# Smt. Surendra Bala v. Smt. Bhagwan Devi & Ors

- **Citation:** (2016) 5 ILRA 1360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-surendra-bala-v-smt-bhagwan-devi-ors-43748
- **Pages:** 8

## Headnote

Second Appeal - Scope - Section 100 CPC - No substantial question of law - Concurrent findings
of fact - Interference not permissible.
Where the trial court and the first appellate court, on proper appreciation of oral and documentary evidence,
have concurrently held that the original owner validly executed a registered sale deed for consideration and
transferred ownership and possession of the disputed property to the plaintiff, such findings of fact, being
neither perverse nor based on misreading of evidence, do not call for interference in second appeal.

Sale Deed - Validity - Challenge by third party - Not maintainable.
A registered sale deed executed by the true owner, which was never cancelled or challenged by the executant
during his lifetime, cannot be questioned by a third party having no title or interest in the property. Even if
any irregularity is alleged, such a sale deed is at best voidable at the option of the executant and not void,
and a third party has no locus standi to assail its validity.

Sale during attachment - Section 64 CPC - Effect.
Transfer of property during subsistence of attachment is not per se void. Where the attachment is
subsequently withdrawn or ceases to operate, the sale deed executed during the period of attachment
becomes effective and confers valid title upon the transferee.

License - Status of occupant - Revocation - Effect.
Where the defendant entered the disputed property with permission of the owner and did not claim the status
of owner or tenant, her possession is that of a licensee. Upon termination of license by due notice, the
licensee becomes a trespasser and is liable to be evicted, and the owner is entitled to recover possession and
damages for use and occupation.

Order XLI Rule 31 CPC - Non-framing of formal points - Substantial compliance.
Non-framing of points of determination in a formal manner by the first appellate court does not vitiate the
judgment where the real controversies between the parties were considered, evidence was duly appreciated,
and findings were recorded with reasons, amounting to substantial compliance with Order XLI Rule 31 CPC.

Held:
The findings recorded by the courts below are findings of fact, based on proper appreciation of evidence, and
raise no substantial question of law.

Second appeal dismissed.

## Text

1360 INDIAN LAW REPORTS ALLAHABAD SERIES
court also found that the other persons, who the defendants claimed to be co-owners, had signed at the
margin of the rent agreement accepting the terms of the agreement. It further found that except that there
were pending civil disputes between alleged co-owners there was no reliable evidence led by the defendant to
show that there were other co-owners/ landlords of the premises in dispute, therefore, the plea taken by the
defendant was not acceptable. I do not find any error in the said finding. Even otherwise, once the defendant
is privy to the rent agreement, which discloses that the defendant took the premises on rent from the plaintiff,
in view of section 116 of the Evidence Act, he cannot deny the title and the right of the plaintiff to bring a suit
against him. Further, in view of the law {(Kasthuri Radhakrishnan (supra) and Girraj Kishore (supra)} cited
by the learned counsel for plaintiff respondent, the suit as well as notice terminating tenancy would not be
bad at the instance of anyone of the co-owners. Thus, this Court is of the view that the court below rightly
held the suit to be maintainable at the instance of the plaintiff alone.

25. No other point has been pressed.

26. For the reasons recorded above and having carefully perused the judgment passed by the court
below as also the material brought on record, I do not find any good ground to interfere with the order passed
by the court below.

27. However, considering the facts and circumstances of the case, this Court finds it appropriate that the
defendant be allowed time up to 31st August, 2016 to vacate the premises subject to deposit of entire decretal
amount as also damages, as awarded by the court below, payable up to 31st August 2016, by 15th of July,
2016. In addition to above, an undertaking must also be given by 15th July, 2016 that he shall vacate the
premises and hand over peaceful and vacant possession to the plaintiff by 31st August, 2016. It is provided
that in case of default in compliance of any of the conditions mentioned herein above, the decree shall
become executable. It is, further provided that if the defendant fails to vacate the premises by 31st August,
2016, after having furnished an undertaking as directed above, he shall also be liable for contempt of this
Court, apart from eviction through execution.

