Rajasthan High Court - Jaipur
Narayan Lal vs Isar Ram on 15 September, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 94/1991
Narayan Lal S/o Kana Jat adopted son of Gheese, aged about 60
years, R/o Srirampura, Tehsil Dantaragarh, Dist. Sikar
----Appellant-Plaintiff
Versus
1. Isar Ram, since deceased, through his legal heirs:
1/1. Kashiram
1/2. Narendra
1/3. Bahrain Shankar
All sons of Isar Ram
1/4. Smt. Malkhoori widow of Isar Ram
1/5. Smt. Parmeshwari wife of Sultan Jat
1/6. Smt. Ram Pyari wife of Jhabar Singh Jat, resident of Khora
Tehsil Danta Ramgarh, District Sikar.
1/7. Smt. Mohani widow of Sri Lal Jat
1/8. Tanshkh Son of Late Sri. Lal Jat
1/9. Chandra Ram son of Late Srilal Jat
All residents of Bichusi, Tehsil Dantaramgarh, District Sikar
2/1. Maloo Ram
2/2. Rameshwari Lal
2/3. Sukhram
2/4. Padma
Sons of Dhura Jata, Residents of Khora Tehsil Dantaramgarh,
District Sikar
2/5. Moti
2/6. Chhoti
Daughters of Dhura Jat, residents of Khora Tehsil Dantarmgarh,
District Sikar
2/7. Jamna since deceased through Legal heirs:
2/7/1. Magoo Ram
2/7/2. Bhagirathmal
2/7/3. Manglraram
2/7/4. Gogaram
2/7/5. Gopal Lal
Sons of Jodharam
2/7/6. Bidani
2/7/7. Soni
Daughters of Jodharam
All residents of Kajlo Ki Dhani, in the limits of Village Lamya
Tehsil Dantaramgarh, District Sikar
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(2 of 21) [CSA-94/1991]
2/8. Barja Wife of Prema Ram jat, r/o Dhani Kala wali (limits of
Lamya) tehsil Dantaramgarh, District Sikar
2/9. Jinku wife of Chuna Ram Jat, r/o Kadma ka Bas, Tehsil
Dantaramgarh, District Sikar '
2/10. Dhani Wife of Mangla Ram Jat, resident of Lalas, Tehsil
Nawa, District Nagaur
2/11. Ganpati wife of Boduram jat, resident of Motipura, Tehsil
Dantaramgarh, District Sikar
2/12. Gonra @ Mohri wife of Dhura Jat, resident of Khora Tehsil
Dantarmagarh, District Sikar.
3. Mohari wife of Dhanna Jat, resident of Santwat ka Bass,
resident of Village Bouchaci, Tehsil Dantaramgarh, District Sikar
3/1. Balbha Ram
3/2. Kusla Ram
3/3. Sheobux Ram (since deceased)
3/3/1. Bhanwari Devi widow of Late Shri Sheobux Ram
3/3/2. Santara Devi daughter of Late Shri Sheobux Ram
resident of Srirampura, Tehsil Dantaramgarh, District Sikar
3/4. Banna Ram
3/5. Surja Devi wife of Dhanna Ram Jat, resident of Mandata,
Tehsil Dhod, Sikar
3/6. Rukma wife of Govind Ram Jat, resident of Khora, Tehsil
Dantaramgarh (Sikar)
3/7. Bhagoo Devi wife of Rameshwar Lal Jat, resident of Khora,
Tehsil Danta Ramgarh, Sikar
3/8. Chhoti Devi wife of Onkarji Jat, resident of Khatoo Shyamji,
Tehsil Dantaramgarh, Sikar
4. Ram Nath
5. Chhotu (corrected name is Boduram)
6. Mewa
7. Kheta
Sons of Nanda Jat, residents of Rampura, Tehsil Dantaramgarh,
District Sikar
8. Nopa son of Ganga Jat, resident of Srirampura, Tehsil
Dantaramgarh, District Sikar.
