JUDGMENT N.K. Mehrotra, J.
1. This is second appeal under Section 100 of Code of Civil Procedure against the judgment and decree passed by IVth Addition District Judge, Hardoi in Civil Appeal No. 60 of 1981 filed against the judgment and decree dated 24.2.1981, passed by IVth Addl. Munsif in Suit No. 171 (W) of 1980.
2. I have heard Shri K.C. Tripathi for the appellants. Nobody appeared from the side of the respondents to argue the appeal.
Case of the plaintiffs-respondents :
3. The case of the plaintiffs is that they are the members of Joint Hindu Family and they owned their house as Joint Hindu Family property detailed in Schedule 'Aa' of the plaint. The item No. 3 of the Schedule of the plaint was sold by the plaintiffs jointly 15 years back. Thereafter, the plaintiff No. 1 Ram Kumar started living in another house which was purchased by him exclusively. Plaintiff No. 2 Ram Ratan started living in the house shown at item No. 1 of the Schedule 'Aa' along with his mother and Satish Chandra the son of the plaintiff No. 1. From the life time of their parents, the plaintiff No. 2 has been a person of sub-normal mind and he had always been under the influence of other persons. The defendants felt aggrieved against the plaintiff and taking due advantage of the subnormal mind of the plaintiff No. 2 and his unbecoming behaviour, the defendant got fictitious sale deed executed in his favour without consideration in respect of house mentioned at item No. 1 of the schedule of the plaint and subsequently also got executed another sale deed in respect of item No. 2. Both the sale deeds are void but the defendants started interfering in the peaceful possession over both these houses mentioned at item Nos. 1 and 2 of the schedule of the plaint. The defendant has acquired no right or title in these two houses but he is still trying to take possession. With these allegations the suit for cancellation of the sale deed was filed.
Case of the defendant appellant :
4. The defendant has alleged that the father of the plaintiff left four houses which included three mentioned in Schedule 'Aa' of the plaint and also the house which was purchased in the name of the plaintiff No. 1, who claims to be the exclusive owner thereof. There was a partition and the plaintiff No. 2 Ram Ratan became the sole owner of the two houses mentioned at Serial Nos. 1 and 2 of the schedule of the plaint and was in exclusive possession over it. Both the houses were transferred to the defendant by registered sale deed for adequate consideration and no fraud was played upon the plaintiff Ram Ratan. He is in possession over both the houses on the basis of these sale deeds.
Issues framed in the trial court :
5. The following issues were framed in the trial court :
"(1) Whether the suit is undervalued and the court fees paid is insufficient?
(2) Whether the houses items Nos. 1 and 2 of Schedule 'Aa' of the plaint are the joint family property of the plaintiffs?
(3) Whether the plaintiff No. 2 is a person of unsound mind and he indulged in bad habits at the instance of the defendant?
(4) Whether the sale deeds in respect of items Nos. 1 and 2 of the Schedule 'Aa' have been got executed under undue influence and without consideration by plaintiff No. 2 in favour of the defendant?
(5) Whether the plaintiffs are entitled to get the sale deeds cancelled?
(6) Whether the plaintiffs are entitled to get possession over items Nos. 1 and 2 of Schedule 'Aa' of the plaint?
(7) Whether the plaintiffs have a right to maintain the suit?
(8) To what relief, if any, are the plaintiffs entitled?"
6. It was held by the learned Munsif that the houses mentioned at item Nos. 1 and 2 of the plaint are not the joint family property of the plaintiffs and the plaintiff No. 2 is not a person of unsound mind and sale deeds have been executed after fully understanding its purpose and for consideration. It was also held that the plaintiffs were not entitled to get the sale deed cancelled and to get possession over the disputed houses. With these findings, the suit for cancellation of the sale deed was dismissed.
7. The plaintiff filed first appeal before the District Judge which has been allowed by the impugned judgment dated 7.9.1981 and the suit for cancellation of the impugned sale deeds to the extent of his half share of plaintiff No. 1 in both the properties and for joint possession over the properties was decreed.
8. The learned first appellate court has observed in the judgment that the learned counsel for the defendant-appellant has not pressed the plea that plaintiff No. 2 is a person of unsound mind and the sale deeds were executed by him without understanding their contents and without consideration. The only ground on which the sale deeds were challenged before the first appellate court is that both the items included in the sale deeds along with other property are the joint family property of the plaintiffs and the plaintiff No. 2 had no right to transfer these properties. The learned first appellate court has recorded a finding that there has been no partition in the family of the plaintiffs and both the houses are the joint family property. After recording these findings, the learned first appellate court has held that the plaintiff No. 2 was not competent to transfer the entire house but he could transfer only half of his share and therefore, the suit for cancellation of the impugned sale deeds to the extent of half share in both the properties and for joint possession over the properties was decreed.
Substantial Question of Law :
9. At the time of admission of the appeal on 4.12.1981, following substantial questions off law has been formulated in this appeal :
"(1) Whether the 1st appellate court committed error of law in overlooking and not relying upon the admission of respondent No. 2 to the effect that a partition took place between the family of respondents No. 1 and 2.
