ORDER
S.K. Chattopadhyaya, J.
1. The appellant-defendant No. 1 has impugned the judgment and decree of the Courts below, by reason of which the suit filed by the plaintiff-respondent Nos. 1 to 4 for cancellation of the registered sale-deed dated 14.5.72 has been allowed.
2. The case of the plaintiffs is that one Upas Mahto @ Umesh Mahto died leaving behind his widow Sonia, three sons namely Pushu, minor Dhanu and minor Ganesh Mahto including two daughters, Mungia Mahtain and minor Jilpi Mahtain as his heirs and legal representatives, who inherited jointly the suit property having 1/9th share over the same. Besides the suit property as described in Schedule A of the plaint, said Upas also left behind some other lands and the plaintiffs are in peaceful joint possession of the property alongwith other co-sharers. All the minor sons and daughters of Upas are residing under the guardianship of their mother Sonia Mahtain. They have no concern with the defendant No. 2-second party namely Pushu. Mahto, another son of deceased Upas because being an addicted to having drinking, he does not take care of the members of the family and leading a vagabound life. Taking advantage of his alcohalic addiction, Motilal Khatik, defendant No. 1 induced Pushu Mahto to execute a deed in respect of entire 1/9th share of land of Upas, his deceased father in order to make a wrongful gain and to put the plaintiffs in wrongful loss. By this registered deed, Pushu allegedly sold entire 1/9th share land of the suit property of the plaintiffs to this defendant-first party, for which there was absolutely to talk of such sale between them and Pushu. The plaintiffs were unaware of such registration of sale-deed and only came to know for the first time when defendant-first party informed them that he had purchased the share of the plaintiffs in course of talk held by the defendant-first party from defendant-second party, Pushu. These facts were revealed towards the end of July, 1971 and being suspicious the plaintiffs enquired from the Dhanbad Sub-Registry and came to know that the defendant-first party managed to get the said deed executed by Pushu by falsely alleging him as guardian of minor plaintiff Nos. 3 and 4. No consideration was paid to the plaintiffs and the said sale-deed was a result of fraud and collusion and as such, plaintiffs sought for cancellation of the said-deed.
3. The defendant-first party, Motilal Khatik, on the contrary, has taken a stand that one Sagar Mahto, defendant No. 9, being son of deceased Ludu Mahto, has already sold his entire 1/3rd share in the suit property to him by a registered sale-deed dated 27.3.61 for valuable consideration and put the defendant in actual physical possession over the said purchased land. So far registered deed executed by defendant No. 2, Pusu is concerned, the case of the defendant is that Pusu was maintaining his brother, sister and mother as their guardian and looked after the property left by his father and more particularly the properties described in the plaint. Said Pusu was not an addicted to liquor and as Karta of the family, sold the entire 1/9th share of the property left by his father Upas Mahto by the said registered deed for valuable consideration. He sold the suit land on behalf of himself and on behalf of his brother, sister and mother for the benefit of the joint family, legal necessity and for the payment of the loan incurred by the joint family. The defendant has specifically stated that since 27.3.68 he is in peaceful physical possession over 1/9th share of the defendant No. 9 in the property mentioning in Schedule-A of the plaint, and as such, he derived right, title and interest over 1/9th share of the defendant No. 9 and as such, he has also derived right, title and possession in respect of 1/9th share of Upas since 14.5.71. Other allegations were also denied by the defendant.
