Heard Sri Sanjeev Kumar Tiwari, learned counsel for the plaintiffs-appellants.
This second appeal has been filed by the plaintiffs-appellants challenging the judgement dated 2.5.2019 and the decree dated 15.5.2019, passed in Civil Appeal No. 68 of 2018 by the district Judge, Mau as well as the judgement and decree dated 31.10.2018 and 15.11.2018 respectively, passed by the Civil Judge (Junior Division), Ist, Mau in Suit No. 1818 of 2001.
The plaintiffs-appellants filed a suit for cancellation of sale deed dated 16.10.2001 executed by the defendant-respondent no.3 Baliram in favour of defendant-respondent nos. 1 and 2. The plaint case is that in respect of Plot No. 117 and Plot No. 119, the plaintiffs-appellants had 1/4th share, and, plot No. 84 is their ancestral property which was inherited by their father, defendant-respondent No.3. The sale deed dated 16.10.2001 was alleged to be forged and fabricated and that the defendant-respondent No.3 did not put his thumb impression to the sale deed.
The defendant-respondent Nos. 1 and 2 filed their written statement denying the allegations made against them. In the written statement, it is stated that the defendant-respondent No.3 had approached the defendant-respondent Nos. 1 and 2 and had cited need of money for selling the land. It was stated that the sale deed of 16.10.2001 was acted upon and the defendant-respondent nos. 1 and 2 are in possession.
The trial court framed four issues, the first being whether the sale deed dated 16.10.2001 deserved to be cancelled. The trial court, observed that the defendant-respondent No.3 was the vendor of the sale deed dated 16.10.2001. The testimony of PW-1 Sambhu Ram was referred to by the trial court in which, it was stated that the defendant-respondent No. 3 in the capacity of 'Karta' of the family had his name entered in the revenue record; that the defendant-respondent no.3 is feeble minded and in a bad company and taking advantage thereof, the defendants-respondent nos. 1 and 2 got the sale deed dated 16.10.2001 executed which is false and fabricated. PW-2 refused to recognize the photograph of her husband (defendant no. 3) on the sale deed.
The trial court considering the testimony as well as documentary evidence on record observed that the plaintiffs-appellants are not the recorded 'bhumidhar' in respect of the property in dispute. It was observed that the plaintiffs-appellants did not get undisputed photograph or signature of their father/husband verified by an expert. The Khatauni (paper No. 35-Ga-1) was referred to by the trial court and the defendant-respondent No.3 was found to be the bhumidhar of the property in dispute and it was held that he was entitled to execute the sale deed.
With regard to the question that the property in dispute being ancestral, the trial court observed that no suit was filed by the plaintiffs-appellants before the competent revenue court for declaration of their title. Accordingly, the trial court held that the sale deed dated 16.10.2001 did not deserve to be cancelled. The suit was accordingly, dismissed.
In the plaintiffs' appeal before the lower appellate court, two points for determination were framed, the first being whether the decision of the trial court with regard to issue No.1 is in accordance with law and facts and whether it deserved to be affirmed. The lower appellate court independently examined the entire pleadings as well as the testimony and evidence filed by the contesting parties. The lower appellate court observed that the defendant-respondent No.3 neither filed the suit nor any written statement and he died during the pendency of the suit. In the event of non-receipt of consideration from the defendant-respondent nos. 1 and 2, the defendant-respondent no.3 would have himself instituted the suit. The lower appellate court further observed that on the basis of the sale deed in question, the defendant-respondent nos. 1 and 2, got their name mutated in the revenue records in proceedings under Section 34 of the Land Revenue Act, in which the defendant-respondent No.3 had submitted his no objection, in which it was stated that in respect of plot No. 84 area 0.251 hectares in its entirety, plot No. 117 area 0.297 and 119 area 0.464 hectares to the extent of 1/4th part are being transferred in entirety in favour of defendants-respondent nos. 1 and 2 and the possession thereof has also been given.
With regard to argument that despite the witnesses of sale deed being alive, they were not produced before the court, the lower appellate court while referring to the provisions of Section 68 of the Registration Act held that till the time the executor of a document does not dispute execution thereof, the summoning of witnesses to the sale deed is not required. With regard to claim of the plaintiffs-appellants regarding their rights over the property in dispute, the appellate court held that they had not instituted any suit for declaration of their right before the revenue court and the appeal was dismissed and the judgement and decree of the trial court dated 31.10.2018 was affirmed.
The contention of the learned counsel for the plaintiffs-appellants is that under Mitakshara School of law, the plaintiffs are entitled to the right of property in dispute. He has placed reliance upon a judgement of Division Bench of this Court in the case of Ram Padarath and others Vs. Second Addl. District Judge and others1 (Paragraph No. 19).
Learned counsel has also referred to judgement in the matter of Prabhu Dayal and others Vs. Board of Revenue and others2 (Paragraph 14) and State Bank of India Vs. Ghamandi Ram3 (Paragraph 7).
I have perused the relevant paragraphs of the judgements as cited by the learned counsel for the appellants and have considered his submissions.
In case any person claims hereditary rights over a bhumidhari land in dispute, he has to assert his right in accordance with law. The courts below have concurrently held that it was for the plaintiffs-appellants to have staked their claim before the revenue court for declaration of their rights. This finding of the courts below cannot be faulted. The judgement referred to by the learned counsel for the appellants are of no assistance to him. The defendant-respondent No.3 was the recorded bhumidhar and the vendor of the registered sale deed dated 16.10.2001 and he neither filed the suit for cancellation of the sale deed nor did he file any written statement. The mutation proceedings instituted by the defendant-respondent Nos. 1 and 2 in respect of the disputed land was duly conducted in which apparently no objections were filed and the defendant-respondent Nos. 1 and 2 are in possession. The courts below have decided the matter and concluded findings of facts. There are no substantial questions of law including the ones framed in the memorandum of appeal that merit admission of this appeal.
This appeal is, accordingly, dismissed.
Order Date :- 22.8.2019 sfa/ (Jayant Banerji, J)