1 Reserved on 20.1.2021 Delivered on 12.4.2021 Case :- SECOND APPEAL No. - 21 of 2021 Appellant :- Krishna Respondent :- Shaukin (Deceased) And 22 Others Counsel for Appellant :- Santosh Kumar Srivastava,Alka Srivastava
Hon'ble Saral Srivastava,J.
1. Heard Shri Santosh Kumar Srivastava, learned counsel for the appellant.
2. The defendant-appellant by means of the present second appeal has assailed the judgement and decree dated 12.11.2020 passed by Special Judge (POCSO Act)/Additional District Judge, Court No. 3, Meerut in Civil Appeal No. 44 of 2017 (Shaukeen and others Vs. Hamid and others) whereby the appellate court has set aside the judgement dated 31.1.2017 passed by Additional Civil Judge (Sr. Division), Court No. 2, Meerut in Original Suit No. 58 of 1995 dismissing the suit.
3. Brief facts giving rise to the present second appeal are that the plaintiff-respondent has instituted Original Suit No. 58 of 1995 contending inter-alia that late Ajimuddin son of Mohd. Bux was exclusive owner of the house detailed at the foot of the plaint (hereinafter referred to as "disputed property"). He transferred one half share of the disputed property by the sale deed dated 14.3.1962 in favour of Wahid Bux son of Murad Bux Lohar. Abdul Wahid died issueless and had executed a Will of his share in the disputed property in favour of one Fateh Mohmmad s/o Bashir Ahmad on 20.4.1977. It is further stated that Abdul Wahid and Fateh Mohammad had died and the plaintiff-respondents are legal heirs of Fateh Mohammad.
4. Further, case in the plaint was that the respondent No. 9 (defendant No. 1 in suit) who is son of late Ajimuddin inherited the remaining one half share of the disputed property. The respondent No.
10 (defendant No. 2), respondent No. 11 (defendant No. 3), respondent No. 10-Mangate wrongly typed as Munter in appeal, (defendant No. 2), respondent No. 11 Jagveer and (defendant No. 3) were residing with the respondent No. 9 with his consent. It is further stated that the defendant-appellant was impleaded as defendant No. 4 in the suit by orders of the Court dated 19.7.2004. On the strength of the aforesaid pleadings, the plaintiff-respondents claimed that the respondent Nos. 1,2,3,9,10,11 are co-owners of the disputed property and share of plaintiff in the disputed property is one half while respondent Nos. 9 to 11 are the owner of the other half of the disputed property. Accordingly, the plaintiff-respondent prayed for decree of partition in the disputed property in respect of his one half share.
5. The suit was contested by the respondent Nos. 9 & 11. In the aforesaid suit, the respondent Nos. 9 and 11 filed joint written statement contending inter-alia that late Ajimuddin had not transferred one half share of the disputed property to late Abdul Wahid by sale deed dated 14.3.1962. It was further pleaded that the sale deed dated 14.3.1962 was forged document and hence it is void in law. The said averment had been made on the ground that late Ajimuddin was suffering from epilepsy since before 1962 and as he was not mentally fit to enter into a contract, he could not execute the sale deed. The respondent denied that the plaintiff-respondent is the owner of half of the disputed property. The respondent No. 10 did not file written statement and accordingly, the case proceeded ex- parte against him by order dated 1.2.2011.
6. The defendant-appellant also filed written statement denying the ownership of plaintiff-respondent with regard to half share of the disputed property. It was further pleaded that the sale deed dated 14.3.1962 was forged document. It was also pleaded that Ajimuddin was suffering from epilepsy since 1955 and therefore, he was not mentally fit and agile to execute the sale deed. It was further pleaded that the respondent No. 9 executed a registered agreement to sale on 13.5.1996 in favour of the defendant-appellant of 217 sq. yd of the disputed property. The defendant-appellant denied that the plaintiff-respondents are in possession over the half share of the disputed property and further claimed that he became the owner of about 217 sq. yd. of the disputed property by sale deed dated 7.4.2011. On the basis of pleadings, the trial court framed as many as 5 issues which reads as under:-
“1- क्या वादीगण का िववािदत मकान मे ½ भाग है। 2- क्या वादी द्वारा वाद का मूल्यांकन कम िकया गया है एवं अदा िकया गया न्यायशुल्क अपर्यार्याप्त है?
3- क्या वादी आदेश 7 िनयम 11 सी0 पर्ी0 सी से बािधित है?
4- क्या प्रतितवादी सं0 4 प्रतितवादी सं0 1 कराये गये इकरार िदनांिकत 13.5.1996 के आधिार पर्र िववािदत मकान के 217 वगर्यागज पर्र कािबज है जैसा िक प्रतितवादपर्त्र की धिारा 14 मे उल्लिल्लिखिखित ह।ै 5- वादी िकस अनुतोष को प्रताप्त करने का अिधिकारी है?”