4. The learned trial Court, on the basis of pleadings, framed several issues, one of which was as to whether the suit was barred under the provisions of Specific Relief Act and principle of waiver, estoppel and acquiscence and by law of limitation. The learned Court below decided issue No. 6 i.e. the provisions of Specific Relief Act and has come to a conclusion that sale-deed if not cancelled, the same will cause serious injury in respect of the interest of the plaintiffs over the tank. The Court found that the witnesses of the plaintiffs, in unequivocal terms, have deposed that Pusu Mahto was addicted to wine and was not maintaining the family as guardian after the death of his father Upas Mahto. The trial Court found that the Ext. A/1 does not disclose that Pusu executed the same for meeting the legal expenses of loan incurred by him during the Sarad ceremony of his father. Similarly, Motilal Khatik, Defendant No. 1, deposing as D.W. 1, did not state that Pusu had taken any loan from him for meeting the said expenses. Sonia Mahtain, the mother of Pusu Mahto and other plaintiffs, categorically stated that she was guardian of her minor children and Pusu being the eldest son, did not live with the family and living separately, he has no connection with the family and story of maintaining the family is also false. The fact that Pusu Mahto, her eldest son, was alcohal addicted, has been supported by her. The trial Court also noticed the fact that the person who could have supported the case of the defendant was Pusu Mahto, the defendant No. 2, who alleged to have executed the sale-deed but he was not examined by the defendant. The defendant failed to examine any witnesses to support the case that Pusu as guardian was maintaining the family of his deceased father Upas. Further case of the defendant No. 1 that consideration amount was paid to Pusu has been contradicted by his own witness, the deed writer, defendant No. 5, who has denied the fact that said consideration money of the sale-deed was paid in presence of the Sub-Registrar to Pusu. Considering all these facts the trial Court decreed the suit by holding that the alleged sale deed was void, illegal and not operative so far the plaintiffs are concerned.
5. It is pertinent to note here that against the said judgment and decree of the trial Court the defendant-first party moved the first appellate Court but without any success. The defendant thereafter moved this Court in S.A. No. 122/87 and considering the point as to whether the findings recorded by the trial Court that the impugned sale-deed was illegal and inoperative, null and void, this Court considering the materials on record, held that the said sale-deed (Ext. A/1) was valid so far the share of Pusu Mahto was concerned. Coming to this conclusion the High Court interpreted the provisions of Sections 6 and 19 of the Hindu Succession Act, 1956 and set aside the findings to the extent recorded in that regard and remanded the case for fresh consideration by the lower appellate Court. The first appellate Court, on remand, considered the point as to whether the findings given by the trial that the sale-deed was null and void and inoperative as a whole or in part. Considering the arguments and materials on record the learned first appellate Court found that the impugned sale-deed, Ext. A/1 cannot be said to be invalid and illegal as a whole rather the same is valid to the extent of the share of Pushu Mahto out of 1/9th share of his father, Upas Mahto. Thus, it appears that the decree passed by the trial Court was partly set aside and the appeal was allowed in part.
6. Mr. P.K. Prasad, learned Counsel appearing on behalf of the appellant, has contended that in view of non-examination of two minor brothers, on whose behalf Pusu had executed the sale-deed, the Courts below should have drawn an adverse inference against the plaintiffs. Secondly, whether the suit for a mere declaration was maintainable in view of Section 34 of the Specific Relief Act when admittedly the plaintiffs did not ask for any consequential relief. Lastly, learned Counsel contended that without discussing the evidences the Courts below could not have inferred that Pusu Mahto was addicted to alcohal and he was induced to execute the deed and as such, the sale-deed was void. In support of his contention, he has relied on the decisions in the case of Ram Saran v. Smt. Ganga Devi and Vinay Krishna v. Keshav Chandra .
7. Before going into the merit of the case, it is to be born in mind that the relief as to cancellations of instrument is founded upon the administration of protective justice for fear that the instrument may be vaxatiously or injuriously used by the defendant against the plaintiff when the evidence to impeach it may be lost or that it may throw a cloud or suspicion over his title and interest.