(2) Whether the 1st appellate court committed manifest error of law in overlooking the pleading of respondent No. 1 to the effect that he purchased one house on 3.7.1940 in separate capacity and the learned courts below wrongly held the family of the respondent to be joint.
(3) Whether 1st appellate court committed manifest error of law in holding that the respondent No. 1 had share in the house purchased in the name of respondent No. 2."
10. The aforesaid three substantial questions of law formulated in this Court on the basis of the pleas taken in the memo of appeal relate to only question whether the disputed houses which have been transferred by plaintiff No. 2 to the defendant through the impugned sale deed are the joint family property or the exclusive property of the plaintiff No. 2. The first appellate court has recorded a finding after taking into consideration the entire evidence on record that the two houses involved in the impugned sale deeds are joint properties. This is a finding of fact.
11. In Thyagrajan and Ors. v. Sri Venugopal Swami B. Koel and Ors., 2004 (3) AWC 1988 (SC) ; (2004) 5 SCC 762, it has been held that existence of substantial question of law is the sine qua non for exercise of jurisdiction under amended provisions of Section 100, C.P.C. and scope for re-appreciation of evidence in second appeal is limited. High Court cannot substitute its own findings by re-appreciation of evidence merely on ground that another view was possible.
12. The learned counsel for the appellant has vehemently argued that the first appellate court has committed error of law in overlooking and not relying upon the admission of respondent No. 2 to the effect that the partition took place between the family of respondent Nos. 1 and 2. It appears from the record that the plaintiff No. 1 Ram Kumar initially filed the suit for cancellation of the sale deed by impleading vendee Har Nam Singh and the Vendor Ram Ratan who is the real brother of the plaintiff. Defendant Ram Ratan filed his written statement in which he took the plea that there has been a family partition between the plaintiffs in which the house shown at item Nos. 1 and 2 in the schedule of the plaint came into the share of the plaintiff No. 1 Ram Kumar and the house mentioned at Serial No. 3 came into the share of Ram Ratan who later on sold it. Later on, the defendant No. 1 Ram Ratan after filing the written statement got himself impleaded as plaintiff No. 2. This prayer for amendment in array of parties was allowed and after the amendment both Ram Kumar and Ram Ratan have been arrayed as plaintiffs in the suit. The learned counsel for the defendant-appellant has argued that it is the admission of defendant No. 1 who later on juxtaposed as plaintiff No. 2 and the learned first appellate court has wrongly ignored the admission of the plaintiff No. 2 who has filed the written statement as defendant No. 1. I find that this is a part of the admission. The plea taken by the plaintiff No. 2 is that there has been a partition and the houses involved in the sale deed came into the share of the plaintiff No. 1. It is settled law that if a party to a suit wants to rely on the opposite parties' admission, he must take the admission as a whole and not pick out the portion of it. On the basis of this settled legal position, the learned counsel for the defendant-appellant has argued that if it is the legal position, the suit as a whole must have been decreed and both the sale deeds must have been cancelled. Here I find that the first appellate Judge has not decreed the suit as a whole because of the simple reason that it is admitted case of the parties that the disputed houses belong to the time of father of the plaintiffs No. 1 and 2 and in case no partition, they both have inherited half and half share in the disputed houses. Therefore, I am of the view that the learned first appellate court has not committed any illegality in decreeing the suit for cancellation of the sale deed for half of the portion of the houses in the admitted position after recording a finding that there has been no family partition and the property was joint.
13. In the other two grounds formulated as substantial question of law in the memo of appeal cited above, the learned counsel for the defendant-appellant has made an attempt to contend that the first appellate court has committed error of law in overlooking the plea of the plaintiff-respondent No. 1 to the effect that he purchased one house on 3.7.1940, in separate capacity and therefore, it will be inferred that there has been a separation between the two brothers after the death of the father. I do not agree with this contention of the learned counsel for the appellant. The finding of fact has been recorded by the learned first appellate court that there has been no family partition. This Court in second appeal cannot substitute its finding on the basis of this circumstance alone. The next ground contended by the defendant-appellant is that the learned first appellate court has committed error of law in holding that the respondent No. 1 has share in the house purchased in the name of respondent No. 2. There is a discussion of evidence in the judgment of the first appellate court that this house was purchased when the respondent No. 2 was minor. It means that it was a benami transaction but no sale deed of that house has been filed on the record and the learned first appellate court has taken into consideration these circumstances at the time of recording the finding of the joint property in the family.
14. In view of the above, I find that no substantial question of law arises from the judgment of the first appellate court and since there is a finding of fact that the disputed property has been the joint property of the plaintiffs-respondents and plaintiff No. 2 had half share only the learned first appellate court has not committed any manifest error of law in decreeing the suit for cancellation of the sale deed for half share of the plaintiff-respondent No. 1 in the houses involved in the sale deeds.
15. In view of the above, this second appeal is dismissed. Costs easy.