Dismissed

Madhusudan Pathak and Ors. v. Hazari Sah

Patna HC22 Apr 2013SA/195/1991

Case brief

AI extract

What is this about?

This Second Appeal challenged a First Appellate Court decree in a title suit regarding land possession. The High Court held that the First Appellate Court properly reversed the Trial Court's findings based on evidence appreciation and dismissed the appeal under Section 100 CPC, dismissing questions regarding map presumptions as factual issues.

What did the court decide?

Second Appeal dismissed without costs, upholding the First Appellate Court decree.

Madhusudan Pathak and Ors. Vs Hazari Sah — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.195 of 1991

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Smt. Urmila Devi daughter of late Kapil Deo Pathak

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Surendra Pathak@Surendra Kumar Pathak son of Madhusudan Pathak All resident of village + Post-Sagar Mathia, P.S. Pipra, District-East Champaran.

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.... .... Appellant/s Versus

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Hazari Sah son of late Tribhuban Kanu, resident of village Pipra Bazar, P.O. Damodarpur, P.S.-Pipra, District- East Champaran. 2. Birendra Pathak @ Birendra Kumar Pathak, son of Devendra Pathak resident of village + Post- Sagar Mathia, P.S. Pipra, District-East Champaran

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.... .... Respondent/s

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=========================================================== Appearance : For the Appellant/s : Mr. Uma Shankar Prasad, Sr. Adv.

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Mr. Kamal Kant Tiwary

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For the Respondent/s : Mr. Sharda Nand Mishra

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=========================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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C.A.V. JUDGMENT

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Date: 22 -04-2013

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The appellants are aggrieved, in the present Second Appeal, by the judgment and decree dated 02.02.1991 passed by learned 4^th Additional District Judge, Motihari in Title Appeal No. 37/38 of 1985/87 whereby he has allowed the appeal and reversed the judgment and decree dated 28.05.1985 and 18.06.85 respectively passed by learned Munsif, Sikrahana, Motihari in Title Suit No. 26 of 1983 whereby the suit filed on behalf of the respondent herein was dismissed.

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Respondent No. 1 Hazari Sah had filed the suit for declaration of title and for recovery of possession over the suit land of Plot No. 333, Khata No. 132 area 3 ¾ dhurs of Village Pipra Bazar

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Patna High Court SA No.195 of 1991

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P.S. Pipra District-East Champaran. As per the plaintiff’s case, he was the Karta and manager of his Joint Hindu Family and the defendant No. 1 (original appellant), was also Karta and manager of his Joint Hindu Family. As per the plaint, the plaintiff’s father had taken settlement of the suit land from Bettiah Raj and came in possession over the said suit land admeasuring 5 dhurs situate in south-east corner of the said plot No. 333. The plaintiff’s father, Tribhuwan Kanu, had a residential hut over 1 ¼ dhurs towards the west in the said 5 dhurs of land and he was residing in the same. Later a Pucca house was constructed over the said one and ¼ dhurs of land and remaining land was used as Sahan (courtyard) over which there was a small shop. After settlement, Jamabandi was created in the name of plaintiff’s father in the year 1937 and the Ex-Landlord began to realize rent. After vesting of Zamindari, the State of Bihar realized rent in continuation of Zamindari created by Ex-Landlord. After death of Tribhuwan Kanu, the plaintiff / respondent No. 1 came in exclusive possession over 5 dhurs of land. Plaintiff claimed that in the year 1983, when he was away from the village for few days, the defendants / appellants started constructing Pucca structure on the suit land and when they returned back to the village they found that the defendants had encroached upon the Sehan area of the land.

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The defendants filed their written statements. They claimed that it was true that the plaintiff’s father was in possession of 5 dhurs

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of land of R.S. Plot No. 333 but this was not in the south east corner of Plot No. 333 rather this 5 decimal of land was to the east of 6 dhurs of land belonging to the defendants. The defendants though admitted that Bettiah Raj had settled 5 dhurs of land with Plaintiff’s father in Fasli year 1343 (1936) but according to them the said 5 dhurs of land was immediate west to 6 dhurs of land belonging the defendant. The defendants denied to have encroached upon portion of the land belonging to the plaintiff. They took a plea that the Pucca house constructed by them was not on the land which was settled in favour of the plaintiff’s father in the 1343 Fasli (1936 A.D.).

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The defendant’s case before the Trial Court was that 6 dhurs of land lying in the south-east corner of the Plot No. 333 was settled with one Mahendra Prasad in the Fasli year 1343 and the land was numbered as 333/1 in the settlement record. The land was bound in South, by District Board Road. In the year 1939, Mahendra Prasad executed a sale deed in favour of Puran Singh. Since then, Puran Singh continued in possession upto 1980. Son of Puran Singh, Dund Bahadur Singh executed a sale deed dated 11.11.1980 in favour of the defendants in respect of the above 6 dhurs of land whereafter the defendants came in possession over the said 6 dhurs of land.