28. Subject to above, the revision is dismissed. There shall be no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 158 Of 2016

Smt. Surendra Bala ...Appellant
Versus
Smt. Bhagwan Devi & Ors. ...Respondents
5 All. Smt. Surendra Bala Vs Smt. Bhagwan Devi & Ors.

1361
Counsel for the Appellant:
Siddhartha Varma

Counsel for the Respondents:
Neeharika Sinha Narayana, Anadi Krishna Narayana

Second Appeal - Scope - Section 100 CPC - No substantial question of law - Concurrent findings
of fact - Interference not permissible.
Where the trial court and the first appellate court, on proper appreciation of oral and documentary evidence,
have concurrently held that the original owner validly executed a registered sale deed for consideration and
transferred ownership and possession of the disputed property to the plaintiff, such findings of fact, being
neither perverse nor based on misreading of evidence, do not call for interference in second appeal.

Sale Deed - Validity - Challenge by third party - Not maintainable.
A registered sale deed executed by the true owner, which was never cancelled or challenged by the executant
during his lifetime, cannot be questioned by a third party having no title or interest in the property. Even if
any irregularity is alleged, such a sale deed is at best voidable at the option of the executant and not void,
and a third party has no locus standi to assail its validity.

Sale during attachment - Section 64 CPC - Effect.
Transfer of property during subsistence of attachment is not per se void. Where the attachment is
subsequently withdrawn or ceases to operate, the sale deed executed during the period of attachment
becomes effective and confers valid title upon the transferee.

License - Status of occupant - Revocation - Effect.
Where the defendant entered the disputed property with permission of the owner and did not claim the status
of owner or tenant, her possession is that of a licensee. Upon termination of license by due notice, the
licensee becomes a trespasser and is liable to be evicted, and the owner is entitled to recover possession and
damages for use and occupation.

Order XLI Rule 31 CPC - Non-framing of formal points - Substantial compliance.
Non-framing of points of determination in a formal manner by the first appellate court does not vitiate the
judgment where the real controversies between the parties were considered, evidence was duly appreciated,
and findings were recorded with reasons, amounting to substantial compliance with Order XLI Rule 31 CPC.

Held:
The findings recorded by the courts below are findings of fact, based on proper appreciation of evidence, and
raise no substantial question of law.

Second appeal dismissed.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. This appeal has been preferred against the judgment dated 19.10.2015 passed by District
Judge, Etah in consolidated Civil Appeal no. 21/2013 (Smt. Surendra Bala v. Smt. Bhagwan Devi
and others) and civil appeal no. 62/2013 (Abdul Sahid & another v. Smt. Surendra Bala).
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
2. It is admitted case that original owner of disputed property was Sohan Lal, s/o Bihari
Lal. His late son Virendra Kumar was married with Surendra Bala (defendant no.-1). It is also
admitted that defendant no. 2 to 7 are near relative of defendant no.-1. Admittedly, defendant no.-1
Surendra Bala is residing in that portion of property by which original suit of eviction and recovery
of damages has been filed. It is also admitted that on behalf of previous owner Sohan Lal
(/defendant no.-7) had executed sale-deed dated 9.9.1970 of disputed property in favour of plaintiff
no.-1 Bhagwan Devi. It is also admitted that during pendency of the proceedings of the original
case, the plaintiff no.-1 Bhagwan Devi had sold the disputed property to plaintiff no. 2 and 3
(appellants of first appeal no. 62/2013).

