Dismissed

Chamru Yadav v. Tanuk Lal Yadav and Ors.

Patna HC10 May 2013SA/552/2011

Case brief

AI extract

What is this about?

This second appeal concerned a dispute over title to agricultural land. The appellant, a descendant of a mortgagor, appealed the first appellate court's reversal of the trial court's dismissal of a title suit filed by purchasers. The High Court dismissed the appeal, holding that the lower appellate court was the final court of fact and its finding that a misdescription of plot numbers was irregula

What did the court decide?

The second appeal was dismissed; the judgment and decree of the first appellate court were affirmed.

Chamru Yadav Vs Tanuk Lal Yadav and Ors. — Contract and Commercial Disputes | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.552 of 2011

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====================================================== 1. Chamru Yadav S/O Late Uchit Yadav @ Uchit Gope R/O Village - Bahadurpur Athsahiya, P.S. Bariyarpur, District - Munger .... .... Appellant Versus 1. Tanuk Lal Yadav R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 2. Gorelal Yadav R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 3. Bisheshwar Yadav R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 4. Mangal Yadav S/O Late Jagdeo Gope R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 5. Kare Yadav S/O Jagdeo Gope R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 6. Dhaniklal Yadav S/O Jagdeo Gope R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 7. Ganiru Yadav S/O Jagdeo Gope R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 8. Srikant Yadav S/O Jagdeo Gope R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 9. Mohan Yadav S/O Tilak Gope R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 10. Anirudh Kumar Yadav S/O Chamroo Yadav R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 11. Most. Asha Devi W/O Late Bijay Kumar Yadav R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 12. Rakesh Kumar Yadav Minor Sons Of Late Bijay Kumar Yadav Under The Guardianship Of Their Mother Most. Asha Devi, Mother And Next Friend R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 13. Rajesh Kumar Yadav Minor Sons Of Late Bijay Kumar Yadav Under The Guardianship Of Their Mother Most. Asha Devi, Mother And Next Friend R/O Village - Athasaiya Bahadurpur, Pargana Farkiya, P.S. Mufassil, District - Munger 14. Most. Deota Devi W/O Late Shiv Nandan Mishra R/O Village - Bahadurpur, P.S. Gogari, District Khagaria 15. Budhinath Mishra S/O Late Shivnandan Mishra R/O Village - Bahadurpur, P.S. Gogari, District Khagaria 16. Sachit Kumar Mishra S/O Late Shivnandan Mishra R/O Village - Bahadurpur, P.S. Gogari, District Khagaria 17. Most. Sabo Devi W/O Late Manikant Yadav R/O Village - Bahadurpur, P.S. Gogari, District Khagaria 18. Abhinandan Mishra S/O Late Srikant Mishra R/O Village - Mathurapur, Pargana Farkiya, P.S. Gogari, District - District - Khagaria 19. Most. Meena Devi W/O Late Shashibhushan Mishra R/O Village - Mathurapur, Pargana Farkiya, P.S. Gogari, District - District - Khagaria 20. Lalit Kumar Mishra S/O Late Nand Kishore Mishra R/O Village - Mathurapur, Pargana Farkiya, P.S. Gogari, District - District - Khagariar/O

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Village - Mathurapur, Pargana Farkiya, P.S. Gogari, District - District - Khagaria

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Mithilesh Mishra S/O Late Nand Kishore Mishra R/O Village - Mathurapur, Pargana Farkiya, P.S. Gogari, District - District - Khagaria 22. Raman Kumar Mishra S/O Late Nand Kishore Mishra R/O Village - Mathurapur, Pargana Farkiya, P.S. Gogari, District - District - Khagaria 23. Mandodari Devi W/O Late Nand Kishore Mishra R/O Village - Mathurapur, Pargana Farkiya, P.S. Gogari, District - District - Khagaria

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.... .... Respondents

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====================================================== Appearance : For the Appellant : Mr. Ajay Kumar Thakur, advocate Mr. Nilesh Kumar, advocate For the Respondents : Mr. Dronacharya, advocate Mr. Argesh Kumar, advocate

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

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7 10 -05-2013 Heard learned counsel for the parties.

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The defendant is the appellant herein and is aggrieved by judgement and decree dated 26-07-2011 passed by learned Additional District Judge, Fast Track Court-I, Khagaria in Title Appeal No. 6 of 1997 by which he allowed the Title Appeal filed by respondents and set aside the judgement and decree dated 26-05-1997 and 01-06-1997 respectively, passed by learned Munsiff, Khagaria in Title Suit No. 17/ 1993.

