CHHANGURA Vs. MATA PRASAD AND

JUDGEMENT

(1.) POONAM Srivastav, J. Heard learned counsels for the parties.

(2.) THIS is plaintiff's second appeal against the judgment and decree dated 23. 7. 1976 passed by 1st Additional District Judge, Gorakhpur in Civil Appeal No. 16 of 1975 setting aside the judgment and decree of the Trial Court in Original Suit No. 750 of 1968.

(3.) LEARNED Counsel for the appellant has placed reliance on a decision in the case of Parasnath Rai and others v. Tileshra Kuar. 1965 ALJ 1080 The reference is to the rules regarding transaction by Pardahnashin Lady which equally apply to illiterate and ignorant man or woman which may not be necessarily a Pardahnashin. The next decision relied upon is, Lakshmi Amma and another v. Talengala Narayana Bhatta and another. AIR 1970 SC 1367 paragraph 72 6. In the instant case, the Trial Court has given a categorical and specific finding discussing the circumstances in which the sale deed was executed. The entire evidence was taken into consideration while arriving at a conclusion that the sale deed was executed in suspicious circumstances and vendor Kalika Prasad was not in a fit state of mind to understand the implication of the signature or thumb impression on the document which was actually a sale deed as well as the fact that the huge area of land was sold for a pittance and that too the entire amount was not paid. There was nothing on record to establish that Rs. 100/- was paid previously and the lower Appellate Court failed to take into consideration that the vendor had no right to transfer the property on the date when the sale deed was executed. The lower Appellate Court without setting aside any of the findings placed reliance on death certificate which was produced at the instance of the defendants. This Court in the case of Mahendra Singh v. Niranjan Singh, 1995 (26) ALR 581 held that the findings of the Trial Court, which are based on assessment of oral evidence, particularly, noticing the demeanour of witnesses can not be reversed by the Appellate Court. It can only be done in exceptional circumstances after pointing out specific reasons and grounds for doing so, by the Appellate Court. In the case of Madhusudan Das v. Narayani Bat, 1983 (9) ALR 146 (SC) it was held as under:- "at this stage, it would be right to refer to the general principle that, in an appeal against a Trial Court decree, when the Appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the Trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony, when there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the Trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the Trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. " 7. Similar view was expressed in the case of Jasmel v. Rajendra Prasad Saxena and others. 1998 (33) ALR 84 This Court had ruled that a decree passed by the Trial Court can not be reversed in an appeal without setting aside the findings recorded by the Trial Court. The Appellate Court can interfere only when appraisal of evidence by the Trial Court suffers from material irregularity or passed on inadmissible evidence. This Court had also held that in such a situation where the lower Appellate Court has reversed a finding without setting aside the specific finding of the Trial Court and judgment of the lower Appellate Court suffers from material irregularity, the High Court can very well reverse the findings of the lower Appellate Court in exercise of jurisdiction under section 100 C. P. C. In the case of S. V. R. Mudaliar (Dead) by L. Rs. and others v. Mrs. Rajabu F. Buhari, AIR 1995 SC 1607 it was laid down that the Appellate Court has to bear in mind reasons scribed by the Trial Court for its findings and the same should be considered before setting aside the judgment in first appeal. 8. I have examined the judgment of the lower Appellate Court. The reasoning given for holding that Kalika was of sound mind and completely agile at the time of execution of the sale deed is that since the plaintiff and her sons were not present with him and left him alone is sufficient to infer that he was in good health. The endorsement of the Sub Registrar that Kalika got down from a rickshaw in front of his office at the time of execution of the sale deed. The Sub Registrar failed to make a note that Kalika was infirm physically and mentally, it was enough to arrive at a conclusion that the executor/vendor was in perfect condition and was able to understand the implication of what he was doing when the sale deed was executed. The Trial Court had considered all the aspects and the existing circumstances as well as the hot haste of the defendant-appellant in applying for Bhumidhari Sanad and also extended to him the benefit available to a Pardanashin lady, could not be brushed aside lightly by the learned Additional District Judge as it has been done in the instant case. The disabilities which grants protection to a Pardanashin lady is not only because she is behind a veil but also for the reason of old age, infirmity, ignorance, illiteracy, mental deficiency and in experience. Admittedly the plaintiffs' father was aged 75 years, ailing illiterate and died on or soon after executing the sale deed, the lower Appellate Court should have been very cautious and examined all the aspects. 9. In view of the various decisions, I hold that there is no exceptional circumstances pointed out by the lower Appellate Court for dislodging the finding of fact recorded by the Trial Court on the basis of the appraisal of oral testimony. The Appellate Court fell in error in upsetting the findings of the Trial Court on all the issues. Besides the aforesaid fact, the most glaring circumstance is that on the date of execution of the sale deed, the vendor had no right to transfer the land and, therefore, taking into consideration the entire circumstances in which the sale deed was executed, the executor of the sale died as well as the Bhumidhari Sanad was obtained on a subsequent date consequently the sale deed dated 16. 10. 1964 stands cancelled. The findings of the Trial Court are affirmed and the judgment and decree of the lower Appellate Court dated 23. 7. 1976 is set aside. The second appeal is allowed with costs. Appeal Allowed. .