----Respondents
For Appellant(s) : Mr. R K Daga with
Mr. Prashant Daga and
Mr. Hitesh Jain
For Respondent(s) : Mr. J P Goyal, Sr. Adv. assisted by
Ms. Jyoti Swami
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(3 of 21) [CSA-94/1991]
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
15/09/2022
1. The instant second appeal under Section 100 of Code of Civil Procedure arises out of a Civil Suit No.4/1974, instituted by appellant-plaintiff on 07.09.1968, seeking cancellation of registered sale deed dated 07.02.1968 executed by plaintiff's adoptive father Kana Ram (defendant No.1) in favour of Isar Ram (defendant No.2). Initially, the civil suit was decreed vide judgment dated 29.07.1974 passed by the Court of Civil Judge, Sikar, and the sale deed dated 07.02.1968 was cancelled but on filing the Civil First Appeal No.55/1974 by purchaser Isar Ram (defendant No.2), the decree was set aside vide judgment dated 31.05.1980.
2. The plaintiff preferred S.B. Civil Second Appeal No.234/1980 and since during that period, plaintiff's father and vendor Kana Ram has passed away and his two daughters, namely Phooli and Mohri were substituted in his place but one of them, Phooli also passed away during course of first appeal and due to declining to substitute her legal representatives, the first appeal was abated qua her, though was allowed qua other defendants, therefore, in that view of matter, the second appeal was allowed vide judgment dated 11.09.1987 and judgment dated 31.05.1980, allowing the first appeal was quashed and the first appeal was remanded back to be heard and decided afresh after impleading legal representatives of deceased Phooli.
3. The first appellate court, after the remand and after allowing substitution of legal representatives of deceased respondent No.2 Phooli, reconsidered the entire issue with regard to cancellation of (Downloaded on 25/12/2022 at 08:26:14 AM) (4 of 21) [CSA-94/1991] sale deed and again set aside the judgment and decree dated 29.07.1974 and dismissed the plaintiff's suit, upholding the registered sale deed dated 07.02.1968 as effective, lawful and valid.
4. The plaintiff in the present second appeal has assailed the judgment and decree dated 13.03.1991 passed in Civil First Appeal No.55/1974 by the Court of District Judge, Sikar, whereby and whereunder plaintiff's civil suit for cancellation of sale deed dated 07.02.1968, has been dismissed on merits.
5. Heard learned counsel for both parties at length, perused the impugned judgments and record. As per Letter No. Est./2022/154 dated 15.09.2022, it has been informed that Part B, C & D of the original file bearing Suit No.7/74 (4/74) Narayan Vs. Kana, have been weeded out on 13.01.1998. Counsel for both parties admits that they are not in custody of the certified copies or photo-state copies of documents and evidence part. The original pleadings of parties are available on record and in both the judgments, trial court and first appellate court have appreciated the evidence, therefore, with consent of counsel for both parties, judgment is being pronounced on the basis of available record with the Court.
6. It appears from perusal of the plaint that plaintiff claimed himself to be adopted son of vendor Kana Ram and sought cancellation of the sale deed dated 07.02.1968, executed by his adoptive father Kana in favour of purchaser Isar Ram(defendant No.2) on following grounds:-
(a) The sale deed has been got executed by purchaser Isar Ram by perpetrating fraud on vendor Kana Ram, it means adoptive father of plaintiff, and neither any sale consideration was paid to him nor possession of subject land under sale was delivered by him.
(b) The subject land is an ancestral property and Kana Ram, being karta of HUF (Hindu Undivided Family) has no right to sale the subject land without any legal necessity of HUF.
7. As per pleadings of plaint, it transpires that plaintiff make out a case that lands of 271 bigha and 11 biswa situated in Village (Downloaded on 25/12/2022 at 08:26:14 AM) (5 of 21) [CSA-94/1991] Srirampura, were ancestral lands and were recorded in the name of Kana Ram and Ganga Ram, who were real brothers. Kana Ram was plaintiff's adoptive father, who was having 1/2 share and rest 1/2 share was laying with Ganga Ram. Defendants No.3 to 7 are legal representatives of one deceased son of Ganga Ram and defendant No.8 is another son of Ganga Ram, who were impleaded party being co-sharer of rest half share of lands in question.