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The plea of the defendants before the Trial Court was that the construction of Pucca house made by them was on the land purchased by them from Dund Bahadur Singh and the said

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construction was not on the land settled in favour of the plaintiff’s father.

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Learned Trial Court, on the basis of rival pleadings framed issues and trial of the suit proceeded. The witnesses were examined both on behalf of the plaintiff and the defendant. The parities adduced documentary evidence also. On the basis of such evidence on record, Learned Trial Court came to the finding, as in paragraph 10 of its judgment dated 28.05.1985, that plaintiff was in possession of more than 5 dhurs of land in the suit land and thus the defendants had not encroached upon the plaintiff’s land and accordingly dismissed the suit.

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The plaintiffs thereafter, preferred appeal against the said judgment of the Trial Court which was registered as Title Appeal No. 37/38 of 1985/87 in the Court of 4^th Additional District Judge, Motihari, East Champaran.

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On the basis of the grounds taken in First Appeal and contentions raised on behalf of the parties, learned First Appellate Court formulated three following points for consideration:-

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I. “Whether the appellant/plaintiff has title over the suit land?

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II. Whether appellant/plaintiff is entitled to relief as claimed in the suit?

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III. Whether the judgment and decree under appeal are fit to be confirmed?”

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Learned First Appellate Court on reappraisal of the evidence

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on record came to a different finding, contrary to the finding of

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learned Trial Court holding that there was no proof in favour of the defendants to show that south eastern portion was settled to Mahendra Prasad by Bettiah Estate. Learned First Appellate Court also came to the finding on the basis of Exhibit-2, i.e., the map prepared on 17.09.1936 that south eastern portion was settled to the plaintiff’s father. On the basis of oral evidence also, learned First Appellate Court came to finding that the plaintiff was dispossessed from the disputed land. The learned First Appellate Court thus came to the conclusion that the plaintiff had title over the suit land and that he had been dispossessed from the same by the defendants. Learned First Appellate Court further came to the conclusion that the plaintiff was entitled to possess the suit property without any interference and he had got title over the same and further that the defendants were not entitled to interfere with the title and possession of plaintiff over the suit land. The learned First Appellate Court finally concluded vide its judgment and decree dated 02.02.1991 as follows:-

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“I have also come to the conclusion that learned lower Court has committed error in passing the judgment and decree under appeal and hence they are liable to be set aside.”

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It is in this background that the present Second Appeal was filed on behalf of the defendants. The second appeal was admitted vide order dated 28.11.1994 and following substantial question of law was framed vide said order for consideration in the present second

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appeal.

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“The substantial question of law involved in this appeal is as to whether the lower appellate court could decree the suit without reversing the findings of the Trial Court.

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Any other point that may be taken with the permission of the Court at the time of final hearing”

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Mr. Uma Shankar Prasad, learned Senior Counsel appearing

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on behalf of the appellants has vehemently contended that the judgment of the learned First Appellate Court is perverse and is solely based on a map prepared on 17.09.1936. He further submitted that the First Appellate Court completely ignored the report of the Pleader Commissioner from consideration without any discussion as to why he disbelieved the said document. Placing reliance on a Supreme Court judgment reported in A.I.R. 1966 (SC) 644 Ram Kishore Sen and Ors. v. Union of India and Ors., he has submitted that there was no presumption of correctness as regards maps and charts prepared by persons authorities other than Central Government and State Government in terms of Section 36 and Section 83 of the Indian Evidence Act, 1872.

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Mr. Prasad, learned Senior Counsel also submitted that it was obligatory on the part of the First Appellate Court to appoint another Pleader Commissioner while rejecting the Pleader Commissioner’s report.

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On the basis of the above, Mr. Prasad learned Senior Counsel submits that in addition to the substantial question of law as

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framed by this Court while admitting the Second Appeal, the other substantial question of law which arise in the present second appeal for consideration is as to whether the findings of the First Appellate Court are contrary to the principles of presumption of correctness of map in terms of Section 36 and 83 of the Indian Evidence Act, 1872. He further submits that the judgment under appeal of the First Appellate Court suffers from perversity in the facts and circumstances of the case, as the findings are contrary to the evidence available on record.

