Syed Md. Mahfooz Alam, J.
1. This second appeal has been preferred by the plaintiffs-appellants against the judgment dated 15.12.1989 and the decree dated 3.1.1990 passed by Sri Anant Prasad Srivastava, District Judge, Sitamarhi in Title Appeal No. 40 of 1988 reversing the judgment dated 11.8.1988 passed by Sri Ram Prabodh Singh, Subordinate Judge I, Sitamarhi in Title Suit No. 103 of 1986 whereby the learned Sub-ordinate Judge had decreed the suit of the plaintiffs-appellants.
2. The brief facts of the case are as follows:
The plaintiffs-appellants had preferred Title Suit No. 103 of 1986 in the court of the Subordinate Judge, Sitamarhi for declaration that the sale deed dated 19.7.1986 executed by defendant No. 2 Laxmi Sah in favour of defendant No. 1 Gauri Shankar Choudhary with respect to the suit land was a forged and fabricated document and the same was of without consideration and not binding upon the plaintiffs-appellants. They had also sought relief for issuing injunction for restraining the defendants from disturbing the possession of the plaintiffs. From perusal of the judgment of the trial court it appears that the trial court found the case of the plaintiffs correct and decreed the suit of the plaintiffs but in appeal, the appellate court reversed the finding of the trial court and held that the sale deed dated 19.7.1986 (Ext. C/1) is not a forged and fabricated document and the same is also not of without consideration. The learned first appellate court also held that the sale deed (Ext.C/1) is a valid document and the same is binding upon the plaintiffs. The learned first appellate court also held that the defendant No. 2 had full right to execute the said sale deed and that the plaintiffs are not entitled to get any relief. On the basis of the above finding, the first appellate court dismissed the suit of the plaintiffs-appellants and against the said finding, the plaintiffs-appellants have preferred this second appeal.
3. Before making discussions on the judgment of the first appellate court, I would like to state the case of both the parties.
4. The case of the plaintiffs-appellants, in brief, was that Ram Narain Sah or Narayan Sah had three sons, namely, Mahesh Sah, Kishori Sah and Laxmi Sah. The original plaintiff Mostt. Bilti Devi was the second wife of the said Ram Narain Sah. Defendant No. 2 Laxmi Sah is the son of Ram Narain Sah from second wife Bilti Devi whereas Mahesh Sah and Kishori Sah are the sons of Ram Narain Sah from his first wife Dularia Devi. The said Ram Narain Sah died in the state of jointness leaving behind him his second wife Bilti Devi (plaintiff No. 1) and his three sons, namely, Mahesh Sah, Kishori Sah and Laxmi Sah. Kishori Sah also died leaving behind him his widow Sita Devi (plaintiff No. 3) and his two sons, namely, Ram Babu Sah and Moti Sah, (plaintiff Nos. 4 and 5, respectively). The said Ram Narain Sah owned and possessed 0.03 decimals of land in Khesra No. 2995, 0.10 decimals of land in Khesra No. 3000 (total 0.13 decimals) appertaining to Khata No. 845. Besides that, he owned and possessed 0.8 decimals land in Khesra No. 5810, 0.33 decimals in Khesra No. 5835, 0.9 decimals in Khesra No. 5491 and 0.14 decimals in Khesra No. 1673 (total 0.64 decimals) appertaining to Khata No. 850. After the death of Ram Narain Sah, a family partition took place amongst the heirs of Ram Narain Sah and according to the said family partition, entire agricultural lands of Khata No. 850 measuring 0.64 decimals were exclusively allotted to the share of Laxmi Sah (defendant No. 2) while the homestead lands of khata No. 848 were jointly allotted to the share of Mahesh Sah (plaintiff No. 2) and the widow of Kishori Sah and her two sons (plaintiff Nos. 3 to 5). After the aforesaid partition, Laxmi Sah (defendant No. 2) sold 0.39 acres of land and 0.11 acres of land of Khata No. 850 by two registered sale deeds (Exts. 2 and 2/A) in favour of Sita Devi wife of Kishori Sah and Sukhi Devi wife of Mahesh Sah. He again sold remaining 14 decimals of land to one Sanjay Kumar Choudhary through sale deed dated 20.7.1983 (Ext.C) but at the instance of the vendee Sanjay Kumar Choudhary, the plaintiffs also joined as vendors in the said sale deed (Ext.C) in good faith, Thus, the defendant No. 2, who has settled in his Sasural, had sold his entire share in the property of Ram Narain Sah and nothing of his share was left in the property.
