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Agardi Rai (Since Dead) & Othes v. Virendra Rai & Others - SECOND APPEAL No. 919 of 2006 [2006] RD-AH 20365 (1 December 2006)


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Court No. 30


Agardi Rai (since deceased) and others- Plaintiffs-Appellant


Virendra Rai and others -Defendants-Respondent

Connected with


Agardi Rai (since deceased) and others- Plaintiffs-Appellant


Virendra Rai and others -Defendants-Respondent

Hon'ble Sunil Ambwani, J.

1. Heard Shri Ashish Misra for appellant and Shri Salil Kumar Rai for respondent nos. 1 and 5 in Second Appeal No. 919 of 2006, and for respondent no. 1 in Second Appeal No. 920 of 2006.

2. These two connected Second Appeals arise out of OS No. 958 of 1976 filed by Agardi Rai-plaintiff-appellant for cancellation of sale deeds dated 11.10.1973 in favour of defendant -first set ;  24.10.74 in favour of defendant-second set; 3.12.73 in favour of defendant second set and gift deed dated 24.10.73 in favour of defendant-third set. All these documents are registered. OS No. 1022 of 1976 filed by late Mewati Devi for same reliefs impleading Shri Agardi Rai as defendant no. 6. During the pendency of the suit, she died and was substituted by her daughter Subhawati-plaintiff appellant. Agardi Rai-defendant No. 6 sought transposition as plaintiff in the suit. By order of the trial court he was transposed  as plaintiff no. 2. Agardi Rai challenged the sale deeds and gift deed executed by Mewati on the ground that she is not the widow of Kamla Rai,  and Subhawati is not their daughter. He along with Kamla Rai was co-sharer of the agricultural holdings. They did not partition the properties  between them. On the death of Kamla Rai, he became exclusive tenure holder of the entire agricultural land. Some lady with the name as Mewati executed the documents misrepresenting her as the widow of Kamla Rai and transferred the share of Kamla Rai by the three sale deeds and one gift deed.

3. The trial court, by its judgment dated 8.5.1997, dismissed both the suits on the ground that Mewati Rai was widow of Kamla Rai transferred the share of her husband Kamla Rai which did not affect the plaintiff-Agardi Rai. The plaintiff did not have any right to challenge the sale deeds. In other suit, the trial court held that Subhawati-plaintiff no. 1 has given a statement in favour of defendants that the sale deed was executed by her mother after receiving the sale consideration.

4. Shri Agardi Rai filed Civil Appeal No. 46 of 1997 and 47 of 1997. Both these Civil Appeals were connected and were dismissed by the Special Judge (E.C. Act), Court No. 5, Deoria on 21.7.2006. The appellate court did not accept the findings that Agardi Rai had no right or interest to challenge the sale deeds. Relying upon the judgment in Batasar vs. Udit Narain 1971 RD 90 (HC) it was held that a co- tenure holder can challenge the transfer by the other co-tenure of the share of the later if the  transfer  is barred by law, and his interest is affected. The appellate court thereafter proceeded to record findings on merits and gave several reasons  to disbelieve plaintiff's Agardi Rai's case:-

"A. The plaintiff-appellant Agardi Rai admitted in the pedigree given in the plaint that Mewati was wife of Kamla Rai and Subhawati was their daughter.

B. PW-3 Janardan Rai appearing as witness of the plaintiff admitted that Mewati was his sister and Kamla Rai was his brother-in-law.

C. In the plaint it is admitted that the wife of Kamla Rai was alive on his death but defendant Mewati was not widow of the Kamla Rai. The plaintiff thus admitted that Kamla Rai left a  widow and thus on the death of Kamla Rai- the plaintiff did not  die without leaving any heir. The plaintiff as such could not become the tenure holder of the entire holdings

D. In the written statement filed by Shri Agardi Rai as defendant No. 6 in Suit No. 1022/1976 he stated that the  wife of Kamla Rai died during his life time. Shri Agardi Rai took inconsistent stands in both the suits.

E. The village suffered consolidation proceedings and that the name of Mewati Rai was entered in CH Form No. 23 as the widow of Kamla Rai.

F. The plaintiff-Agardi Rai had contested the proceedings in consolidation courts. His plea, that Mewati Rai was not widow of Kamla Rai, was not accepted.