8. In the suit, plaintiff impleaded his adoptive father, it means, Kana Ram as defendant No.1, purchaser Isar Ram as defendant No.2 and defendants No.3 to 8 are other co-khatedars.
9. Defendant No.1 vendor submitted written statement admitting the claim of plaintiff to the extent that lands under sale were ancestral and fraud was played upon him as the sale deed dated 07.02.1968 was got executed without payment of sale consideration and no possession was delivered. Nevertheless, defendant No.1 stated in his written statement that out of lands in question, half share of Khasra No.37 (measuring 42 bigha 3 biswa) and 1/4 share of Khasra No.43 (measuring 98 bigha 4 biswa) had been gifted by him to his daughter Mohri, who is in cultivation and possession.
10. Purchaser-defendant No.2 contested the suit by contending that no fraud was perpetrated with vendor Kana Ram and indeed Kana Ram, whose name was recorded as Khatedar in the revenue record and was in cultivation on the part of his share, has agreed to sale his lands against sale consideration of Rs.10,000/-, out of which Rs.8,000/- was paid on 25.11.1967 and Rs.2,000/- was paid on 28.11.1967. The possession was delivered to purchaser and thereafter Kana Ram executed and registered a sale deed (Downloaded on 25/12/2022 at 08:26:14 AM) (6 of 21) [CSA-94/1991] dated 07.02.1968 in the Office of Sub-Registrar in his favour. It was also contended that lands sold by Kana Ram were not ancestral lands but as a matter of fact, Kana Ram and his brother Ganga Ram, were earlier residing in Village Lunas and shifted to Village Srirampura, then came in possession of Jagir lands, of which Khatedari rights were conferred on them after resumption of Jagir lands. Defendant No.2 raised an objection that plaintiff has no legal right and authority to institute the suit as he has no right, title, possession and interest in lands in question sold out to him, he refuted sale, and suit is wholly malicious & unfounded, therefore, the suit is liable to be dismissed with costs.
11. Other defendants No.3 to 8 also submitted joint written statement admitting plaintiff's averments in relation to lands being ancestral.
12. The trial court, after framing issues and recording evidence of both parties, concluded that plaintiff is adopted son of Kana Ram (defendant No.1). The subject lands were ancestral properties, neither the sale consideration was paid to Kana Ram nor the possession was delivered to purchaser and consequently, the registered sale deed dated 07.02.1968 was cancelled, by decreeing the suit vide judgment dated 29.07.1974.
It may be noticed here that the factum of fraud as averred and pleaded by plaintiff, was not found proved by the trial court and the sale deed dated 07.02.1968 was not found to be suffered from any fraud.
13. On filing first appeal by the purchaser, against the judgment dated 29.07.1974, the first appellate court, in the impugned judgment dated 13.03.1991, has concurred with findings of trial court that no fraud was perpetrated with the vendor Kana Ram in execution of the sale deed in (Downloaded on 25/12/2022 at 08:26:14 AM) (7 of 21) [CSA-94/1991] question and to this extent, the first appellate court has affirmed the findings of trial court but findings in relation to assuming the lands in question as ancestral lands, were reversed by the first appellate court, placing reliance upon a document of Exhibit A10, Misle Hakiyat. The first appellate court also placed reliance upon the certified copy of written statement, jointly submitted by Kana Ram and his daughter Mohri (Exhibit A5) and certified copy of affidavit deposed by vendor Kana Ram (Exhibit A6). The first appellate court drawn a presumption of genuineness and validity of sale deed being a registered document and observed that no cogent evidence has been adduced by plaintiff to cancel the sale deed, the trial court cancelled the sale deed on the basis of assumption.
