Chattisgarh High Court
Shah Mohammad vs (Deleted) Khatija Bai (Died) on 11 March, 2026
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
2026:CGHC:11764
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved for Judgment On : 14.10.2025
Judgment Delivered On : 11/03/2026
Judgment Uploaded On : 11/03/2026
SA No. 237 of 2008
1 - Shah Mohammad S/o Fatte Mohammand Aged About 68 Years
2 - Lal Mohammad S/o Fatte Mohammand Aged About 65 Years
3 - Mustaque Mohammad S/o Fatte Mohammand Aged About 62 Years
No.1 to 3 are Residents Of Bindra-Nawagarh, Tehsil Gariyaband, Distt.
Raipur
4 - Mohammad Abdahu Khan (Died) Through Lrs.-
4.-(A) Javed Khan S/o Late Shri Mohammad Abdahu Khan Aged About 56
Years R/o Civil Lines, Gariyabandh, District- Gariyabandh (C.G.)
4. (B) Jubaid Khan S/o Late Mohammad Abdahu Khan Aged About 54 Years
R/o Civil Lines, Gariyabandh, District- Gariyabandh (C.G.)
5 - Abdul Ahmed Khan (Died) Through Lrs.-
5.(A) Jabir Khan S/o Late Shri Abdul Ahmad Khan Aged About 45 Years R/o
Rampur Naddi, Pathanpura, Tehsil- Madhiyaun, District- Jaunpur (U.P.)
--- Appellants
versus
BALRAM
PRASAD
DEWANGAN
1 - (Deleted) Khatija Bai (Died) As Per Hon'ble Court Order Dated 21-10-024.
Digitally signed
by BALRAM
PRASAD
DEWANGAN
2 - Roshan Bai (Died) Through Lrs.-
2.- (A) Adil Faruki S/o Sadiq Faruki Aged About 35 Years R/o Behind Jail,
Aamdi, Tehsil And District- Gariyabandh (C.G.)
2
2.-(B) Anas Faruki S/o Sadiq Faruki Aged About 35 Years R/o Behind Jail,
Aamdi, Tehsil And District- Gariyabandh (C.G.)
3 - Jarina Bai W/o Hashim Khan Aged About 50 Years Resident Of Bindra-
Nawagarh, Tehsil Gariyaband, Distt. Raipur
4 - State Of Chhattisgarh Through The Collector, Raipur
5 - Habib Mohammed S/o Isha Gani, Resident Of Tarri Near Gobra
Nayapara, Raipur
6 - Julekha Widow Of Taiyab, Resident Of Bindra-Nawagarh, Tehsil
Gariyaband, Distt. Raipur
7 - Bilkis Bano Wife Of Wahab Khan, Resident Of Kostapara, Dhamtari
8 - Rukhsana Bano Wife Of Mohammad Ali, Resident Of Mova, Post Saddu,
Distt. Raipur
--- Respondents
(Cause title is taken from CIS) For Appellants : Mr. B.P. Sharma, Advocate with Mr. K.N. Singh and Mr. Pushpa Kumar Gupta, Advocates For Respondents No.2 & 3, 6, 7 : Mr. Vivek Tripathi, Advocate &8 For Respondent No.4/State : Mr. Tarkeshwar Nandey, P.L. Hon'ble Shri Justice Parth Prateem Sahu CAV Judgment
1. This plaintiff's second appeal is filed against the judgment and decree dated 03.05.2008, in Civil Appeal No.32-A/2006 (Shah Mohd. & Ors. Vs. Smt. Khatija Bai & Ors), passed by Additional District Judge, Gariyaband, District- Raipur (C.G.) affirming the judgment and decree passed by learned Trial Court in Civil Suit No.28-A/1998 dated 29.08.2000, passed by the Civil Judge Class-I, Gariyaband, District - Raipur.