Further case is that the dwelling house of the plaintiffs stands over plot No. 3000. Plot No. 2995 lies in contagious west to plot No. 3000 over which the plaintiffs have got their Sahan and Kitchen Garden. Adjacent to west to plot No. 2995, defendant No. 1 has got his land and house. Defendant No. 1 had proposed to purchase a portion of homestead land belonging to the plaintiffs but when the plaintiffs did not agree the defendant No. 1 fraudulently got a sale deed with respect to 10 dhurs of the said homestead land executed from defendant No. 2. It is said that the defendant No. 2 had no right to execute the said sale deed with respect to the homestead lands belonging to the plaintiffs and so, the plaintiffs filed the suit for declaration that the sale deed of defendant No. 1 is a forged and fabricated document and the same is without consideration and not binding upon the plaintiffs.
5. As per the case of the defendants, most of the facts stated in the plaint of the plaintiffs are admitted. The genealogy, as stated in the plaint as well as the fact that the lands of khata No. 848 and Khata Nos. 850 belonged to Ram Narayan Sah are admitted. It is also admitted that after the death of Ram Narain Sah, partition took place between the three sons of Ram Narain Sah and his widow but it is denied that on partition entire agricultural lands measuring 0.64 decimals of lands of Khata No. 850 was exclusively allotted to the share of defendant No. 2 rather the defendants have made out a specific case that on partition defendant No. 2 got 1/3rd share in agricultural lands appertaining to Khata No. 850 as well as in homestead lands and house appertaining to Khata No. 848. It is further said that the defendant No. 2 was in need of money and he approached the defendant No. 1 to purchase 10 dhurs of land of Khesra No. 3000 appertaining to Khata No. 848 and the defendant No. 1 agreed to purchase the land and thereafter the defendant No. 2 purchased 10 dhurs of land in Khesra No. 3000 appertaining to khata No. 848 after payment of consideration amount and since the date of purchase, the defendant No. 1 is in possession of the land. The defendant No. 1 has further challenged this fact that Khesra No. 2995 is the homestead land of the plaintiffs and according to him, it is a Rasta as recorded in R.S. survey as well as cadestral survey. On the basis of the above pleadings, the defendants have prayed to dismiss the suit of the plaintiffs.
6. From perusal of the judgment of the trial court, it appears that on the basis of pleadings of both the parties, the trial court framed as many as ten issues but the court considered issue Nos. 7, 8 and 9 as the main issues in the suit and after making elaborate discussions on the oral and documentary evidence of the parties with regard to the said issues the trial court arrived at the findings that the sale deed dated 19.7.1986 executed by defendant No. 2 in favour of defendant No. 1 was a forged and fabricated document and the same was without consideration and not binding on the plaintiffs and on that basis the defendant No. 1 did not come in possession of the suit land. But it appears that in appeal the fist appellate court reversed the said finding against which this appeal has been preferred on the ground that the first appellate court has erred in law as well as on facts while reversing the judgment and decree of the trial court. It has further been contended that the first appellate court did not consider Exts. 2 and 2/A properly which falsified the defendants' case that on partition, the defendant No. 2 was allotted 1/3rd share in all the plots. It has further been contended that the lower appellate court failed to consider this fact that the defendant No. 2 had sold his entire 60 decimals of land of khata No. 850 which was allotted to him on partition by virtue of Exts. 2, 2/A and Ext.C and as such on the basis of Exts. 2, 2/A and Ext. C the learned first appellate court should have held that since by virtue of the above sale deeds the defendant No. 2 had already sold his entire share in the property left by Ram Naraian Sah and so nothing was left for him to be sold to defendant No. 1 by virtue of Ext.C/1 and therefore the sale deed (Ext. C/1) was a forged and fabricated document and by virtue of the said document the defendant No. 1 did not acquire any right, title and interest in the property.