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The suit was filed for declaration of title and confirmation of possession with respect to the lands in khata No. 59, plot No. 592 1 bigha 11 kathas 4 dhurs and with respect to khata No.8, plot No. 130 ( 10 katha 11 dhurs 10 dhurkies), khata No. 59, plot No. 592 ( 1 bigha 10 kathas), under khata No.8, plot

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No. 130 (11 kathas), under khata No. 63 plot No. 592 (10 katha), khata No. 63 plot No. 592 (1 bigha) and khata No. 63, plot No. 592 (1 bigha). The plaintiffs also sought for a declaration that the order dated 12-08-1991 passed by learned Land Reforms Deputy Collector (LRDC), Khagaria in correction of Jamabandi case No. 3 of 81-82 in favour of defendant first party was illegal, inoperative and not binding on the plaintiffs. The plaintiffs also sought for permanent injunction restraining the defendant first party from interfering with possession of the plaintiffs over the suit land and also to restrain the defendant first party to get corrected their names in Jamabandi in Register-II on the basis of such illegal and wrong order dated 12-08-1991 passed by learned LRDC, Khagaria in correction of Jamabandi case No. 3/ 81-82. The plaintiffs also sought for a relief that if the plaintiffs got dispossessed from the suit land during the pendency of the suit, a decree of recovery of possession also be passed in their favour against defendant first party, in that case.

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As per the plaintiffs’ case, the defendants first party were the descendants of late Khedu Gope, who died leaving behind his two sons, Jalim Gope and Narsingh Gope. Jalim Gope had two sons, Mouzi Gope and Saukhi Gope. Mouzi Gope died issueless. Saukhi Gope had two sons, Rajendra Yadav and Dukhu

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Yadav. Narsingh Gope, the other son of Khedu Gope, had three sons, Uchit Gope, Jagdeo Gope and Tilak Gope. Son of Uchit Gope, namely, Chamru Gope was the defendant No.1 before the trial court and appellant herein.

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The plaintiffs pleaded that lands of khata No.5 and 2 of Jamalpur mouza and khata No.1 of Bahadurpur mouza stood recorded in the name of Khedu Gope in survey records of rights. Khedu Gope died in state of jointness with his two sons, Jalim Gope and Narsingh Gope. Jalim Gope and Narsingh Gope separated by metes and bounds, after the death of Khedu Gope, their father, and they had been living separate since time of partition between them. The plaintiffs asserted that Narsingh Gope, the ancestor of defendant first party, felt necessity of money and he borrowed some money from Mathuranath Mishra, ancestor of defendant second party, in the year 1909 and, in lieu of that, he executed a registered mortgage deed in favour of Mathuranath Mishra, on the basis of which he put the land of khata No.5 and 2 of Jamalpur mouza and land of khata No.1 of Bahadurpur mouza under mortgage with respect to half of his share. The loan amount, however, could not be paid. Mathuranath Mishra filed mortgage suit for realization of mortgage money in the court of Munsif-I, Munger vide case No. 668 of 1912. The suit was decreed in favour

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of mortgagee. The decree-holder, Mathuranath Mishra, thereafter filed execution case vide case No. 386/1913 in the court of Munsif-I, Munger to execute the decree. In consequence to which the mortgaged property to the extent of half share of Narsingh Gope was attached and sold in auction sale. The decree holder, Mathuranath Mishra, purchased the land in auction sale, which property has been described in schedule-II of the plaint.

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As per the plaintiffs’ case, the said auction sale was confirmed by the court and possession was delivered with respect to land mentioned in schedule-II through the process of court on 15-02-1914. Mathuranath Mishra came in possession over the land described in schedule-II and got his name mutated in the Sirista of ex-landlord, Banaili estate and Srinagar estate and he had been paying rent and granted rent receipts accordingly. The ex-landlord submitted return with respect to land of schedule-II in the name of defendant second party at the time of vesting of Jamindari, on the basis of which Jamabandi was created in Register-II in the Anchal Sirista of Bihar Government and after including their names in Register-II, defendant first party used to pay rent to the Government of Bihar and were granted rent receipts, accordingly, with respect to lands of schedule-II.

