In a second appeal challenging a title suit decree, the High Court dismissed the appeal. The court held there were no substantial questions of law and the concurrent findings of the courts below regarding the plaintiffs' title were not perverse.
The appeal was dismissed with no interference in the impugned judgment and decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.1 of 2012
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All are R/O Village - Hussepur, P.O. & P.S. Amnour, District – Saran.
====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER
15 11-07-2013 Heard Mr. Mahesh Narayan Parbat, learned counsel appearing on behalf of the defendant-appellants and Mr. Sanjay Kumar Singh, learned counsel appearing on behalf of the plaintiff-respondents.
This appeal is directed against the judgment and decree dated 27.8.2011 passed by the learned 3rd Additional District Judge, Saran at Chapra in Title Appeal No.45 of 2006,
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whereby the appellate court below has been pleased to dismiss the appeal and has affirmed the judgment and decree dated 21.8.2006 passed by the learned Munsif 3rd , Saran at Chapra in Title Suit No.60 of 1991, whereby the suit was decreed in favour of the plaintiffs.
I shall be referring to the status of the parties as occurring before the trial court for the sake of convenience.
The facts of the matter briefly stated is that the suit in question bearing Title Suit No.60 of 1991 was filed by the plaintiffs for declaration of their right, title and interest over plot nos.3603 and 3604 and 3605 and for confirmation of their possession over plot nos.3603 and 3604 while praying for recovery of possession over plot no.3605. It is the case of the plaintiffs that since the defendants disturbed their possession over plot no.3605 that the suit in question was filed. It is further the case of the plaintiffs that following the disturbance by the defendants over the suit land a proceeding under section 145 of the Code of Criminal Procedure was initiated against the defendants which was subsequently dropped in absence of any apprehension of breach of peace and which emboldened the defendants to dispossess the plaintiffs from plot no.3605 on 21.8.1991 and whereafter they placed their Nad, Khunta etc.
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over the said plot leading to the suit in question. It is also the case of the plaintiffs that plot nos.3598 and 3599 belonged to Most. Jasodia who died issueless and as a consequence the plots reverted to the ex-landlord who subsequently settled the said plots in favour of the ancestors of the plaintiffs by way of a registered deed of settlement dated 23.6.1930.
The defendants appeared and contested the suit. It was the case of the defendants that they are descendants of one Gurucharan Raut who was the close relative of Most. Jasodia, the owner of plot nos.3598 and 3599. It is the case of the defendants that the said plot nos.3603, 3604 and 3605 had been obtained by said Gurucharan Raut from the ancestors of the plaintiffs,namely, Mathura Tiwari and Saryug Tiwari in exchange of plot nos.3598 and 3599 which had devolved upon said Gurucharan Raut being the nephew of the husband of Most. Jasodia, the owner of the said plots.
The trial court upon completion of pleadings and upon consideration of the evidence led by the parties framed eight issues, of which issue nos.5, 6 and 7 are relevant for the purpose of consideration of the matter in contest. Whereas issue no.5 is relatable to the theory of exchange of plots as claimed by the defendants, issue nos.6 and 7 are relatable to the claim of
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the plaintiffs for title and possession over the suit property. The trial court upon appreciation of the rival contentions, the evidence led by the parties and after taking notice of the fact that the defendants had failed to lead any evidence with respect to exchange of plots, disbelieved the case set up by the defendants. The trial court was conscious of the fact that plot nos.3598 and 3599 were neither a subject matter of the suit nor any declaration had been sought by the plaintiffs in the suit in that regard and thus in absence of any counter claim being raised by the defendants on this score, the contentions of the defendants regarding exchange was rejected. The trial court has also taken note of the fact that though the defendants had set up a case of being a close relative of Most. Jasodia but no genealogical table had been placed by them. Of the 11 witnesses led by the defendants to support their claim except defendant no.4 who examined himself as D.W. 9, none of the other witnesses supported the case of the defendants. Thus in absence of any oral evidence, any contemporaneous document and any document supporting the story of exchange, the trial court upheld the case of the plaintiffs and decreed the suit in terms of the relief prayed thereunder. The judgment of the trial court having been affirmed by the appellate court below, hence
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this appeal.
The parties have appeared through counsel. It is by now well settled that where a matter stands concluded by concurrent findings of facts by the court(s) below then until such time that the parties complaining are able to establish that the judgment and decree suffers from perversity no interference is required in such judgment of affirmation.
