HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.210 of 2014
JUDGMENT :
This Second Appeal is arising out of the judgment and decree dated 22.11.2013, in A.S.No.39 of 2010 on the file of the I Additional District Judge, Khammam, which is arising out of the judgment and decree dated 09.11.2009 passed in O.S.No.70 of 2003 on the file of the Principal Senior Civil Judge, Kothagudem.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court. The appellants are the plaintiffs.
3. Initially, the suit is filed by the plaintiffs for cancellation of transaction that took place between defendant No.1 and the husband of defendant No.2, vide registered sale deed bearing document No.3245/88 dated 25.11.1988, which is sham and nominal and for grant of perpetual injunction restraining defendant No.2 from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. The brief facts of the plaint are that all the three plaintiffs are the sons of the 1st defendant and they along with defendant No.1 are the absolute 2 GAC, J S.A.No.210 of 2014 owners and possessors of the suit schedule property. Initially, the father of the defendant No.1 by name Janardhan was the absolute owner and possessor of the suit schedule property as he purchased the same vide registered sale deed in the year 1963. In the year, 1978, the said Janardhan died leaving behind the plaintiffs and defendant No.1 as his legal heirs and successors and after his death, plaintiffs and defendant No.1 became joint owners of the suit schedule property. It is the further case of the plaintiffs that the defendant No.1 was addicted to bad habits and as such, they were maintaining all the affairs of the family and the defendant No.1 was living separately. In the 2nd week of January, 2003, the defendant No.2 along with his henchmen, came to the suit schedule property and enquired about rights of the plaintiffs and tried to interfere with their peaceful possession for which the plaintiffs resisted the 2nd defendant. But the 2nd defendant threatened the plaintiffs contending that her husband purchased the suit property from defendant No.1 vide registered sale deed bearing document No.3245/88 dt.25.11.1988 and after the death of her husband, she being the sole legal heir, got rights over the property. It is the 3 GAC, J S.A.No.210 of 2014 specific recital in the plaint that defendant No.1 colluded with defendant No.2, in order to deprive the rights of the plaintiffs over the suit property and created the sale deed which is sham and forged and therefore, it has to be cancelled.
4. Defendant No.1 remained ex-parte. Defendant Nos.2 to 5 have filed separate written statement denying all the allegations of the plaint. It is contended that the suit schedule property was sold by the 1st defendant in favour of her husband under a registered sale deed. According to the 2nd defendant, K.Janardhan who is the father of the 1st defendant purchased the property and after his death, the 1st defendant being his adopted son succeeded the property and sold the said property to several persons including the husband of defendant No.2, for valid consideration of Rs.1,80,000/- and since then, they were in possession and enjoyment of the same. It is the further contention that the 2nd defendant in order to set up a retail outlet dealership of IBP company applied to its Regional Manager for sanction and establishment and accordingly she applied for permission to the 4th respondent, to make constructions who inturn accorded permission 4 GAC, J S.A.No.210 of 2014 by receiving requisite fee of Rs.3,900/- dated 07.03.2003. Thereafter, the 2nd defendant has fixed a barbed wire, constructed a thatched room and obtained electricity connection from the electricity department in the suit schedule property.
5. Further, defendant No.1 also executed a document dated 13.11.1992 in favour of Dr.Jhansi Laxmi transferring 1370 sq.yards of site @ Rs.70/- per sq.yard and the said document was attested by the 2nd plaintiff. Moreover, the defendant No.1 also sold 300 sq.yards to one Smt.Umarani vide document No.3247/88 dated 26.11.1988 for valid consideration of Rs.45,000/-. It is the specific contention in the written statement that the plaintiffs cannot file a suit for cancellation of sale deed without declaration of title over the suit schedule property and the suit is barred by limitation, as they did not file the suit within 3 years after plaintiffs attaining majority. It is further contended that the plaintiffs did not make any allegations against defendant Nos.3 and 4 and therefore, their inclusion as parties amounts to mis-joinder.
6. Considering the pleadings, the trial Court has framed the following issues:-
5
GAC, J S.A.No.210 of 2014 "1. Whether the plaintiffs are entitled for cancellation of registered sale deed dated 25.11.1998?