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The defendant second party, as per the plaintiffs’ case,

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sold the lands to the plaintiffs by several registered sale deeds. According to plaintiffs, they purchased land measuring 5 bigha 11 kathas and 4 dhurs of Jamalpur mouza and 1 bigha 1 katha 3 dhurs of Bahadurpur mouza by different registered sale deeds on different dates starting from the year 1975 to 1981 and such lands purchased by the defendant second party, during the aforesaid period by virtue of different registered sale deeds, were subject matter of the suit as described in schedule –III of the plaint and had been termed as the suit land. Plaintiffs Nos. 2 and 3 purchased 1 bigha 11 kathas 4 dhurs of Jamalpur mouza appertaining to khata No. 59 plot No. 592 by registered sale deed dated 05-03-1975 executed by Sheo Nandan Mishra, original defendant (whose heirs are respondents Nos. 14 to 16 in the present appeal) and 10 katha 11 dhur 5 dhurkies land of khata No. 2, plot No. 130 of Bahadurpur mouza was purchased by plaintiff No.1 vide sale deed dated 05-03-1975 executed by Sheo Nandan Mishra. Further, Abhinandan Mishra (defendant No. 13) sold 11 katha of khata No. 2 plot No. 130 of Bahadurpur mouza to plaintiff No.1 and 1 bigha 10 kathas land of mouza Jamalpur, appertaining to khata No. 59 plot No. 592, to plaintiffs Nos. 2 and 3 by virtue of registered sale deed dated 21-10-1975. Lalit Kumar Mishra (defendant No. 15) in the like manner sold 1 bigha land of Jamalpur mouza under khata

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No. 59 plot No. 592 to the plaintiffs by virtue of registered sale deed dated 20-07-1977. Nand Kishore Mishra, father of defendant No. 17, sold 10 kathas land to the plaintiffs of mouza Jamalpur appertaining to khata No. 59 plot No. 592 by registered sale deed dated 13-03-1981.

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In view of above, the plaintiffs asserted that they purchased land from rightful owners for a valuable consideration and they have been coming in peaceful possession over the suit land since the dates of their respective purchases. The plaintiffs asserted that, by virtue of such sale deeds, they acquired perfect right, title and possession over the suit land and prior to such purchase made by them, the defendant second party had valid title and possession over the suit land. The plaintiffs asserted that the defendant first party had neither title nor possession nor interest over the suit land as half share of the ancestor of Narsingh Gope had been sold away in auction sale in Execution case No. 386/ 1913 with respect to which the delivery of possession was also effected on 15-02-1994 by the process of the court and their names had been mutated in Anchal Sirista and they had been paying rent and getting rent receipts with respect to the suit land.

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As per the plaintiffs, in the year 1981, defendant No.1 Chamru Gope filed a case of correction of Jamabandi vide case

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No. 3/81-82 before learned LRDC, Khagaria against Ugra Narayan Mishra, son of late Basudeo Mishra, who was son of late Vishwanath Mishra, brother of Mathuranath Mishra. Learned LRDC, Khagaria is said to have illegally passed the order for correction of Jamabandi in favour of defendant No.1 on 06-03-86 and wrongly held Chamru Gope, defendant No.1, to be entitled to the land of share of Jalim Gope which was sold in auction. In the background of genealogy, as stated above, and other facts, the plaintiffs asserted that defendant No.1 was the descendant of Narsingh Gope, whose land had already been sold in auction during the proceeding of execution case No. 386/ 1913 and delivery of possession was effected. The plaintiffs asserted that Ugra Narayan Mishra had no concern with suit land and that defendant No.1 fraudulently got the order of correction of Jamabandi playing fraud upon the revenue court by giving wrong description of suit land in the aforesaid case of correction of Jamabandi.

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The plaintiffs claimed that though they were rightful owners of the suit land, they were not impleaded party before learned LRDC, Khagaria in the said Jamabandi correction case. Ugra Narayan Mishra had preferred an appeal against the order dated 06-03-1986 of LRDC, Khagaria in correction of Jamabandi

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case vide correction of Jamabandi Appeal No. 2/88-89 in the court of A.D.M. Khagaria who remanded the matter back to the LRDC, Khagaria setting aside the order dated 06-03-1986. However, upon remand, learned LRDC, Khagaria passed the order dated 12-08-1991 allowing the correction of Jamabandi and held that the disputed land was not the subject matter of mortgage suit No. 668/1912 and Title Execution case No. 386/1913 against Narsingh Gope.