It appears that apart from the present suit, the plaintiff had instituted one revenue suit before the Assistant Collector, Sikar against his adoptive father Kana Ram and his sister Mohri, daughter of Kana Ram and in that revenue suit, Kana and Mohri submitted a joint written statement admitting the factum of sale deed dated 07.02.1968 through which the lands were sold by Kana Ram to Isar Ram and the certified copy of that written statement (Exhibit A5) was placed on record by purchaser. Similarly, in that revenue suit, vendor Kana Ram deposed one affidavit, accepting the factum of receiving the sale consideration of Rs.10,000/- and the certified copy of that affidavit (Exhibit A6) was also placed on record by the purchaser in the present suit. Since the first appellate court observed that the lands sold out by Kana Ram were not ancestral lands, therefore, it was found that he had a right to sale the lands and the sale consideration of Rs.10,000/- was also received by him, and the same stands (Downloaded on 25/12/2022 at 08:26:14 AM) (8 of 21) [CSA-94/1991] proved by separate receipts, Exhibit A2 for receiving Rs.8,000/- dated 25.11.1967, and Exhibit A3 Receipt to Rs.2,000/- dated 28.11.1967 and the sale deed was held lawful and valid. It may be noticed here that lands under sale were not found to be ancestral, the issue as to lands were sold by Kana Ram without any legal necessity of HUF, does not fell for consideration and as such was not dealt with.
Finally the first appeal was allowed and the decree dated 29.07.1974 was quashed and the plaintiff's suit has been dismissed.
14. The Coordinate Bench of this Court, while hearing the present second appeal for admission, framed four substantial questions of law for consideration and admitted the second appeal for hearing. In the backdrop of aforesaid fact findings of two courts below and after going through the record, with the assistance of learned counsel for both parties, this Court is dealing with the substantial questions of law hereunder:
15. Substantial Question of Law No.1:-
"(I) Whether in the facts and circumstances of the case, the first appellate court has drawn perverse inference particularly in relation to Ex-9 (in fact the document is Ex. A10)?"
15.1 In this regard, it may be noticed that issue No.2 is framed, as to whether the half share of lands under sale described in Para 2 of the plaint is ancestral lands of plaintiff and defendant No.1? 15.2 The trial court, while deciding the issue No.2, pondered over the copy of Jamabandi (Ex. A-7) Samwat 2007 to 2027, wherein whole lands are recorded in the name of Kana Ram and Ganga Ram. Though, no supportive documents to these enteries of Jamabandi has been produced by plaintiff to show that these lands came to Kana Ram and Ganga Ram from their forefathers, however, the trial court placed reliance on oral statements of PW.1 (Downloaded on 25/12/2022 at 08:26:14 AM) (9 of 21) [CSA-94/1991] PW.4 and PW.10 to conclude that lands were ancestral in nature. The trial court did not advert to the document of Misle Hakiyat (Ex.A-10) produced by purchaser to show that lands were not ancestral of Kana Ram and Ganga Ram. The purchaser has led evidence that Ganga Ram shifted from Village Lunas to Srirampura and got the lands in jagiri which were recorded in their name. Defendant himself produced his evidence as well as produced DW.3 Ladu Ram, DW.4 Mangla Ram to corroborate the aforesaid stand.
15.3 The first appellate court, while reversing the findings of trial court, categorically observed that merely on the basis of enteries in revenue record (Ex. A7), it may not be assumed that the lands were ancestral. In enteries of revenue record, there is no mention that the lands came to Kana Ram and Ganga Ram from their father Shobha Ram. The first appellate court appreciated the document of Misle Hakiyat (Ex. A10), which is of Samvat 1987, to observe that this is a document with regard to lands in question and where the old khasra numbers of lands in question are mentioned, but among the names of other recorded khatedars, the name of Shobha Ram, father of Kana Ram & Ganga Ram, is not indicated. The document (Exhibit A10), which was placed on record by defendant before the trial court, was neither disputed by plaintiff nor any cross examination was made regarding relevancy, veracity and correctness of this document. The document is certified copy of Govt.-department and its genuineness cannot be doubted. The trial court skipped this document from consideration. 15.4 The first appellate court, apart from appreciating document (Ex. A-10), also placed reliance on statements of defendant and his witnesses to observe that the lands may not be assumed to be (Downloaded on 25/12/2022 at 08:26:14 AM) (10 of 21) [CSA-94/1991] ancestral of Kana Ram and Ganga Ram. The first appellate court observed that the burden of proof that the lands under sale are ancestral, lies upon the plaintiff and except producing the revenue record of Samvat 2009 to 2027, no other documents have been produced by plaintiff.
