Dismissed

Mt. Suryapati Devi and Ors. v. Mosmat Laxminia and Ors.

Patna HC7 Feb 2013SA/634/2010

Case brief

AI extract

What is this about?

The Patna High Court dismissed a second appeal challenging a partition decree. The bench held that the concurrent findings of fact by lower courts regarding the separation and re-union of family members, and the status of the property, were not perverse. The appeal did not raise a substantial question of law warranting interference under Section 100 CPC.

What did the court decide?

The second appeal is dismissed; the judgment and decree of the lower courts are affirmed.

Mt. Suryapati Devi and Ors. Vs Mosmat Laxminia… — Civil Procedure and Limitation | Patna HC (2013)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA

¶2

Second Appeal No.634 of 2010

¶3

=================================================== 1.Mt. Suryapati Devi 2. Fulmati Devi, All daughters of Late Funni Choudhary 3.Savitri Devi 4.Laxman Choudhary 5. Ram Janam Choudhary 6. Sheojee Choudhary 7. Shankerjee Choudhary 8. Mahanjee Choudhary 9.Ganesh Jee Choudhary 10. Mahaveer Choudhary, All are sons of Late Funni Choudhary Both minor sons of Late Funni Choudhary through appellant no.5 brother & natural guardian and nearest well wisher All above by Cast Ahir Profession Cultivation of VillTilimapur Pargana Pachalak, P.S.- Mairwa at present Nawtan P.O. Sahpur, District-Siwan. .... .... Appellant/s Versus 2. Satyaveer Yadav S/O Late Ishwar Dayal Choudhary, Residents of Vill-Tilimapur, Pargana Pachalakh P.S. Mairwa at present Nawtan P.O.-Sahpur, District-Siwan 2A Manju Devi Wife of Prabhu Nath Yadav of Vill- Harkhauli, P.O. + P.S. Meerganj, Distt-Gopalganj 2B Anju Devi Wife of Umesh Yadav of Village-Parari, P.O. Tekania, P.S. Guthani, Distt-Siwan 2C. Arati Kumari wife of Sunil Yadav 2D Fulmala Kumari Wife of Suneel Yadav, both daughters of late Ishwar Dayal Choudhary Both of present residents of vill-Tilimapur, paragana Pachalakh, P.S. Mairwa at present Nawtan P.O. Sahpur, Distt-Siwan. .... .... Respondent/s =================================================== Appearance : For the Appellant/s : Mr. Kaushal Kishore Mishra For the Respondent/s : Mr. =================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 8 07-02-2013 1. Heard learned counsel for the appellants. 2. The present appeal has been preferred under Section 100 of the Code of Civil Procedure and

¶4

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶5

2 / 12

¶6

has been placed for hearing under Order 41 Rule 11 of the Code of Civil Procedure. The appellants were plaintiffs before the trial Court and are aggrieved by the judgment and decree dated 27.7. 2010 and 13.8.2010 respectively, passed by the learned ADJ-I, Siwan in Title Appeal No. 88 of 1995, confirming the judgment and decree dated 7.8.1995 passed by learned Sub-Judge, Vth, Siwan in Title suit No. 159 of 1981.

¶7

The appellants had filed the title partition suit claiming half share in the suit property as mentioned in Schedule I of the plaint as also some agricultural items mentioned in Schedule II. The suit property is situated in village Tilmapur, Pragna Pochlakh, P.S.- Mairwa, District-Siwan.

¶8

Briefly stated, the case of the plaintiff before the Courts below was that Chhathu Choudhary had three sons, namely, Dawarika Choudhary (Defendant no.1), Phuni Choudhary ( Original Plaintiff No.1) and Dudh Nath Choudhary. The case of the plaintiff is that Dudh Nath Choudhary died before

¶9

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶10

3 / 12

¶11

filing of the suit. The admitted case of the plaintiff is that there was no ancestral land in the family and all the three sons of said Chhathu Choudhary earned their livelihood by serving in a Sugar Factory and acquired properties. Plaintiff however, pleaded that Dudh Nath Choudhary earned a lot from service and further that income of all the brothers were kept with defendant no.1 Dwarika Choudhary, treating him to be karta of the family. It had been pleaded that defendant no.1 was intelligent and so he dealt with all the properties. Dudh Nath Choudhary died issueless and according to him the properties thereafter devolved on the entire family. It was pleaded that the defendant no.1 intended to alienate the joint family property and the plaintiffs seeing foul intent sought for partition which was refused giving cause of action for institution of the suit.

