Rajasthan High Court - Jaipur
Shibhu Alias Shimbhu Singh And Anr vs Mitthu Lal Alias Pooranmal Andors Thr ... on 3 December, 2019
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 586/2017
1. Shibhu @ Shimbhu Singh S/o Late Govinda B/c Daroga,
R/o Village Badarna, Teh. Amer, Distt. Jaipur
2. Bhagwan Sahay S/o Late Govinda B/c Daroga, R/o Village
Badarna, Teh. Amer, Distt. Jaipur
----Appellants
Versus
1. Mitthu Lal @ Pooranmal S/o Ramprasad B/c Brahman, R/o
Village Badarna, Teh. Amer, Distt. Jaipur
2. Madan Lal S/o Ramprasad B/c Brahman, R/o Village
Badarna, Teh. Amer, Distt. Jaipur Deceased
2/1. Kamla W/o Late Madan Lal B/c Brahman, R/o Village
Badarna, Teh. Amer, Distt. Jaipur
2/2. Kailash S/o Late Madan Lal B/c Brahman, R/o Village
Badarna, Teh. Amer, Distt. Jaipur
2/3. Sita W/o Jagdish D/o Late Madan Lal, R/o Krishnakanj,
Behind Chandravilas Garden, Jodla Power House, Sikar
Road, Jaipur
2/4. Chhoti Devi W/o Ramswaroop D/o Late Madan Lal, R/o
Village Chetawala, Post Khora Shyamdas, Fadiyawali
Dhani, Teh. Amer, Distt. Jaipur
2/5. Sunita Devi W/o Naval Kishore, D/o Late Madan Lal, R/o
Village Badarna, Teh. Amer, Distt. Jaipur
2/6. Shyama @ Seema W/o Chandra Prakash, R/o Village Post
Fatehpur, Basa, Via Samod, Distt. Jaipur
2/7. Krishna W/o Kailashchand D/o Late Madan Lal, R/o Village
Badharna, Teh. Amer, Distt. Jaipur
2/8. Kanta W/o Pawan Kumar, R/o Village Post Singodkalan,
Via Khejroli, Distt. Jaipur
2/9. Suman W/o Ramavtar D/o Madan Lal B/c Brahman, R/o
Village Post Basa, Ward No.8, Via Morija, Distt. Jaipur
3. Santosh W/o Ramswaroop Sharma Deceased
3/1. Vinod S/o Ramswaroop Sharma, R/o Village Anatpura,
Post Golyawas, Anatpura Via Jaitpura, Teh. Chomu, Distt.
Jaipur
3/2. Manoj S/o Ramswaroop Sharma, R/o Village Anatpura,
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Post Golyawas, Anatpura Via Jaitpura, Teh. Chomu, Distt.
Jaipur
4. Lali W/o Sagarmal Sharma
4/1. Raju S/o Sagarmal Sharma, R/o Village Anatpura, Post
Golyawas, Anatpura Via Jaitpura, Teh. Chomu, Distt.
Jaipur
4/2. Anju D/o Sagarmal Sharma, R/o Village Anatpura, Post
Golyawas, Anatpura Via Jaitpura, Teh. Chomu, Distt.
Jaipur
5. Yaksh Kumar S/o Shri Chhagan Lal B/c Brahman, R/o
Village Badharna, Teh. Amer, Distt. Jaipur
6. Gulab W/o Shri Chhagan Lal B/c Brahman, R/o Village
Badarna, Teh. Amer, Distt. Jaipur
7. Sub Registrar, Amer, Distt. Jaipur
8. Tehsildar, Teh. Amer, Distt. Jaipur
9. State Of Rajasthan Through District Collector, Jaipur
----Respondents
For Appellant(s) : Mr. Prahlad Sharma
For Respondent(s) : Mr. Lokesh Sharma
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment
03/12/2019
The instant civil second appeal has been preferred by the plaintiffs-appellants against the judgment and decree dated 19.07.2017 passed by the learned Additional District Judge No.2, Jaipur District, Jaipur whereby the appeal preferred by the appellants has been dismissed upholding the judgment and decree dated 11.04.2014 passed by the learned Additional Civil Judge (J.D.) No.1, Jaipur District, Jaipur whereby the suit filed by the appellants-plaintiffs for cancellation of the sale deed and permanent injunction, was dismissed.
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(3 of 9) [CSA-586/2017] Facts as emerge from the pleadings and contentions of the learned counsels for the respective parties are that father of the plaintiff; Sh. Govinda was khatedar of certain parcels of agricultural land in village Bhadrana Tehsil Amber who expired in the year 1971 when the plaintiffs were minor. Vide registered sale deed dated 11.07.1974, their mother Smt. Phooli Devi W/o of late Govinda sold their share in the aforesaid agricultural land to the defendants No. 1, 2 and father of the defendant No.3. As per the plaintiff's case, they were in continuous cultivation of the aforesaid piece of land and they came to know of the aforesaid sale deed in the second week of May, 2007 when the defendants tried to sell the property in dispute in favour of third person as well as tried to dispossess them forcibly. Therefore, the decree for cancellation of the sale deed and permanent injunction was prayed for.