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The plaintiffs asserted that the disputed land of case No. 3/81-82 is the suit land which was once the land within the share of Narsingh Gope and also remained the subject matter of T.M. case No. 668/1912 and Title Execution case No. 386/1913 against Narsingh Gope. The plaintiffs further asserted that defendant No.1 knowingly and fraudulently did not make the plaintiffs party in that case and the report of K.C. and C.I. were collusive and one sided as the order dated 12-08-1991 passed by learned LRDC, Khagaria in case No. 3/81-82 cast a cloud on the title and possession of the plaintiffs, cause of action arose leading to institution of the suit, as the defendants threatened to dispossess the plaintiffs from the suit land.

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The defendant first party contested the suit and filed their written statement. The defendants did not dispute the

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genealogical table as given by the plaintiffs at the foot of the plaint. They admitted the statement regarding history of the ancestral land held by their ancestor, Khedu Gope, who was recorded tenant in cadestral survey record of rights. The defendant first party, who is the appellant herein, however, strongly denied the assertion made in paragraph 3 of the plaint. According to defendant first party/ appellant, Jalim Gope and Narsingh Gope were full brothers and remained joint and story of separation, as propounded by the plaintiffs between Jalim Gope and Narsingh Gope, was denied. The appellant denied execution of deed of mortgage by Narsingh Gope in favour of Mathuranath Mishra with respect to entire half share of land of khata No.2 of mouza Jamalpur and land of khata No. 1 of mouza Bahadurpur. The appellant, accordingly, denied the story relating to non payment of loan and filing of mortgage suit by Mathuranath Mishra and decree passed in the mortgage suit and filing of execution case by Mathuranath Mishra against Narsingh Gope as, according to appellant, it was not properly explained. The appellant also contended that it was false to state that entire half share of Narsingh Gope was attached and sold in execution case and was purchased by Mathuranath Mishra. The description of land, as given in schedule-II of the plaint, which were said to have been

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sold in mortgage execution case, was false according to defendants . The appellant reiterated that it was not correct to say that entire land of schedule-II of the plaint was sold in auction and was purchased by Mathuranath Mishra and the same was in possession of Mathuranath Mishra after such purchase.

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According to defendants, Mathuranath Mishra never came in possession over the lands, which were in possession of the defendants and, which had been duly described in schedule-A of their written statement. According to appellant/ defendant first party, lands described in schedule-A to the written statement were never put under auction and the same was never purchased by Mathuranath Mishra nor there had been delivery of possession effected over these lands. The defendants averred that if any Jamabandi was created in favour of Mathuranath Mishra or in the name of defendant second party with respect to the lands of schedule-II of the plaint, the same must have been fabricated and collusive having no legal value. The defendant first party also denied the fact that outgoing landlord had submitted return in the name of defendant second party after vesting of the estate and, accordingly, different Jamabandi were created in the Anchal office in the name of defendant second party and they paid rent and obtained rent receipts with respect to lands described in schedule-

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II of the plaint.

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The defendant first party/ appellant also denied the fact that the plaintiffs purchased 5 bigha 11 katha 4 dhurs of land in mouza Jamalpur and 1 bigha 1 katha and odd dhurs in mouza Bahadurpur by virtue of different sale deeds from 1972 to 1981, as described in schedule-II of the plaint, by the plaintiffs on the basis of which the plaintiffs claimed to have purchased land from defendant second party. The defendant first party admitted that correction of Jamabandi case No. 3/1981-82 was filed. The defendant first party asserted that Jamabandi for the entire khatiyani land stood recorded in the name of Khedu Yadav, common ancestor, and no partition had ever taken place between Jalim Gope and Narsingh Gope. Justifying the reasons why no rent was paid by the defendants prior to 1981-82, it was pleaded that lands were submerged in the river Ganges, became Gangasikasta and, therefore, no rent was payable and when the lands emerged the defendant No.1 filed the case for correction of Jamabandi.

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The defendant second party, who are the vendors by the plaintiffs, also filed their written statement. On facts, however, they did not deny the assertion made in the plaint which, according to them, was correct.

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On the basis of rival contention of the parties, as

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raised in their respective pleadings, learned trial court framed 14 issues including issues Nos. vii, viii, ix and x which read thus:-

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“(vii) Whether the suit land was sold in auction in Execution case No. 306 of 1913 and D.P. was effected on 15.2.1914?