As the facts stated are in very narrow compass, Mr. Parbat, learned counsel appearing for the defendants (appellants herein) has tried to question the judgment and decree passed by the court(s) below on perversity by raising an issue that even when the defendants had set up a case of exchange of plot nos.3598 and 3599 with plot nos.3603, 3604 and 3605, the trial court failed to frame any such issue on this score and even when the evidence on record is contrary to the claim of the plaintiffs, the trial court has upheld their claim which finding is perverse on the face of it. He submits that this issue having been raised before the appellate court, the appellate court has also failed to appreciate this aspect while dismissing the appeal.
Mr. Singh has appeared for the decree-holders and has submitted that there being concurrent findings of the
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court(s) below, it does not warrant any interference.
I have heard learned counsel for the parties and have perused the judgment and decree under challenge passed by the court(s) below. The sum and substance of the argument of the defendants rests on the theory of exchange stated to have been taken place in the year 1930 and on which basis the defendants claim right, title and interest over the suit property. It is not in dispute that even when the plaintiffs claim title over plot nos.3598 and 3599, no relief is directed towards the said plots rather it is the defendants who have set up their case that the said two plots belonged to them and were given to the ancestors of the plaintiffs in exchange of suit plots. It is in this connection that the defendants have claimed to be the close heir of the owner of the plot, namely, Most. Jasodia. The defendants have admitted to the title of the plaintiffs over the suit plots but they claim that the suit plots since after 1930 came in their possession upon exchange with plot nos.3598 and 3599. The evidence led by the defendants vide Exhibit-M merely shows that plot no.3599 is in the name of Most. Jasodia, meaning thereby the case set up by the defendants that both the plots were in the name of Most. Jasodia is not correct. On the contrary plot no.3598 is in the name of ancestors of the
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plaintiffs which plot along with plot no.3599 were settled by the ex-landlord Ram Shubhag Singh in favour of the plaintiffs by a settlement deed dated 23.6.1930. The defendants have tried to question this deed, inter alia, on grounds that the ex-landlord Ram Shubhag Singh had no right to sell the said lands in favour of the ancestors of the plaintiffs as the lands were registered in the name of Jawahar Singh in the Khatiyan (Exhibit-M). The trial court as well as the appellate court have taken note of the fact that Exhibit-M clearly shows that the plots were in the name of Jawahar Singh and others as landlord which did not oust Ram Subhag Singh from the category of landlord nor any such document was led by the defendants to prove to the contrary. It is also not in contest that no counter claim was set up by the defendants questioning the settlement deed dated 23.6.1930. The trial court has taken note of the fact that the Khatiyan (Exhibit-M) led by the defendants mentioned plot nos.3598 in the name of Saryug Tiwari and Mathura Tiwari and plot no.3599 in the name of Most. Jasodia, wife of Saudagar Raut. While taking note of this fact the trial court in absence of any genealogical table led by the defendants to connect themselves with Most. Jasodia has rejected their contention. In fact the trial court going a step ahead has further held that even
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if for a moment it is believed that the said plot did belong to the defendants, in absence of there being any document to support their case of exchange, the case set up by the defendants did not merit consideration. The appellate court in paragraph 13 of the judgment has also affirmed this finding by holding that in absence of any document supporting the exchange right since 1930, the case set up by the defendants that the suit plots were given to them by the ancestor of the plaintiffs in exchange of plot nos.3598 and 3599 could not be admitted. While Mr. Parbat has tried to question the judgment and decree impugned on grounds of failure of the trial court or the appellate court to appreciate that in view of the stand taken by the defendants a formal issue of exchange of plot nos.3598 and 3599, was required to be framed but this Court is not in agreement with Mr. Parbat for the simple reason that neither plot nos.3598 and 3599 was a subject-matter of relief prayed by the plaintiffs and secondly no evidence was led by the defendants to support their claim of descendancy through Most. Jasodia or to support their claim of exchange. In fact, even when the defendants have set up a case of exchange in 1930, there is not a single document to show that any of the plots was mutated in their name and this fact has also been noted by the court(s) below.
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For the reasons stated this Court is of the firm opinion that no question of law much-less any substantial question of law arises in this appeal warranting any interference with the impugned judgment and decree.
This appeal is dismissed.
(Jyoti Saran, J)
SKPathak/-
2 issues framed by the court
Whether the High Court should interfere in a title suit appeal where findings of fact below are concurrent and not perverse in absence of substantial question of law.
Whether the failure to frame an issue and lack of documentary evidence regarding a claimed 1930 plot exchange warrants interference in the appellate judgment.
Rameshwar Prasad, Singeshwar Prasad, Birendra Prasad, Most. Munna Kuwar, Smt. Bachhi Devi
Dharm Nath Tiwari, Bishwa Nath Tiwari, Naresh Tiwari, Most. Jeera Kuwar, Kanti Kuwar, Santosh Tiwari, Binit Tiwari, Smt. Gita Kumari, Gayatri Kumari
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