The defendants No.1 to 4 in their joint written statement admitted that father of the plaintiffs was having one third share in the parcel of the agricultural land as described in para No.1 of the plaint. It was submitted that they are in possession in land in question from the date of execution of the sale deed dated 11.07.1974 in their favour. It was denied that plaintiffs came to know of the execution of the sale deed in second week of May, 2007; but, it was submitted that from the very beginning the plaintiffs were aware of the sale in question and their suit seeking cancellation of the sale deed was barred of limitation. It was, therefore, prayed that the suit filed by plaintiffs was dismissed. The learned trial Court, as stated earlier, dismissed the suit filed by the plaintiffs which was unsuccessfully challenged by the appellants by way of first appeal.
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(4 of 9) [CSA-586/2017] Learned counsel appearing for the appellants assailed the findings recorded by the learned Court below on the premise that while dismissing the suit, they have ignored the mandatory provisions under Section 8 of the Hindi Minority and Guardianship Act, 1956 (for short, 'the Act of 1956') which restrict powers of natural guardian of Hindu minor to sell minor's property without the previous permission of the Court. It was argued that the learned Courts below have erred in recording a finding that the suit was barred by limitation without there being any issue in this regard and absence of issue prevented them from leading evidence in this regard.
Relying upon para No. 14 of the plaint, it was canvassed that averments as to plaintiffs coming to know of the sale deed in second week of May, 2007 were not specifically denied by the defendants in their written statement; hence, it was obligatory upon the learned Courts below to have treated the averments to have been admitted by the defendants. It was contended that the knowledge of the appellants-plaintiffs about the sale deed in the year 2007, could also be gathered from the fact that they are in possession of the agricultural land in question till date.
It was contended by Shri Prahlad Sharma, learned counsel appearing for the appellants that right of cross-examination of the plaintiffs witness PW-1-Shimbhu Singh by the defendants was closed by the learned trial Court vide its order dated 16.11.2011 and when the aforesaid witness was inadvertently, in ignorance of the aforesaid order, was subjected to cross-examination on 11.05.2012, the learned trial Court passed an order on that very date, refusing to take the cross-examine into consideration; but, vide its order dated 09.10.2012, the learned trial Court erred in (Downloaded on 07/06/2021 at 05:37:18 AM) (5 of 9) [CSA-586/2017] permitting the cross-examination of PW-1 to be read in evidence. It was contended that such a course was not permissible for the learned Court below. It was further contended by the learned counsel for the appellants that even otherwise also, the cross- examination of PW-1 could not have been read in evidence as same did not bear signature of the witness. Relying upon Rule 84 of the General Rules (Civil), 1986, it was contended that in absence of signature of a witnesses on the statement, the same could not have been relied upon. It was submitted by Sh. Sharma that this appeal involves substantial question of law, therefore, merits admission.
Per contra, the learned counsel appearing for the respondents supporting the findings recorded by the learned Courts below, contended that there are concurrent findings of facts by both the learned Courts below which warrant no interference by this Court under its limited appellate jurisdiction under Section 100 CPC. It was submitted that in pursuance of the sale deed executed on 11.07.1974, mutation of land was opened in favour of the purchasers immediately thereafter i.e. 29.09.1975. It was contended that the plaintiff No.1 attained majority in the year 1982 whereas the plaintiff No.2 attained majority in the year 1975 and since, they did not assail validity of the sale deed within three years thereafter as stipulated under Article 60 of the Limitation Act 1963, even after having knowledge of the same, the suit filed in the year 2007 was heavily barred by limitation and the learned Courts below have rightly dismissed the suit. The order dated 09.10.2012 was justified as it was passed by the learned Court below in the interest of justice on payment of (Downloaded on 07/06/2021 at 05:37:18 AM) (6 of 9) [CSA-586/2017] cost. It was contended that the appeal deserves to be dismissed as it does not involve any substantial question of law.
Heard the learned counsels for the respective parties and perused the impugned judgment as well as the record.
The sale deed under challenge was executed by mother of the appellants on 11.07.1974 and mutation of land in question was opened immediately thereafter on 29.09.1975. Mutation entry is recorded after verification of the possession of the person in whose name the mutation is opened. Even otherwise also, there is a racital in the sale deed itself regarding possession being handed over to the purchasers at the time of its execution. Learned Courts below have recorded categorical finding that plaintiffs have miserably failed to show their possession over the land in question by producing any evidence. In another suit Methi Devi Vs. Jagan Lal, in the written statement filed on behest of Smt. Phooli and Bhagwan Sahay, possession of the purchasers of the property under the sale deed impugned, was admitted. Although, the plaintiffs case was that they are in cultivating possession of the land in question and were paying its 'lagan' also; but, they have failed to produce any such receipt of 'lagan'. In the aforesaid circumstances, contentions of the learned counsel for the appellants as to they being in possession of the land in question cannot be accepted.