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(viii) Whether the sale Deeds executed by Defendants 2^nd party to the plaintiffs are valid, genuine and for consideration?

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(ix) Whether the order dated 12-08-91 passed by the learned L.R.D.C. Khagaria is correction of Jamabandi case No. 3/ 1981-82 is legal, valid and genuine?

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(x) Whether the branch of Jalim Gope and Narsingh Gope had separated by metes and bounds?

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Learned trial court took up issue No. vi and vii first. In my view, issue No. vii is the most crucial issue for determination of dispute between the parties for the reason that the land which the plaintiffs claimed to have purchased from defendant second party are such land which the defendant second party had purchased in auction sale. This issue was required to be determined in the background of the plea by the defendants that the suit land was not part of the property/ land of Narsingh Gope, which was auction sold in Execution case No. 306 of 1913.

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It will appear from the judgements of the courts

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below that the parties led their evidence, both oral and documentary, in support of their respective claims.

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Learned trial court, on the basis of such evidence, came to a finding that the plaintiffs by virtue of sale deeds, exhibit-1 series, did not acquire any title and possession over the suit lands which were not the subject matter of auction sale, decree and delivery of possession in execution case.

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From the judgement of the trial court it appears that, the main plea, which was taken by the defendant first party, was that there was no specific boundary with respect to the lands under mortgage because in the boundary the total area of lands had not been shown in the mortgage deed, decree, sale certificate and reports on the delivery of possession.

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This is to be noted that the defendant first party had contended in course of trial that the lands which were the subject matter of the suit and had been purchased by the plaintiffs from the defendant second party; the descendants of Mathuranath Mishra, the auction purchasers of the lands, which were mortgaged by Narsingh Gope to Mathuranath Mishra vide exhibitB/1 were not subject matter of the mortgage deed which was executed by Narsingh Gope in favour of Mathuranath Mishra, which was exhibited and admitted in the evidence on behalf of

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defendant second party. On analysis of this plea of the defendants, learned trial court, on going through the mortgage deed, held that the lands which were mortgaged under khata No. 59 were lands of plot No. 555, 598 and lands of khata No. 1, plot No. 114 and 130. Learned trial court referred to exhibit 6/B, which was a sale certificate relating to other lands including lands of Bahadurpur and Jamalpur mouza, which were the subject matter of the suit. According to learned trial court, on perusal of the sale certificate, lands mentioned in sale certificate appertaining to khata No. 59 plot No. 555 and 598 admeasuring 10 katha 6 dhurs and 5 bigha 14 katha and 10 dhurs belonged to Jamalpur mouza and khata No. 1 plot No. 114 and 130 admeasuring an area of 2 bigha 1 katha and 2 bigha 5 katha respectively, belonged to Bahadurpur mouza. Learned trial court further referred to decree (exhibit-7) and the report of delivery of possession (exhibit-8) and on joint reading of documents, that is, exhibit-6/B, exhibit-7 and exhibit-8 came to a finding that the lands in khata No.555 and 598 of Jamalpur mouza and lands under khata No.1, plot No. 114 and 130 of Bahadurpur mouza along with other lands were lands under the mortgage deed (exhibit-B/1), on the basis of which, decree was passed in mortgage suit No. 668/1912 and, accordingly, the decree (exhibit7) was prepared. Learned trial court concluded that the lands

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described in exhibits-7, 8, B/1 and 6B indicated that lands of Bahadurpur mouza and Jamalpur mouza were subject matter in mortgage suit No. 668/1912 appertaining to khata No. 1, plot No. 114 and 130 and khata No. 59, plot No. 555 and 598 respectively. Referring to exhibit-1 series, which were the sale deeds executed in favour of plaintiffs by the descendants of Mathuranath Mishra, auction purchaser, learned trial court concluded that khata No. 59, plot No. 592 and khata No. 8, plot No. 130 had been sold in favour of plaintiffs and, therefore, lands under khata No. 59, plot No. 592 was never the subject matter of mortgage deed (exhibit-B/1), sale certificate (exhibit 6/B), decree (exhibit-7) and delivery of possession (exhibit-8) and, therefore, rejected contention of the plaintiffs that through the sale deed (exhibit-1 series) they acquired title and possession over the lands under khata No.59, plot No. 592. Accordingly, learned trial court held that exhibit-B, which was certified copy of the order sheet passed in Jamabandi correction case No. 3/81-82, also testified the fact that plot No. 592 along with plot No. 556 admeasuring total area of 6 bigha, 4 katha 16 dhurs and land under khata No. 1, plot No. 114 and 130 total area of 2 bigha, 2 kathas and 6 dhurs stood recorded in the name of khatiyani raiyat, Khedu Gope. Learned trial court further came to a conclusion that Narsingh Gope, the ancestor of

