Banwari and another vs Moti Lal

N.K. Kapoor, J.—This is defendant''s regular second appeal against the concurrent judgments of the Courts below.

Plaintiff Moti Ram (then minor) through his mother as next friend filed suit for possession of land against his father Sidhu Ram and uncle Banwari. As per the case of the plaintiff he was born out of the wedlock of his mother Ratni and father Sidhu Ram. Sidhu Ram deserted his wife Smt. Ratni ultimately leading her to file an application for her maintenance before Magistrate. Her application was accepted and Sidhu Ram was ordered to make payment of Rs. 150/ as maintenance to Smt. Ratni. Since this amount of maintenance was not paid suit land was put under attachment. One of the conditions of attachment was that the property cannot be transfered away. According to the plaintiff, defendant No. 2 suffered a collusive decree in favour of defendant No. 1 on 26.10.1984. which the plaintiff has challenged on a number of grounds.

Defendant resisted the claim stating that plaintiff has no locus standi to file the suit, the maintenance amount having been paid the property stands released.

On the pleadings of parties, the following issues were framed:

(1) Whether the decree dated 26.10.1984 passed by S.J. III C. Karnal is illegal and null and void ? OPP.

Whether the plaintiff and defendant No. 2 are members of Joint Hindu Family and the property in suit is joint Hindu Family property ? If so, to what effect ? OPP.

Whether the plaintiff is entitled to the possession of the land in suit ? OPD.

Whether the suit is not maintainable in the present form ? OPD.

Whether the plaintiff has no locus standi to file this suit ? OPD

Relief.

Issues, 1 and 2 taken up together and the trial Court on considering the oral as well as documentary evidence came to the conclusion that decree dated 26.10.1984 is illegal, null and void and does not bind the plaintiff. Both these issues were decided in favour of the plaintiff and against the defendant. Issues No. 4 was decided against the defendant. Under issue No. 5 the Court came to the conclusion that plaintiff being son of Sidhu Ram defendant No. 2 has a right to challenge the decree exhibit P4. Under issues 3 and 6, which were taken up together the court held that plaintiff being a coparcenary in the land is entitled to joint possession with his father. Thus, a decree for joint possession of land in the suit in favour of the plaintiff was passed.

Lower appellate Court, on reexamining the matter on fact as well as law found no valuable ground to vary to reverse the conclusion arrived at by the trial Court. Appeal was, thus, dismissed.

Learned counsel for the appellant has termed the conclusion arrived at by the Courts below to be wholly unwarranted on facts as well as law. According to the counsel, maintenance allowance having been paid there was no charge upon the property and so Shri Sidhu Ram was well within his right to suffer a decree a favour of his brother Banwari. Otherwise also, the Courts below erred in law in coming to the conclusion that the suit property is a co parcenary property. In fact, the decree rightly suffered by Sidhu Ram in favour of Banwari had primarily been challenged on the ground that there was a charge upon the property and that the property could not be transferred in view of the direction of the court. In any case, there being no proof on record that land in dispute was ancestral/coparcenary property of the plaintiff and defendant No. 2 such an inference could not be drawn merely for the reason that in the earlier suit defendant No. 2 happened to admit one para of the plaint wherein such an assertion had been made.

Concededly, the plaintiff, a minor, sought possession of land challenging the decree suffered by his father on a number of grounds, namely, (i) that the suit land was under attachment and that there was specific order from a competent court that property cannot be disposed of. Thus, the decree is liable to be set aside on this ground alone; (ii) that decree has been procured by Banwari by playing fraud upon Sidhu Ramdefendant as well as upon the Court by not disclosing the true facts; (iii) that decree required compulsory registration as the same affected the property worth more than hundred rupees; (iv) that the plaintiff and defendant No. 2 are members of the Joint Hindu Family and the property is joint Hindu Family property i.e. the same is ancestral and coparcenary qua the plaintiff and defendant No. 2; and (v) that defendant No. 2, Sidhu Ram was Karta of the family and the alienation made by him is not for any legal necessity or for the benefit of the estate.

Both the Courts on appreciation of evidence, oral as well as documentary, have found substance in the pleas advanced by the plaintiff, Counsel for the appellants has failed to substantiate that the findings recorded by the Courts below are in any manner vitiated. Even while holding the property to be ancestral property the Court has placed reliance upon the plaint in the suit filed by Banwari against Sidhu Ram, exhibit P3 as well as upon the statement of Sidhu Ram, exhibit P4. In the aforesaid suit bearing No. 630 of 1984 Sidhu Ram admitted the property to be a coparcenary property as per his written statement as well as statement in the Court. Since Sarvshri Sidhu Ram and Banwari admitted the suit property to be ancestral property the courts found no reason to hold that the property is a selfacquired property as is now being projected by the counsel for the appellants. An attempt was made to place on record a copy of sale deed dated 14.4.1968 to prove that the suit land in fact is a selfacquired property. No attempt was made to prove this document and so the same has been marked as `A''. Since the document had not been adduced in evidence the same has been rightly discarded by the Courts below. There is no other document on record on the basis of which it could be inferred that property is a selfacquired property. Infact, no attempt has been made either by the present appellant or Shri Sidhu Ram to state that the earlier admission had been made under an erroneous belief. Findings of the Courts below essentially being findings of fact are in fact not amenable to the jurisdiction of this Court under Section 100 CPC. Apex Court in Deity Pattabhiramaswamy v. S. Hanyamayya and others, AIR 1959 Supreme Court 57 held as under:

``The provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. Nor does the fact that the finding of the first appellate court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon the appreciation of the relevant evidence.''''

No other point has been pressed. Finding no merit in the appeal the same is dismissed.

No costs.