JUDGMENT
Vikramaditya Prasad, J.
1. In this Second appeal the following substantial question of law is to be decided :
“Whether the learned Lower Appellate Court committed an error of law in reversing the judgment and decree passed by the trial Court without meeting its reasons on-the basis whereof he came to the conclusion that the purported deed executed by the plaintiff appellant was obtained by the defendant by practising fraud upon her?”
2. The aforesaid question arose out of the following facts. Pogi Kuer, appellant, was the plaintiff in the original suit. She belongs to scheduled caste. The disputed land is situated in village Turundu. police station Kamdara. District Gumla (at the relevant time Distt. Gumla was not in existence) and the district was Ranchi. The suit land was recorded in the name of Dukha Pradhan. who died issueless and plaintiff became the only heir claiming through Nanglay and she inherited the said lands. She was in need of money and she wanted to mortgage the said land with the defendant No. 1, who is respondent No. 1 in this appeal. Defendant agreed to the proposal of the plaintiff and took her to Ranchi but by practising fraud he got the sale deed executed by the plaintiff. The plaintiff as a matter of fact was made to believe that the deed in question was a mortgage deed but when she learnt about the fraudulent act of the defendant No. 1, she cancelled the deed dated 31.3.1980 by a cancellation deed on 27.1.1981 and the fact was that the plaintiff never parted with possession of the land and the suit land was in her possession for all practical purposes. Defendant No. 1 on the basis of that deed got his name mutated and the C.O.. Kamdara. rejected the objection of the plaintiff. Consequently, the suit was filed by the plaintiff-appellant for a decree that the sale deed in favour of defendant No. 1 is null and void and binding on her and for a confirmation of her possession and in alternative for recovery of possession.
3. The defendants’ case was that the plaintiff was in need of money and the negotiated with the defendant to sell the land and at the same time she also contacted with Hardugan Pahan and Langu Pradhan for sale of her other lands. The plaintiff, accordingly. executed three registered sale deeds on 31.3.1980 itself at Ranchi. The plaintiff wilfully sold the land with this defendant and since the date of transfer this defendant has been in peaceful and cultivating possession
over the suit land. It was also averred that the defendant had no knowledge about the cancellation of the deed and, therefore, such cancellation of deed is not binding upon him. It was further averred that Circle Officer. Kamdara. allowed the defendant to be mutated with respect to the suit land. It was not only he but the other two vendees Lagnu Pradhan and Hardugan Pahan were also mutated with respect to the lands transferred to them by the plaintiff. Therefore, a prayer was made for dismissing the suit.
4. The learned trial Court after hearing the parties framed the following issues :
I. Is the Suit as framed maintainable ?
II. Has the plaintiff cause of action for the suit ?
III. Is the suit barred by law of limitation, waiver, acquiescence, estoppel and the principle of ouster ?
IV. Is the suit land under valued ?
V. Is the sale deed valid and binding on the plaintiff?
VI. Has the plaintiff any subsisting right, title and interest over the lands covered under sale deed ?
VII. To what relief or reliefs, if any. is the plaintiff entitled ?
The trial Court decided Issue Nos. VI in favour of the plaintiff and decreed the suit on contest against the defendant No. 1 (Respondent). Against that judgment and decree, an appeal was filed and the Sub-Judge-1. Gumla. in Title Appeal No. 35 of 1983 reversed the judgment and decree passed by the trial Court and allowed the appeal.
5. In the First Appellate Court there were following two points for determination :
(I) Whether the sale deed is invalid for contravention of Section 46 of the C.N.T. Act ?
(II) Whether the sale deed was executed by fraud and misrepresentation, and whether the plaintiff or defendant is in possession over the suit land ?
6. During the course of argument of this appeal, another substantial question of law was proposed to be decided, by the learned Counsel for the appellant under Section 100(5) of the Code of Civil Procedure. This was objected to by the learned Counsel for the respon-
dents. The question which is sought to be
decided is :
“Whether the transfer made by a member of scheduled caste to another member of scheduled caste without the permission of the Deputy Commissioner in view of the decision reported in 1986 (2) PLJR 260. can be said to be valid.?
7. I will take this matter in latter part of this judgment. At present I wish to confine myself with the substantial question of law (supra) which was framed at the time of admission of this appeal.
