Dismissed

Parmanand Prasad Singh v. Jai Kishore Prasad Singh and Ors.

Patna HC25 Feb 2013SA/272/2010

Case brief

AI extract

What is this about?

The Patna High Court dismissed this second appeal under the Code of Civil Procedure. Upholding concurrent findings of the trial and first appellate courts, the court held that the appeal did not involve a substantial question of law and thus was not maintainable under Section 100.

What did the court decide?

The second appeal was dismissed for not maintaining as it did not involve a substantial question of law under Section 100 of the Code of Civil Procedure.

Parmanand Prasad Singh Vs Jai Kishore Prasad Singh and Ors. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.272 of 2010

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====================================================== Parmanand Prasad Singh, son of late Debilal Singh, resident of villageKashnagar, P.S. Sonbarsa, District Sahara

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.... .... Appellant Versus 1. Jai Kishore Prasad Singh, son of Late Debilal Prasad Singh, resident of village Kashnagar, PS Sonbarsa, District Saharsa at present Bhatparrani PS and District Deoria, State- Uttar Pradesh.

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Smt. Dahiya Devi, wife of Late Debilal Singh @ Devilal Singh 3. Shyamanand Pd. Singh 4. Sachida Nand Pd. Singh - Both sons of late Devilal Singh @ Debilal Singh - Respondent Nos. 2 to 4 are residents of village- Kashnagar PS Sonbarsa District Saharsa .... .... Respondents ====================================================== Appearance : For the Appellant/s : Mr. Shambhu Sharan Singh, advocate Mr. Amar Nath Jha, advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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.... .... Respondents

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14 25-02-2013 Heard Mr. Shambhu Sharan Singh, learned counsel for the appellant.

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This appeal under section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) has been placed before me for hearing under Order 41 Rule 11 of the Code.

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The defendant before the trial court is appellant herein and is aggrieved by the judgment and decree 23-04-2010 and 06-05-2010 respectively, passed by learned Additional District Judge (F.T.C.-III), Saharsa in Title Appeal No. 1/2001 whereby he has dismissed the appeal and confirmed the judgement and decree dated 26-09-2000 and 12-12-2000 respectively, passed by learned Munsif, Saharsa in T.S. No. 7/92 whereby he had decreed the suit in favour of plaintiff.

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Patna High Court SA No.272 of 2010 (14) dt.25-02-2013

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The plaintiff/ Respondent No.1 filed the suit for declaration of title over the suit land as described in the schedule attached to the foot of the plaint, for confirmation of his possession over the suit land as also for declaration that Panchnama Batwara was binding upon the parties. The plaintiff also sought for a declaration that the survey entry in respect of the suit land in the name of defendant No.1/ appellant was wrong and illegal.

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Plaintiff’s case before the trial court was that plaintiff’s and defendants were full brothers and sons of Late Debilal Singh. Their father had purchased four Kathas and 17 dhurs of land of old Khata No. 154, 155, plot No. 1351, 1352 in Mohalla- Gangjala, Ward No. 12, Saharsa in the name of defendant No.1/appellant in the state of jointness and they came in possession over the suit land. There was a partition in the family after death of Debilal Singh and each of four brothers got one Katha and ¼ dhur of land. The plaintiff came in possession over his share as other brothers did. Further case of the plaintiff before the trial court was that a Khista Panchanama was also prepared over which all the four brothers put their signature along with panches. After the partition, names of all brothers were mutated in the Sirista of the State of Bihar and since then the plaintiff came in the possession over the suit property.

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The plaintiff alleged that he was a Government servant working in the district of Deoria, Uttar Pradesh and at the time of Municipal survey he was in Deoria. According to the plaintiff, on 08-02-1992 he learnt that during Municipal survey the defendant No.1 got entered his name against the land which the plaintiff was allotted as his share. The plaintiff asserted that due to wrong

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Patna High Court SA No.272 of 2010 (14) dt.25-02-2013

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Municipal survey entry the defendants were harassing him and trying to take possession over the suit land forcibly.

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The suit was contested by the defendants with the filing of the written statement. It was pleaded that the suit land was purchased land of defendant No.1 and it was decided to give one katha and ¼ dhur to the plaintiff but the plaintiff did not take the share and allowed his share to go in favour of appellant/ defendant No.1. It was also pleaded by the defendant No.1 that the plaintiff/ respondent No.1 never came in possession over the suit land and his name was never mutated in the revenue records. He claimed that the Khata was opened in his name. He further asserted that the plaintiff gave his share in the suit land to the defendant in exchange of a land purchased in his name in Kashnagar. The appellant / defendant No.1 further asserted that he perfected title over the suit land also by virtue of adverse possession. On the basis of rival pleadings learned trial court framed altogether 11 issues including issues No. viii, ix and x which read as follows:-

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“( viii ) Whether the defendants have perfected their title over the suit land by adverse possession?

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(ix) Whether the plaintiff has title over the suit land and Municipal survey entry in the name of defendant No.1 is wrong? (x) Whether the plaintiff is in possession of the suit land?”

