Murari Lal vs Dayawati

Sharad Kumar Sharma, J

This is a defendant's Second Appeal, where the defendant has questioned the judgment and decree dated 19th April, 2019, as rendered by the 5th Additional District Judge, Dehradun, in Civil Appeal No. 225 of 2013, Murari Lal Vs. Smt. Dayawati, as a consequent thereto, the Appellate Court has affirmed the judgment and decree dated 7th November, 2013, as passed by the Civil Judge (Senior Division), in Original Suit No. 649 of 2009, Smt. Daywati Vs. Murari Lal.

The precise facts as was raised by the plaintiff before the Court below was to the effect that she has claimed herself to be the owner in possession of the property, more particularly, described in the Municipal records as property bearing Municipal No. 28/26, situated in Sayyed Mohalla, Dehradun, which was later on numbered as property No. 26/26, having a total area of 99 square meters.

The plaintiff's case was that she has become owner of the property, in question, on the basis of the sale deed, which was executed on 05.05.1978, in regard to the total area of land, having a an area of about 103 square meters, i.e. equivalent to 18.58 square meter, which has been shown in the plaint map by green colour. Her case was further that by virtue of the subsequent sale deed dated 17.07.2008, she has also purchased another part of the property, which was lying on the southern side of the property of the defendant. The property, in dispute, which is subject matter of the consideration in dispute in the suit, in question, was that the remaining part of the property, which was left in pursuance to the two sale deeds executed in favour of the plaintiff, which was shown in the plaint map by "blue colour", over which, it was alleged by the plaintiff that the defendant was trying to interfere, though they do not have any right over the same.

While on the other hand, while filing the written statement, paper No. 42-A, the defendant appellant's case was that as per his case in written statement that the property, in dispute, is concerned, he claims his right by virtue of the registered gift deed dated 07.07.1978, which is said to have been executed by Smt. Leela Devi in his favour and by virtue of the said gift deed, a land having an area of 32 feet x 32 feet was gifted to the defendant. It is an admitted case of the defendant in his pleading that out of the total land, which was gifted by Leela Devi to him by virtue of gift deed dated 7.07.1978, out of which, on an area of 22 feet x 32 feet, he has already raised a construction after taking the sanction from the Development Authority and the remaining four feet wide passage is left open and the property is shown to have been demarcated by 5 foot x 32 feet in length boundary wall having a width of 1 feet pillar and wall.

Based on the aforesaid pleading of the parities to the proceedings of the suit, the learned Trial Court has framed the following issues :-

"उभयपक्षकार के परस्पर विरोधी अभिवचनो के आधार पर निम्नलिखित वाद बिन्दु निर्मित किये गए -

क्या वादिनी वादपत्र की सूची के में वर्णित सम्पत्ति के दक्षिण की ओर वादपत्र के साथ संलग्न मानचित्र 3ए/11 में नीले रंग से दर्शित भाग की स्वामी / काबिज है ? यदि हां तो प्रभाब।

क्या वादिनी द्वारा वाद को अल्पमूल्यांकित कर अपर्याप्त न्याय शुल्क अदा किया है ?

क्या वादिनी का वाद विनिर्दिण्ट अनुतोष अधिनियम की धारा 41 (च) से बाधित है ?

वादिनी क्या अनुतोष, यदि कोई हो, पाने की अधिकारी है ?"

The learned Trial Court while dealing with the issue No. 1 which related to the conferment of title and possession of the property, as shown in the plaint map, paper No. 3A-11, which has been shown by "blue colour", which is the disputed property, whether it constituted to be the part of the property, which was conveyed to the plaintiff, by virtue of the sale deeds dated 5th May, 2008 and 16th July, 2008.

