This is a second appeal in a title dispute over agricultural land particulars recording of the land in the Khatiyan and lack of documentary evidence such as copies of the C.S. and R.S. Khatiyan filed by the appellants supporting their claim.
The second appeal was dismissed with no substantial question of law arising.
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.482 of 2010
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All 7 to 11 are son and daughters of late Abdul Mazid Aansari. 12. Mukhtar Ansari, S/o Abdul Haqu Ansari. All are residents of Village- Masadhi, P.S.- Ramgarh, District- Kaimur. .... Plaintiffs…appellants .... Appellant/s Versus 1. Ishrayl Miya, son of late Sadik Miyan. 2. Kabbuli Miyan, son of Safat Miyan. 3. Azad Miya, son of Safat Miyan. All are residents of Village- Masadhi, P.S. Ramgarh, District- Kaimur. .... Defendants….Respondents .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shashi Shekhar Dwivedi, Sr. Advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER
This appeal is directed against the judgment and decree dated 25.6.2010 passed by the learned Additional District and Sessions Judge, F.T.C.-I, Kaimur at Bhabhua in Title Appeal No.9 of 2006/11 of 2007, whereby the learned lower appellate court below while dismissing the appeal has affirmed
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the judgment and decree dated 30.1.2006 passed by the learned Munsif, Kaimur at Bhabhua in Title Suit No.128 of 2000.
I shall be referring to the status of the parties as stood at the stage of trial for the sake of convenience.
The facts of the case briefly stated in the present appeal is that the suit in question was filed by the plaintiffs seeking a declaration of title over 2 decimals appertaining to R.S. Plot no.261/1049 of R.S. Khata no.10 which was carved out from C.S. Plot No.194, C.S. Khata No.110, situated in VillageMasadhi, P.S. - Ramgarh, District Kaimur at Bhabhua. It is the case of the plaintiffs that the suit plot was originally recorded in the C.S. Khatiyan in the name of grand-father of the plaintiffs, namely, Somaru Mian. It is further their case that Somaru Mian was survived by two sons, namely, Idrish Mian and Ishak Mian. Idrish Mian had two sons, namely, Abdul Rashid Ansari and Asgar Ansari. It is further their case that the sons of Idrish Mian, instituted a case against Ishak Mian, the father of the present appellants in relation to the suit land as well as some other lands giving rise to Title Suit No.217 of 1962. The suit was decreed on 27.8.1989 and the plot in question was allotted in the share of the plaintiff of Title Suit No.217 of 1962. The Execution Case No.1 of 1992 ended in a compromise and it is the case of the
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plaintiffs herein that this plot came into their share. It is further case of the plaintiffs that on being disturbed by the defendants they gathered knowledge that during the revisional survey the defendants had got the land recorded in their own name and also had got the name entered in the survey khatiyan. It is in the aforementioned background that the suit in question was filed for declaration of title.
The trial court upon considering the rival contentions and upon appreciation of the evidence on record dismissed the suit on contest, inter alia, on grounds of absence of evidence supporting the claim of the plaintiffs and which finding has been affirmed by the lower appellate court and hence this appeal.
I have heard Mr. Dwivedi, learned senior counsel appearing for the appellants and have perused the judgment and decree passed by the court(s) below. Two issues have been raised by Mr. Dwivedi to contest the judgment and decree, namely, (a) that the judgment and decree suffers from nonapplication of mind and has not been passed in accordance with the provisions of Order 41 rule 31 of the Code of Civil Procedure; and (b) that even if the Khatiyan did not contain the name of grand-father of the plaintiffs but considering that this issue had travelled up to the High Court in second appeal, the
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trial court ought to have considered this aspect of the matter.
Perusal of the judgment and decree impugned passed by the trial court as affirmed by the lower appellate court manifests that the foundation of the claim for title over the suit property by the plaintiffs was based primarily on three grounds, namely, (a) that the suit property was registered in the name of Somaru Mian, the grand father of the plaintiffs, (b) pursuant to the decree passed in Title Suit No.217 of 1962, the plot in question was allotted in the share of the plaintiffs and (c) a proceeding under section 144 of the Code of Criminal Procedure ended in favour of the plaintiffs. The court(s) below considered the plea of the plaintiffs in the backdrop of the documentary evidence led by them, namely; the decree passed in S.A. No.50 of 1972 led as Exhibit-1 and the order passed under section 144,Cr.P.C. proceeding marked as Exhibit-1/A. In fact these were the only exhibits led by the plaintiffs in support of their claim. On the other hand, the defendants apart from the other evidences, had also filed a copy of the Khatiyan which recorded the name of their father. On the basis of the evidence thus led by the parties the trial court concluded that the very foundation on which the plaintiffs had based their claim, was non-existent inasmuch as even though the plaintiffs were relying upon the
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Khatiyan Entry to establish their case but neither any copy of C.S. Khatiyan nor the R.S. Khatiyan was filed by them. Besides whereas the C.S. Khatiyan led by the defendants as Exhibit-A2 recorded the land as Gair Mazarua Malik, the R.S. Khatiyan led as Exhibit A/1 recorded the name of the defendants and not the grand-father of the plaintiffs, namely, Somaru Mian. The trial court also noticed that though the plaintiffs relied upon the Pleader Commissioner’s report submitted in Title Suit No.217 of 1962 in support their claim of allotment of the suit property in their favour pursuant to a decree passed in Title Suit No.217 of 1962 but no Pleader Commissioner’s report was filed by them. The claim of the plaintiffs thus being unsupported with any documentary evidence, the trial court rightly dismissed the suit and which judgment and decree has been affirmed in appeal.
Considering the concurrent finding of fact as regarding the absence of evidence with regard to the claim set up by the plaintiffs for establishing their right over the suit property, this Court is of the firm opinion that no substantial question of law arises for consideration in this appeal.
This appeal is dismissed.
(Jyoti Saran, J)
SKPathak/-
3 issues framed by the court
Whether the judgment and decree suffer from nonapplication of mind failing to consider aspects travelled up to the High Court under Order 41 Rule 31 CPC.
Whether a substantial question of law arises given the absence of documentary evidence supporting the plaintiffs' claim of title.
Whether the appeal should be allowed despite the dismissal of the suit on contest due to lack of evidence.
2 provisions across 2 enactments
Hafijullah Ansari and others
Ishrayl Miya and others
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
