1. Heard learned counsel for the parties and perused the records.
2. It is admitted fact that parties are resident of same village Madho Math. It is also admitted that on request of defendant-respondent plaintiff had agreed to sell his property. It is also admitted that on 19.7.2004 plaintiff had executed sale-deed in question in favour of defendant-respondent and received consideration (receiving of consideration is denied in plaint but admitted in evidence and also during arguments).
3. Plaintiff had filed original suit with averment that he had agreed to sell his Deeh land, which is situated in front of the house of defendant but at the time of execution of sale-deed in question, draft of said deed was not read and explained to him, and in place of land of Abadi-Deeh the sale-deed of agricultural land relating to 1/3rd share of plaintiff of plot no. 2/2 was got written by defendant. Since plaintiff had never consented to execute sale-deed of agricultural land, therefore the sale-deed in question dated 19.7.2004 was obtained by defendant fraudulently. The disputed land was not partitioned and no consideration was paid to plaintiff and defendant has not obtained any possession of disputed property. Therefore for these reasons the sale-deed in question be cancelled and defendant be restrained from taking possession of any part of plot no. 2/2 without getting it partitioned by metes and bounds.
4. In written-statement, the defendant had denied the plaint averments and pleaded that plaintiff had willingly executed registered sale-deed in question of whole of his share in disputed plot after receiving consideration, and no fraud was committed. Therefore the suit is liable to be dismissed.
5. After framing of the issues the evidences of the parties were accepted in the trial court and then, by the judgment dated 25.1.2012 of Additional Civil Judge (Junior Division)-IV, Ballia, the original suit was dismissed. In this judgment the trial court had held that plaintiff's case is not believable that he had not received consideration money and had not willingly executed sale-deed of disputed property of his share of plot no. 2/2.
6. Against the judgment of trial court, the plaintiffs had filed Civil Appeal No. 26 of 2012, which was heard and dismissed by the judgment dated 29.8.2015 of Additional District Judge, Court No.-1, Ballia. Aggrieved by the judgment of trial court as well as the first appellate court, present second appeal has been preferred by the plaintiff of the original suit.
7. Learned counsel for the appellant contended that trial court had not framed any specific issue regarding conduct of defendant-respondent and the fraud committed by him. Therefore the judgments passed without framing proper issues are erroneous. In this regard a perusal of record reveals that trial court had framed first issue as to whether sale-deed in question dated 19.7.2004 is liable to be cancelled on grounds mentioned in plaint. This issue covers all the points raised by the plaintiff-appellant. Apart from it, a perusal of judgment of the two lower courts reveal that all the points raised by the plaintiff-appellant had been considered and then the judgements in question were passed. A perusal of memorandum of first appeal reveals that no such question of non-framing of proper issue was raised in it. Therefore, plaintiff-appellant had no legal right to raise this issue even in first appeal. Such points cannot be raised directly in civil appeal. In this regard, arguments of learned counsel for the appellant are found unacceptable.
8. The second point raised by learned counsel for the appellant was that no formal point of determination was framed by first appellate court, therefore, its judgment should be treated as erroneous. A perusal of record reveals that the only point of determination between the parties in original suit and this matter was as to whether sale-deed in question dated 19.7.2004 was result of fraud played on plaintiff and was without consideration as mentioned in the plaint. These points were considered by first appellate court in its judgment. In these circumstances, the first appellate court had complied the mandate of Order XLI Rule 31 CPC in its spirit. Therefore although formal point of determination was not framed but it was mentioned in descriptive form and finding was given on it by a speaking order in which reason was also given.
9. In G. Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224, the Apex Court has held as under:-
"The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC."
10. Thus it is clear that in every case, non compliance of provisions of Order-41, Rule-31 CPC may not result in vitiation of judgment. If substantial compliance of this provision of Order-41, Rule-31 has been made and actually point of determination has been taken and decided, then mere formal non framing of point of determination would not adversely affect the judgment because it would not prejudice any legal right of appellant.
11. No doubt, no formal point of determination was framed, but since the parties went to trial and appeal fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of any point of determination was fatal to the case, or that there was that mistrial which vitiates proceedings. I am, therefore, of opinion that the appeal could not be allowed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Therefore, the contentions of learned counsel for the appellant on this point are also found unacceptable.
12. In this matter, real dispute between the parties was the determination of fact as to whether the sale-deed in question was result of fraud played by defendant-respondent on plaintiff-appellant or not, and whether said sale-deed was executed without consideration. In this regard, evidences are there. During his examination, plaintiff himself had admitted the receiving of consideration of Rs. 1,15,000/-. Other points relating to fraud or alleged agreement between the parties for another property etc. was considered by the courts below and it was held that plaintiff had failed to prove his case. Neither any fraud was committed against him nor was the sale-deed in question executed without consideration. There had been concurrent finding of two courts below, which are based on proper appreciation of evidences and arguments. These findings appear acceptable and there appears no infirmity in it.
13. One more argument was raised by learned counsel for the appellant that sale-deed of unpartitioned agricultural property cannot be executed. This point was considered by the lower courts with specific finding that plaintiff had sold his total 1/3rd share in disputed plot no. 2/2, and there is no error or illegality in it. This finding also appears proper and acceptable.
14. As held earlier, there is only dispute between the parties as to whether disputed sale-deed was result of fraud committed against plaintiff by defendant or not. This is not a question of law but a question of fact that can be decided on the basis of evidences, as has been held by two courts below.
15. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal No question of law much less a substantial question of law is involved in this case before this Court. None of the contentions of the learned counsel for the appellant-plaintiff can be sustained.
16. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.
Order Date :- 07.01.2016/SR