B.Dikshit - (1.) THIS writ petition is directed against the judgment of Board of Revenue dated 16th July, 1981 passed in a second appeal. It arises out of a suit instituted under Section 176 of U. P. Zamindari Abolition and Land Reforms Act, 1950 (in short Act').
(2.) THE facts essential for the purpose of this writ petition are that the land in dispute was acquired by Gafoor Khan who had four sons, namely, Allah Mohar, Chand Khan, Gayas Mohammad and Jhandu Khan. Plaintiff Niaz Mohammad is son of Jhandu Khan. Niaz Mohammad instituted suit for division of disputed holding claiming 7/16th share. THE case of Niaz Mohammad is that Gafoor Khan transferred l/4th share in his favour by a sale-deed dated 16.7.1976 and, therefore, on death of Gafoor Khan his share became 7/16th as besides land transferred by sale-deed he succeeded to 1 /4th share out of 3/4th share left by Gafoor Khan. With aforesaid pleas, the plaintiff Niaz Mohammad claimed for separation of 7/16th share as belonging to him. Gayas Mohammad, one of the defendants in suit, admitted claim of petitioner while Allah Mohar and Chand Khan contested the suit and claimed Niaz Mohammad share Is 1 /4th only and not 7/16th as claimed by him. THE contesting defendants claimed that plaintiff Niaz Mohammad was minor when his father died and his mother re-married Chand Khan. THE defendants claimed that sale-deed dated 16.7.1966 was executed by Gafoor Khan in favour of Niaz Mohammad so that minor gets his share after death of Gayas Mohammad and he is not deprived of it by other sons of his. It was for the purpose of being certain about Niaz Mohammad's share, during his lifetime, that he gets his share and it was not intended by Gayas Mohammad to give 1 /4th share to plaintiff in his Khata in dispute during lifetime so that he gets more land when succession opened. It was also claimed by contesting defendants that the sale-deed was without consideration and it was not binding on the parties. THE Assistant Collector, Ist Class, Aligarh decreed the suit and held share of plaintiff as 7/16th. THE contesting defendants preferred appeal which was allowed by Additional Commissioner, Agra Division by order dated 7.6.1979. In appeal, it was held that plaintiff had l/4th share while the other defendants had l/4th share each. Being dissatisfied with the decree passed in appeal, plaintiff Niaz Mohammad preferred a second appeal. THE Board of Revenue allowed second appeal, decreed the suit of plaintiff Niaz Mohammad and held his share as 7/16th while that of Allah Mohar, Chand Khan and Gayas Mohammad as 3/16th each. THE petitioners, aggrieved by judgment and decree passed by Board of Revenue, have preferred this writ petition. The learned counsel for petitioners contended that as Additional Commissioner recorded findings of fact on the basis of evidence and material on record in holding the share of plaintiff as l/4th, the Board of Revenue exceeded its jurisdiction in determining the share of plaintiff as 7/16th in exercise of its second appellate jurisdiction after interfering in findings of fact. The argument is that the Board of Revenue does not have power to interfere in findings of fact recorded by appellate court while exercising second appellate jurisdiction. He further contended that the sale-deed in question executed by Gafoor Khan in favour of plaintiff was without consideration and. therefore, void. He further contended that oral evidence could be led to show nature of document of sale was different and was not actually a sale transaction. Sri R. H. Zaidi, learned counsel for plaintiff Niaz Mohammad opposed the arguments advanced by learned counsel for petitioners and contended that the sale-deed in question has been adjudged in original Suit No. 481 of 1977 to have been executed for consideration and was a valid document which bars the claim of petitioners by principles of res judicata. He also contended that the plea set up by defendants that sale-deed was executed by Gafoor Khan for ensuring that Niaz Mohammad gets l/4th share has neither been raised nor it is sustainable in law. Referring to the reasoning advanced on behalf of defendants-petitioners that sale-deed was executed to ensure that Niaz Mohammad gets his share, Sri Zaidi argued that there was no law under which son of a pre-deceased son would not have succeeded with the defendants on the death of Gafoor Khan and, therefore, the reason assigned by defendants for execution of sale-deed has rightly been discarded in second appeal. It was also argued that payment of money by Niaz Mohammad to Gafoor Khan has been accepted by all the courts below and, therefore, the sale-deed was rightly upheld by Board of Revenue. The learned counsel for plaintiff-respondent relying on Section 25 (1) of Contract Act also argued that even if sale consideration was not paid yet the sale is valid. Lastly, he argued that substantial justice has been done in this case between parties and it is not a fit case to interfere under Article 226 of the Constitution of India. In reply, the learned counsel for petitioner submitted that the argument in respect of bar of res judicata was not raised before the revenue courts and, therefore, such a new plea cannot be allowed in writ petition. He further contended in reply that the object of sale was set out in sale-deed itself and there was no valid reason for not accepting the object with which the sale-deed was executed. The first point which arises for consideration is whether petitioners raised plea in suit that Gafoor Khan executed sale-deed in favour of plaintiff Niaz Mohammad to ensure that plaintiff gets share as he was apprehensive that under Mohammedan law, son of a pre-deceased son was not entitled to inherit. The second appellate court has held that no plea to this effect was raised in suit. The learned counsel for petitioner has placed para 7 of the written statement filed in the suit by petitioners. From bare perusal of said para, it is apparent that plea was raised. The second appellate court committed patent error in holding that the first appellate court made out a new case in this respect. It is apparent from said para of written statement that the sale-deed was executed as Gafoor Khan was apprehensive that son of a pre-deceased son was not entitled to succeed on death of his grand-father. The second appellate court's finding to the contrary in this respect is liable to be set aside.
(3.) THE next question raised, which requires consideration, is as to whether second appellate court exceeded its jurisdiction in interfering in findings of fact in this case. THE trial court held that it is admitted to parties that Gafoor Khan executed a sale-deed in favour of Niaz Mohammad of l/4th share. THE trial court recorded a finding of fact after disbelieving the case of petitioners that no consideration passed. It held that there would have been no difficulty to Niaz Mohammad in getting his share after death of Gafoor Khan as law entitled him and there was no such law to the contrary and, therefore, it did not accept explanation given by petitioners in this respect considering it to be without any sense. As trial court upheld the sale-deed, it determined the share of plaintiff as 7/16th but lower appellate court reversed the finding in respect of sale being valid by holding that Niaz Mohammad did not give any money to Gafoor Khan. THE lower appellate court considered the sale-deed as void for want of consideration. According to lower appellate court, the plaintiff was only helping Gafoor Khan in cultivation and, therefore, he could not have money for paying the sale consideration. THE lower appellate court was guided by the fact that it is unnatural that Gafoor Khan, if he required money, would not ask money from his eldest son but he will ask grand-son who was admittedly 20 years old. THE aforesaid finding of fact of sale being void for want of consideration has been interfered by Board of Revenue which is being objected before this court. THE power of Board of Revenue in second appeal to interfere in finding of fact is very limited. It is well-settled that a finding of fact cannot be interfered in second appeal where the finding of fact has been recorded in an appeal after considering relevant evidence. Such a finding of fact cannot be characterised as erroneous or arbitrary and the court will exceed its jurisdiction in interfering with the finding of fact recorded by appellate court. See National Insurance Co. v. State Bank of India, 1993 (2) SCC 673. The case of Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604 has been relied upon to support the judgment. It has been held in that case that "as to the jurisdiction of the High Court to re-appreciate evidence in a second appeal, it is to be observed that where the findings by the court of facts is vitiated by non- consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings." The case in hand is not of non-consideration of relevant material evidence and, therefore, the plaintiff-respondent cannot get any benefit out of it.;