Legal Representatives of Durga Lal vs Legal Representatives of Bhura Lal

Kailash Chandra Joshi

This civil second appeal preferred by legal representatives of plaintiff-Durga Lal is directed against the judgment and decree dated 12.1.2012 passed by learned Additional District Judge No.1, Bhilwara in Civil First Appeal No.19/2009 dismissing the appeal filed by the appellants-plaintiff against the judgment and decree dated 16.01.2009 passed by learned Civil Judge (Junior Division) West, Bhilwara in Regular Civil Suit No.125/1995, whereby the suit of the appellants-plaintiff for declaration and permanent injunction was dismissed. The brief facts of the case are that deceased plaintiff-Durga Ram filed a civil suit against the defendant-Bhura Lal and two others before the trial court for declaration and permanent injunction stating therein that Bhura Lal sold a piece of land measuring 20X10 sq. yards situated at Araji No.1968 for a sum of Rs.100/- to the plaintiff on 1.9.1973 and after receiving the consideration, he handed over the possession of that plot to the plaintiff. As per the plaintiff, the defendant told him that after conversion of that piece of land, he may got the patta and if there is any necessity of registration, he will register the same according to him. It has been further averred that later on, the defendant-Bhura Lal sold the plot in question to the defendant No.2 for a sum of Rs.15751/- and got executed and registered the sale-deed in favour of defendant No.2. However, in the said sale-deed, the defendant No.2 described the Araji number as 1963. The plaintiff submitted in the plaint that the plot in question is of his ownership and possession since 1973, therefore, the defendant No.1 has no right to sell the said plot in 1993. The plaintiff prayed that the sale-deed executed in favour of defendant No.2 may be cancelled and suit may be decreed as prayed for.

The defendant No.1 did not file the written statement. The defendant No.2 filed written statement denying the plaint averments. It was stated by the defendant No.2 that the plot in question is not situated in Araji No.1968 and the defendant No.1 did not describe Araji No.1963 in place of 1968 in the alleged sale-deed. It was further stated that the plot in question was not sold to the plaintiff-Durga Lal nor the possession thereof was handed over to him. The defendant No.2 is bonafide purchaser and sale-deed executed in his favour is not illegal whereas the sale Exhibit-2 dated 1.9.1973 is not as per law. It was also stated that sufficient court fee was not paid. Lastly, it was stated that the plaintiff is not in possession over the plot in question, therefore, no order in the form of permanent injunction can be passed. Lastly, it was prayed that suit of the plaintiff may be dismissed.

On the basis of the pleadings of the parties, the learned trial court framed as many as six issues and recorded oral as well as documentary evidence of both the parties.

After hearing the arguments of the parties, the learned trial court dismissed the suit of the appellants-plaintiff vide judgment and decree dated 16.1.2009, against which the appellants-plaintiff preferred an appeal before the learned lower appellate court. The learned lower appellate court vide the impugned judgment and decree dated 12.1.2012 dismissed the appeal and affirmed the judgment of the learned trial court. Hence, the appellants-plaintiff have preferred this second appeal.

The learned counsel for the appellants-plaintiff contended that the judgment of the learned trial court as affirmed by the first appellate court is against the settled position of law and the findings of the learned trial court as well as the first appellate court are based on the misreading of the oral as well as the documentary evidence. It is further contended that that it is well proved by the evidence that Durga Ram purchased a plot from Bhura on 1.9.1973 and Bhura admitted this fact in the proceedings initiated u/s 177 of the Rajasthan Tenancy Act before the Tehsildar and further, Bhura sold this plot showing it in Khasra No.1963 to Pushpendra Kumar, which is null and void against the rights of the plaintiff-appellants. The learned counsel for the appellants also contended that the suit property is situated in Khasra No.1968 whereas it was wrongly shown in Khasra No.1963.

The learned counsel for the appellant-plaintiff has proposed following substantial questions of law in the memo of appeal.

(a) Whether, both the learned courts below have given findings, which are based on no evidence and legal foundation and at the same time pleadings and evidence of the plaintiff''s are not considered?

(b) Whether both the learned courts below have applied the provisions of Section 54 of Transfer of Property Act erroneously and perversely in the present matter against the plaintiff?

(c) Whether, both the learned courts below have committed serious perversity and illegality while declaring perversely the sale Exhibit-2 inadmissible in evidence as well as not derive any right and interest of the plaintiff?

(d) Whether, both the learned courts below have committed serious perversity and illegalities in considering wrongly that the sale Exhibit-2 dated 1.9.1973 is inadmissible as per law, then subsequent sale for the said property Exhibit-3 sale dated 22.7.1993 is apparently bad in law?

(e) Whether identification and whereabouts of property in dispute have wrongly been interpreted and at the same time the relevant documentary evidence have been misread and misinterpreted?

(f) Whether, the plaintiff acquired legal rights and interest by operation of law as provided under the Limitation Act having undisputed property since 1.9.73 to date of filing the suit then there is no occasion to transfer the same property by the previous owner to the third party?

(G) Whether, the evidence relating to possession based on undisputed documentary evidence sale Exhibit-2 and there is no rebuttal documentary evidence for such tenure then there is no occasion to disbelieve the possession of the plaintiff and presumed the possession of the defendant?

(h) Whether, admission and concession given by the opponent are available on record, which have not been considered by both the learned courts below?

(i) Whether, the findings of both the learned courts below have no legal foundation and evidence, moreover the same are apparently in non-consideration of material available on record and law?

(j) Whether, the findings arrived at by both the learned courts below while adjudicating the issues as aforesaid against the plaintiff and in favour of the defendant are based on perversity, illegality and committing serious error of law and material illegalities?

I have considered the contentions raised by the learned counsel for the appellants and also perused the judgment of the learned trial court as well as the learned first appellate court.

The learned trial court while deciding issues No.1 and 2 held that the plaintiff-appellants produced only an unregistered document executed by Bhura, which is not admissible in evidence and on the basis of such document, the ownership of the plaintiff-appellants cannot be said to be acquired by way of sale. The learned trial court also recorded its finding that sale executed by Bhura in favour of plaintiff-appellants was not in respect to the same plot, which was sold to Pushpendra Kumar. The learned trial court also recorded that the neighborhood of both the plots as shown and pleaded by the plaintiff are different and accordingly, decided issues No. 1 & 2 against the plaintiff-appellants. It has also been held by the learned trial court while deciding issues No.1 & 2 that Bhura was the owner of Khasra No.1963 and 1968 and he sold some property out of Khasra No.1968 to the plaintiff-appellants and out of Khasra No.1963 to Pushpendra Kumar. In my considered view, there is no misreading of the evidence by the trial court as well the first appellate court and the findings of the both the courts below cannot be said to be perverse, illegal and against the material available on record. Further, the substantial questions of law as proposed in the memo of appeal are not involved in the present second appeal and only questions of facts are involved, therefore, the appeal is devoid of any merit and deserves to be dismissed.

Accordingly, this second appeal is dismissed in limine. No costs. A copy of this judgment be sent to the respondents.