¶12

Separate written statements were filed on behalf of defendants no.1 and 2. Defendant no.1 took a plea, inter alia, that daughters of Chhathu Choudhary, Dudh Nath Choudhary died joint with

¶13

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶14

4 / 12

¶15

defendants and separate from plaintiff and declined jointness of possession with the plaintiff. He denied to be the karta of the family and pleaded that after the death of his father he purchased properties in the name of his mother to appease her, from his own fund. He also took the plea that he purchased properties from his own independent income. Plaintiff no.1 also purchased properties from his own fund. There was no joint property nor jointly acquired and not ever thrown in common stock among sons of Chhathu nor was ever in joint possession. It was also pleaded on behalf of the defendants that in acquisition of the properties the said Dudh Nath Choudhary never contributed. Defendant no.2 daughter of Dwarika Choudhary supported the case of defendant no.1.

¶16

Learned Trial Court on the basis of the rival pleadings has framed eight issues including issue nos. 3 to 8 which read as follows:-

¶17

“III. Whether the separation took place amongst Dawarika Choudhary, Dudh

¶18

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶19

5 / 12

¶20

	Nath Choudhary, Funi
	Choudhary in the year 1935 as
	alleged by the defendant no.1?
IV.	Whether Dudh Nath
	Choudhary re-united with
	Dawarika Choudhary after separation?
V.	Whether Dudh Nath
	Choudhary died in the state of
	jointness with Dawarika
	Choudhary, Dudh Nath
	Choudhary and Funi
	Choudhary?
VI.	Whether the suit property are
	joint, acquiescence of
	Dawarika Choudhary, Dudh
	Nath Choudhary and Funi Choudhary?
VII.	Whether there is unity of title
	and possession between the
	parties with respect to suit
	property?
VIII.	Whether plaintiffs are entitled
	to decree as claimed?

¶21

Dealing with issue nos. 6 and 7 as quoted above by the learned trial Court on the basis of the evidence both oral and documentary as discussed in the judgment came to the finding that the plaintiffs could not establish any nucleus by stating as to what amount and when it was paid by Phuni Choudhary, Lachhman Choudhary or by Dudhnath Choudhary to defendant no.1 and further they were not able even to

¶22

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶23

6 / 12

¶24

give details of such acquisition. Learned trial Court recorded that there was no evidence to show as to what amount and when it was paid by the plaintiff to defendant no.1. Learned trial Court came to the finding, accordingly, that the suit properties were not in joint possession of Dwarika Choudhary, Dudh Nath Choudhary and Phuni Choudhary. While dealing with issue no.3 the trial Court held that separation had taken place in the year 1935 and decided the issue against the plaintiff.

¶25

Learned trial Court also held that in course of time Dudh Nath Choudhary had re-united with the defendant no.1 after separation.

¶26

Learned First appellate Court vide the impugned judgment concurred with the findings of the trial Court and dismissed the appeal. Learned first Appellate Court framed two points for consideration; firstly whether partition had taken place amongst Dawarika Choudhary, Dudh Nath Choudhary and Phuni Choudhary and whether there was re-union of Dwarika Choudhary, Dudh Nath

¶27

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶28

7 / 12

¶29

Choudhary and Phuni Choudhary after separation. Secondly whether the suit properties were joint acquisition of Dwarika Choudhary, Dudh Nath Choudhary and Phuni Choudhary. From the judgment of the first appellate Court, it appears that after considering the material evidence available on record which included oral and documentary evidence came to the finding that three brothers had separated in the year 1935 and after separation Dudh Nath Choudhary again re-united the defendant no.1. As regards the second point learned first appellate Court held that the suit properties were not joint acquisition of the Dwarika Choudhary, Dudh Nath Choudhary and Funi Choudhary, rather the same was self acquired property of Dwarika Choudhary out of his own earnings which he had acquired after separation.