7. From perusal of the record of this second appeal, it appears that at the time of its admission, only one substantial question of law was framed which is as follows:
Whether the court of appeal below committed an error of record in holding that there was no sale deed in respect of 14 decimals of land of plot No. 1673, appertaining to khata No. 850, in view of the sale deed, Ext.C available on record.
It further transpires that on 7.11.2006 one more substantial question of law was framed which is as follows:
Whether the judgment and decree of the appellate court below is perverse, unreasonable and unsustainable in law because it has recorded its finding by making out third case and on mere surmises and conjectures and ignoring material evidence on record and has reversed the judgment of the trial court without considering or meeting the reasonings assigned by it.
Thus, there are two substantial questions of law before me for consideration.
8. Both the substantial questions of law formulated above are being taken up together for discussion for convenience sake. It has been argued by the learned Advocate of the appellants that the findings recorded by the first appellate court are perverse as the same are not based on the materials available on record. He submitted that the finding of the first appellate court that there was no sale deed in respect of 14 decimals of land of plot No. 1673 appertaining to khata No. 850 was against the documentary evidence i.e. Ext.C available on record and so, the said finding of the first appellate court is perverse. He has further argued that the first appellate court while coming to the conclusion that the defendant No. 2 Laxmi Sah did not settle in his Sasural rather he was residing in the suit house along with other members did not consider this fact that originally the suit was filed by Bilti Devi, the own mother of defendant No. 2 but the said Bilti Devi has made averment in the plaint that on partition, the entire agricultural land measuring 0.64 decimals of land appertaining to khata No. 850 was allotted to defendant No. 2 (her son) and the remaining homestead land appertaining to khata No. 848 along with the house was allotted to the share of Mahesh Sah and Kishori Sah with her right to remain in the said house. The learned Advocate of the appellants has further argued that there was no reasonable ground to believe that Bilti Devi, plaintiff No. 1 (now dead) who was the own mother of the defendant No. 2 and the step-mother of plaintiff No. 2 Mahesh Sah could have made wrong statements in the plaint which might be prejudicial to the interest of her own son (defendant No. 2). The learned Advocate further argued that the learned first appellate court while coming to the finding that the defendant No. 2 had 1/3rd share in the property left by Ram Narain Sah, failed to consider this fact that by virtue of the sale deeds (Exts. 2, 2/A and Ext.C) the defendant No. 2 had sold the entire 0.64 decimals of agricultural land which supports the case of the plaintiffs that on partition entire the agricultural land measuring 0.64 decimals of land appertaining to khata No. 850 allotted to the share of defendant No. 2 and remaining 13 decimals of homestead land as well house standing thereon were allotted to Mahesh Sah and Kishori Sah. On the basis of the above argument, the learned Advocate of the appellants has prayed to set aside the judgment of the first appellate court.
9. On the other hand, the argument of the learned Advocate of the respondents was that this Court has no jurisdiction to interfere with the findings of the first appellate court on facts as under Section 100 of the Civil Procedure Code, the same is beyond the scope of the second appeal. In this regard he has placed reliance upon the decision reported in 2004 AIR SCW Page 1618 (Thiagarajan and Ors. appellants v. Sri Venugopalaswamy B. Koil and Ors. respondents) and upon my own decision given in the case of Rijhan Rai, appellant v. Jaimangal Sah and Ors., respondents reported in 2006 (4) BBCJ (v) 217. No doubt, the power of this Court to re-appreciate the evidence of the parties while hearing second appeal as provided under Section 100 of the Code of Civil Procedure is very limited but it does not mean that in any circumstance this Court cannot explore this vital question of fact as to whether the first appellate court had correctly appreciated and read the evidence both oral and documentary brought on record by the contesting parties and if the court comes to the conclusion that the learned first appellate court has not correctly read and interpreted the evidence both oral and documentary brought on record by the contesting parties then in that circumstance this Court becomes entitled to interfere with the judgment and findings of the first appellate court on the ground that the same are perverse. In the case of Rijhan Rai v. Jaimangal Sah reported in 2006 (4) BBCJ (V) 217 (supra), I relying upon the decisions reported in : [1963]3SCR604 (V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr.) and 2005 (2) BBCJ (IV) 420 (Monicka Poosali (D) by Lrs. v. Anjalai Ammal and Anr.) had taken the same view and at paragraph 12 of the judgment had observed as follows:
If a finding of fact has been recorded by the first appellate court without any evidence, that finding can be successfully challenged in Second Appeal, because a finding of fact which is not supported by any evidence can be questioned under Section 100; and in that connection, it may be said that the decree proceeding on such finding discloses a substantial defect or error in procedure. This however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all.
