HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case Second Appeal No. 128 of 2007 Sona Devi and Ors. Vs. Adesh Kumar and Ors. With Second Appeal No. 129 of 2007 Sona Devi and Ors. Vs. Adesh Kumar and Ors. With Second Appeal No. 130 of 2007 Sona Devi and Ors. Vs. Adesh Kumar and Ors. With Second Appeal No. 131 of 2007 Sona Devi and Ors. Vs. Adesh Kumar and Ors. With Second Appeal No. 132 of 2007 Sona Devi and Ors. Vs. Adesh Kumar and Ors. Approved for reporting. Date of Decision: 7.4.2008 Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 128 OF 2007 Sona Devi & Ors. …….Appellants. Versus Adesh Kumar & Ors. ……Respondents. SECOND APPEAL NO. 129 OF 2007 Sona Devi & Ors. ……..Appellants. Versus Adesh Kumar & Ors. ……….….Respondents. With SECOND APPEAL NO. 130 OF 2007 Sona Devi & Ors. ……Appellants. Versus Adesh Kumar & Ors. …………….Respondents. With SECOND APPEAL NO. 131 OF 2007 Sona Devi & Ors. …….Appellants. Versus Adesh Kumar & Ors. …………Respondents. With SECOND APPEAL NO. 132 OF 2007 Sona Devi & Ors. ………Appellants. Versus Adesh Kumar & Ors. ……………………Respondents. 7.4.2008 Hon’ble Rajesh Tandon, J. Heard Sri A.K. Sharma, counsel for the appellant and Sri S.S. Chauhan, counsel for the respondents. 2. By the present Second Appeals filed under Section 100 of the Code of Civil Procedure, Appellants have prayed for setting aside the judgment and decree dated 3.8.2007 passed by the District Judge, Hardwar in Civil Appeal No. 10 of 2005 Smt. Sona Devi Vs. Adesh Kumar and others; in Civil Appeal No. 14 of 2005 Smt. Sona Devi Vs. Adesh Kumar and others; in Civil Appeal NO. 13 of 2005 Smt. Sona Devi Vs. Adesh Kumar and others; in Civil Appeal No. 11 of 2005 Smt. Sona Devi Vs. Adesh Kumar and others; in Civil Appeal No. 12 of 2005 Smt. Sona Devi Vs. Adesh Kumar and others arising out of judgments and decree dated 16.12.2004 passed by the Civil Judge (Junior Division), Hardwar in Original Suit Nos. 162, 163, 164, 165, 166 of 2000 Sona Devi Vs. Adesh Kumar and others. 3. Briefly stated, predecessor of the plaintiff / appellants namely Jay Ram filed suits being Original Suits No. 162, 163, 164, 165, 166 of 2000 Sona Devi Vs. Adesh Kumar and others for cancellation of the sale deeds dated 22.11.1999 on the fraud. The words used in the plaint of S.A. No. 132 of 2007 are to the following effect: ¼v½ fMdzh eUlw[kh cSukek cgd oknh cjf[kykQ izfroknhx.k bl vk’k; dh ikfjr dh tkos fd izfroknhx.k ds gd esa dfFkr cSukek fnukafdr 20-11-99 tks /kks[ks ij vk/kkfjr fcuk izfrQy ds voS/k :Ik ls djk;k x;k gS vkSj ftldh jftLVjh cgh la0 1 ftYn 1190 ds i`”B 20 o ,0Mh0 cqd ua0 1 ftYn 1195 ds i`”B 163&166 esa n0ua0 5020 ij fnukad 20&11&99 tks jftLVªh dh x;h tks ‘kwU; djkj nsrs gq;s fujLr fd;k tkos vkSj ftldh lwpuk lc jftLVªh dk;kZYk; dks fHktok;h tkosA” 4. According to the plaint case, predecessor of the plaintiffs/ appellants are four brother namely Ranjeet Singh, Dalel Singh and Hukum Singh. Out of them, Delel Singh and Hukum Singh have died. One brother of the plaintiff namely Ranjeet Singh, who has been arrayed as defendant no. 5 was a person of unsound mind and remained unmarried throughout his life. Defendants no. 1 to 4 are heirs of Dalel Singh and have been recorded in the records. Hukum Singh is survived by his one son namely Rajendra. Ranjeet Singh, who was a man of unsound mind, executed sale deeds dated 22.11.1999 in favour of the defendants no. 1 to 4, hence the suit has been filed. 