3. In original suit no.-105/1973, the plaint case in brief was that original owner Sohan Lal
(defendant no.-7) had admitted that her daughter-in-law, defendant no.-1 Smt. Surendra Bala as
licensee in the disputed property. The said Sohan Lal had sold this property by sale-deed in favour
of plaintiff no.-1. Sohan Lal cancelled the license of defendant no.-1 and had served notice of this
to her. Plaintiff had also served notice to the defendant no.-1 for her status and information of
cancellation of her license. Defendants no. 2 and 7 were admitted in this property on her behalf.
Defendant no.-1 given wrong reply of said notice, then plaintiff no.-1 had filed suit for recovery of
ejectment and recovery of damages of defendant from disputed house.

4. Only defendant no.1 had filed written-statement, in which she had admitted that Sohan
Lal was the owner in possession of disputed property. But the plaintiff is not owner of this
property. After the death of her husband, Sohan Lal had kept her (defendant no.-1) with him like
daughter. Sohan Lal had sent her for training in Firozabad, then his daughter started living with him
and later on, not permitted her (defendant no.- 1) to enter the house. Registered sale-deed dated
9.9.1970 executed on behalf of Sohan Lal is a void document, and at the time of execution of said
sale-deed she was not physically or mentally fit and could not understand the things. Such saledeed
was without consideration. Suit of plaintiff is based on incorrect facts and is liable to be dismissed.

5. In original suit, trial court had framed issues and afforded opportunity of hearing to the
parties, then they have filed documentary evidences and oral evidences. Plaintiff's side had
examined PW-1 Ram Gopal, PW-2 Sohan Lal, PW-3 Sansar Babu Babu and PW-4 Abdul Sahid;
whereas defendants had examined sole witness DW-1 Surendra Bala (defendant no.-1). After
affording opportunity of hearing to the parties, the Court of Civil Judge (S.D.) Etah had decreed the
original suit by its judgment dated 4.2.2013. In this judgment, trial court had framed 20 issues.
Issue no.-1,5 and 10 related to fact as to whether Sohan Lal had executed the sale-deed dated
5.9.1970 for consideration of Rs. 15,000 and handed over actual possession and disputed property
to plaintiff no.-1 or whether the said sale-deed was invalid document and whether the plaintiff
became owner of disputed property on the basis of said sale-deed. After appreciating the evidences,
trial court had held that said saledeed was valid document executed by previous owner Sohan Lal
in favour of plaintiff no.-1 and thereafter handed over the possession and ownership of disputed
property to plaintiff no.-1 who is owner of this property. It was also held by the trial court that
Sohan Lal had willingly executed the sale-deed in question in good state of mental health and for
consideration. Issues no. 2, 3, 8 and 14 were framed regarding status of defendants as regards to the
5 All. Smt. Surendra Bala Vs Smt. Bhagwan Devi & Ors.

1363
disputed property. After scrutinizing the evidences, the trial court had held that defendants are
neither owner of this property nor their status is that of tenant and they have no right even of
alleged adverse possession which is not proved. They had been admitted in disputed property as
licensee and after cancellation of license, their status is that of trespasser, and they have no right to
continue in its possession. Inter alia, on the basis of these findings, trial court had decreed the suit
for ejectment of defendants for relief "Aa" and "Ba" of plaint and for recovery of possession
against defendant no.-1, 5 and 6, and for recovery of damages from defendant no.-1. The trial court
had declined the relief regarding relief of recovery of possession for property as sought in plaint as
relief "Sa".

6. Aggrieved by the judgment of trial court, Civil Appeal no. 21/2013 Smt. Surendra Bala
v. Bhagwan Devi and others, was preferred by defendant no.-1 of original suit.

7. Against the findings of trial court, regarding relief "Sa" of plaint, another Civil Appeal
no. 62/2013 (Abdul Sahid & another 3 v. Smt. Surendra Bala) was preferred by plaintiffs no. 2 and
3 of the original suit (purchaser of disputed property from plaintiff no.-1).

