Smt. Surendra Bala vs Smt. Bhagwan Devi And 20 Ors.
2016 Latest Caselaw 3194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

'AFR'
 
Court No. - 19
 
Case :- SECOND APPEAL No. - 158 of 2016
 
Appellant :- 	Smt. Surendra Bala
 
Respondent :- Smt. Bhagwan Devi And 20 Ors.
 
Counsel for Appellant :-     Siddhartha Varma
 
Counsel for Respondent :- Neeharika Sinha Narayana, Anadi Krishna Narayana
 

 
Hon'ble Pramod Kumar Srivastava,J.

1. This appeal has been preferred against the judgment dated 19.10.2015 passed by District Judge, Etah in consolidated Civil Appeal no. 21/2013 (Smt. Surendra Bala v. Smt. Bhagwan Devi and others) and civil appeal no. 62/2013 (Abdul Sahid & another v. Smt. Surendra Bala).

2. It is admitted case that original owner of disputed property was Sohan Lal, s/o Bihari Lal. His late son Virendra Kumar was married with Surendra Bala (defendant no.-1). It is also admitted that defendant no. 2 to 7 are near relative of defendant no.-1. Admittedly, defendant no.-1 Surendra Bala is residing in that portion of property by which original suit of eviction and recovery of damages has been filed. It is also admitted that on behalf of previous owner Sohan Lal (/defendant no.-7) had executed sale-deed dated 9.9.1970 of disputed property in favour of plaintiff no.-1 Bhagwan Devi. It is also admitted that during pendency of the proceedings of the original case, the plaintiff no.-1 Bhagwan Devi had sold the disputed property to plaintiff no. 2 and 3 (appellants of first appeal no. 62/2013).

3. In original suit no.-105/1973, the plaint case in brief was that original owner Sohan Lal (defendant no.-7) had admitted that her daughter-in-law, defendant no.-1 Smt. Surendra Bala as licensee in the disputed property. The said Sohan Lal had sold this property by sale-deed in favour of plaintiff no.-1. Sohan Lal cancelled the license of defendant no.-1 and had served notice of this to her. Plaintiff had also served notice to the defendant no.-1 for her status and information of cancellation of her license. Defendants no. 2 and 7 were admitted in this property on her behalf. Defendant no.-1 given wrong reply of said notice, then plaintiff no.-1 had filed suit for recovery of ejectment and recovery of damages of defendant from disputed house.

4. Only defendant no.1 had filed written-statement, in which she had admitted that Sohan Lal was the owner in possession of disputed property. But the plaintiff is not owner of this property. After the death of her husband, Sohan Lal had kept her (defendant no.-1) with him like daughter. Sohan Lal had sent her for training in Firozabad, then his daughter started living with him and later on, not permitted her (defendant no.-1) to enter the house. Registered sale-deed dated 9.9.1970 executed on behalf of Sohan Lal is a void document, and at the time of execution of said sale-deed she was not physically or mentally fit and could not understand the things. Such sale-deed was without consideration. Suit of plaintiff is based on incorrect facts and is liable to be dismissed.

5. In original suit, trial court had framed issues and afforded opportunity of hearing to the parties, then they have filed documentary evidences and oral evidences. Plaintiff's side had examined PW-1 Ram Gopal, PW-2 Sohan Lal, PW-3 Sansar Babu Babu and PW-4 Abdul Sahid; whereas defendants had examined sole witness DW-1 Surendra Bala (defendant no.-1). After affording opportunity of hearing to the parties, the Court of Civil Judge (S.D.) Etah had decreed the original suit by its judgment dated 4.2.2013. In this judgment, trial court had framed 20 issues. Issue no.-1,5 and 10 related to fact as to whether Sohan Lal had executed the sale-deed dated 5.9.1970 for consideration of Rs. 15,000 and handed over actual possession and disputed property to plaintiff no.-1 or whether the said sale-deed was invalid document and whether the plaintiff became owner of disputed property on the basis of said sale-deed. After appreciating the evidences, trial court had held that said sale-deed was valid document executed by previous owner Sohan Lal in favour of plaintiff no.-1 and thereafter handed over the possession and ownership of disputed property to plaintiff no.-1 who is owner of this property. It was also held by the trial court that Sohan Lal had willingly executed the sale-deed in question in good state of mental health and for consideration. Issues no. 2, 3, 8 and 14 were framed regarding status of defendants as regards to the disputed property. After scrutinizing the evidences, the trial court had held that defendants are neither owner of this property nor their status is that of tenant and they have no right even of alleged adverse possession which is not proved. They had been admitted in disputed property as licensee and after cancellation of license, their status is that of trespasser, and they have no right to continue in its possession. Inter alia, on the basis of these findings, trial court had decreed the suit for ejectment of defendants for relief "Aa" and "Ba" of plaint and for recovery of possession against defendant no.-1, 5 and 6, and for recovery of damages from defendant no.-1. The trial court had declined the relief regarding relief of recovery of possession for property as sought in plaint as relief "Sa".