3
2. Facts relevant for disposal of this appeal are that Fatte Mohd. along with Abdahu Khan and Abdul Ahmed Khan have filed civil suit for declaration of title and permanent injunction with respect to the suit property bearing Kh. No.1/2 measuring 3.237 hectare, Kh. No.122 measuring 0.0655 hectare, Kh. No.123 measuring 0.081 hectare, total measuring 3.973 hectare of land situated at Village Bindra Nawagarh, P.C. No.45, R.I.Circle Gariyaband pleading therein that it was purchased by them vide registered sale deed dated 04.04.1972 from Khato Bai and since then they are in peaceful possession of the suit property. It was pleaded that at the time of execution of sale deed, Khato Bai stated that on part of the land, canal is to be constructed and she will take the compensation of land on which the canal is to be constructed. At the time of execution of sale deed, Rs.3,500/- has been paid before registration of sale deed and balance of Rs.500/- has been paid subsequently of which endorsement is made by seller of accepting money. After purchase of land, they have got the land cultivable. Khato Bai seller of the land along with one Hasam in greed have objected mutation proceedings and challenged the order of mutation. Revision filed by plaintiff in mutation proceeding before the Board of Revenue came to be dismissed and thereafter, Hasam Khan filed an application for mutation which made the plaintiff to file suit for declaration of title. In plaint alternate plea of adverse possession was also raised pleading therein that land was sold by Khato Bai within knowledge of defendant No.1. Seller received entire sale consideration and since 1972, they are in possession of the suit property. Suit was filed on 15.11.1991 after about 19 years of alleged sale deed. After filing of suit by way of amendment, it was also pleaded that due to 4 proceedings pending before the revenue court, name of seller (Khato Bai) continued in the revenue records and after her death, defendant No.1 to 3 in collusion with Patwari have got the name of Jarina and other others, mutated in revenue records.
3. Defendant No.1 submitted her written statement pleading that before getting the sale deed executed in favour of plaintiff, Khato Bai had obtained consent of defendant No.1 and had paid Rs.250/- to her in front of other persons. She also admitted that on the land, subject matter of the sale deed, plaintiffs are in possession. At the time of death of Khato Bai, defendant No.1 was residing along with Khato Bai. She claimed her title over other land bearing Kh. No.1/4 measuring 0.462 hectare.
4. Defendants No.2 and 3 submitted their separate written statement in which it is pleaded that the land subject matter of sale deed/suit was not sold to the plaintiffs, but was mortgaged because there was debt of bank, over the land. Shah Mohammad, S/o. Fatte Mohammad fraudulently got signature of seller in the sale deed stating that he is getting her signature on power of attorney and have denied the execution of sale deed. They have in-fact denied entire pleadings made in the plaint. It is also pleaded that after death of Khato Bai, her legal representative Hasam, S/o. Karim (grand son) has submitted an application for mutation. Based on the sale deed, plaintiffs have also filed an application for mutation in the year 1980-81 and obtained order from Tahsildar. They have pleaded that they have become owner of land, subject matter of suit, based on the mutation of their name in the revenue records. Since the death of Khato Bai they are in 5 possession. It is also pleaded that Khato Bai has to pay the loan of bank and bank officials were issuing notices for auction of the lands and therefore, land subject matter of the sale deed has been mortgaged. By playing fraud, plaintiffs have got sale deed executed by Khato Bai in the name of persons resident of Uttar Pradesh. They have also filed counter claim pleading therein that defendants No.2 and 3 being the child and widow of Hasam, are legal representative of Khato Bai. They are in possession of the suit property. Plaintiffs be restrained from interfering with their possession and if it is found that plaintiffs are in possession, possession be given to them.
5. Counter claim filed by defendants No.2 and 3 was opposed by defendant No.1. It was further pleaded that defendants No.2 and 3 did not get any right or title over the property of Khato Bai and it is also pleaded that land, subject matter of the sale deed was sold to plaintiffs. Balance land or remaining land of Kh. No.1/4 measuring 0.0462 is of Habib Mohammad, S/o. Khato Bai.
6. Counter claim filed by defendant No.1 was replied by defendants No.2 and 3 and denied the pleading made therein. It was further pleaded that after death of Khato Bai, name of plaintiffs got recorded of which Hasam, S/o. Karim preferred appeal, which was allowed on 01.06.1984 stating that name of plaintiff would not be mutated. The said order was challenged by the plaintiffs before the Board of Revenue, which was dismissed and thereafter the suit was filed in collusion with defendant No.1.
