Full Judgment
K.S. Rakhra, J.
1. This is second appeal against the judgment and decree dated 23.3.1983 passed by the IInd Additional District Judge, Faizabad in First Appeal No. 265/1980, whereby he partly allowed appeal and modified the judgment and order dated 1.5.1980, of VIth Additional Munsif Magistrate, Faizabad in Regular Suit No. 77 of 1978.
2. I have heard Sri Chaudhary Shatrughan holding brief of Sri D.P. Singh Advocate for appellant and Sri U.S. Sahai holding brief of Sri H.S. Sahai counsel for the respondent and perused the record.
3. The appellant is daughter of Bhagwant from IInd wife while respondent is son from 1st wife, Bhagwant had executed a sale-deed on 7.7.1975 in favour of Gaya Pati appellant and consequent upon it, the name of Gaya Pati on the plots sold, was entered in the Revenue Record on 8.3.1976. Bhagwant died on 20.10.1977. Admittedly, Bhagwant, his son Ayodhya and Bhagwant's second wife Bunda were recorded owners of Khasra Plot No. 2119A, 1791 (Minjumla), 2119B, 1660, 1658, 1708, 1897/2224 and Khasra Plot No. 2028. Total area of these plots was about 12.5 Bighas. The sale-deed in question was executed by Bhagwant with regard to 4 Bighas, 4 Biswas and 3 Dhoors land out of the aforesaid Khasra numbers. After the death of Bhagwant on 20.10.1977, the plaintiff respondent filed Regular Suit No. 77 of 1978 against defendant appellant for cancellation of the aforesaid sale-deed mainly on the grounds contained in para 5 of the plaint, i.e., that the sale-deed was obtained by fraud ; Bhagwant was old man of 75 years and had lost capacity of understanding the implication of the document ; he was deaf and the defendant had exerted undue influence upon him. The sale-deed was further challenged on the ground of bar contained in the provision of Section 168 of U. P. Z. A. and L. R. Act. The defendant contested the suit on the ground that the sale-deed was valid and was executed by Bhagwant after fully understanding its implication. He was not under any influence and was of sound mind. It was further contended that the sale-deed was not bad on account of the provisions of Section 168 of U. P. Z. A. and L. R. Act. The plea of bar of Section 49 of U. P. Consolidation of Holdings Act was also raised.
4. The trial court framed three issues, namely :
(a) Whether the impugned sale-deed is liable to be cancelled for the reasons mentioned in para 5 of the plaint?
(b) Whether suit was undervalued and the Court-fee paid was insufficient?
(c) To what relief if the plaintiff was entitled?
5. In trial court, this suit was dismissed on the ground that no fraud was played upon Bhagwant and there was no illegality. The sale-deed was not barred by Section 168 of U. P. Z. A. and L. R. Act and no undue influence was exerted by the defendant on Bhagwant.
6. The plaintiff preferred appeal No. 265 of 1980 on the same grounds, as were raised by him in the trial court. The first appellate court came to the conclusion that the sale-deed was not hit by provision of Section 168 of U. P. Z. A. and L. R. Act ; that the sale-deed was not obtained by playing any fraud and no undue influence was exerted on Bhagwant and the sale-deed was executed for consideration.
7. Thus, the finding of the trial court was confirmed by the first appellate court but the latter, however, recorded a finding that the sale-deed was valid to the extent of 1/3 share of Bhagwant in the land and, therefore, the sale of 4 Bighas-4 Biswas-8 Dhoors land to defendant Gaya Pati was invalid to the extent of 2/3 share therein. Recording this finding, the first appellate court observed :
'The sale-deed could be valid to the extent of 1/3 share of Bhagwant and for the remaining 2/3 share it must be cancelled. This aspect of the matter was not at all appreciated by the trial court.'
8. The substantial question of law formulated in this appeal is : Whether the lower appellate court could partially cancel the sale-deed on the plea not raised in the pleading of either parties?
9. At the outset, it may be mentioned that it was nobody's case that Bhagwant executed sale-deed in excess to his share. What was being contended, was that the sale-deed was invalid because it was obtained by exercising undue influence and playing fraud upon Bhagwant as he was an old man and his mental faculty was not acting properly. It is well settled that the judgment of the trial court should confine to the points raised in the pleadings of the parties and to the questions formulated as issues arising in the suit. The parties are supposed to lead evidence only on the issues framed in the case. In the case before us, however, the learned first appellate court committed mistake in assuming that Bhagwant had only 1/3 share in total area of 4 Bighas-4 Biswas-8 Dhoors. In fact the admitted case was that Bhagwant had 1/3 share in total area of plots, i.e., 12.5 Bighas approximately. Thus, the land sold by him, was his own share in the joint plots and the sale-deed could not be partially set aside as was done by the first appellate court. The learned counsel for the appellant placed reliance on the case of Brij Rai Singh and Ors. v. Sewak Ram and Anr., (1994) 4 SCC 331. That was the case where suit was filed for possession on the basis of gift-deed and the defendant contested the suit on the ground that they were owners and that the donor of the gift-deed had no connection with the said property and, therefore, had no right to make the gift-deed in favour of the plaintiff. In the trial court the suit was decreed. In appeal, the defendants for the first time, raised an objection that the gift-deed was not duly proved in accordance with provisions of Transfer of Properties Act and hence cannot be taken into account to confer title on the plaintiff. This plea was accepted by the first appellate court. The High Court also confirmed the said judgment. The matter was taken up to the Supreme Court where on behalf of the plaintiff, it was contended that the first appellate court and the High Court committed mistake in allowing the defendants to challenge the gift-deed for want of strict compliance of Sections 3 and 123 of Transfer of Property Act, when no such plea was raised nor any issue was framed and no argument was advanced in the trial court, in that regard. It was held that since the defendant had not raised an objection as to the validity of the execution/attestation of the gift-deed and no issue was framed with regard to it, therefore, it was not open to the first appellate court and the High Court to allow the issues to be raised and it was not a pure question of law which could be raised at any stage.
10. Similarly, in our case, the extent of Bhagwant's share was a question of fact. No plea was raised by the defendant before the trial court that the sale-deed was bad as it purported to transfer the land beyond the share of Bhagwant. The first appellate court was, therefore, wrong in recording a conclusion that sale-deed was bad, as it exceeded the share of Bhagwant. It was not open to the first appellate court to do so. The appeal is, therefore, liable to be allowed.
11. The appeal is allowed. The judgment and decree of the first appellate court are set aside and that of the trial court is confirmed.