5. The defendant have filed a written statement, whereby the averments made in the plaints have been denied. In the written statement, it has been denied that the defendant no. 5 was a mentally retarded person and as such, the sale deeds executed by the defendants no. 5 were perfectly in order. 6. On the pleadings of the parties, the trial Court has framed the following issues: “1- D;k okn i= esa of.kZr isjk la[;k 1 ds vk/kkj ij dfFkr cSukek fnukafdr 22-11-99 fujLr gksus ;ksX; gS \ 2- D;k oknh iz’uxr lEifRr esa lgladze.kh; Hkwfe/kj dkfct dk’r gS \ 3- D;k okn LoRo dk iz’u fugfr gS rFkk okn /kkjk 331 tehankjh fouk’k vf/kfu;e ls ckf/kr gS \ 4- D;k okn /kkjk 34] 38 o 41 fof’k”V vuqrks”k vf/kfu;e ls ckf/kr gS \ 5- D;k okn dkuwuh :Ik ls iks”kuh; uk gksus ds dkj.k fujLr gksus ;ksX; gS \ 6- D;k oknh us okn dk ewY;kadu de o xyr fd;k gS vkSj vnk djnk U;k; ‘kqYd uk dkQh gS \ 7- D;k okn i= esa fooj.k lEifRr vLi”V ,oa Hkzked gS \ 8- oknh fdlh vuqrks”k dks ikus dk vf/kdkjh gS \” 8. Plaintiffs have filed per list C-1 copy of the Khatauni 1408 to 1411 and copy of the sale deed dated 22.11.1999. Towards the oral evidence, Ramesh Chadnra, Kolhu Singh and one Umesh have been examined as P.W.1, P.W.2 and P.W.3 respectively. 9. Defendants have filed per list 24 C 1 copy of the statement of Ranjeet dated 1.7.2000 filed in Suit No. 81 of 1999 Adesh Kumar Vs. Ranjeet before the Court Nayab Tehsildar. Towards the oral evidence, Adesh Kumar, Chandra Bhan, Balbir Singh and one Redhey have been examined as D.W.1, D.W.2, D.W.3 and D.W.4 respectively. 10. While deciding the issue No. 1 and 2 as to whether the sale deeds dated 22.11.1999 is liable to be rejected as has been mentioned in paragraph of the plaint and further as to whether the plaintiffs are owners in possession of the land in dispute, the trial Court has recorded the finding that the plaintiff has completely failed to prove that the sale deeds have been executed by exercising fraud ( /kks[ks ls )with the defendant no.5 and the defendant no. 5 was person of unsound mind. Reliance has been placed on the statement of P.W.1, who has stated that the defendant no. 5 was also co-bhumidhar of the land in dispute. A finding has further been recorded that the defendant no. 5 has himself stated before the Tehsildar that the aforesaid sale deeds are being executed after considering all the facts, thus, the issue no. 1 and 2 have been decided against the plaintiffs. 11. While deciding the issue no. 3 as to whether the question of ownership is involved and the same is barred by Section 331 of the Zamindari Abolition Act, the trial Court has recorded a finding that the suit is no barred by Section 331 of the U.P.Z.A. and L.R. Act. This issue has been decided in favour of the plaintiff. 12. While deciding the issue no. 4, 5 and 7 as to whether the suit is barred by Sections 34, 38 and 41 of the Specific Relief Act, as to whether the suit is legally not maintainable, therefore, the same is liable to be rejected, and further as to whether the description of the property is not specific and bewildering, the Trial Court has recorded the finding to the following effect: “okn dkuwuh :Ik ls iks”k.kh; uk gksus ds dkj.k fujLr gksus ;ksX; gS rFkk okn i= i= esa of.kZr lEifRr vLi”V ,oa Hkzked gS] ijUrq izfroknhx.k }kjk ;g nf’kZr ugha fd;k x;k fd mlds }kjk ;g dFku fdl vk/kkj ij fd;s x;s gSaA ukgh mlds }kjk bu fcUnqvksa ij dksbZ cy gh fn;k x;kA bl izdkj cy uk fn;s tkus ij okn fcUnq la[;k 4] 5 o 7 rn~uqlkj fuLrkfjr fd;s tkrs gSaA” 13. While deciding the issue no. 6, the