7. Defendant No.5 Mohammad Habib also filed written statement supporting the claim of defendant No.1.
6
8. Plaintiffs have also filed written statement to the counter claim/cross suit filed by defendants No.2 and 3 and they have pleaded that Khato Bai has executed sale deed for her domestic need and has handed over the possession of the land, subject matter of sale deed. At the time of execution of sale deed, there was mutual agreement between the parties, compensation towards construction of canal over the part of disputed land would be received by the seller of land i.e. Khato Bai. It was also pleaded that defendants No.2 and 3 had made attempt to obtain loan from Cooperative Bank, against which complaint was made by Noor Mohammad to higher authorities. It is pleaded that after getting the sale deed executed on payment of sale consideration, application for mutation was filed in the name of Fatte Mohammad by his son Shah Mohammad. Application dated 05.07.1979 was dismissed on the ground that application was not filed in accordance with law and he is having no authority to file such application. Appeal against which was also dismissed on 15.07.80. To remove the technical defect, power of attorney was executed in favour of Shah Mohammad by Fatte Mohammad and thereafter application for mutation was again filed, which was allowed on 31.08.1982 even after objection raised by Khato Bai and Hasam that in the sale deed signature was obtained stating that it was lease (Regh). Hasam has made statement that Khato Bai did not present herself before the Registrar. During the proceedings, Khato Bai died and defendants No.2 and 3 got their name mutated and contested the case. Vide order dtaed 31.08.1982 name of plaintiffs/purchasers were recorded. Appeal preferred before the SDO was allowed and application for mutation filed by purchaser was rejected on the ground of res judicata and have 7 further recorded by SDO that there is no proof of payment of balance amount of Rs.500/-. The Board of Revenue also rejected the revision filed by plaintiffs recording that second application before the Tahsildar was hit by principles of res judicata. It is also pleaded that Hasam has raised false objection before the revenue court in mutation proceedings that sale deed was got executed fraudulently in the name of Reghnama i.e. lease deed and subsequently they have taken a plea that signature of Khato Bai was obtained stating it to be a mortgage deed. They have denied the relationship of defendants No.2 and 3 with Usman and his widow Khato Bai. It is also pleaded that Hasam have provoked Khato Bai to object the mutation proceedings and contest the case and after her death, it is Hasam who continued the revenue proceedings.
9. On the pleadings made by plaintiffs, learned trial Court has formulated Issue No.1, whether plaintiffs are owner of the land bearing Kh. No.1/2, 112/1, 123/1 total measuring 3.835 hectare. Upon appreciation of the evidence brought on record by respective parties, learned trial Court has concluded that payment of sale consideration of Rs.3,700/- (Rs.3,500/- as pleaded in the plaint to Khato Bai) is not proved. Learned trial Court have further recorded a finding that after execution of the sale deed, Ex.P-2, Khato Bai received Rs.500/- from Shah Mohammad but the said amount of Rs.500/- is received by her against sale consideration is not proved. It is also recorded by learned trial Court that sale deed was got executed fraudulently, therefore, plaintiffs do not get any valid title. Sale deed (Ex.P-2) is not binding upon Khato Bai or her legal representatives as it being void. It is also observed by 8 learned trial Court that plaintiffs themselves have not filed civil suit within period of three years, and decide the issue No.1 against plaintiffs.
10. With regard to Issue No.5 as to whether the suit property was mortgaged by Khato Bai with Fatte Mohammad and Noor Mohammad in security of loan to which learned trial Court upon appreciating the evidence have recorded the finding in affirmative that the land was mortgaged in security of loan. The aforementioned finding was affirmed by learned First Appellate Court on appreciation of evidence.
11. Appellants herein preferred an appeal U/s. 96 of the Code of Civil Procedure, before learned Additional District and Sessions Judge, Gariyaband, which also came to be dismissed by the impugned judgment and decree observing that sale deed was got executed by fraud.
12. This second appeal was admitted on the following substantial question of law :-
"Whether in absence of a specific plea for setting aside the sale deed dated 04.04.1972 executed by Khato Bai in favour of Fatte Mohammad and Noor Mohammad, both the Courts below have under Section 31 of the Specific Relief Act erred in allowing the counter claim of defendants No.2?"
13. Learned counsel for appellants would submit that finding recorded by learned Courts below is contrary to the evidence available on record. Learned trial Court while deciding the Issue No.5 had erroneously held that Khato Bai has executed the deed (Ex.P-2) for security of loan 9 overlooking the fact that that there is no evidence of loan advanced by original plaintiffs, therefore, there is no question of taking steps for its security. The contents of sale deed would show that it was recorded as sale deed registered in the office of Sub-Registrar, Gariyaband on 04.04.1992 in presence of vendor Khato Bai and the witnesses. Mutation order passed by Tahsildar has not been affirmed by the Appellate Court on the ground that Rs.500/- has not been paid at the time of sale deed as such there was non-payment of entire sale consideration. It is not necessary that entire sale consideration has to be paid at the time of registration of the sale deed but in the sale deed there is mention that part payment of Rs.3,500/- out of total sale consideration of Rs.4,000/- has been paid at the time of execution of sale deed. Learned Courts below erred in not only non-suiting the plaintiffs but decreeing the counter claim filed by defendants No.2 and
3. Finding recorded by learned trial Court about the sale deed to be void is based on the evidence of P.W.-2, who is hearsay witness.