8. It is well settled that where the defendant is in possession of some of the suit properties and the plaintiff in a suit does not seek for possession of those property but merely claims a declaration that he is the owner of the suit property, the suit is not maintainable. The same view has been expressed by their Lordships in the decision relied by Mr. Prasad. However, in the instant case it is specific case of the defendant-appellant in his written statement that after purchasing 1/3rd share of Sagar Mahto, defendant No. 9 on 27.3.1968, he is in possession over 1/3rd share of the defendant No. 9. However, so far his possession regarding over 1/9th share of Umesh Mahto in the properties, his case is that from 14.5.1971, the date on which Pushu transferred 1/9th share of Upas, he is coming in actual physical possession over the same. However, to this effect no issue was framed by the trial Court as to whether the defendant was actually in possession of the suit property after purchase of Pushu and it appears that no grievance was made by the defendant for not framing of any issue in this regard. Not only that, from the findings of the Courts below it appears that no such argument was also advanced on behalf of the defendant-appellant that on the basis of aforesaid decision mere suit for a declaration was not maintainable. Even before the lower appellate Court, I found that no plea that the suit was barred under Section 34 of the Specific Relief Act was taken and as such the Court of appeal below had no occasion to go into the same. Though Mr. Prasad has urged that this point was raised before the lower appellate Court and to that effect instruction was given to him by the conducting lawyer of the lower appellate Court but he has failed to produce any certificate to that effect. Moreover, in spite of opportunity given, the learned Counsel has failed to produce the copy of the memo of appeal filed before the Court of appeal below. Under these circumstances, in my view when the appellant has failed to substantiate his claim of possession over the disputed properties by adducing any evidence the trial Court was justified in holding that in these circumstances the suit was not barred under Section 34 of the Specific Relief Act.
9. In these circumstances the decision of the Apex Court in the case of M. Kallappa Setty v. M.V. Lakshminarayna Rao , may be looked into. In this case their Lordships were of the view that where the plaintiff is in possession, he can resist interference from defendant, who has no better title than himself and get injunction restraining defendant from disturbing his possession.
In this connection, I may refer to a Division Bench decision of this Court in the case of Nathuni Missir v. Mossammat Ratna Kuer reported in AIR 1963 Patna 337, where the plaintiff instituted a suit for declaration that the deed of surrender dated 12.12.1946 executed by defendant No. 1 in favour of defendant Nos. 2 and 3 was illegal, invalid, inoperative and not binding them, the trial Court dismissed the suit on the ground that the suit for mere declaration was not maintainable and it was barred under Section 42 of the Specific Relief Act, 1877. Considering the facts and circumstances the Division Bench observed as follows:
In view of my finding that the suit by the plaintiffs was as reversioners, they could not seek for recovery of possession during the lifetime of defendant 1 and, as such, the provision of Section 42 of the Specific Relief Act cannot stand in their way. So long as defendant 1 was alive, only declaration could be sought for and that has been done by the plaintiffs.
10. Similarly, in the case of Gulian Bibi v. Nasiruddin Mia reported in AIR 1975 Gauhati 30, the plaintiff sought for a declaration that the sale-deed was void on the ground of fraud, misrepresentation and undue influence. The suit was decreed by the trial Court but on appeal the first appellate Court reversed the said finding. In second appeal the High Court observed as follows:
The only other submission of Shri Nilamani Singh is that the suit is barred under Section 34 of the Specific Relief Act, 1963. Though the Munsif found on the issue in favour of the plaintiff holding that the suit was not barred as further relief was not necessary to be sought by the plaintiff, inasmuch as she herself was in possession of the suit land. This finding was not challenged before the District Judge by the respondent who was the appellant before him. The Point, therefore, cannot be entertained in the second appeal.
11. Another important aspect is to be taken into consideration that earlier this Court in Second Appeal No. 122 of 1987 did not find that the suit was barred under Section 34 of the Specific Relief Act. Thus, in my view, in the instant case also the appellant having not challenged the findings of the trial Court regarding maintainability of the suit before the first appellate Court, the same point cannot be entertained in Second Appeal by this Court. So far other points are concerned, both the Courts below, after scrutinising the evidences, were satisfied that Pushu Mahto was addicted to alcohal and was induced to execute the deed and so the sale deed was void. Merely non-examination of two minor brothers, in my view, does not affect the case of the plaintiffs and there is no question of drawing an adverse inference against them.
12. As discussed above, both the Courts below have found that the defendant-appellant has failed to prove that any consideration money was paid against the said sale-deed and Pushu executed the same for meeting of the legal expenses.
13. Having considered the case of the parties and after hearing the learned Counsel for the appellant, I am of the view that the findings of the Courts below cannot be interfered with in the Second Appeal inasmuch as no substantial question of law is involved in this case.
14. In the result, I find no merit in this appeal and the same is accordingly dismissed.