5. The appellate court thereafter considered the other ground of challenge and held that the sale deeds and gift deed were acted upon and that the names of the contesting defendants were entered in the revenue records and that they are in possession. The question whether the possession could be obtained before partition was not raised.

6. Learned counsel for appellant submits that the plaintiff-appellant had taken a clear stand in both the suits that Mewati was not widow of Kamla Rai and that some one imposing as Mewati had executed sale deeds and gift deeds. He submits that a co sharer has right to challenge  the sale deed executed by  Mewati as widow of other co sharer and that there was no inconsistency in the pleading. He further submits that a writ petition against the order passed by the consolidation courts is pending in the High Court.

7. The grounds taken in the appeal do not raise any  substantial question of law to be considered by the Court.

8. Section 100 of Code of Civil Procedure was amended by Section 37 of Act No. 104 of 1976, which came into effect from 1.2.1977. The amended code provides for  a Second Appeal  to the High Court, from  every decree passed in appeal,  by any court subordinate to the Court, only if  the High Court is satisfied that the case involves  a substantial question of law. The memorandum of appeal under sub section (3)  is required to precisely state the substantial question of law involved in the appeal. The High Court under sub Section (4) if satisfied that a substantial question of law is involved  in the case, shall  formulate the question. Further sub section  (5) mandates that the appeal shall be heard on the question so formulated,  and the respondents shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The proviso, however, reaffirms the powers of the  Court,  to hear,  for reasons to be recorded the appeal on any other substantial question of law not formulated by it, if it is satisfied,  that the case involves such question. The High Court, however, must record reasons for formulating  such question at the stage of hearing.

9. In Govindarau Vs. Mariamman (2005) 2 SCC 500, the Supreme court held that the substantial question of law is 'sine qua non' for exercise of jurisdiction under Section 100 of the CPC and relied upon the judgements in Kshitish Chandra Purkait v. Sandosh Kumar Purkait (1997) 5 SCC 438;  Panchugopal Barua vs. Umesh Chandra Goswami (1997) 4 SCC, 713;  Kondiba Dagadu Kadam vs. Savitribai Sapan Gujar (1999) 3 SCC 722, and  traced out the background and reasons  for adding such on restriction in section 100 CPC. It referred to Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179,  in which the purpose which necessitated and persuaded the Law Commission of India to recommend for the amendment of Section 100 was referred, to and the meaning of 'Substantial question of law' is explained as follows

"14. As to which would constitute a substantial question of law, it was observed: (SCC pp. 187-88, para 14)

"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, insofar 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."

10. The judgement was followed in Thiagrajan vs. Shri Venugopalaswamy B. Coil (2004) 5 SCC 762. In Phool Patta vs. Vishwanath Singh (2005) 6 SCC 40, the Supreme Court held that the High Court could have heard the second appeal on any question not formulated by it, only after formulating such question, for reasons to be recorded, and not otherwise.

11. I have gone through the judgements of the trial court  first appellate court and do not find that any question of law stated in the memorandum of appeal  is a substantial question of law, which is not previously settled or is debatable. The courts below have appreciated the evidence based upon pleadings and have correctly applied the law to the issues framed by it. The judgement is  sound and does not admit any error of law or misreading of evidence.

12. The findings, that plaintiff-appellant had taken inconsistent stand in both the suits and had in fact admitted both in the pedigree as well as in the evidence led by him that Mewati Rai was widow of Kamla Rai, are a finding of fact. There is no misreading of evidence nor there is any such error of law which may affect the findings. If it was admitted to the plaintiff appellant that Kamla Rai died leaving a widow, the plaintiff should have established that the widow named as Mewati had died. The findings of the court below do not show that any such case was taken or any such evidence was led by them that Mewati was not widow of Kamla Rai and the fact that Subhawati was not their daughter.

13. The co-sharer may challenge the sale deed executed by other co-sharer on the ground that the sale deed is barred by any statutory provisions of law, or that it affects his statutory rights to enjoy the land. He can also resist the possession until the suit of partition is filed. In the present case no such plea was taken.

14. The appellate court did not hold that appellant has right to challenge the sale deed. The appellant, however, failed to establish that Mewati was imposter and that the sale deeds were without consideration.

15. Both the Second Appeals are consequently dismissed.




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