Thus, the plaintiff miserably failed to discharge his burden and no evidence was adduced by him to show that the nature of property is ancestral. The oral statements of PW.1, PW.4 and PW.10 with regard to proving the nature of lands in question as ancestral lands, are not suffice as the factum which can be proved by producing documentary evidence, mere oral statements may not be treated as sufficient.
15.5 It may also be noticed here that prior to filing of written statement by Kana Ram, in the present case, he has nowhere stated that the lands sold out by him were his ancestral. In his written statement (Exhibit A5), he has affirmed the factum of sale. In the sale deed dated 07.02.1968, the lands under sale have been alleged to be belonging to his khatedari. In the revenue record also, lands in question were recorded in name of Kana Ram. If vendor Kana Ram, subsequently, has changed his stand, in written statement of present suit, the same can be considered as nothing more but a collusion with plaintiff, in order to get the registered sale deed dated 07.02.1968 cancelled. It may also be noticed here that both courts below have concurrently held that the sale deed does not suffer from the factum of fraud. If plaintiff came out with a case of fraud and non-payment of sale consideration to vendor Kana Ram, there is no justification as to why Kana Ram himself, who was alive at the time of suit and was impleaded as defendant No.1, did not institute the suit for seeking (Downloaded on 25/12/2022 at 08:26:14 AM) (11 of 21) [CSA-94/1991] cancellation of sale deed in question on such grounds of fraud and non-receipt of sale consideration & non-delivery of possession by him to the purchaser.
15.6 This Court finds that the first appellate court has rightly drawn an inference upon the genuineness and validity of the registered sale deed and in absence of plaintiff's evidence to prove the nature of lands under sale as ancestral lands, has rightly concluded on the basis of document (Ex.A10) and other contemporary evidence that lands were not ancestral lands and the plaintiff has no right, title and interest in the lands in question, in civil cases the principle of preponderance of probability is a known principle of law and the first appellate court, considered the overall facts and circumstances, has decided the issue No.2 accordingly against the plaintiff. The first appellate court has assigned the reasons to differ from the fact findings of the trial court and after giving its own findings on appreciation of evidence, reversed the findings of trial court.
15.7 Hon'ble the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopal Gurjar [(1999) 3 SCC 722], has held as under:
"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are (Downloaded on 25/12/2022 at 08:26:14 AM) (12 of 21) [CSA-94/1991] possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
Hon'ble the Supreme Court in case of Santosh Hazari Vs. Purushotam Tiwari [(2001) 3 SCC 179], while discussing the jurisdiction of the first appellate court to interfere with the findings of fact of the trial court, has held as under:
"The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings (Downloaded on 25/12/2022 at 08:26:14 AM) (13 of 21) [CSA-94/1991] recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. (See Madhusudan Das Vs. Smt. Narayani Bai & Ors, 1983 (1) SCC 35). The rule is-and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.
(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120).
Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate (Downloaded on 25/12/2022 at 08:26:14 AM) (14 of 21) [CSA-94/1991] Courts of the additional obligation cast on them by the scheme of the present Second 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.
15.8 The aforesaid judgments of Hon'ble Supreme Court, have been affirmed in catena of subsequent judgments including the recent judgment delivered in case of C. Doddanarayan Reddy Vs. C. Jayarama Reddy [(2020) 4 SCC 659].
15.9 Hon'ble the Supreme Court in another case of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC 641] has held as under:
"14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain Vs. Sohan Lal [(2000) 1 SCC 434]. In the aforesaid decision, this Court has specifically observed and held:
'Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which (Downloaded on 25/12/2022 at 08:26:14 AM) (15 of 21) [CSA-94/1991] interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."
15.10 After discussion made hereinabove, this Court decides the Substantial Question of Law No.1 in negative and against the appellant and as such answered accordingly.
16. Substantial Question of Law No.2:-
"(II) Whether the documents Ex-5 & 6 were in-
admissible evidence and have not been properly proved?"
16.1 As far as this substantial question of law is concerned, the document Ex.5 and 6 are in fact Ex.A5 and A6, which are certified copies of written statement and one affidavit submitted in the revenue suit filed by the present plaintiff before the Court of Assistant Collector, Sikar.