The learned Trial Court, after considering the evidences, which was produced, including the consideration made to the registered gift deed dated 07.08.1978, which was the foundation for the claim of the defendant of his right over the property in dispute, had come to the conclusion that since as per the decipher, which has been made in the sale deed executed in favour of the plaintiff, the property, in question, constitutes to be the part of the property, which was conveyed to the plaintiff by the two sale deeds and this finding was based on appreciation of two sale deeds i.e. 05.06.2008 and 16.07.2008 in favour of the plaintiff and, consequently, a finding has been recorded that in pursuance to the deed of conveyance made in favour of the plaintiff, she is in possession and having an ownership of the property, which was disputed in the plaint and shown by "blue colour".Consequently, the suit, as preferred by the plaintiff/respondent was decreed by the judgment and decree dated 7th November, 2013. Trial Court had recorded a finding that basis of claim by the plaintiff/respondent and defendant/appellant is flowing from common owner Smt. Leela Devi.

Being aggrieved against the said judgment and decree, rendered by the Trial Court, the defendant/appellant, herein, had preferred a Civil Appeal, being Civil Appeal No. 225 of 2013, Murari Lal Vs. Smt. Dayawati. What is interesting here to be remarked is that while contesting the First Appeal in accordance with the pleadings, which has been raised by the defendant, he has not denied the fact of execution of two sale deeds by Leela Devi in favour of the plaintiff / respondent and furthermore, he himself has taken his case in pleading before the Appellate Court that after the property, which was conveyed to Leela Devi, they are taken together, in fact, no other property remained left, out of the total area belonging to the seller Leela Devi, which could be said to have constituted as to be part of the gift deed dated 07.07.1978 and it was his admitted case that the plaintiff by playing fraud upon him have been able to get the sale deed executed and the consequential effect of the same is that the property, which was gifted to him automatically stands cancelled or superseded by another registered sale deed due to the execution of the subsequent deed of conveyance, which remained unchallenged by the defendant/appellant.

Based on the aforesaid factual backdrop, the learned Appellate Court too had recorded the concurrent finding of fact with regard to the aspect that the property in dispute did belong to the plaintiff/respondent and she was holding the title and possession over the property, in question, as it fell to be part of land conveyed by two sale deeds and coupled with the fact that since the defendant/appellant himself has not questioned the validity of the sale deed or the effect of cancellation of the gift deed dated 07.07.1978, which he himself has pleaded in his appeal, the effect was that the appeal preferred by the defendant/appellant too was dismissed by the judgment dated 19th April, 2019.

After having heard the learned counsel for the appellant, and after going through the documents, which has been brought on record in the present Second Appeal, this Court is of the view that as far as the factum of possession and title in relation to the property, in dispute, is concerned, that has been concurrently recorded by both the Courts below to have been vested with the plaintiff on the basis of the sale deed dated 5th May, 2018 and 16th July, 2008 and the disputed property fell to be part of property, which was purchased by the plaintiff/respondent.

In that view of the matter as far as the defendant's right to interfere in relation to the property, in dispute, which was being demarcated in the plaint map by blue colour, since the title of it was held not to be vested with him nor it has been proved to have been vested by any evidence on record, he was rightly injuncted by both the Courts below.

The Appellate Court too held since the sale deed of plaintiff/respondent is of a subsequent date in relation to the area of land, which was left over with her, as conveyed to the plaintiff/respondent by sale deed dated 16.07.2008 and since after the aforesaid sale deed, no part of property is left with the seller Leela Devi, hence, the defendant/appellant could not have been vested with any title over the property by the gift deed dated 07.07.1978. On the basis of findings recoded by both the Courts below concurrently, it had appreciated the two sale deeds, paper No.10-Ka and 11-Ka as well as the effect of the gift deed, paper No.67A/1. Thus, there happens to be no perversity in the findings recorded by both the Courts.

Hence, this Court does not find any substantial question of law which, is involved in the instant Second Appeal to be considered in the present Second Appeal. Consequently, the Second Appeal is concluded by finding of facts and no substantial question of law as framed by the appellant in the memorandum of Second Appeal arises for consideration by the Second Appellate Court. Consequently, the Second Appeal fails and is accordingly dismissed.