¶30

Learned Counsel appearing on behalf of the appellants has vehemently argued that concurrent findings of fact by the Courts below to the extent that there was separation and subsequent re-union are perverse as there was no material available and no

¶31

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶32

8 / 12

¶33

evidence on record. He submits that the findings are based on misreading/misconstruction of the documents of title, this Court has a duty to interfere in exercise of power under Section 100 of the Code of Civil Procedure. He has placed reliance on paragraphs 13 and 19 of the said judgment. He has also placed reliance on a judgment of the Apex Court reported in AIR 2007 SC 2306 ( P. Chandrasekharan Vs. S. Kanakarajan) and AIR 2008 SC 2594 (State Bank of India. Vs. S. N. Goyal) on the scope of Section 100 of the Code of Civil Procedure. He also placed reliance on another judgment of this Court reported in 2010 (1) PLJR 940 ( Mostt. Kanti Devi vs. Narain Khawas) in order to contend that it is the duty cast upon the first appellate Court to examine pleadings and evidence on record and then determine the definite issues independently.

¶34

Learned counsel for the appellants has submitted that the learned first appellate Court without discussing the material on record dismissed the appeal.

¶35

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶36

9 / 12

¶37

On perusal of the two judgments of the Courts below, I find that the same cannot be said to be without any evidence or contrary to material available on record. Learned counsel for the appellants may be right in his submission that in the misreading, mis-interpretation or misconstruction of a document can involve substantial question of law, warranting interference under Section 100 of the CPC. However ,in the present case after going through the judgments of the Courts below, I am of the view that the dispute involves pure questions of facts. It has been repeatedly held by the Courts that the High Court would be slow in interfering with the concurrent findings of fact.

¶38

The scope of Section 100 of the CPC has been elaborately discussed by the Apex Court in the case of Gurdev Kaur vs. Kaki reported in (2007) 1 SCC 546, wherein the Apex Court issued a note of caution while exercising power under Section 100 of the CPC. Paragraphs 61, 62 and 63 are being quoted hereinbelow:-

¶39

“61. In the Fifty-fourth Report of the Law

¶40

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶41

10 / 12

¶42

Commission of India, it is incorporated that it may be permissible to point out that a search for absolute truth in the administration of justice, however, laudable, must in the very nature of things be put under some reasonable restraint. In other words, a hierarchy finality is absolutely important because that gives certainty to the law. Even in the interest of litigants themselves it may not be unreasonable to draw a line in respect of the two different categories of litigation where procedure will say at a certain stage that questions of fact have been decided by the lower courts and the matter should be allowed to rest where it lies without any further appeal. This may be somewhat harsh to an individual litigant; but in the larger interest of the administration of justice, this view seems to us to be juristically sound and pragmatically wise. It is in the light of this basic approach that we will now proceed to consider some of the cases which were decided more than a century ago.

¶43

62. The question could perhaps be asked, why the litigant who wishes to have justice from the highest Court of the State should be denied the opportunity to do so, at least where there is a flaw in the conclusion on facts reached by the trial court or by the Court of first appeal. The answer is obvious that even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. An unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury.

¶44

63. The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, insofar it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings

¶45

Patna High Court SA No.634 of 2010 (8) dt.07-02-2013

¶46

11 / 12

¶47

will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on questions of law.”

¶48

In case of Kulwant Kaur Vs. Gurdial Singh Mann (2001) 4 SCC 262 the Apex Court held that concurrent findings of fact should not be disturbed unless it is shown to be perverse. Similar view has been taken by the Supreme Court in the case of Bharatha Matha Vs. Vijaya Renganathan ( 2010) 11 SCC 483.

¶49

In the present case, I do not find any valid ground for interference since the judgments of the Courts below cannot be said to be without any evidence or contrary to evidence available on record. Further, this appeal does not involve any substantial question of law which requires determination by this Court in exercise of power under Section 100 of the Code and which has decided wrongly by the Courts below.

¶50