16.2 It appears that Kana Ram and Mohri (vendor and his daughter) jointly submitted written statement in the revenue suit instituted by plaintiff before the Court of Assistant Collector, Sikar. In this written statement (Ex. A-5), they have admitted the factum of sale of lands in question to purchaser Isar Ram. Further, the vendor Kana Ram has deposed an affidavit (Ex. A-6), admitting the factum of receiving the sale consideration of Rs.10,000/-. The defendant No.2, the Purchaser produced these documents in his evidence to show that the sale deed was executed after receiving the full sale consideration. Plaintiff, neither has disputed these documents nor questioned these (Downloaded on 25/12/2022 at 08:26:14 AM) (16 of 21) [CSA-94/1991] documents in his rebuttal evidence. Even in the rebuttal evidence, PW-12 Mohri appeared a witness but she has not denied her written statement (Ex.A-5). The trial court, has disbelieved on the veracity of both documents without any justified reasons, though the documents were received and exhibited in evidence before the trial court without any objection from the side of plaintiff. Even no cross-examination has made on these documents. 16.3 The first appellate court, in the backdrop of facts that both these documents are certified copies issued from the judicial record of the revenue court and have not been disputed by plaintiff or PW-12 Mohri, placed reliance on these documents. The documents are certified copies and may not be treated to be inadmissible. The documents have been produced by purchaser and he has tendered these documents in evidence. If plaintiff was disputing these documents which are certified copies from a judicial record of the Court of Assistant Collector, Sikar, he could have denied the signature of Kana Ram and Mohri. That apart, when Mohri herself appeared as PW-12 in rebuttal evidence of plaintiff, she could have refuted her signatures on the written statement (Ex.A-5). When plaintiff neither denied nor disputed these documents, it is not appropriate, just & proper to hold that because these documents were not put by the purchaser- defendant No.2 in cross-examination to PW-12 Mohri, are not admissible and cannot be treated as proved.
Learned counsel for appellant, in this regard has placed reliance on a judgment of Calcutta High Court in case of Nemal Karmakar Vs. Dipali Basak nee Karmakar [(2017) SCC Online Cal 16389], but the ratio decidendi expounded in aforesaid judgment is not applicable to the facts of present case, (Downloaded on 25/12/2022 at 08:26:14 AM) (17 of 21) [CSA-94/1991] as in the case at hand even the executant of written statement, Mohri herself has not denied the written statement (Exhibit.A-5) and document was received in evidence, without any objection from the side of plaintiff.
16.4 That apart, the factum of transaction of sale consideration, is also proved by documents Ex.A-2 and A-3, which are receipts of Kana Ram. The affidavit of Kana Ram (Ex.A-6) is corroborative document to the evidence of receiving sale consideration of Rs.10,000/-, recital of which is also mentioned in sale deed. Perusal of evidence goes to show that the scriber of these receipts has also produced in evidence as DW-2. Kana Ram has not appeared as witness and he has nowhere denied and disputed these receipts (Ex.A-2 & Ex.A-3). One of the important witness, Ladu Ram who happens to be the Sarpanch of Gram Panchayat, has deposed his evidence as DW-3 that the sale consideration was paid to Kana Ram and land was sold by him to Isar Ram. Another witness Khushla Ram DW-6 has also proved execution of receipt (Ex.A-2). One of the witnesses of the sale deed in question, Ramdev Singh (DW-1) has also appeared in evidence and has proved the execution as well as recital of sale deed. 16.5 Thus on a whole perusal of the judgment of first appellate court, passed after appreciation of evidence, it is not that the first appellate court only on the basis of Ex.5 and Ex.6, has held the sale deed as lawful and valid document, and has executed after receiving the full of sale consideration but other admissible, contemporary and corroborative evidence has also taken into consideration to prove the fact of due execution of sale deed and making payment of entire sale consideration. (Downloaded on 25/12/2022 at 08:26:14 AM)
(18 of 21) [CSA-94/1991] 16.6 This Court is in full agreement with observation/findings of the first appellate court that with regard to the execution of registered sale deed dated 07.02.1968, a presumption of genuineness and the validity of recital incorporated therein, lies in favour of purchaser, unless and until the same are not controverted by the cogent and convincing evidence.
