaui such a ground in fhis appcal. Now conung to thc sccond point regardiag proof of execution of sale deedj ani of the opinion that the execution has been validly proved. Defendaat no.'J bas exaiuined hiinself and has also examined one of the attesting witaesses natnely Boloraiu as D.W.2 who have clearly stated fhat tbe father of fhe plaintiff had executed the sale deed dated 19.4.1985 (Ex.D.l) aad the property was sold| to defendant no.l,. The trial Court has dealt with this issue vide para 10 of the judgment. The Grst appeUate Court has also dealt with fhe issue aud has recorded a positi^; fiadiag fhat it could not be establislied fhat the sale deed dated 19.4.1985 (Ex.D.l) is a fiaudulent docuiaent. Recordtug the aforesaid flndm.gs conci.irrenfty, tiie nro courts below bave dlsmissed fhe suit of (h.e plamttff and ia fhe second appeUate st^e, aa tnterference by ttus Court under ffae provisions of Sectioii 100 of thc Codc of CJvU Proccdurc is not possiblc, (8) The Hon.'ble Apex Court jn fhe inatter of Roop Singh (dead) throueh L.Rs. -Vs- Ram. Siagh (deod) through L.Rs., reported in. (2000) 3 SCC Pe.708 has laid down fhat "it has to be reiterated that under section 100 C.P.C., the jurisdiction ofthe High Court to eiiterta-m. a second appeal is coiifined only to siiclt appeats wliaeh involve fhe substaatial question of law and it does not confer aay jurisdiction on the Hisdti Court to interfere with the pure questioas •^. -6- offact •wlulc cxcrcising its jurisdictioii u/s 100 C.P.C. (Scc para 7 ofthe Judgnient), (9) Again the Apex Court laid dowm iii fhe matter of Thiaearajan and others -Vs- Sri Venueopalaswaiai B.Koil and others reported ia U004) ^ SCC Ps.762 that "the existence of a substantial question of law is the sirte qua non for the exercise of jurisdiction under fhe aaiended provisions ofsection 100 C.P.C. (see para 20 of the judgment). AU. tfaese pronouncements go to show that unless a substantial question of law is involved in a case, no second appeal would be eatertamable toy the High Coiut exercising jurisdiction uader section 100 C.P.C. Siace no question oflaw is tavolved la ffae present case, Th1s Court 1s not inclmed to Interfere tu ttie flndtags recorded toy tlie two Courts toelow. Hence, (hls sccoud appcal dcscrvcs to bc disniisscd and accordingly it is disiliisscd at thc aximission stagc without any ordcrs as to fhc costs. 1 Sd/- Sunil Kumar Sinha Judge - J^— - - - 1^1