Faruka Begum W/O Samdali Khan vs Dnyaneshwar S/O Uttamrao Patil ...
2007 Latest Caselaw 435 Bom

ORDER

V.R. Kingaonkar, J.

1. Heard learned Counsel for the parties.

2. The second appeal arises out of concurrent findings of the two Courts. The appellant is original defendant No. 1. The respondent No. 1 was the plaintiff of suit (Regular Civil Suit No. 474/2000). He claimed declaration of ownership in respect of agricultural land and relief for setting aside sale deed executed by his father in favour of defendant No. 1. Original defendant Nos. 2 and 3 are the parents of the plaintiff i.e. present respondent No. 1.

3. The suit was decreed and the appeal preferred by defendant No. 1 (purchaser) also came to be dismissed. The plaintiff's case before the trial Court was that the suit land was allotted to his share during course of partition between himself, his brothers and the father. He relied upon a mutation entry which was effected and disclosed their partition. He contended that there was a family partition between his father and uncle and at the same time, in February 1984, the share received by his father was divided amongst the brothers and the father. Accordingly, Mutation Entry No. 495 was taken on 24-2-1984. The plaintiff approached the trial Court with a specific case that he became exclusive owner of the suit land and the father had no authority to alienate his property without prior permission of the Court in view of the provisions of the Guardians and Wards Act.

4. After recording of the evidence, and on appreciation of the relevant evidence, the trial Court reached conclusion that the suit land was the separate property of the plaintiff and without permission, under Section 8 of the Guardians and Wards Act, the same could not have been sold by the defendant No. 2 -father. The main defence of the defendant No. 1 (appellant) was that the alienation was made on account of legal necessity and for benefit of the plaintiff, who was then minor and moreover, she is a bona fide purchaser for valuable consideration. She claimed protection under Section 41 of the Transfer of Property Act. Both the Courts held that the sale was not by ostensible owner and the conditions enumerated under Section 41 of the Transfer of Property Act are not satisfied. Consequently, the plea of bona fide purchase for valuable consideration and protection available under Section 41 was repelled.

5. Mr. Choudhary, learned Counsel for the appellant would submit that the story regarding partition between the plaintiff, his brothers and the father is totally baseless and no proper pleadings were put forth in this behalf. He would contend that permission was sought for alienation but it was rejected by the District Court and this fact should have been considered because the District Court had opined that permission was not required in view of the nature of the property. The District Court opined that it was a joint family property and the father as Karta could alienate the same for legal necessity or for benefit of the estate. Mr. Choudhary would further submit that the question regarding exclusive ownership of the suit land by the plaintiff is required to be determined because, both the Courts wrongly held it to be the separate property of the plaintiff. He would further submit that the plaintiff's father alienated the land in question due to the presence of legal necessity and yet the trial Court as well as the first appellate Court failed to consider the relevant issue.

6. On careful consideration of the memorandum of appeal, it is explicit that most of the grounds raised are pertaining to the apprecition of evidence and decision on facts. The question of bona fide purchase by the defendant No. 1 is also not properly formulated as a substantial ground and cannot be regarded as a substantial question of law inasmuch as the revenue record clearly showed ownership of the plaintiff as per the mutation Entry No. 21 and, therefore, the father of the plaintiff could not be regarded as ostensible owner. The memorandum of appeal in the first appellate Court also do not show existence of any substantial question of law. Even the issue regarding the legal necessity was not necessary when both the Courts have held that the suit property was the separate property of the plaintiff and was sold during course of his minority. Mr. Choudhary has produced on record copies of the sale deeds in order to show that some property was purchased subsequently in name of the plaintiff. However, in this second appeal fresh determination of facts is not permissible. The scope of second appeal is restricted under Section 100 of the Civil Procedure Code in view of the decisions of the Apex Court in the cases of Ramanswamy Kalingaryar v. Mathayan Padayachi , Navaneethammal v. Arjuna Chetty AIR 1996 SC 3521, Dayanoba Bhaurao Shemade v. Maroti Bhaurao Marnor , Santosh Hazari v. Purushottam Tiwari (Dead) by L.Rs. AIR 2001 SC 965, K.G. Shivalingappa (Dead) by L.Rs. and Ors. v. G.S. Eswarappa and Ors. , Gurdev Kaur and Ors. v. Kaki and Ors. , Mst. Sugani v. Rameshwar Das and Anr. 2006 AIR SCW 2606 and Shri Damodar Jivan Mhatre v. Smt. Bebibai Baburao Mhatre and Ors. 2006 (1) Mh.L.J. 805 : 2006 (5) ALL M.R. 702. The Apex Court, time and again held that the findings of facts, even though the same may be erroneous to some extent, need not be interfered with. The Apex Court held in case of Santosh Hazari (supra) that the substantial question of law does not mean ordinary question of law which is mixed with facts. The memorandum of appeal must contain substantial question of law and there should be a foundation for framing of such question. That is absent in the instant case. Needless to say, the Second Appeal is liable to be dismissed in limine inasmuch it is outside the purview of Section 100 of the Civil Procedure Code.

7. In the result, the Second Appeal stands dismissed. No costs.

8. In view of dismissal of the second appeal, Civil Application No. 4371/2006 stands dismissed.