The Hon'ble Supreme Court in case of Prem Sing and Ors. Vs. Birbal and Ors. [(2006) 5 SCC 353] has observed as under:
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, would be on a person who leads evidence to rebut the presumption."
16.7 Accordingly, the Substantial Question of Law No.2, cannot be answered affirmatively and is decided against the appellant.
17. Substantial Questions of Law No.(III) & (IV):-
"(III) Whether the burden of family necessity shifts on the seller and purchaser to show that the ancestral property was sold for family necessity?
(IV) Whether the judgment of the appellate-
court is vitiated for not giving finding about the family necessity?"
17.1 As far as both these substantial questions of law are concerned, the same pertain to the issue that lands under sale were ancestral and Kana Ram sold out the lands without any legal necessity of HUF. Because after the discussion made in above paragraphs, it has been found that lands under sale were not ancestral lands of Kana Ram, and Kana Ram being recorded khatedar was solely authorized to sale his half share of khatedari lands, therefore, it is not required to enter into the issues that the (Downloaded on 25/12/2022 at 08:26:14 AM) (19 of 21) [CSA-94/1991] Kana Ram sold these lands without any legal necessity of HUF. 17.2 In view of fact findings recorded by the first appellate court that the lands are not ancestral and plaintiff has no right, title and interest in the lands in question to institute the present suit for cancellation of sale deed and which have been affirmed by this Court, the Substantial Questions of Law No.3 and 4 deserve to be answered in negative and the same are hereby answered against appellant.
18. As far as the factum of possession is concerned, the lands under sale are agricultural lands and with regard to open lands, it is a trite law that possession goes with the title. Once the khatedari lands in question belonging to recorded khatedar Kana Ram, have been transferred by Kana Ram, to the purchaser Isar Ram through registered sale deed dated 07.02.1968, and execution of sale deed has been held proved, obviously the possession of lands in question also stood transferred to him as for open land, possession is intrinsic part of sale and in sale deed recital of transfer of possession is mentioned. The purchaser categorically stated in his written statement about having possession of land in question. Merely, he could not state that the land is divided in how many parts, is not sufficient to draw a presumption that, purchaser did not obtain possession. The lagan receipts have no evidential value qua reciting in registered sale deed. The findings of trial court as to non-delivery of possession to the purchaser are wholly based on conjectures and surmises, which are perverse.
19. The first appellate court, while holding the legality and validity of the sale deed dated 07.02.1968, assumed the transfer of possession as an intrinsic element with the sale of agricultural (Downloaded on 25/12/2022 at 08:26:14 AM) (20 of 21) [CSA-94/1991] lands. In that view of matter judgment of first appellate court cannot be held as fallible & faulty rather is hereby affirmed.
20. Except aforementioned substantial questions of law, which have already been discussed hereinabove, no other substantial question of law has been proposed/suggested during course of arguments. This Court, also does not find any additional substantial question of law in the present second appeal.
21. Hon'ble the Supreme Court in case of Santosh Hazari vs Purushottam Tiwari [(2001) 3 SCC 179], held as under:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
22. Hon'ble the Supreme Court in another case of State of Rajasthan Vs. Shiv Dayal [(2019) 8 SCC 637] has held as under:
(Downloaded on 25/12/2022 at 08:26:14 AM)
(21 of 21) [CSA-94/1991] "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 de hors 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 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 & Ors. vs. Dashrath Narayan Chilwelkar & Ors., 1942 SCC Online MP
26)."
The aforesaid judgment of Shiv Dayal (Supra) has been affirmed by hon'ble Supreme Court recently in case of C. Doddanarayan Reddy Vs. C. Jayarama Reddy [(2020) 4 SCC 659] in Para.28.
23. Consequently, the present second appeal is liable to be dismissed and the same is hereby dismissed.
24. There is no order as to costs.
25. Record of courts below be sent back.
26. All other pending application(s), if any, also stand(s) disposed of.
(SUDESH BANSAL),J SACHIN/77 (Downloaded on 25/12/2022 at 08:26:14 AM) Powered by TCPDF (www.tcpdf.org)