8. Both the appeals were preferred against same judgment relating to property mentioned in
suit of plaint, therefore they were taken together. The court of District Judge, Etah had consolidated
two civil appeals and decided it by single judgment dated 19.10.2015, by which Civil Appeal no.
21/2013 was dismissed and other Civil Appeal no. 62/2013 was allowed, and the original suit was
also decreed for remaining relief "Sa" of the plaint for recovery of possession.

9. Aggrieved by the judgments of civil appeal no. 21/2013 and civil appeal no. 62/2013,
present second appeal has been preferred by defendant no.-1 of the original suit, namely Smt.
Surendra Bala.

10. Learned counsel for the appellant contended that defendant no.-1 had filed suit no.
79/1970 for her maintenance against her father-in-law Sohan Lal. During pendency of said suit
property in question was attached; but during the period of attachment, sale-deed of this property
was executed by Sohan Lal in favour of plaintiff no.-1. Such sale-deed is void and ineffective. He
further contended that although original suit no. 79/1970 was dismissed in year 1971 but its
judgment has no effected on rights of appellant/defendant no.-1. He further contended that no cause
of action arose to plaintiff/respondent. He also submitted that points of determination were not
framed by lower appellate court ,therefore its judgment is erroneous.

11.The contention of learned counsel for the appellant were refuted by counsel for the
respondent who submitted that attachment had not effected on the sale-deed executed by Sohan Lal
in favour of plaintiff no.-1. He further submitted that later on original suit no. 79/1970 was
dismissed therefore any interim order has become non-est and at least has no adverse effect on
rights acquired from the said sale-deed. He further contended that the grounds relating to cause of
action were never raised either before trial court or before first appellate court, therefore under
Order XLI, Rule 2 CPC, such ground cannot be raised directly in second appeal. He further
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that admittedly Sohan Lal had executed the sale-deed of disputed property in favour of
plaintiff no.-1, (who later on sold it to the plaintiffs no. 2 & 3), and said sale-deed was neither
cancelled nor was ever challenged. Such sale-deed was not only proved from the evidences
adduced but was in knowledge of appellant who had never challenged it earlier. He further
submitted that in any case status of appellant in disputed property was only that of licensee, whose
license had been revoked, therefore at present her status is that of trespasser and plaintiffs being
owner of disputed property, have right to 4 evict her and realize the damages. He submitted that
judgment of lower appellate court is not erroneous, therefore appeal should not be dismissed.

12. Rule 31 Order XLI CPC directs that judgment of appellate court shall state the points of
determination, the decision thereon, the reason for the decision, and whether the decree appealed
from is reversed or varied, the relief for which the appellant is entitled. Thus for decision of first
appeal points of determination under Order XLI, Rule 31, aforesaid should be framed and be
decided. In present matter, first appellate court had not framed points of determination in the formal
way but had considered three points of determination; firstly relating to execution of sale-deed and
transfer of ownership by Sohan Lal in favour of plaintiff no.-1, and secondly relating to relief of
sought in Civil Appeal no. 62/2013 relating to third relief mentioned in plaint , which was declined
by trial court for recovery of possession, and thirdly the point relating to status of
appellant/defendant no.-1. In present matter these are the only points that had to be decided for
deciding the case and real dispute between the parties, which were specifically taken and decided
by the first appellate court.

13. In G. Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224, the Apex Court
has held as under:

"9. The question whether in a particular case there has been substantial compliance
with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment
delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make
it wholly void, and may be ignored if there has been substantial compliance with it and the second
appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt
desirable that the appellate court should comply with all the requirements of Order 41 Rule 31
CPC. But if it is possible to make out from the judgment that there is substantial compliance with
the said requirements and that justice has not thereby suffered, that would be sufficient. Where the
appellate court has considered the entire evidence on record and discussed the same in detail,
come to any conclusion and its findings are supported by reasons even though the point has not
been framed by the appellate court there is substantial compliance with the provisions of Order 41
Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of
determination. Where there is an honest endeavour on the part of the lower appellate court to
consider the controversy between the parties and there is proper appraisement of the respective
cases and weighing and balancing of the evidence, facts and the other considerations appearing on
both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would
be a valid judgment even though it does not contain the points for determination. The object of the
rule in making it incumbent 5 upon the appellate court to frame points for determination and to cite
5 All. Smt. Surendra Bala Vs Smt. Bhagwan Devi & Ors.