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defendant first party, who had executed the mortgage deed in favour of Mathuranath Mishra with respect to lands of Jamalpur and Bahadurpur mouza along with lands of other mouza, had also some lands under khata No. 59, plot No. 592 and 556 which were never subject matter of the said mortgage deed, exhibit-B/1.

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On the basis of above, learned trial court held that the order dated 12-08-1991 passed by learned LRDC, Khagaria also proved the fact that it was plot No. 598 and 555 admeasuring total area of 6 bigha 4 katha 16 dhurs of Bahadurpur mouza, which was under mortgage with respect to its half share, which came to 3 bigha 2 katha 8 dhurs. This is actually the respective share of Narsingh Gope in these two plots. The said order of learned LRDC also mentioned that lands of plot No. 114 and 130 of Bahadurpur mouza had a total area of 2 bigha 2 katha 6 dhurs but out of which 1 bigha 1katha 3 dhurs were under mortgage and such area of lands with respect to share of Narsingh Gope was put under auction sale and purchased by Mathuranath Mishra, ancestor of executants of sale deeds exhibit-1series made in favour of plaintiffs. On this reasoning, learned trial court held that whatever title accrued to Mathuranath Mishra and his descendants, was with respect to half share of the lands of plot No. 598 and 555 of Jamalpur mouza and plot No. 114 and 130 of Bahadurpur mouza

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and it never included lands under plot No. 592 and 556 of Jamalpur mouza and the remaining area of plot No. 114 and 130 of Bahadurpur mouza. It was on this reasoning that learned trial court dismissed the suit.

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Learned first appellate court, however, set aside the judgement and decree of learned trial court on the ground that there was some misdescription of lands in the mortgage deed and the same were properly described by their boundaries. It held that on such ground plaintiffs’ case could not have been rejected. Before learned first appellate court, plaintiff/ respondent No.1 specifically pleaded that under the mortgage deed dated 07-051909 khesra No. 555 of khata No. 59 has been mentioned in place of khesra No. 556 and in place of khesra No. 592 khesra No. 598 has been mentioned. They referred to schedule-II of the plaint to show that “556” was typed under khesra No. 555 having area of 10 katha 6 dhurs and “598” was typed under 592 having area of 5 bigha 14 katha 10 dhurs (total area 6 bigha 4 katha 16 dhurs). The plaintiff/ respondent No.1 further referred, before learned first appellate court, to schedule-II of the plaint to contend that half share of Narsingh Gope admeasuring 1 bigha 1 katha 3 dhurs out of 2 bigha 2 katha 6 dhurs of plot No. 114 and 130 of mouza Bahadurpur was auction sold and the remaining share remained

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with Jalim Gope. The appellants, thus, pleaded that if there was any discrepancy in mentioning of khesra or plot No. in the deed and if the land could be described and identified by area and boundary, such boundary and area shall prevail. It was pleaded before the first appellate court that khesra No. 592 was mentioned in schedule-II of the plaint under khesra No. 598 and further that if mortgaged land could be well identified by boundary given in the deed of mortgage as also the area then the area and boundary shall prevail for the identification of land and the defendants were trying to take undue advantage of mere misdescription of property. If the area given in the mortgage deed was exactly of the land appertaining to khata No. 592 then it will be a proof that the mortgage was with respect to khesra No. 592.

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Learned first appellate court, accepting plea of the plaintiffs, held that the lands described in the mortgage deed in fact appertaining to khata No. 592. Learned first appellate court also considered the aspect that Narsingh Gope had mortgaged his entire half share of the joint family whereafter the defendants had no property left out of share of Narsingh Gope and learned trial court completely lost sight of this aspect.