6. Aggrieved by the judgment of trial court, Civil Appeal no. 21/2013 Smt. Surendra Bala v. Bhagwan Devi and others, was preferred by defendant no.-1 of original suit.

7. Against the findings of trial court, regarding relief "Sa" of plaint, another Civil Appeal no. 62/2013 (Abdul Sahid & another v. Smt. Surendra Bala) was preferred by plaintiffs no. 2 and 3 of the original suit (purchaser of disputed property from plaintiff no.-1).

8. Both the appeals were preferred against same judgment relating to property mentioned in suit of plaint, therefore they were taken together. The court of District Judge, Etah had consolidated two civil appeals and decided it by single judgment dated 19.10.2015, by which Civil Appeal no. 21/2013 was dismissed and other Civil Appeal no. 62/2013 was allowed, and the original suit was also decreed for remaining relief "Sa" of the plaint for recovery of possession.

9. Aggrieved by the judgments of civil appeal no. 21/2013 and civil appeal no. 62/2013, present second appeal has been preferred by defendant no.-1 of the original suit, namely Smt. Surendra Bala.

10. Learned counsel for the appellant contended that defendant no.-1 had filed suit no. 79/1970 for her maintenance against her father-in-law Sohan Lal. During pendency of said suit property in question was attached; but during the period of attachment, sale-deed of this property was executed by Sohan Lal in favour of plaintiff no.-1. Such sale-deed is void and ineffective. He further contended that although original suit no. 79/1970 was dismissed in year 1971 but its judgment has no effected on rights of appellant/defendant no.-1. He further contended that no cause of action arose to plaintiff/respondent. He also submitted that points of determination were not framed by lower appellate court ,therefore its judgment is erroneous.

11. The contention of learned counsel for the appellant were refuted by counsel for the respondent who submitted that attachment had not effected on the sale-deed executed by Sohan Lal in favour of plaintiff no.-1. He further submitted that later on original suit no. 79/1970 was dismissed therefore any interim order has become non-est and at least has no adverse effect on rights acquired from the said sale-deed. He further contended that the grounds relating to cause of action were never raised either before trial court or before first appellate court, therefore under Order XLI, Rule 2 CPC, such ground cannot be raised directly in second appeal. He further submitted that admittedly Sohan Lal had executed the sale-deed of disputed property in favour of plaintiff no.-1, (who later on sold it to the plaintiffs no. 2 & 3), and said sale-deed was neither cancelled nor was ever challenged. Such sale-deed was not only proved from the evidences adduced but was in knowledge of appellant who had never challenged it earlier. He further submitted that in any case status of appellant in disputed property was only that of licensee, whose license had been revoked, therefore at present her status is that of trespasser and plaintiffs being owner of disputed property, have right to evict her and realize the damages. He submitted that judgment of lower appellate court is not erroneous, therefore appeal should not be dismissed.

12. Rule 31 Order XLI CPC directs that judgment of appellate court shall state the points of determination, the decision thereon, the reason for the decision, and whether the decree appealed from is reversed or varied, the relief for which the appellant is entitled. Thus for decision of first appeal points of determination under Order XLI, Rule 31, aforesaid should be framed and be decided. In present matter, first appellate court had not framed points of determination in the formal way but had considered three points of determination; firstly relating to execution of sale-deed and transfer of ownership by Sohan Lal in favour of plaintiff no.-1, and secondly relating to relief of sought in Civil Appeal no. 62/2013 relating to third relief mentioned in plaint , which was declined by trial court for recovery of possession, and thirdly the point relating to status of appellant/defendant no.-1. In present matter these are the only points that had to be decided for deciding the case and real dispute between the parties, which were specifically taken and decided by the first appellate court.

13. In G. Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224, the Apex Court has held as under:

"9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC."

14. In Kannan v. V.S. Pandurangam, (2007) 15 SCC 157 the Apex Court held:

"9. In the present case both the parties knew that the question involved was whether the defendant (the appellant) in this case had been able to prove his title by adverse possession. Hence the non-framing of a substantial question of law in this case did not prejudice the appellant at all before the High Court.

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12. In the present case, the parties knew well that the question of adverse possession has been pleaded by the appellant-defendant and evidence was led on this issue. Hence no prejudice has been caused to the appellant by non-framing of a substantial question of law by the High Court. "

15. From the above discussion and consideration of legal position, it is found that although no formal point of determination was framed by the first appellate court but the real points of dispute or real points of determination for decision of first appeals were taken for consideration by lower appellate court which had appreciated them, discussed from the evidences and then decided them; therefore the contention of appellant relating to this ground are found unacceptable.