8. The learned trial Court had examined the aspect, whether or not. a fraud was committed upon the appellant. The learned trial Court while examining the point of fraud committed by practising fraud upon the appellant, the learned trial Court held that on this point the evidence of plaintiff (appellant) was not shaken. Referring to the cross-examination of the plaintiff, the learned trial Court found that the plaintiff had negotiated for mortgage with the defendant and the learned trial Court said that this was not challenged in any way for the reasons best known to the defendant and. therefore, this fact appearing in the evidence of PW 1 remained unrebutted and unshaken and. therefore, there was no reason to disbelieve the testimony of PW 1. The learned trial Court also considered evidence of DW 1 that the deed (Ext. B) was executed at Ranchi and DW 1 also admitted that because the plaintiff was ill and she was to be medically examined at Ranchi hence she had gone to Ranchi where the document was registered. The trial Court also relied upon the cross-examination of DW 1. defendant, that the plaintiff was given treatment at Ranchi after the registration of the document was made, but then he again said in his subsequent statement that because the plaintiff had not carried money with her hence she was not given any treatment. The another witness Le. DW 5 also said that he had gone to Ranchi and in his cross-examination he said that he did not know whether the plaintiff was given any treatment at Ranchi. The learned trial Court, therefore. came to a conclusion that it is obvious from statement of DW 1 and DW 5 that the plaintiff was not given any medical treatment at Ranchi. but even then, the contention of the defendant was that only because the plaintiff
was to get medical treatment at Ranchi, the said sale deed was also registered at Ranchi. This plea taken by the defendant could not convince the learned trial Court. The learned trial Court said that if she was not medically treated at Ranchi then for what reason she had gone to Ranchi is not known. The learned trial Court also found that much expenses is incurred if the document is registered at Ranchi than incurred at Gumla. On this circumstance the learned trial Court came to a finding that the fraud was played upon the plaintiff.
9. The appellate Court considered all the aspects of the matter in paragraph 4 of the impugned judgment very methodically and examined all the circumstances i.e. other documents executed on that day also, reason for going of the plaintiff to Ranchi and considering all these circumstances came to the finding recorded in the impugned judgment. The learned appellate Court also considered the fact in appeal that the plaintiff has taken objection against the mutation after one year when the appellant applied for mutation and. therefore, the appellate Court gave a finding that the sale deed was duly executed and was genuine.
10. On closure scrutiny of the reasons given by the learned trial Court and the reasons given by the learned appellate Court, it is found that the appellate Court has given better reasons for repealing the finding at than the learned trial Court. Of course the learned appellate Court had not discussed the point to point item of this question but had examined all aspects of the matter very cautiously. Therefore, it cannot be said that the learned appellate Court erred in reversing the judgment of the learned trial Court without meeting the reasons on the basis of which it came to a conclusion that the purported deed executed by the plain tiff-appellant was obtained by defendant by practising fraud upon her. Thus, I find that the learned appellate Court had given good reasons for deferring with the finding of the learned trial Court for reversing the judgment of the learned trial Court. Appellate Court is the Court of law and fact and so its finding of fact which is otherwise reasonable has to be accepted by the High Court, as the finding of the appellate Court is not perverse or unreasonable.
11. Accordingly, answer to this question is in negative and against the appellant.
12. As stated above, during the course of argument vide order dated 18.2.2002 following question was formulated for being answered in this appeal :
“Whether the transfer made by a member of schedule caste to another member of scheduled caste without the permission of the Deputy Commissioner in view of the decision reported in 1986, V. 2. PLJR page 260. can be said to be valid?
The respondents have opposed that this question cannot be raised at this stage of argument because this was not the question raised at the stage of admission and, thus, it is beyond the scope of Section 100(5) of the Code of Civil Procedure. Section 100(5) of the C.P.C. reads as follows :
“Section 100(5) : The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question”.
12. The proviso aforesaid empowers the Court to formulate a question if it is satisfied that the cases involve such a question. When this appeal was being heard on 18.2-2002 this matter was also heard and this question was also framed and both the parties were heard on this point.
13. It is a settled principle that a pure question of law can be raised at any stage. The aforesaid question is a pure question of law and is not at all connected with any fact. In the trial Court, it was pleaded that the suit was not maintainable under Section 46 of the C.N.T. Act for the reasons that the sale was bad. in view of the aforesaid provisions of law contained in Section 46 of the C.N.T. Act. The learned trial Court on considering the possession and also the fact that the sale-deeds even if it is in violation of Section 46 of the C.N.T. Act then also merely by execution of deed title cannot pass to the vendees. The learned trial Court did not discuss the provisions of law and the case laws on the matter. But never-
theless it goes to show that this point was raised at the earliest stage.
