Syed Md. Mahfooz Alam, J.
1. This second appeal has been preferred against the judgment and decree dated 7th June, 1989 passed by Smt. Rekha Kumari, 1st Additional District Judge, Patna in Title Appeal No. 176 of 1977 confirming the judgment and decree dated 2-8-1977 passed by Sri Danial Barla, Munsif II, Patna in Title Suit No. 75 of 1974 whereby the learned Munsif has dismissed the suit of the plaintiff.
2. The brief facts of the case are as follows:
The plaintiff-appellant brought a suit for declaration that the deed of gift dated 15-12-1952 was void, illegal, inoperative and not binding upon her. Further relief was sought by the plaintiff-appellant that if it was found that she was dispossessed during the pendency of the suit, in that case decree for recovery of possession be also passed.
3. The case of the plaintiff-appellant was that Late Kunj Bihari Sao had two sons, namely, Ramphal Sao and Rupchand Sao. Ramphal Sao died issueless. Rupchand Sao had also two sons, namely, Ram Briksh Sao and Hazari Sao. Plaintiff-appellant, namely, Smt. Khatrano Devi is the wife of Ram Briksh Sao. According to the plaintiff, there was a partition between Ramphal Sao and Rupchand Sao through a registered deed of partition dated 9-8-1952. Since Ramphal was issueless and plaintiff, Khatrano Devi was taking all care of Ramphal Sao, as such he was very much impressed by the services rendered by the plaintiff, who happened to be the daughter-in-law of the said Ramphal Sao and in token of services rendered to him by the plaintiff, the said Ramphal Sao executed a deed of gift dated 16-8-1952 in favour of the plaintiff in respect of Schedule II properties and on the strength of the deed of gift, the plaintiff came in possession of Schedule II property. Further case is that the plaintiffs husband, Ram Briksh Sao, developed has habit of drinking and also lost his wisdom and power of discretion so in order to look after the cultivation work, the plaintiff needed help of some other persons and since defendant Hazari Sao had greedy eyes on the property of the plaintiff, he of-fered his service and made representation before the plaintiff that in order to manage the properties, he required a power of attorney. Thereafter on the pretext of getting power of attorney executed, defendant-respondent Hazari Sao took plaintiff Smt. Khatrano Devi to Patna and fraudulently got a deed of gift dated 15-12-1952 executed from the plaintiff in his favour in respect of the suit property. The plaintiff being a rustic lady and having been impressed by Hazari Sao, could not be able to discover the fraud immediately and only in the first week of May, 1974 she came to know about the alleged fraud when Hazari Sao in collusion with some undesirable elements tried to forcibly take possession of the suit property on the strength of the alleged deed of gift and hence, necessity of filing of the suit arose.
4. The case of the defendant-respondent is that the deed of gift dated 15-12-1952 had been executed by the original plaintiff, Kathrano Devi, under an arrangement to adjust loss caused to the defendant by execution of the deed of gift executed by Ramphal Sao in favour of the plaintiff on 16-8-1952. It was denied that deed of gift dated 15-12-1952 was executed by Smt. Khatrano Devi in favour of the defendant under undue influence and by playing fraud upon her. Further case of the defendant-respondent is that Ramphal Sao died in the month of January, 1953 and it is not a fact that he was issueless rather he left behind him only daughter Smt. Bhagia Devi, wife of Late Rasal Sao, resident of village Arwal, P. S. Arwal, District Gaya. The said Bhagia Devi died sometime in the year, 1954-55 leaving behind her only daughter, Smt. Radhika Devi, who was married to Ram Babu of village Baliyari. Rasal Sao also died but Radhika Devi is still alive and she was a necessary party to the suit but she was not made party in the suit and as such, the suit is bad for non-joinder of the necessary party. Further case is that since Ramphal Sao was a simple old man, Ram Briksh Sao and his other family members chalked out a plan to grab the property of his share and Ram Briksh Sao fraudulently got a deed of gift executed in favour of his wife Smt. Khatrano Devi (original plaintiff) on 16-8-1952. The defendant-respondent also denied that there was a partition between Ram Briksh Sao and defendant, Hazari Sao. Further case is that when the defendant came to know about the deed of gift dated 16-8-1952 he made enquiry from Ramphal who disclosed that he had not executed the said gift deed voluntarily and he told I he defendant that he actually wanted to give 1/3rd share each in his property to Ram Briksh Sao, Hazari Sao (defendant) and his daughter, Bhagia Devi but Ram Briksh Sao