7. On the issue No. 1, the trial court after discussing in detail the testimony of PW-1 (Sabar) found that the testimony of PW-1 is not consistent inasmuch as the PW-1 has stated that he does not know the area of the disputed property nor has the idea as to in which direction of the house, he is residing. The trial court further discussed in detail the testimony of PW-2 and according to the trial court there is inconsistency in the statement of PW-2. The trial court found that the boundaries described by the PW-2 in his cross- examination does not match with the boundaries of the disputed property described in the plaint. The trial court further found that PW-2 also could not state the area for which the suit for partition has been instituted as according to the PW-2 the area of disputed property is 500 sq. yd. and it has been divided into several parts. The trial court further found that the PW-2 is the witness of will deed dated 20.4.1977 but he could not describe the property correctly in respect of which 'Will' was executed. After appreciating in detail the testimony of PW-1 and PW-2, the trial court decided the issue No. 1 against the plaintiff-respondent holding that the plaintiff-respondent and respondent Nos. 9 to 12 are not the co- owner of the disputed property.
8. On the issue No. 4, the trial court returned a finding that the defendant-appellant is in possession over 217 sq. yd. of the disputed property by virtue of agreement to sale dated 13.5.1996 as no evidence had been filed by the plaintiff-respondent in rebuttal to the evidence led by the defendant-appellant. Accordingly, the trial court found that the defendant-appellant has established their possession and hence it has decided the said issue in favour of the defendant- appellant.
9. The appellate court also framed 3 issues, which reads as under:-
“1- क्या अपर्ीलाथी/वादी गण का वादग्रस्त सम्पर्ित्ति मे ½ अंश है?
2- क्या िवक्रय का इकरारनामा िदनांिकत 13.05.1996 जो हमीद द्वारा प्रतितवादी सं0 -4 कृ ष्ण के पर्क्ष मे िनष्पर्ािदत िकया गया है, के आधिार पर्र प्रतितवादी सं0 -4 के वादग्रस्त सम्पर्ित्ति मे कोई अिधिकार उल्लत्पर्न्न नहीं होते है। 3- क्या अपर्ीलाथी गण िकसी अनुतोष को प्रताप्त करने के अिधिकारी है, यिद हां तो क्या?”
10. The appellate court while reversing the finding of the trial court on the issue as to whether plaintiff-respondent are owner of half of the disputed property discussed in detail the documentary evidence and oral evidence led by the parties and returned a finding that the plaintiff-respondents are owner of half of the disputed property. The appellate court held that the plaintiff-respondent to prove his ownership over half of the disputed property filed registered sale deed dated 14.3.1962 as paper No. 19-ga executed by late Ajimuddin in favour of late Abdul Wahid. The appellate court also noticed that the plaintiff-respondent led evidence which proved that late Abdul Wahid executed will deed dated 20.4.1977 paper No. 18-ka in favour of late Fateh Mohammad. The appellate court noticed that in the sale deed dated 14.3.1962, it is stated that possession has been delivered to vendee and the boundaries described in the sale deed tallies with the boundaries of the disputed property described at the foot of the plaint. It was further found that the PW-2 was one of the witnesses of the Will dated 20.4.1977 and he proved the Will as he has made categorical statement that the Will was dictated by late Hamid and he was witness of the Will. He (PW-2) further stated that late Hamid had been called into the court for becoming witness of the Will, and he alongwith Surendra went to the court from village. He (PW-2) further stated that first he signed the Will and thereafter other witness Surendra signed the Will and after that Abdul Wahid had put thumb impression on the Will.
11. The appellate court found that despite the detailed cross- examination of PW-2, there was no inconsistency in the testimony of PW-2. It further relied upon the judgement of the Apex Court in Banga Bahera and another Vs. Brajkishore Nand and another, 2008 (104) RD 61 and held that the plaintiff-respondent has proved the Will dated 20.4.1977.
12. In response to the argument of defendant-appellant that Abdul Wahid being Muslim could not execute the Will of his whole property, the appellate court considered the Will dated 20.4.1977 and found that it is stated in the 'Will' by the executor that "he has no issue". Thus, the appellate court found that late Abdul Wahid had no heir. Further, the appellate court found that the defendant- appellant has not led any evidence to prove that the Will dated 20.4.1977 executed by Abdul Wahid was ever objected by any heirs of late Abdul Wahid. The appellate court did not believe the case of the defendant-appellant that the sale deed dated 14.3.1962 was forged as late Ajimuddin was suffering from epilepsy and he died in the year 1955.
13. The appellate court considered the death certificate i.e. paper No. 63-ga of late Ajimuddin filed by Krishna, defendant-appellant and found that paper No. 63-ga does not establish that late Ajimuddin had died prior to the execution of the sale deed dated 14.3.1962. The reason for not believing the paper No. 63-ga by the appellate court was that DW-1 (defendant-appellant) stated that death certificate paper No. 63-ga was given to Hamid son of late Ajimuddin after 2-3 years from the date of agreement to sale dated 13.5.1996 executed in favour of defendant-appellant, which means that paper No. 63-ga was given to him in the year 1999 whereas the persual of the paper No. 63-ga reveals that it was registered on 6.9.2003 and issued on 11.10.2003. Thus, it is clear that day on which the paper No. 63-ga was said to have been given to Hamid was not in existence. Accordingly, it found that the plaintiff- respondent had proved that they are owner and in possession of half of disputed property.