14. Learned counsel for respondents No.2 and 3 would oppose the submission of learned counsel for appellants and submits that learned trial Court as also the First Appellate Court have passed the decree upon proper appreciation of the documentary and oral evidence brought on record by the respective parties. He contended that against the order dated 28.06.1976, passed by Tahsildar, Gariyaband in mutation entry No.17 observing that Khato Bai to receive balance amount of Rs.500/-, was put to challenge in an appeal before the S.D.O., wherein SDO, Gariyaband allowed the appeal and dismissed the mutation order passed by the Tahsildar, Gariyaband vide order 10 dated 15.07.1980. It is contention of learned counsel for respondents No.2 and 3 that there is admission on the part of the (P.W.-1) Shah Mohammad, S/o. Fatte Mohammad (Fatte Mohammad is one of the purchaser in sale deed Ex.P-2) that Khato Bai has taken loan from Cooperative Bank, which was not paid and at that time he was President of Cooperative Bank. He also admitted that on the advice of Tahsildar, he deposited the loan amount of Khato Bai. It is also an admission of P.W.-1 that some portion of the land was acquired by the State Government and the compensation was paid to Khato Bai, but this fact is not mentioned in the registered sale deed (Ex.P-2) and there is no answer to the question as to the payment of Rs.3,700/-. Referring to the decision in case of Ratnagiri Nagar Parishad Vs. Gangaram Narayan Ambekar and Ors., reported in (2020) 7 SCC 275, it is submitted that burden of proof is always upon plaintiffs to substantiate his case with adequate pleadings and evidence. Weakness in defence cannot be basis for grant of relief to plaintiff. He also contended that relief of seeking cancellation is not obligatory. Void instrument which is a nullity does not necessarily required for relief of its cancellation.
15. I have heard learned counsel for parties and perused the documents placed on record.
16. Plaintiffs in support of their claim have exhibited power of attorney executed in name of Shah Mohammad by his father Fatte Mohammad for the purpose of representing him in the court contesting the case and others as mentioned therein, which is dated 04.11.1980 as Ex.P-1. Registered sale deed dated 04.04.1972 executed by the Khato Bai, 11 Wd/o. Usman Memon in favour of Noor Mohammad, S/o. Amjat Khan and Fateh Mohammad, S/o. Abdul Khan, resident of Bindra Nawagarh, District Raipur is marked as Ex.P-2. Copy of cash receipt issued under the signature of Naib Tahsildar as Ex.P-3 to Ex.P-6 in name of Shah Mohammad. Copy of account No.176 of Smt. Khato Bai, under Krishak Rin Adhiniyam as Ex.P-7. Certificate issued in piece of paper mentioning that Shah Mohammad, Plaintiff No.1 has deposited a sum of Rs.1258/- in the institution as Ex.P-8 and examined Shah Mohammad as (P.W.-1), Karamat Beg as (P.W.-2) and Hargovind as (P.W.-3).
17. Defendants in support of their claim have submitted one documents Ex.D-1, which is a certificate issued in plain paper by Headmaster of Primary School, Nawagarh, Block - Gariyaband of Habib Mohammad, mentioning his date of birth and the year of school leaving. Defendants have examined Khatija Bai as D.W.-1, Tejraj Singh as D.W.-2, Rabiya Bai as D.W.-3, Roshan Memon as D.W.-4, Mohammad Habib as D.W.-
5.
18. According to the pleadings made in the plaint and the written statement it is apparent that plaintiffs had claimed their right and title over the suit property based on the sale deed (Ex.P-2) executed by Khato Bai, widow of Usman in favour of plaintiff No.2 and father of plaintiff N.2 and 3.