10. Thus, on the basis of my above discussion and the decisions referred to above, I have no hesitation in holding that if the finding of fact of the first appellate court is perverse or based on wrong appreciation of evidence then in that case this Court has every right to interfere with the findings of the first appellate court otherwise great injustice would be caused to the litigating parties. Therefore, in the following paragraphs I would like to scrutinise - whether the oral and documentary evidence brought on record by the parties were correctly appreciated by the first appellate court or not.
11. On the point that the first appellate court has not correctly scrutinised the evidence of the parties, the first contention of the learned Advocate of the appellants was that the learned first appellate court has wrongly recorded this finding that with respect to 14 decimals of land of plot No. 1673 appertaining to khata No. 850 there was no sale deed or documentary evidence on record. His argument was that this finding of the first appellate court is against the documentary evidence available on record. From perusal of the record it appears that there is a sale deed dated 20.7.1983 on record which has been marked Ext.C on behalf of the defendants. This sale deed was executed by Laxmi Sah (defendant No. 2), his mother Bilti Devi and Mahesh Sah (plaintiff No. 1) and the same was executed in favour of Sanjay Choudhary with respect to 14 decimals lands of plot No. 1673 appertaining to khata No. 850 of Mauza Nanpur. Admittedly, this document was brought from the side of the defendants and this document (sale deed) establishes beyond doubt that by this document, 14 decimals of land of plot No. 1673 appertaining to khata No. 850 of Mauza of Nanpur was sold to Sanjay Choudhary by defendant No. 2 Laxmi Sah and others. Thus, the presence of the sale deed (Ext.C) on record establishes beyond doubt that the finding of the first appellate court that there was no sale deed in respect of 14 decimals of land of plot No. 1673 appertaining to khata No. 850 was wrong and incorrect and against the documentary evidence available on record.
12. His second contention was that while coming to the conclusion that defendant No. 2 Laxmi Sah was allotted 1/3rd share in the entire property left by Ram Narain Sah meaning thereby that the defendant No. 2 also got 1/3rd share in the homestead land, the first appellate court did not properly appreciate this fact that by virtue of three sale deeds i.e. Exts. 2 and 2/A of the plaintiffs and Ext.C of the defendants, the said Laxmi Sah (defendant No. 2) sold the entire agricultural land belonging to Ram Narain Sah which establish this fact that on partition, the entire 64 decimals of agricultural land appertaining to khata No. 850 was allotted to the share of Laxmi Sah (defendant No. 2) who sold the entire land through the abovementioned three sale deeds.