2. Whether the plaintiffs are entitled for the relief of perpetual injunction?
3. To what relief?"
7. On behalf of the plaintiffs, P.W.1 was examined and Exs.A- 1 got marked. On behalf of the defendants D.W.1 was examined and Exs.B-1 to B-8 were got marked.
8. On considering the oral and documentary evidence, the trial Court has come to a conclusion that the pleadings of the plaintiffs are self contradictory and it is an admitted fact that the 1st defendant made sales under Exs.A-7 and B-8 in favour of one M.Umarani and Dr.Jhansi Laxmi. Further, the plaintiffs did not file any suit against those vendors, but filed a suit against defendant No.2 alone and furthermore, the finding of the Court that it is not open for the plaintiffs to allege that defendant No.1 made the sale under Ex.A-1 to the husband of defendant No.2, as a sham and nominal transaction without consideration, in order the meet the 6 GAC, J S.A.No.210 of 2014 expenses of his bad vices and accordingly, dismissed the suit of the plaintiffs.
9. Being aggrieved by the same, an appeal was preferred by the plaintiffs vide A.S.No.39 of 2010 on the file of I Additional District Judge at Khammam.
10. After considering the oral and documentary evidence and arguments of the appellants and respondents, the 1st appellate Court has framed the following points for consideration:-
"1. Whether the judgment and decree in O.S.No.70/2003 dated 09.11.2009 on the file of Principal Senior Civil Judge, Kothagudem is to be set aside or not?
2. Whether the suit is decreed or not, if so, to what relief?"
11. Considering the oral and documentary evidence on record, the 1st appellate Court has dismissed the appeal confirming the judgment of the trial Court.
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GAC, J S.A.No.210 of 2014
12. Being aggrieved by the same, the present Second Appeal is preferred by the plaintiffs raising the following substantial questions of law:-
"a) Whether the Courts below can render findings contrary to the recitals in sale deed Ex.A-1 in view of Section 92 of the Indian Evidence Act, 1872?
b) Whether non-filing of the suit for cancellation of sale deeds in Exs.B-7 & B-8 by the plaintiffs, operates a bar for granting relief in the present suit for cancellation of the sale deed in Ex.A-1/B-6?
c) Whether the judgment and decree of the
Courts below in dismissing the suit
holding that the plaintiffs did not adduce
evidence as to whether the suit schedule
property is self acquired or ancestral
property having regard to the recitals in Ex.A-1 showing it to be ancestral property, is justified in law as being perverse?
d) Whether the judgment and decree passed by the Courts below are sustainable in law when the defendant No.1 who is father of the plaintiffs cannot alienate the joint family properties when sons are majors?8
GAC, J S.A.No.210 of 2014
e) Whether the dismissal of suit by the Courts below is justified without deciding as to the entitlement and succession of the plaintiffs to the suit schedule property along with their father/defendant No.1?"
13. Heard the learned counsel for the appellants and learned counsel for the respondents. Perused the entire record.
14. On perusal of the entire record, it is evident that both the Courts below have given concurrent findings on the facts. Further, no substantial question of law involved in the present case. The evidence before the Court below is that the defendant No.1 and the plaintiffs are the members of joint family and the property belongs to joint family. Admittedly, defendant No.1 has sold the property not only to defendant No.2 but also to one Uma Rani and Jhansi Laxmi which is not disputed by the plaintiffs and the 2nd plaintiff is one of the attestor to the said documents. It is evident from the record, that the suit is filed only against the defendant No.2 and others and not against said Uma Rani and Jhansi Laxmi.
15. It is pertinent to mention that there is limited scope under Section 100 of CPC while dealing with the appeals by the High 9 GAC, J S.A.No.210 of 2014 Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, only then, this Court can interfere with the orders of the Courts below. On perusal of the entire material on record, this Court is of the considered view that the orders of the Courts below are not perverse and there is no misreading of evidence, and therefore in the absence of substantial question of law, it is not proper to interfere with the concurrent fact findings of the Courts below. Therefore, the Second Appeal deserves to be dismissed.
16. In the result, the Second Appeal is dismissed at the stage of admission confirming the judgment and decree dated 22.11.2013 in A.S.No.39 of 2010 on the file of I Additional District Judge, Khammam. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 18.01.2023 dv