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Mr. Ajay Kumar Thakur, learned counsel for the appellant, has vehemently submitted that the plaintiffs could not

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derive a title better than the title of his vendor and the title of his vendor was completely based on the purchase which he made out of auction sale which was based on mortgage deed. The mortgage deed did not contain the land appertaining to khesra No. 592 and, therefore, the plaintiffs could not derive right and title on the land appertaining to khesra No. 592. Learned counsel for the appellant has submitted that even though area and boundary over which the plaintiffs claimed title were same as described in the mortgage deed, but in no event, the plaintiffs can claim title over the land appertaining to khesra No. 592. Learned counsel has vehemently submitted that the plaintiffs failed to prove, in course of trial, that they acquired title over such plot belong to Narsingh Gope, appertaining to Khesra No. 592 which was not subject matter of the mortgage or mortgage suit. Mr. Thakur has, thus, submitted inter alia that the present second appeal involves a substantial question of law that in order to identify a property whether the plot No. or the area and boundary of such plot shall prevail while interpreting the deed or any other document.

¶93

Mr. Dronacharya, learned counsel for the respondents first set, on the other hand, has submitted that the boundary and area of the land, as described in the mortgage deed, decree, sale certificate and delivery of possession are identical on

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which the title has been claimed by the plaintiffs. Merely, on the basis that khesra No. was wrongly recorded in such deed or document, the plaintiffs’ title cannot be denied. He submits that the present second appeal does not involve any substantial question of law as this issue has been settled by the Supreme Court in case of Sheodhyan Singh v. Sanichara Kuer, 1962, BLJR, 273 . He has also referred to a judgement of Calcutta High Court reported in AIR 1979 Calcutta 50, Roy & Company v. Nani Bala in support of his cosntention.

¶97

Having heard learned counsel for the appellant and learned counsel for the respondents, I am of the view that the only dispute in the present case is as to whether mentioning of a different plot No. in the deed of mortgage would defeat the title of the plaintiffs though the boundary and area given in the deed matched with the claim of the plaintiff over the disputed land. This issue has been settled by Supreme Court in case of Sheodhyan Singh (supra) wherein it was held that if there is mis- description in the deed or document, as regards identification of plot No., it was a mere irregularity.

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“5. In this connection, learned counsel for the appellants relies on Rambhadra Naidu v. Kadiriyasami Naicker. In that case it was held that “certificates of sale are documents of title which ought not be lightly regarded or loosely construed”. It was further

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held that “where upon a sale under a mortgage decree the purchaser has been given a sale certificate which plainly includes certain property and has been put into possession, it is not open to the court in a subsequent suit by the mortgagor’s representative to hold by reference back to the mortgage deed that the property in question was not sold under the decree”. The facts however in that case where very different from the facts in the present case. There what had happened was that the mortgage included the pannai lands which belonged to the mortgagor and which were in his enjoyment. But at the date of the mortgage certain pannai lands were not in the enjoyment of the mortgager. When however the sale proceedings were taken in execution the person who was in possession at the date of mortgage of some of the pannai lands was dead and in the final decree as well as in the execution proceedings all pannai lands belonging to the mortgagor and in his enjoyment were ordered to be sold. The mortgager objected that some of the pannai lands were outside the mortgage and were not liable to sale. This objection was disallowed and all the pannai lands were sold and were included in the sale certificate and possession thereof was delivered to the purchasers. In these circumstances the Privy Council held that it was not possible to go back to the mortgage deed to find out what had been sold. It was also held that no suit could lie in the circumstances in view of Section 47 of the Code of Civil Procedure.

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6. In the present appeal, the learned counsel for the respondents does not ask us to go beyond the sale certificate and the final decree for sale; his contention is that there is a mere mis- description of the plot number in the two documents and that the identity of the plot sold is clear from the circumstances which we have already set out above. He relies on Thakur Barmha v. Jiban Ram Marwari. In that case what had happened was that the