From perusal of the record, it appears that there are three sale deeds on record which are Exts. 2, 2/A and Ext. C which establish that by virtue of the said three sale deeds, the entire lands of khata No. 850 measuring 0.64 decimals were sold to different persons by defendant No. 2 Laxmi Sah. Ext. 2 is the sale deed dated 20.7.83 with respect to 39 decimals of land of Khesra Nos. 5835, 5810 and 5491 appertaining to khata No. 850 and Ext. 2/A is the sale deed dated 5.3.1986 with respect to 11 decimals land of plot No. 5835 appertaining to khata No. 850. Both these sale deeds were separately executed by defendant No. 2 Laxmi Sah whereas Ext.C which is the sale deed dated 20.8.83 with respect to 14 decimals land of plot No. 1673 of khata No. 850 was jointly executed by Bilti Devi (plaintiff No. 1), Mahesh Sah (plaintiff No. 2) and Laxmi Sah (defendant No. 2). Thus, the abovementioned sale deeds establish beyond doubt that the entire agricultural lands measuring 64 decimals belonging to the common ancestor of the parties, namely, Ram Narain Sah, were sold to different persons either separately or jointly by defendant No. 2 Laxmi Sah. It appears that the learned first appellate court while arriving at the conclusion that the defendant No. 2 Laxmi Sah was allotted 1/3rd share in the agricultural land as well as in the homestead land has given much stress on Ext.C i.e. the sale deed jointly executed by Bilti Devi (plaintiff No. 1), Mahesh Sah (plaintiff No. 2) and Laxmi Sah (defendant No. 2.). The court was of the view that these documents conclusively prove that the plaintiffs' case that the entire agricultural land, were allotted to the share of defendant No. 2 on partition was not correct rather it established that each of the parties had got 1/3rd share in the agricultural land as well as homestead land and that is why Ext.C was executed by Bilti Devi, Mahesh Sah and defendant No. 2 Laxmi Sah jointly. It appears that while coming to the said conclusion the learned first appellate court did not accept the explanation given by the plaintiffs that they had participated as executants of the deed at the insistence of the purchaser, namely, Sanjay Kumar Choudhary. The question is whether the above view taken by the learned first appellate court is correct in view of the presence of Exts. 2, 2/A and Ext. C on record, I think, the answer will be in the negative. I am of the opinion that if the finding of the first appellate court with regard to the fact that the defendant No. 2 was allotted 1/3rd share in the entire property left by Ram Narain Sah including the homestead land then in that situation the defendant No. 2 would have got only 22 decimals of land in the agricultural land under khata No. 850 as admittedly, the total area of agricultural land under khata No. 850 was 64 decimals but Ext.2 which is the sale deed dated 20.7.1983 executed by defendant No. 2 shows that by virtue of the said sale deed he sold 39 decimals of khata No. 850 whereas Ext.2/A which is the sale deed dated 5.3.86 executed by defendant No. 2 shows that by virtue of the said sale deed, he sold 11 decimals of land of khata No. 850. Thus, the total area of land sold by the abovementioned two sale deeds by Laxmi Sah comes to 50 decimals which is definitely more than double of 1/3rd share which should have been allotted to him, on partition, if he was given 1/3rd share in the entire property left by Ram Narain Sah. Thus, Exts. 2 and 2/A alone disprove the case of defendant No. 2 that he was allotted to 1/3rd share in the entire property of Ram Narain Sah rather it supports the case of the plaintiffs that on partition, defendant No. 2 was allotted the entire agricultural land whereas homestead land with house was allotted to the share of the plaintiffs. In this background, the explanation given by the plaintiffs that they had participated as executants of the sale deed (Ext.C) at the insistence of the purchaser appears to be believable and I am of the view that the appellate court should have accepted this plea of the plaintiffs.
13. From perusal of the judgment of the first appellate court it appears that while coming to the conclusion that the defendant No. 2 Laxmi Sah was all along living in village Nanpur in the suit house the court has placed much reliance upon the voter list of village Nanpur of 72 Pupri Vidhan Sabha Constituency (Ext.D) and the ration card issued in the name of Laxmi San (Ext.B) but I am of the view that much importance cannot be given to these documents for coming to the conclusion that the defendant No. 2 was residing in the suit house along with the plaintiffs specially when the plaintiff No. 1, who was the own mother of defendant No. 2, was making statement in the plaint that the defendant No. 2 (her son) had settled in Sasural and she was also challenging his right to sell the homestead land, I am therefore of the view that in view of the specific case of plaintiff No. 1 Bilti Devi, the own mother of defendant No. 2 in the plaint that her son defendant No. 2 settled down in his Sasural after selling the entire agricultural land allotted to him, the learned first appellate court should not have relied upon the entries of Ext.B and Ext. D, specially when Exts. 2, 2/A and Ext, C are documents showing the conduct of defendant No. 2 that he was disposing off the entire lands of his native village allotted to him in his share. Thus, the above facts prove beyond doubt the case of the plaintiffs that on partition the entire agricultural land was allotted to the share of defendant No. 2 whereas homestead land and the house standing thereon were allotted to the share of the plaintiffs. Thus, I am of the view that the judgment and findings of the first appellate court are based on improper appreciation of the evidence both oral and documentary and as such, the same are perverse in the eye of law.