fraudulently got a deed of gift executed in favour of his wife. After that, Ramphal Sao expressed his desire to revoke the deed of gift executed in favour of Khatrano Devi but due to intervention of some friends and well-wishes and in order to satisfy the desire of Ramphal, Khatrano Devi became ready to execute two gift deeds - one in favour of Bhagia Devi and another in favour of defendant Hazari Sao and then at the instance of Ramphal Sao, plaintiff Khatrano Devi executed registered deed of gift in favour of the defendant-respondent on 15-12-1952 in respect of 1/3rd share of the defendant in the suit property of Ramphal Sao. It is further said that on execution of the gift deed, the plaintiff accepted the same and since 15-12-1952 the defendant has been coining in possession of the suit property. It has been denied that plaintiff Khatrano Devi being influenced by the defendant and her husband being in drunken state losing his wisdom executed the deed of gift in favour of the defendant. It is also denied that Smt. Khatrano Devi under wrong impression executed the deed of gift as she thought that she was executing the power of attorney. It has been contended that the deed of gift dated 15-12-52 executed in favour of the defendant is valid, legal and operative document.
5. From perusal of the judgment of the learned trial Court it appears that on 'the basis of the pleadings of the parties, the learned trial Court framed as many as 11 issues for determination.
1. Is the suit as framed maintainable ?
2. Is the suit barred by law oflimitation ?
3. Is the suit barred under the provisions of estoppel, waiver and acquiescence ?
4. Is the suit barred under the provisions of Specific Relief Act?
5. Is the suit bad on account of non-joinder of the parties ?
6. Whether the genealogical table given by the plaintiff is correct ?
7. Whether Ramphal Sao died leaving no issue behind him
8. Whether the plaintiff acquired title over all tin: property gifted to her by Ramphal Sao or only 1/3rd of the letter's property only ?
9. Whether the deed of gift executed by the plaintiff in favour of the defendant is forged or a genuine document ?
10. Whether the plaintiff is entitled to declaration of the title or recovery of possession, if so, to what extent ?
11. To what relief or reliefs the plaintiff is entitled ?
6. From perusal of the judgment of the trial Court, it appears that the trial Court decided issue Nos. 1, 5 and 7 in the affirmative. Regarding issue Nos. 3 and 4, the trial Court held that these issues were not pressed. Regarding issue No. 2, the trial Court held that although the said issue was not pressed but in spite of that the trial Court arrived at the finding that the suit was barred by law of limitation. It further transpires that the trial Court decided issue Nos. 8, 9 and 1.0 analogous and held that the deed of gift executed by Ramphal Sao in favour of Khatrano Devi was a genuine document and by the said deed of gift Late Ramphal Sao transferred his entire interest in the suit property to Khatrano Devi. However, the learned trial Court further held that the deed of gift executed by Khatrano Devi in favour of defendant, Hazari Sao on 15-12 1952 is also a genuine document and on the basis of the said deed of gift, the defendant. Hazari Sao came in possession of the suit property. Hence on the basis of the above findings, the learned trial Court held that the plaintiff is not entitled for declaration of title and recovery of possession in respect of the suit property and on the basis of the aforesaid finding, the learned trial Court dismissed the suit of the plaintiff on contest with cost.
7. Against the said judgment and decree of the learned trial Court, the original plaintiff preferred an appeal bearing Title Appeal Nos. 176/5 of 1977/78 which was disposed of on 8th August, 1979 by the 1st Additional District Judge, Patna, Sri Lakshmi Narain Verma, who dismissed the appeal filed by the plaintiff and confirmed the finding of the trial Court. It transpires that against the dismissal of the said appeal, the original plaintiff preferred second appeal which was numbered as Second Appeal No. 584 of 1979. The said second appeal was disposed of on 3rd July, 1985 by Hon'ble Mr. Justice P. S. Mishra and while deciding the substantial question of law, the Hon'ble Judge made the following observations:
Law in this regard has been settled and in Lallan Singh v. Dulhin Chandamani 1984 PLJR 622 : AIR 1985 NOC 33. I have pointed out that in a ease of Pardanashin and/or illiterate lady seeking Court's protection, the onus to prove that there was no fraud or undue influence and the transaction was unconscionable lies upon the party suggesting that the document was free from any taint or doubt and not upon the plaintiff.