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Dealing with the substantial question of law as framed by this Court at the time of admission of the present Second Appeal, I have no hesitation in answering the same at the very out set that the learned First Appellate Court vide its judgment under appeal has in effect reversed the findings of the learned Trial Court and decreed the suit as would be evident from paragraph 6 and 7 of the judgment of the learned First Appellate Court. After arriving at its own finding on the basis of material available on record, learned First Appellate Court categorically held that the plaintiff was dispossessed by the defendants-respondents after execution of the sale deed (Exhibit C/1) which was dated 11.11.1980. The said sale deed was said to have been executed by Dund Bahadur Singh son of Puran Singh in favour of the defendants.

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Learned First Appellate Court, on the basis of its appraisal

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and material on record came to a conclusive finding that there was no evidence on record to show that the South-Eastern portion of Plot No. 333 was settled to Mahendra Prasad, the grandfather of the defendant’s vendor. Learned First Appellate Court also came to the finding, on the basis of oral evidence that the plaintiff was dispossessed from the disputed land. On such assessment and scrutiny of the evidence on record, learned First Appellate Court held that the plaintiff had right over the suit land and had been dispossessed from the same by the defendants.

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In this connection, it would be apt to refer to the findings of learned Trial Court while proceeding to decide the issues No. IV and V. In the very opening sentence learned Trial Court observed that the case was not based on title but based on possession and on the basis of its assessment, learned Trial Court had come to the finding that the defendants had not encroached the plaintiff’s land.

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Learned Trial Court further recorded its finding that the defendants purchased the land from Dhund Bahadur Singh, whereas the learned First Appellate Court came to a conclusion that there was no material to establish that Dund Bahadur Singh had title over the suit land. In such circumstance, it cannot be said that the learned First Appellate Court decreed the suit without reversing the finding of the Trial Court. The learned First Appellate Court on the basis of the evidence on record, reversed the findings of the learned Trial Court

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after reaching to a conclusion different from that arrived at by the Trial Court.

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The jurisdiction of the High Court in exercise of power under Section 100 of the Code of Civil Procedure is very limited. The First Appellate Court is the final Court of fact under the scheme of the Code. The finding of fact arrived at by the First Appellate Court unless perverse, without evidence or contrary to evidence available on record, is binding on this Court in second appeal under Section 100 of the Code. The High Court will not reappraise the evidence itself to reach to a finding different from that arrived at by the First Appellate Court unless the same are found to be perverse. This is to be noted that while admitting the present Second Appeal, the only substantial question of law which this Court formulated was as to whether, the learned First Appellate Court could decree the suit without reversing the findings of the Trial Court. As discussed above, I do not find that the learned First Appellate Court did not reverse the finding of fact arrived at by the Trial Court.

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I am of the opinion, even if two views are possible on the appreciation of evidence, this Court cannot interfere with the findings arrived at by the final court of fact i.e., the First Appellate Court.

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Learned Senior Counsel for the appellants has placed reliance on Supreme Court Judgment reported in A.I.R. 1966 (SC) 644 (Ram Kishore Sen and Ors. Vs. Union of India and Ors.) so as to

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contend that the maps prepared by the Central Government, State Government or the Public undertaking only have the presumptive value and no other maps have such presumptive value. However, I am of the opinion that the learned first appellate Court has not given presumptive weightage to the sketch map. Learned first appellate Court held that the sketch map was the only authentic document available to show that the south-eastern portion of plot No. 333 was settled to the father of the appellant plaintiff by the Estate of Bettiah. Learned first appellate Court noticed the fact that there was no cogent evidence produced by the defendant to show that the south-eastern portion was settled to Mahendra Prasad by Bettiah Estate. Finding of fact arrived at by the first appellate Court is not based solely on the sketch map. It will appear from the judgment under appeal that the first appellate Court considered oral and documentary evidence in detail before reaching to his conclusion.

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Learned Senior Counsel has also referred to a judgment of this Court reported in 1986 P.L.J.R. 527 Sita Ram Thakur V. Nandu Jha and submits that if the report of the Pleader Commissioner was not acceptable to the First Appellate Court, the First Appellate Court was duty bound to appoint a new Pleader Commissioner. However, I am of the view that the proposition laid down in the said case of Sita Ram Thakur V. Nandu Jha (supra) will not apply in the present case at the stage of second appeal particularly when no such question was

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farmed by this Court at the time of admission of appeal. No permission was sought for from this Court to formulate additional question of law on this point, at the time of hearing. The identity of disputed land is purely a question of fact and does not raise substantial question of law. Finding of fact arrived at by the first appellate Court is based on appreciation of oral evidence also.

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In view of the above, this appeal is dismissed but without

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costs.

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(Chakradhari Sharan Singh, J.)

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Saif/-N.A.F.R.

Madhusudan Pathak and Ors. v. Hazari Sah

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Madhusudan Pathak and Ors. v. Hazari Sah

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