1365
reasons for the decision is to focus attention of the court on the rival contentions which arise for
determination and also to provide litigant parties opportunity in understanding the ground upon
which the decision is founded with a view to enable them to know the basis of the decision and if so
considered appropriate and so advised to avail the remedy of second appeal conferred by Section
100 CPC."

14. In Kannan v. V.S. Pandurangam, (2007) 15 SCC 157 the Apex Court held:

"9. In the present case both the parties knew that the question involved was whether
the defendant (the appellant) in this case had been able to prove his title by adverse possession.
Hence the non-framing of a substantial question of law in this case did not prejudice the appellant
at all before the High Court.

- - - - - -

12. In the present case, the parties knew well that the question of adverse possession
has been pleaded by the appellantdefendant and evidence was led on this issue. Hence no prejudice
has been caused to the appellant by non-framing of a substantial question of law by the High
Court. "

15. From the above discussion and consideration of legal position, it is found that although
no formal point of determination was framed by the first appellate court but the real points of
dispute or real points of determination for decision of first appeals were taken for consideration by
lower appellate court which had appreciated them, discussed from the evidences and then decided
them; therefore the contention of appellant relating to this ground are found unacceptable.

16. So far as argument of learned counsel for the appellant relating to alleged illegality of
sale-deed executed by Sohan Lal in favour of plaintiff no.-1 is concerned, this ground is also found
unacceptable. In written-statement it was admitted that Sohan Lal was owner of disputed property
and who had executed the sale-deed dated 9.9.1970 in favour of plaintiff no.-1. The said said deed
was admittedly within the knowledge of appellant, but she had never challenged the same.
Although, the ground was taken in written-statement that Sohan Lal was not mentally fit at the time
of execution of said sale-deed, but in fact this ground was not on the basis of any evidence or
reason. SubRegistrar had written in sale-deed that he was mentally fit. From the evidences it is
proved that Sohan Lal had willingly executed the sale-deed in question in favour of plaintiff no.-1
for consideration, and there are concurrent finding of two courts in this regard which are based on
proper reasoning. This concurrent findings are not such which can be considered as infirm or
perverse, so such findings cannot be interfered by reappreciation of evidence in second appeal.

17. From the evidences, it is proved that said sale-deed was 6 executed by Sohan Lal in
favour of plaintiff no.-1 during pendency of original suit no. 79/1970 instituted by present appellant
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
Surendra Bala against Sohan Lal. If Sohan Lal was not in fit mental state, then such suit would
have been filed by appellant/defendant no.-1 against him through next-friend. Non prosecution of
suit, without next-friend, is admission of plaintiff of such suit that the defendant is in fit mental
state. In any case, if it is accepted for the sake of argument that any irregularity was committed in
execution of sale-deed dated 9.9.1970, in that eventuality also said sale-deed was voidable at the
option of Sohan Lal who had never challenged the same and supported it. The status of appellant
for such property was that of a third party. Such sale-deed may be voidable, in case of any error, at
the option of its owner, but third party had no right to challenge such deed. Third party (appellant
in present case) has no locus standi to question the validity of such sale-deed executed by true
owner. The appellant was never the owner of disputed property which was sold by its true owner.In
any case appellant/defendant no.-1 had no legal right to challenge the said sale-deed. Lower courts
had rightly held that neither said sale-deed was ever challenged by appellant nor there was any
illegality or irregularity inits execution. Since owner of disputed property Sohan Lal had executed
the sale-deed of this property in favour of plaintiff no.-1, therefore the plaintiff no.-1 had become
owner of this property. Later on after execution of saledeed of plaintiff no.-1 in favour of plaintiffs
no. 2 and 3, these vendees (plaintiffs no. 2 & 3) become owner of disputed property. The findings
to this effect given by lower courts are found correct and acceptable.