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judgement debtor owned a mahal in which ten annas share was mortgaged while the remainder was free from encumbrances. A creditor of his attached and put up for sale six annas share out of the mortgaged share. The property attached was sold. When the auction purchasers applied for the sale certificate they alleged that a mistake had been made in the schedule of the property to be sold in that the word “not” had been omitted from the description of six annas share and that the property should have been described as being six annas not mortgaged. This prayer of theirs was allowed by the executing court and the appeal to the High Court failed. On appeal to the Privy Council, it was held that in a judicial sale only the property attached can be sold and that property is conclusively described in and by the schedule to which the attachment refers, namely, the six annas share subject to an existing mortgage. The Privy Council therefore allowed the appeal and observed that a case of mis-description could be treated as a mere irregularity; but the case before them was a case of identity and not of mis- description. It was pointed out that property fully identified in the schedule may be in some respects misdescribed which would be a different case. Thus the effect of this decision is that where there is no doubt as to the identity and there is only mis- description that would be treated as a mere irregularity. Another case on which reliance has been placed on behalf of the respondents is Gossain Das Kundu v. Mritunjoy Agnan Sardar. In that case the land sold was described by boundaries and area; but the area seems to have been incorrect. It was held to be a case of mis- description of the area and the boundaries were held to prevail.”

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In the case of Roy & Company (supra) the Calcutta

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High Court held that in case of dispute between area and boundary, description of boundary will prevail.

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From the judgement of learned first appellate court under challenge, it will appear that he has dealt, in detail, the circumstance for reaching to a finding that mentioning of khesra No. “598 and khesra No. 555” in place of 592 and 596 was a mistake and would amount to mere discrepancy of the suit land and the land claimed by the plaintiffs could be well identified by area of the land appertaining to khesra No. 592 which was exactly the same mentioned in the mortgage deed against khesra No. 598. Similarly, the area of land appertaining to khesra No. 556, as claimed by the plaintiffs, was exactly the same as that mentioned in the mortgage deed against khesra No. 556. After duly considering this aspect and on the basis of evidence on record, learned first appellate court not only came to his independent conclusion that the mortgage deed contained the properties as claimed by the plaintiffs, he also assigned detailed reasons as to why the findings of the trial court were incorrect. Learned first appellate court came to his finding also in view of the fact that Narsingh Gope has mortgaged his entire half share in favour of Mathuranath Mishra and thereafter he was left with no property out of his ancestral property. Learned first appellate court

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considered the plea that had this aspect been taken note of by learned trial court, the plaintiffs’ suit would not have been dismissed. Applying the aforesaid judgements of the Apex Court and of Calcutta High Court, learned first appellate court applied the reasoning that a land could be well identified finally by its boundary and if there was discrepancy between the plot No. and boundary with respect to a particular land then the description of boundary will prevail. Learned first appellate court, on the basis of evidence adduced in course of trial, came to specific finding that it was land appertaining to khesra No. 592 of Jamalpur mouza which was auction sold and not of khesra No. 598 and further the land of 592 was mortgaged and not of 598.

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Having perused the judgement of learned first appellate court, I am of the view that, after appreciation of evidence on record, it has come to a finding of fact and in exercise of power under section 100 of the Code of Civil Procedure, this court is not required to investigate the grounds on which the findings of fact were arrived at by the last court of fact, being the first appellate court, unless such findings are shown to be perverse or based on wrong application of law. Such is not the case in the present appeal. The Supreme Court in the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others reported in

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(1999) 3 SCC, 722 has held that if the first appellate court has given satisfactory reasons for reversing the findings of the trial court, the same cannot be interfered with. It also held that in a case where from a given set of circumstances, two inferences are possible, one drawn by the lower appellate court is binding on the High Court. Paragraph 5 of the said judgement is being quoted hereinbelow:-

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“5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous, being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence .”

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In view of above and in view of the Supreme Court

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judgement in the case of Santosh Hazari vs. Purushottam Tiwari,

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AIR 2001 SC 965 , I am of the view that the present appeal does not involve any substantial question of law.

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In the present case, I find that the reasoning of learned first appellate court suffers from no infirmity, while upsetting the findings of learned first appellate court. The judgement of learned first appellate court is based on its appreciation of relevant evidence available on record. On the basis of such appreciation, appraisal and assessment of the evidence available on record, leaned first appellate court came to its own finding and assigned reasons for setting aside the judgement of learned trial court. The judgement of learned first appellate court, therefore, cannot be said to be perverse warranting interference by this court. Learned first appellate court is the final court of facts and this court in exercise of power under section 100 of the Code of Civil Procedure cannot interfere with such finding if the same are shown to be perverse being in the absence of any evidence or contrary to evidence. In such view of the matter, I am not inclined to admit the present second appeal and it is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Chamru Yadav v. Tanuk Lal Yadav and Ors.

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Chamru Yadav v. Tanuk Lal Yadav and Ors.

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