14. It has been argued by the learned advocate of the respondents that the execution of Ext.C/1 (sale deed dated 19.7.86) and the passing of consideration amount was accepted by the executant of the deed, namely, Laxmi Sah who was examined as D.W.14 in the suit and as such the learned first appellate court has rightly held that defendant No. 2 had every right to execute the sale deed (Ext. C/1) in favour of defendant No. 1 and that Ext.C/1 is not a forged and fabricated document or of without consideration. The learned Advocate has further argued that since the executant of deed, namely, Laxmi Sah has accepted the execution of the deed and passing of consideration amount as such no one has right to challenge the genuineness of Ext.C/1. But this argument of the learned advocate of the respondents cannot be accepted in view of the above findings that on partition defendant No. 2 was not allotted any share in homestead land appertaining to plot No. 2995 and plot No. 3000 under Khata No. 848 and so defendant No. 2 had no right to execute sale deed (Ext.C/1) with respect to the lands of plot No. 2995 and 3000 of Khata No. 848 and therefore, I hold that the trial court has rightly held that the sale deed in question (Ext. C/1) was illegal and not binding upon the plaintiffs but the learned appellate court wrongly set aside the said finding. I, therefore, set aside the finding of the learned first appellate court and confirmed the finding of the trial court that the sale deed in question (Ext.C/1) is illegal and not binding upon the plaintiffs.
15. It has been argued by the learned advocate of the respondents that admittedly the properties in dispute belonged to Ram Narain Sah and plaintiff No. 1 Bilti Devi was the second wife of the said Ram Narain Sah. It is also not in dispute that defendant No. 2 Laxmi Sah was her own son whereas Mahesh Sah (plaintiff No. 1) and Kishori Sah were her step-sons. He argued that as per Hindu Law, Bilti Devi (plaintiff No. 1) on the death of her husband Ram Narain Sah will inherit the properties left by her husband along with the sons of her husband but after her deaths (Bilti Devi died during the pendency of appeal) defendant No. 2 being her own son will inherit her interest in the property and in this way the defendant No. 2 becomes entitled to get share in the homestead lands and house also and there is no need to file separate suit in this regard. In support of this argument the learned advocate of the respondent has placed reliance upon the decision of the Apex Court given in the case of Lachman Singh, petitioner v. Kirpa Singh and Ors. respondents : [1987]2SCR933 . But the said decision is not applicable in this case as the admitted case of both the parties is that on partition between the heirs of Ram Narain Sah no share was allotted to Bilti Devi and as such on her death the defendant No. 2 will not inherit any share in property. Under the circumstances mentioned above, I hold that in view of the admitted case of both the parties, the plea taken by the learned Advocate of the respondents that after the death of Bilti Devi, the defendant No. 2 being her own son, will inherit the interest of Bilti Devi in the homestead land also cannot be accepted.
16. Thus, on the basis of above discussions and material on record, I hold that the judgment and decree of the first appellate court are unreasonable and unsustainable in law and as the same are based on improper and incorrect reading of oral and documentary evidence, as such the same are perverse in the eye of law which requires interference of this Court.
17. In the result, I find merit in this second appeal and as such, the same is hereby allowed on contest with cost. The judgment and decree of the first appellate court are hereby set aside and the judgment and decree of the trial court whereby the trial court had decreed the suit of the plaintiffs-appellants are hereby restored and confirmed. Accordingly, the plaintiffs' suit is decreed.