18. So far the contention of appellant side regarding sale during existence of attachment is
concerned, a careful perusal of Section 64 CPC makes it clear that any transfer of right of property,
pending attachment, is not wholly void. This provision is not meant to deprive the interest of the
owner of the property under attachment. If attachment is withdrawn,or the claim of creditor seeking
attachment has been otherwise satisfied, then sale-deed properly executed of such property would
convey good title to transferee. A person can purchase whole or share of attached property with
right expectation that if attachment is withdrawn, he would become its complete owner, as if no
order of attachment existed. If auction or transfer of attached property is necessary, then such
transfer made during period of attachment would be void; but if the attachment is eventually
withdrawn, the the transfer made during continuance of attachment would be alid conferring right
to the vendee.

19. The most pertinent point is the question was status of appellant Surendra Bala. Neither
in plaint of her earlier instituted suit no. 79/1970 nor in written-statement of original suit related
present appeal, defendant no.-1/appellant had 7 pleaded her right as owner or tenant. According to
her writtenstatement, she was admitted in this property by Sohan Lal after the death of her husband
for helping her, so her status at the time of entry in disputed property was that of licensee. She had
not claimed any other right. It is also admitted, as well as proved from evidences, that by legal
notice earlier owner Sohnal Lal and later on the plaintiff no.-1 had terminated license of defendant
no.-1/appellant. Therefore after termination of license, her status became that of a trespasser,
therefore appellant is neither entitled to continue her possession in disputed property nor can
challenge the right of respondent. Respondents being owner of disputed property had right to
recover the possession from the appellant and also damages for use and occupation of this property
after cancellation of license. Therefore the judgment of lower courts is found correct which is
without infirmity.
5 All. Daya Shanker (Since Deceased) & Ors. Vs Rajendra Kumar & Ors.

1367
 20. The only dispute in this matter relating to fact as to whether plaintiffs/respondents are
owner of disputed property and whether they are entitle to recover possession of disputed property
from defendant/appellant. These are not questions of law. These points related to fact that could be
decided on the basis of evidences as has been done by the lower courts. The ownership of
plaintiffs/ respondents is proved. It is also proved that status of defendant/appellant in disputed
property is that of trespasser and she is liable to be evicted. The finding in this regard by lower
courts are found correct and acceptable which is hereby confirmed.

21. On examination of the reasoning recorded by the learned first appellate court in first
appeal, I am of the view that judgment in civil appeal as above is well reasoned, and based on
proper appreciation of entire evidences on record. In this matter dispute related to such fact that
could have been decided on basis of evidence, as it had been decided by first appellate court. No
perversity or infirmity is found in finding recorded by the lower courts to warrant interference
through this appeal. No question of law, much less a substantial question of law, was involved
before this Court. None of the contentions of the learned counsel for the appellants/defendants can
be sustained.

22. In view of the above, this appeal is dismissed.
----------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 374 Of 2016

Daya Shanker (Since Deceased) & Ors. ...Appellants
Versus
Rajendra Kumar & Ors. ...Respondents

Counsel for the Appellants:
 C.K. Parekh

Counsel for the Respondents:
Vinod Kumar Dwivedi,Rahul Pandey

Second Appeal - Scope under Section 100 CPC - No substantial question of law - Interference
not permissible.
Where the controversy relates to cancellation of a registered General Power of Attorney (GPA) and validity of
a sale deed executed by the GPA holder, and the first appellate court, on proper appreciation of oral and
documentary evidence, records a finding that the registered GPA was never cancelled in accordance with law,
such findings are pure findings of fact and do not give rise to any substantial question of law.