On the basis of the above observation, the Hon'ble Judge that the Courts below, in his opinion, have fallen in error of law in this regard and thereafter the Hon'ble Judge remanded the suit to the first appellate Court for re-hearing and giving decision in accordance with law. Although it appears that the judgments and decree of both the Courts (trial Court as well as appellate Court) were set aside but the suit was remanded back to the Court of appeal below for re-hearing in accordance with law.
8. After the said order the suit was remitted back to the Court of first appeal and then the appeal was heard by Smt. Rekha Kuniari, the then 1st Additional District Judge, Patna and by the judgment delivered on 7th June, 1989 she also dismissed the appeal filed by the plaintiff-appellant. Against the said judgment and decree, this second appeal has been preferred.
9. From perusal of the orclersheet dated 12-4-1990 of this second appeal, it appears that the following substantial question of law was formulated which is as follows:
Whether without recording any finding as to the date of knowledge, the question of limitation has been decided by the Court of appeal below In accordance with law or not; and whether the Court of appeal below has understood the effect of the onus being upon the defendants to prove that there was no fraud, undue influence or any circumstance otherwise in the execution of the alleged deed of gift or not?
10. During the hearing of the appeal, one more substantial question of law was raised which is as follows:
In view of the fact that by judgment dated 3rd July, 1985 passed in second appeal, the Hon'ble Judge of this Court has been pleased to set aside the judgments and decree of both the Courts (trial Court as well as appellate Court), so, in view of the said order of the High Court, was it proper and legal for the appellate Court to dispose of the appeal at its own level without asking the trial Court to again give its finding
11. First of all, I would like to make discussion on the plea that when the judgments and decree of both the Courts were set aside, how the appeal was heard by the first appellate Court without remitting back the record to the trial Court for writing fresh judgment. In this regard, the following lines of the judgment passed by the Hon'ble Judge are relevant:
I do not propose, therefore, to decide the quest ion on limitation myself at the second appellate stage. Since on the first: question, the Courts below have committed error of law, and the second question shall require investigation of some facts, I am of the view that the ends of justice shall be met by remitting the case before the Court of appeal below for a re-hearing and decision in accordance with law. It. shall be open to the parties to raise all contentions of facts and law before the Court of appeal below.
11A. From plain reading of the above-mentioned paragraph of the judgment, it is clear that the intention of the Hon'ble Judge was to remit the case to the first appellate Court and not to the trial Court, therefore, the language used in the operative portion of the judgment is simply a clerical error which is also apparent from the latter part of the sentence. The operative portion of the judgment is as follows:
In the result the judgments and decree of the Courts below are set aside and the case is remitted to the Court of appeal below for re-hearing in accordance with law.
If the operative portion of the judgment is read with abovementioned paragraph of the judgment, the intention of the Court becomes very much clear which shows that only the judgment of the appellate Court was set aside and not of the trial Court and that is why the last sentence of the judgment is that the case is remitted to the Court of appeal below lor re hearing in accordance with law. I, therefore, hold that it is incorrect to say that by the said order the judgment of the trial Court, was also set aside rather the entire order shows that the judgment of the appellate Court was only set aside and that is why the case was remitted back to the Court of appeal below. In such view of the matter, I am of the view that the argument advanced on behalf of the appellant is not. tenable at all and hence, this substantial question of law is decided against the plaintiff-appellant.