14. On the issue No. 2 as to whether any right in favour of defendant-appellant accrues in respect of disputed property by agreement to sale dated 13.5.1996, the appellate court found that the agreement to sale has been executed in respect of 217 sq. yd. of the disputed property whereas the sale deed dated 7.4.2011 has been executed in respect of 136 sq. meter. It noticed that the defendant- appellant did not explain as to how and in what circumstances the sale deed was executed for an area lesser than the area described in agreement to sale as according to agreement to sale, the possession of whole area was delivered to defendant-appellant. The appellate court also noticed that the boundaries of the disputed property has not been described in the sale deed dated 7.4.2011. On the basis of aforesaid finding, the appellate court decided the issue No. 2 against the defendant-appellant.
15. Challenging the aforesaid order passed by the appellate court, learned counsel for the appellant has raised two submissions; firstly the judgement of the appellate court has been rendered in violation of the mandatory provision of Order 41 Rule 31 CPC inasmuch as the appellate court has failed to frame the point of determination and hence, the judgement of the appellate court is not sustainable in law. The second submission of learned counsel for the appellant is that late Abdul Wahid being Muslim could not bequeath his whole property in view of the prohibition in the Mohammadan Law that a Mohammadan cannot bequeath his whole of the share, therefore, 'Will' in favour of plaintiff-respondent was void.
16. Now, coming to the first submission of learned counsel for the appellant that the appellate court judgement does not comply with the Order 41 Rule 31 CPC as the appellate court has rendered the judgement without formulating the points for determination. It is pertinent to mention that the appellate court has framed the point of determination, which has been extracted above, on the basis of pleading and after considering in detail the oral evidence as well as documentary evidence led by the parties, the appellate court decided all the issues against the defendant-appellant. The manner in which issues have been dealt with by the appellate court has already been detailed above, and the counsel for the appellant could not point out any perversity in the findings returned by the appellate court in deciding all the issues against the defendant-appellant.
17. It is further relevant to point out that the trial court while deciding the Issue Nos. 1 & 4, which is Issue Nos. 1 & 2 framed by the appellate court, has only considered the testimony of PW-1 & PW-2 and held that as the testimony of PW-1 & PW-2 was inconsistent, hence, the plaintiff-respondent could not prove that they are the owner and in possession of half of disputed property. In the opinion of the Court, the trial court while deciding the aforesaid issue has committed manifest illegality inasmuch as the trial court failed to consider that the sale deed dated 14.3.1962 was never challenged by the respondent No. 9. The trial court did not consider the contents of the 'Will' nor did it consider the fact that PW-2 was also witness of 'Will' who had proved the 'Will' by clearly deposing that the Will was dictated by late Hamid before him and first he signed the 'Will' as witness and thereafter the other witness of the 'Will' namely Surendra signed the 'Will', and after that late Hamid put his signature. The appellate court relying upon the judgment of Apex Court in case of Banga Bahera (supra) held that the Will was proved and late Hamid bequeathed his whole of the share in the disputed property in favour of later Fateh Mohammad and plaintiffs being heirs of late Fateh Mohammad inherited the property from him. In the opinion of the Court, the appellate court rightly set aside the finding of the trial court that the plaintiff-respondent could not prove the 'Will'.
18. The appellate court also on issue No. 2 corrected the error of trial court by recording finding that the defendant-appellant could not explain as to how sale deed was executed with respect to 136 sq. yd. land whereas the agreement to sale was in respect to 217 sq. yd of the disputed property. In this view of the fact, the first submission of counsel for the appellant is not sustainable and is accordingly, rejected.
19. Sofar as the second submission that late Abdul Wahid being Muslim could not bequeath his whole of the disputed property is concerned, it is relevant to point out that no such plea has been raised by the defendant-appellant in the written statement. Though, it appears that during the argument before the appellate court, this plea was raised by appellant which has been rejected by the appellate court on the ground that it is evident from the Will dated 20.4.1977 that late Abdul Wahid was issueless and further there is no material on record to indicate that any legal heirs of late Abdul Wahid had objected to the execution of the Will deed dated 20.4.1977.
20. At this stage, it is also pertinent to mention that this plea was not raised by the defendant-appellant in the written statement nor they got any issue framed on the point as to whether the Will dated 20.4.1977 was invalid as the late Abdul Wahid being Muslim could not bequeath his whole property since there is prohibition in the Mohammadan law that a Muslim cannot bequeath his whole property. In the opinion of the Court, no such case was set up by the defendant-appellant before the court below in the written statement. Therefore, this plea cannot be allowed to be raised in absence of any pleading in the written statement.
21. Since there is no perversity or error committed by the appellate court in decreeing the suit, hence, in the opinion of this Court, no substantial question of law arises in the present appeal for determination.
22. Accordingly, the second appeal lacks merit and is dismissed. Order Date :- 12.4.2021 Jaswant