19. To prove the execution of sale deed (Ex.P-2), plaintiffs have examined one Karamat Beg as (P.W.-2). This witness in his evidence has stated that when he went to Gariyaband for recovery of money from Hasam, he was made witness to the sale deed. In his evidence, he 12 categorically stated that in front of him, there was no discussion with regard to subject land. He also shown his unawareness about any discussion between the parties. He also shown unawareness that deal between the parties is with regard to sale or for taking land on lease. He categorically stated before the learned trial Court that no amount has been paid to Khato Bai in front of him nor there is any transfer of fund in his presence. He also stated that he was not read over the contents of sale deed nor sale deed was read over to Khato Bai in front of him. From the evidence of independent witness, who is also the witness of sale deed, it is apparent that he was not read over the sale deed, there was no payment of sale consideration to Khato Bai in front of him nor Khato Bai was read over the contents of sale deed. The other witness Hargovind (P.W.-3) though was present in Registrar's office at the time of execution of sale deed (as stated by witnesses), but he was not made witness to the sale deed. He has been examined to prove about payment of Rs.500/- to Khato Bai after execution of sale deed. He did not mention exact date. In his evidence, he stated that he did not saw payment made to Khato Bai, counting of money was inside. He saw counting of amount. Though this witness has stated that he asked whether Khato Bai received Rs.500/- or not to which she stated that she received but in the evidence it has not come that he was informed by Khato Bai and other person that payment of Rs.500/- is towards balance of sale consideration.
20. Ex.P-2 which is a sale deed produced by plaintiffs in support of their case. Perusal of the contents of the sale deed would show that it 13 clearly mentions that vendor in need of domestic expenses, has sold the property, subject matter of sale deed, after mutual payment and acceptance of Rs.4,000/-. This documents does not mention that out of total consideration Rs.3,500/- has been paid on so and so date and after execution of sale deed in handwriting, it mentions received Rs.500/- and thumb impression in the name of Khato Bai. In backside of it mentions that Shah Mohammad name is mentioned to be witness of sale deed along with Kamat Beg. Aforementioned entries in the document, Ex.P-2 creates suspicion on valid execution of sale deed. From the entries made in the backside of the sale deed, further reveals that it mentions that initially it is recorded that entire sale consideration of Rs.4,000/- is received and therefore, in printed portion of seal affixed on sale deed, column of sale consideration in part has been crossed. From which it is appearing that rest of the handwritten portion is subsequently written.
21. Defendants witness Tejraj Singh (D.W.-2), who is one of the agriculturist of village Bindra Nawagarh had stated that during lifetime of Khato Bai (vendor), her bank loan was increased to which she could not able to pay. He also categorically stated that for repayment of bank loan, she had given her agricultural land to Shah Mohammad on lease (Regh). He also categorically stated that at that time, Shah Mohammad (son of Fatte Mohammad one of the purchaser) was President of Bank Sabha. He also stated that from the some portion of the land recorded in the name of Khato Bai, canal was constructed, for which compensation of Rs.800 -900 was paid to Khato Bai after execution of documents. In cross-examination, this witness had stated 14 that house of Khato Bai and Shah Mohammad is adjacent. Khato Bai informed him that plaintiff stated that documents is to be executed against sum and have got sale deed registered fraudulently.
22. Shah Mohammad (P.W.-1) in his evidence had admitted that Khato Bai in her lifetime objected the sale transaction. He also admitted that before registry, Khato Bai had obtained loan from Cooperative Bank against disputed land. He also admitted that at that time, he was President of Cooperative Bank. This witness is son of one of the purchaser Fatte Mohammad. His evidence to this extent that balance amount of Rs.500/- is paid next day is contrary to his evidence in Para-3 as also of para-9.
23. So far as substantial question of law formulated on 30.07.2008 as to whether in absence of specific plea for setting aside the sale deed (Ex.P-2) have erred U/s. 31 of the Specific Relief Act in allowing the counter claim is concerned, learned trial Court as well as the First Appellate Court have found the transaction (Ex.P-2) to be fraudulent, therefore, it is void transaction. If transaction is held to be void, defendants would not be required to seek its cancellation. More so when it is a counter claim filed by defendants in the suit for declaration of title filed by plaintiffs based on the sale deed.
24. Section 54 of the Transfer of Property Act, 1882 defines sale which reads as under :-
"54. "Sale" defined.-- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.15
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
25. From the definition of sale it is apparent that sale of immovable property has to be for consideration. Payment of sale consideration is essential part of sale U/s. 54 of the Transfer of Property Act. If the sale deed is executed without payment of sale consideration, at the time of execution of the sale or in future, it is not a sale at all in the eyes of law. It is having no legal effect, therefore, such a sale will be void.