So far as challenge to the sale deed dated 11.07.1974 is concerned, its perusal reveals that it was executed by plaintiff's natural guardian i.e. mother to meet the daily expenses as well as for upbringing of the children. No challenge has been made by the appellants to these racitals in the sale deed which, even otherwise also, appear to be natural in view of the fact that Shri Govinda, (Downloaded on 07/06/2021 at 05:37:18 AM) (7 of 9) [CSA-586/2017] father of the plaintiffs expired three years before execution of the sale deed. Thus, it is apparent that the sale deed was executed by the mother for family necessity. Although the plaintiffs have come out with a case that they came to know of the sale deed in the year 2007; but, from the evidence on record, it was apparent that they were aware of the sale deed from the very beginning or in any case, much prior to the year 2007. The plaintiff PW-1 during his cross-examination has admitted that he came to know of the sale deed in the year 2000 whereupon he has lodged an FIR. Execution of the sale deed has also been admitted by the plaintiff
- Bhagwan Sahay in the written statement filed way back on 13.05.1976 in another suit filed by Smt. Mehti Devi. In the aforesaid circumstances, findings recorded by the learned Courts below as to the suit being barred by limitation are based on cogent material on record and do not warrant any interference by this Court under its limited appellate jurisdiction. Contention of the learned counsel for the appellants that in absence of any issue as to the suit being barred by limitation, they were prevented from leading evidence in this regard, cannot be accepted and is liable to be rejected. This issue was implicit in the issues No. 1 and 2 as framed by the learned Courts below and even otherwise also, from the very beginning, they were aware that the question of limitation was an important aspect as specific objection as to the suit being barred by limitation was raised by the respondents- defendants in their written statement and the plaintiff's witnesses were also cross-examined on this aspect. The plaintiffs themselves were conscious of the fact that the question of limitation may come in their way and therefore, they have pleaded in para No. 14 of the plaint that they came to know of the sale deed in second (Downloaded on 07/06/2021 at 05:37:18 AM) (8 of 9) [CSA-586/2017] week of May, 2007 and immediately thereafter they filed the suit. The averment in para 14 of the plaint as to the plaintiffs coming to know of the sale deed in 2 nd week of May, 2007, have specifically been rebutted by the defendants in para 14 of the written statement. Therefore, the plea of the appellants does not merit acceptance.
Contention of the learned counsel for the appellants as to violation of Section 8 of the Act of 1956, is misconceived as provisions of Section 8 (3) recognize such transactions to be voidable at the instance of the minor and as per Article 60 of the Act of 1963, the period of limitation for challenging such transactions is three years from the age of attained majority. As discussed hearinabove, the plaintiffs failed to challenge the sale deed within the aforesaid period.
Lastly, the plaintiffs have contended that the learned Courts below erred in relying upon the cross-examination of PW-1 Shimbhu Singh inasmcuh as vide order dated 16.11.2011, the right of cross-examination was closed and his cross-examination conducted inadvertently on 11.05.2012 was struck off by the learned Court below and also on the ground that his statement remained unsigned. In this regard sufice it to say that vide its order dated 09.10.2012, the learned trial Court has taken the cross-examination of PW-1 on record on payment of cost of Rs.1,000/- and admittedly the cost was accepted by the plaintiffs. Therefore, now the appellants-plaintiffs cannot be permitted to take a volte-face and argue that cross-examination of PW-1 could not have been considered. The reliance placed by the learned counsel for the appellants on Rule 84 of the General Rules (Civil), 1986 to support his contention that in absence of signature of the (Downloaded on 07/06/2021 at 05:37:18 AM) (9 of 9) [CSA-586/2017] PW-1 on his statement, the same could not have been read in evidence, is wholly misconceived. Rule 84 requires statements of the parties or their counsels under Order X. Rule 1 and 2 or on similar nature to be signed of the person making it. The aforesaid provisions has been incorporated in view of the salutary spirit behind the provisions under which the statements are recorded. Order X Rule IV provides consequences of refusal or inability of pleader or any such person accompanying him to answer. Indisputably, in the present case, PW-1 Shimbhu Singh was examined not under the provisions of Order X; but, under Order XVIII CPC. The provisions under Order X cannot be put at par with the provisions contend under Order XVIII CPC. Mere absence of signature of a witness on his deposition is mere irregularity which does not go to the root of the matter. In the present case, contentions of the learned counsel is not that, as a matter of fact, the plaintiff-Shimbhu Singh was not cross-examined or that the cross-examination as available on record, does not represent his true cross-examination. I have perused the cross-examination in question which bears signature and seal of the learned trial Court and its genuineness is beyond any doubt. Therefore, the learned Courts below committed no error in placing reliance upon this cross-examination.
I do not find any illegality and perversity having been committed by the learned Courts below in recording concurrent findings of facts. No substantial question of law is found to be involved in the civil second appeal and the same is dismissed.
(MAHENDAR KUMAR GOYAL),J MADAN MEENA /66 (Downloaded on 07/06/2021 at 05:37:18 AM) Powered by TCPDF (www.tcpdf.org)