16. So far as argument of learned counsel for the appellant relating to alleged illegality of sale-deed executed by Sohan Lal in favour of plaintiff no.-1 is concerned, this ground is also found unacceptable. In written-statement it was admitted that Sohan Lal was owner of disputed property and who had executed the sale-deed dated 9.9.1970 in favour of plaintiff no.-1. The said said deed was admittedly within the knowledge of appellant, but she had never challenged the same. Although, the ground was taken in written-statement that Sohan Lal was not mentally fit at the time of execution of said sale-deed, but in fact this ground was not on the basis of any evidence or reason. Sub-Registrar had written in sale-deed that he was mentally fit. From the evidences it is proved that Sohan Lal had willingly executed the sale-deed in question in favour of plaintiff no.-1 for consideration, and there are concurrent finding of two courts in this regard which are based on proper reasoning. This concurrent findings are not such which can be considered as infirm or perverse, so such findings cannot be interfered by re-appreciation of evidence in second appeal.

17. From the evidences, it is proved that said sale-deed was executed by Sohan Lal in favour of plaintiff no.-1 during pendency of original suit no. 79/1970 instituted by present appellant Surendra Bala against Sohan Lal. If Sohan Lal was not in fit mental state, then such suit would have been filed by appellant/defendant no.-1 against him through next-friend. Non prosecution of suit, without next-friend, is admission of plaintiff of such suit that the defendant is in fit mental state. In any case, if it is accepted for the sake of argument that any irregularity was committed in execution of sale-deed dated 9.9.1970, in that eventuality also said sale-deed was voidable at the option of Sohan Lal who had never challenged the same and supported it. The status of appellant for such property was that of a third party. Such sale-deed may be voidable, in case of any error, at the option of its owner, but third party had no right to challenge such deed. Third party (appellant in present case) has no locus standi to question the validity of such sale-deed executed by true owner. The appellant was never the owner of disputed property which was sold by its true owner.In any case appellant/defendant no.-1 had no legal right to challenge the said sale-deed. Lower courts had rightly held that neither said sale-deed was ever challenged by appellant nor there was any illegality or irregularity inits execution. Since owner of disputed property Sohan Lal had executed the sale-deed of this property in favour of plaintiff no.-1, therefore the plaintiff no.-1 had become owner of this property. Later on after execution of sale-deed of plaintiff no.-1 in favour of plaintiffs no. 2 and 3, these vendees (plaintiffs no. 2 & 3) become owner of disputed property. The findings to this effect given by lower courts are found correct and acceptable.

18. So far the contention of appellant side regarding sale during existence of attachment is concerned, a careful perusal of Section 64 CPC makes it clear that any transfer of right of property, pending attachment, is not wholly void. This provision is not meant to deprive the interest of the owner of the property under attachment. If attachment is withdrawn,or the claim of creditor seeking attachment has been otherwise satisfied, then sale-deed properly executed of such property would convey good title to transferee. A person can purchase whole or share of attached property with right expectation that if attachment is withdrawn, he would become its complete owner, as if no order of attachment existed. If auction or transfer of attached property is necessary, then such transfer made during period of attachment would be void; but if the attachment is eventually withdrawn, the the transfer made during continuance of attachment would be alid conferring right to the vendee.

19. The most pertinent point is the question was status of appellant Surendra Bala. Neither in plaint of her earlier instituted suit no. 79/1970 nor in written-statement of original suit related present appeal, defendant no.-1/appellant had pleaded her right as owner or tenant. According to her written-statement, she was admitted in this property by Sohan Lal after the death of her husband for helping her, so her status at the time of entry in disputed property was that of licensee. She had not claimed any other right. It is also admitted, as well as proved from evidences, that by legal notice earlier owner Sohnal Lal and later on the plaintiff no.-1 had terminated license of defendant no.-1/appellant. Therefore after termination of license, her status became that of a trespasser, therefore appellant is neither entitled to continue her possession in disputed property nor can challenge the right of respondent. Respondents being owner of disputed property had right to recover the possession from the appellant and also damages for use and occupation of this property after cancellation of license. Therefore the judgment of lower courts is found correct which is without infirmity.

20. The only dispute in this matter relating to fact as to whether plaintiffs/respondents are owner of disputed property and whether they are entitle to recover possession of disputed property from defendant/appellant. These are not questions of law. These points related to fact that could be decided on the basis of evidences as has been done by the lower courts. The ownership of plaintiffs/ respondents is proved. It is also proved that status of defendant/appellant in disputed property is that of trespasser and she is liable to be evicted. The finding in this regard by lower courts are found correct and acceptable which is hereby confirmed.

21. On examination of the reasoning recorded by the learned first appellate court in first appeal, I am of the view that judgment in civil appeal as above is well reasoned, and based on proper appreciation of entire evidences on record. In this matter dispute related to such fact that could have been decided on basis of evidence, as it had been decided by first appellate court. No perversity or infirmity is found in finding recorded by the lower courts to warrant interference through this appeal. No question of law, much less a substantial question of law, was involved before this Court. None of the contentions of the learned counsel for the appellants/defendants can be sustained.

22. In view of the above, this appeal is dismissed.

Order Date :- 30.5.2016

Sanjeev