14. When the matter was in appeal, this point was raised again and the case laws reported in 1984 PLJR page 401 and 1969 BLJR page 135 were discussed. The learned appellate Court basing his decision on these two authorities came to a finding that the sale deed is not invalid for want of sanction of the Deputy Commissioner because it was not necessary in the cases of scheduled caste. The learned appellate Court also recorded a finding that in both the decisions the Hon’ble High Court has ruled that after 44th amendment of Constitution in 1978, the provisions of B.T. Act as well as C.N.T. Act. imposing restriction on transfer of land by the members of scheduled castes have become inoperative.
15. When this second appeal was filed, in the memorandum of appeal the following two questions were proposed ;
(a) “Whether the learned Court of appeal below has correctly applied the decisions reported in 1984 PLJR page 401 and 1969 BLJR page 135, and
(b) Whether in case of transfer of the right by a raiyat belonging to a member of scheduled caste, permission of the Deputy Commissioner under Section 46 of the C.N.T. Act is a pre-condition ?
16. But the learned Single Judge did not frame any of the aforesaid two questions as substantial question of law, even the appellant did not reserve a right to request the Court to frame question of law at a latter stage, which could not be permitted under Section 100(5) of the Code of Civil Procedure.
17. From the circumstances, it is clear that this question, whether the sanction was a pre-condition was being raised right from the lower Court to the second appellate Court and atleast at the time of formulation of the substantial question of law. it was be raised. During the argument, the learned counsel for the appellant raised this question then definitely it was not a question, as the same was opposed by the respondents, it is altogether not a new plea taken for the first time.
18. AIR 1967 Pat 211, a Division Bench judgment of this Hon’ble Court (erstwhile Patna High Court) has held that Section 46(1) of the C.N.T. Act was not violative of the Constitution. Even in face of that judgment, the judgment reported in 1984 PLJR 399 was
passed. This matter was referred to a larger Bench and by a Full Bench of this erstwhile Patna High Court reported in 1996 (2) PLJR 261 the judgment of 1984 was held to be per incurim and not a good law. The sale deed involved in this case relates to the year 1980. It is not disputed that vendor and vendee are not scheduled caste. So in the year 1980 itself there was no decision like 1984 decision. Therefore at that time the decision, which has confirmed the constitutionality of Section 46(5) of the C.N.T. Act was enforce. It appears that the existence of this law. i.e. AIR 1967 Pat 211. AIR 1961 Pat 771 was not taken recourse to either by the courts below or by the learned Counsel for either of the parties. Even in the appellant Court judgments referred to above, reported in 1984 BLJR Page 401, and 1969 BLJR page 135 were discussed. Had the law as pronounced in 1967 Pat 25, which is a division Bench Judgment been referred to and relied upon then the aforesaid situation, perhaps, would not have appeared. The argument was raised by the learned Counsel for the appellant when the memorandum of appeal was filed 1987, the judgment reported in 1996 (2) PLJR 260 was not available and, therefore, this ground was not taken. 1996 PLJR (2) page 260 only approves the Judgment reported in AIR 1967 Pat 25. Thus even on the date of the sale in question constitutionality of law was there that the sanction was required from the Deputy Commissioner when a scheduled caste wanted to transfer his land by sale to another person. Thus, it can be safely held that the sale was in violation of mandate of law as enshrined in Section 46(5) of I he C.N.T. Act, constitutionality of which was approved by a Division Bench judgment of this Court, which was ultimately approved by a Full Bench decision. The learned Courts below erred in the aforesaid circumstance by not taking cognizance of 1967 judgment and the learned Counsel for the appellant in the first Court of the first appeal also did not take this plea, though it was available.
19. In the aforesaid view of the matter and because of the rigor of law and on the basis of the discussion made above, the question framed at the time of hearing of this appeal is answered accordingly, and it is held that the impugned transfer was invalid.
20. This appeal was filed in 1987 and even at that time law of 1987 was available.
I am aware that after a lapse of 15 years since the filing of the second appeal there will be great constraint to the respective side.
21. In the aforesaid view of the matter and because of the rigor of law and on the basis of the discussion made above, the question framed at the time of hearing is answered accordingly and it is held that the impugned transfer was invalid.
23. Consequently, this second appeal is
allowed. The appellate Court’s judgment is set
aside and the learned trial Court Judgment is
restored though entirely for different reasons.
In the circumstances, there would be no order
on cost.