12. So far as the first. substantial question of law which was formulated at the time of admission is concerned, I have to say that after remand, the learned 1st Additional District Judge dealt with the issue of element of fraud and undue influence with regard to the execution of the deed of gift dated 15-12-52 executed by the plaintiff in favour of the defendant and after making thorough discussion on the point in issue the learned Judge came to the finding that the plaintiff has failed to discharge her onus to prove that there was an element of fraud or undue influence in execution of the alleged deed of gift. From perusal of her judgment, it appears that the learned Judge was dealt with the point of fraud and undue influence at page 9 of her judgment. She has observed in her judgment that at the time of execution of the gift deed on 15-12-1952, the bus band of Khatrano Devi, namely. Rani Briksh Sao (P.W.4) was present in the registry office and he made endorsement that Khatrano Devi executed the said deed of gift after knowing its contents. The learned Judge has specifically pointed out that the above endorsement is in the handwriting of the husband of Khatrano Devi, who had also put his signature below the endorsement. The learned Judge has also pointed out this fact that the writing of the husband of Khatrano Devi indicates that he was never in drunken state rather he had capacity to understand the contents of the deed which was executed in his presence and that is why he made endorsement that Bakhshish nama (deed of gift) was executed in his presence. The learned Judge has slated in her judgment that before the Registrar also the husband of Khatrano Devi, namely. Ram Briksh Sao had identified wile. Khatrano Devi. The above lines quoted from the judgment of the first appellate Court fully establish that the learned first appellate Court after scrutinising the evidence on record came to the conclusion that the gift deed executed on 15-12-1952 by Khalrano Devi (original plaintiff) in favour of the defendant, Hazari Sao is a valid document. The fact that the gift deed dated 15-12-1952 is a registered document and the evidence on record shows that execution of the document was admitted by Khatrano Devi before the Registrar and the said Khatrano Devi was identified by no other person than her own husband Ram Briksh Sao, who also made endorsement to the effect that Khatrano Devi had executed the gift deed in his presence, establishes beyond doubt that Khatrano Devi had voluntarily executed the deed of gift on 15-12-1952 in favour of the defendant. Ram Briksh Sao and there was no element of fraud or undue influence in getting the gift deed executed. I am of the view that since the plaintiff has failed to prove that the gift deed dated 15-12-1952 executed by Khatrano Devi (original plaintiff) was brought into existence by playing fraud or undue influence, as such I hold that the onus was not on the defendant to prove that there was no fraud, undue influence or any circumstance otherwise in the execution of the deed of gift dated 15-12-1952. Accordingly, this substantial question of law is decided against the appellant.
13. So far the issue of limitation is concerned, I am to say that the pleading of the plaintiff that for the first time she came to know about the existence of the gift deed when she was tried to be dispossessed in the year, 1974 seems to be Unbelievable, as such the finding of the learned first appellate Court that the suit is barred by limitation seems to be correct and this finding cannot be reversed unless it is shown that this finding is perverse. It is settled principle of law that in second appeal, the findings of the lower Courts can be reversed only on the ground that the same are perversed or based on no evidence and in this regard I place reliance upon the decision of the Hon'ble Supreme Court reported in : AIR2005SC1777 (Manicka Poosali (D) by LRs. and Ors. v. Anjalai Ammal and Anr.). The relevant paragraph from the said decision is quoted below:
Paragraph-17 of the Judgment :- This judgment was followed by this Court in Civil Appeal No. 2292 of 1989 Govindaraju v. Marriamman : AIR2005SC1008 . In Govindaraju case (supra) it has been held that the High Court while exercising its powers under Section 100 of the Code of Civil Procedure on re-appreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate Court unless the High Court comes to the conclusion that the findings recorded by the first appellate Court were perverse i.e. based on misreading of evidence or based on no evidence.
14. Thus, on the strength of the above decision, I have come to the conclusion that since the findings of the appellate Court appear to be correct and based on proper appreciation of the evidence and the same do not appear to be perverse, as such this Court cannot interfere with the findings of the first appellate Court and hence, the findings of the appellate Court that the suit is barred by law of limitation and also the finding that the deed of gift dated 15-12-1952 executed by the original plaintiff. Smt. Khatrano Devi, in favour of the defendant is valid, legal, operative and binding upon the plaintiff, are hereby confirmed.
15. In the result, I do not find any merit in this second appeal and as such, the same is dismissed with cost throughout. The judgments of the trial Court as well as the appellate Court whereby the suit of the plaintiff was dismissed, are hereby confirmed.