26. Hon'ble Supreme Court in case of Shanti Devi (Since deceased) Through LRS. Goran Vs. Jagan Devi & Ors., 2025 INSC 1105 has observed thus :-
"38. Concurrent findings of both the First Appellate Court and the High Court indicated that the husband of the 16 defendant i.e., one Bagdawat, who had allegedly given the remaining sale consideration of Rs. 6,000/- during the time of execution of the sale deed, had not stepped into the witness box. Furthermore, one of the attesting witnesses to the execution of the sale deed i.e., the Sarpanch had also died before his deposition could be recorded. One Budhu, who was the second attesting witness, was the brother of the defendant and both the Courts had doubted his testimony as being partial to the defendant. All in all, there was no witness who could substantiate the case of the defendant that there was part-payment of the sale consideration, i.e., Rs. 6,000/- during the time of execution of the sale deed. Furthermore, no evidence was adduced by the defendant to prove that even the initial amount of Rs. 9,000/- which was purportedly paid before the execution of the sale deed was actually received by the plaintiff. Therefore, the averment of the plaintiff in the plaint, that she had not received the sale consideration, had not been otherwise proven as false. In such circumstances as well, i.e., in the absence of the sale consideration being tendered, the sale deed would be void and the plaintiff would not be required to seek its cancellation. Therefore, Article 59 of the Limitation Act, 1963 could not be said to be applicable to the present facts."
27. In the case at hand also, the plaintiffs could not able to prove payment of sale consideration to vendor. The evidence of part payment before execution and remaining later is also contrary to the contents of sale deed Ex.P-2. On contrary from the evidence of plaintiff it has come that the vendor is facing difficulty in repayment of loan of Cooperative Bank of which son of one of purchaser was President. 17
28. Both the Courts have recorded concurrent finding of fact about the fraudulent sale deed after appreciation of oral and documentary evidence. High Court in second appeal filed under Section 100 of the CPC will not re-appreciate the evidence.
29. In case of Kewal Krishan v. Rajesh Kumar, reported in (2022) 18 SCC 489, Hon'ble Supreme Court has observed that sale deeds were void if executed without consideration.
30. Hon'ble Supreme Court in case of Navaneethammal vs. Arjuna Chetty reported in AIR 1996 SC 3521, has held that interference with the concurrent findings of the Courts below by the High Court under Section 100 of CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the Lower Court. Even assuming that another view is possible on re-appreciation of the same evidence that should not have been done by the High Court, as it cannot be said that the view taken by the First Appellate Court was based on no material.
31. In case of Gurdev Kaur & Ors v. Kaki & Ors, reported in (2007) 1 SCC 546, the Hon'ble Supreme Court has observed in para Nos. 54, which is as under:-
"54. In the same case, this Court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower appellate court. This Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and 18 not frustrate it by excluding the same. This Court further observed that the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible."
32. In the case of State of Rajasthan and Others vs. Shiv Dayal and Another, Reported in (2019) 8 SCC 637, the Hon'ble Supreme Court has observed in para Nos. 14, 15 & 16 as under:-
"14. True it is as has been laid down by this Court in several decisions that "concurrent finding of fact" is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). However, this rule of law is subject to certain well-known exceptions mentioned infra.
15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called "concurrent finding of fact" whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance.
16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could 19 reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)"
33. The Hon'ble Supreme Court in the case of Sukhbiri Devi and Others vs. Union of India and Others reported in 2022 SCC OnLine SC 1322 while reiterating the view taken by the Apex Court in the case of Shiv Dayal and Another (supra), has held that interference with the concurrent findings in second appeal can be made if it is pointed out that it has been passed dehors the pleadings or based on no evidence or based on misreading of material evidence or against the provision of law etc. No such case is made out by appellants.
34. In the aforementioned facts of the case and the decisions of Hon'ble Supreme Court when there is concurrent finding of fact that sale deed is void, in the opinion of this Court, there is no requirement of defendants No.2 and 3 to seek relief of cancellation/setting aside of sale deed. Substantial question of law framed is answered accordingly.
35. For the foregoing discussions, I do not find any merit in this appeal.
Accordingly the appeal is dismissed.
36. Decree be drawn accordingly. No order as to costs.
Sd/-
(Parth Prateem Sahu) Judge Balram