trial Court has recorded the finding to the following effect: “iz’uxr okn fcUnq dks lkfcr djus dk Hkkj izfroknh ij gS bl lUnHkZ es izfroknh dk dFku gS fd fookfnr cSukek ftlesa [kkfjt djus dh izkFkZuk oknh }kjk dh x;h gS mlls tks lEifRr izHkkfor gS mldk cktkjh ewY; vR;f/kd gS ,slh fLFkfr esa mldk ewY;kadu cktkjh dher ij fd;k tkuk pkfg, FkkA bl lUnHkZ esa oknh dk dFku gS fd fookfnr Hkwfe d`f”k Hkwfe ds :Ik es jktLo fjdkMZ es ntZ gS rFkk tks Hkwfe rFkk dfFkr cSukesa ls izHkkfor gS ml Ikj 11-25 iSls lkykuk yxku vnk fd;k tkrk gS rFkk oknh }kjk mlh ds rhl xq. ij okn dk ewY;kadu fd;k x;k tks U;k;ksfpr gSA Ik=koyh ds voyksdu ls Kkr gqvk gS fd iz’uxr Hkwfe jktLo fjdkMZ esa d`f”k Hkwfe ds :Ik esa ntZ gS ftldk m)j.k [rkSuh 8lh 1 i=koyh ij nkf[ky gS rFkk ftl [kkrs esa iz’uxr Hkh gS ml ij dqy yxku 45- 005iSls ns; gS rFkk tks lEifRr mlls izHkkfor gksrh gS og mldk 1@4 gS tks fd 11-25 iSls ds djhc cSBrk gS rFkk mlh ds rhl xq.ks ij okn dk ewY;kadu fd;k x;k gSA ,slh fLFkfr esa okn dk fd;k x;k ewY;kadu fu;ekuqlkj U;k;ksfpr izrhr gksrk gS rn~uqlkj rudh ua0 6 fuLrkfjr fd;k tkrk gSA” 14. While deciding the issue no. 8, the trial Court has recorded a finding that the plaintiffs are not entitled to get any relief as they have failed to prove that the defendant no. 5 was person of unsound mind. 15. Against the aforesaid judgment and decree, the plaintiffs preferred an appeal being Civil Appeal No. 12 of 2005 Sona Devi and others Vs. Adesh Kumar and others. 16. The appellate Court has confirmed the findings recorded by the trial Court and dismissed the appeal of the plaintiff. The appellant court has recorded the finding that Ranjeet Singh has not filed any written statement and there is no evidence on record to prove that he was a mentally retarded person and as such the appeal was dismissed. The relevant portion of the finding recorded by the appellate Court is to the following effect: “oknhx.k@ vihykUV dk ;g rF; xzg.k bl rF;k dks nf’kZRk djrk gS fd j.kthr Hkh iz’uxr lEifRr dk lg Lokeh FkkA ,slh fLFkfr es tc og lg Lokeh Fkk vkSj ,slh dksbZ lk{; ugha gS fd eUncqf) dk Fkk vkSj ekufld :I ls v{ke Fkk rks ml fLFkfr esa j.kthr dks viuh lEifRr cspus dks iwjk vf/kdkj Fkk vkSj ml fLFkfr esa oknhx.k @ vihykUV ds fodz; foys[k fujLr fd;s tkus lEcfU/kr okn dks fujLr djds fo}ku flfoy tt ¼dfu”B izHkkx½ us fdlh izdkj dh dksbZ =qfV ugha dh gS vkSj i=koyh ij ,slk dksbZ vk/kkj ugha gS ftlds vk/kkj ij oknhx.k @ vihykUV dh vihy dks fdlh izdkj ls Lohd`r fd;k tk lds] fygktk oknhx.k @ vihykUV dh bl vihy esa dksbZ cy ugha gS vkSj cyghu gksus ds dkj.k oknhx.k @ vihykUV dh ;g vihy mijksDrkuqlkj fujLr gksus ;ksX; gSA” 17. There is no evidence on record, which can establish that the defendant no. 5 Ranjeet Singh was a person of unsound mind. 18. I have gone through the judgments and decree passed by the court’s below. Both the courts below have recorded concurrent finding and therefore, no substantial question of law arises so as to interfere under Section 100 of the Code of Civil Procedure. 19. In H.P. Pyarejan Vs. Dasappa 2006 AIR SCW 715, the apex Court has observed as under:- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re- appreciation of evidence. ” 20. In view of the aforesaid observation, present Second Appeals lack merit and need to interference under Section 100 of the Code of Civil Procedure. 21. Consequently, Second Appeals are dismissed under Order 41 Rule 11 of the Code of Civil Procedure. No order as to costs. (Rajesh Tandon, J.) 7.4.2008 Rathour