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In course of trial both oral and documentary evidence were brought on record and on appreciation of such evidence the learned trial court came to specific finding that plaintiff/ respondent No.1 had been able to prove his title over the suit land.

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Patna High Court SA No.272 of 2010 (14) dt.25-02-2013

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The trial court rejected the claim of the appellant of his title over the suit land on the basis of adverse possession. On the contrary the learned trial court while deciding the issue No.(x) held that the plaintiff proved his possession over the suit land.

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The defendant No.1/ appellant thereafter preferred an appeal vide Title Appeal No. 1/2001 in the file of the court of learned Additional Sessions Judge (F.T.C.-III) Saharsa. It was contended on behalf of the appellant before the first appellate court that the trial court failed to appreciate oral and documentary evidence adduced on behalf of the appellant. It was contended that the trial court failed to consider exhibit-A as the solitary documentary evidence adduced by the appellant in the light of admission of plaintiff’s deposition and committed a grave mistake by holding the said exhibit as deed of partition. On reappreciating the evidence, the learned first appellate court, while concurring with the findings of facts arrived at by the learned trial court, observed that both the parties admitted the fact that property bearing Khata No. 154, 155, plot No. 1351, 1352 area four Kathas and 17 dhurs under Mohalla Gangjala, Saharsa was purchased in the name of appellant by his father under jointness through registered sale deed dated 23-03-1968 and added that Panchnama (exhibit-A) dated 27-12-1987 also corroborated the fact that the said property was a joint family property. Learned first appellate court outrightly rejected the plea of defendant No.1, on the basis of evidence on record, that the suit property was self acquired property of defendant No.1. The learned first appellate court refused to accept the story of exchange of property of Saharsa and Kashnagar on the ground that the said deed of exchange was not registered and, therefore, not admissible as evidence.

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Patna High Court SA No.272 of 2010 (14) dt.25-02-2013

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On the point of adverse possession also learned first appellate court concurred with the finding of the learned trial court holding that there was no date of ouster of the plaintiff mentioned in the written statement of defendant No.1 nor any evidence was adduced on this aspect. In the absence of such statement learned first appellate court came to the finding that such ouster was not proved. It was established that four brothers got equal share and came in possession over the same.

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Learned counsel for the appellant has vehemently submitted that the learned first appellate court failed to take into consideration all the relevant materials on record and submitted that the courts below came to the finding on the basis of surmises and conjectures and not on correct appreciation of the evidence available on the record. He submits that the evidence recorded by learned trial court and first appellate court are perverse inasmuch as they are contrary to the materials available on record. He has also submitted that the courts below committed grave error in not accepting the story of exchange of properties of Saharsa and Kashnagar as pleaded on behalf of the Appellant.

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This is to be noted that there is concurrent finding of facts by the courts below on all counts, that is, the title of the plaintiffs over the suit property, plea of adverse possession as raised by the defendant No.1 as also possession of the plaintiffs over the suit property. Learned counsel for the Appellant has not been able to satisfy this court, with reference to any specified finding recorded by the court below that the same are either without evidence or contrary to evidence. Learned first appellate court has assigned reasons for not accepting the story of exchange of property which reason cannot be termed as perverse so as to

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Patna High Court SA No.272 of 2010 (14) dt.25-02-2013

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warrant interference under section 100 of the Code.

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Section 100 of the Code of Civil Procedure envisages that a Second Appeal would lie to the High Court from a decree passed in appeal by any court sub-ordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. In order to re-assert the mandatory requirement of involvement of substantial question of law for a second appeal to be maintained under Section 100 of the Code, Section 101 of the Code provides that no second appeal shall lie “except on the ground mentioned in Section 100 of the Code”. Such being the legislative mandate, the superior courts have on several occasions laid down law as to what would constitute and what would not, a “substantial question of law” within the meaning of Section 100 of the Code while scrutinizing scope of the Section. By now, it is settled position of law that the High Court cannot interfere with the concurrent finding of fact unless the same is found to be perverse being based on no evidence or contrary to material available on record or that on the evidence on record no reasonable person could have come to that conclusion. Reference may be made in this regard to the Supreme Court judgments in the cases of Vidyadhar Manik Rao, (1999) 3 SCC 573; Sugani (mst.) v. Rameshwar Das and another, (2006) 11 SCC 87; Gurudev Kaur v. Kaki, (2007) 1 SCC 546; Prakash Kumar v. State of Gujarat (2004) 5 SCC 140; Thingarajan and ors. V. Venugopalaswamy B. Koil and others (2004) 5 SCC 762 and Narayanan Rajendran and another v. Lakshmi Sarojini and others .

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From reading of the judgments of the courts below, I am of the view that the same cannot be said to be perverse or

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Patna High Court SA No.272 of 2010 (14) dt.25-02-2013

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without any evidence. Taking note of the judicial pronouncement mentioned above, in my opinion, the appeal does not involve any substantial question of law so as to be entertained under section 100 of the Code. It, accordingly, does not merit admission and is, therefore, dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Parmanand Prasad Singh v. Jai Kishore Prasad Singh and Ors.

Case brief

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Parmanand Prasad Singh v. Jai Kishore Prasad Singh and Ors.

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