Dismissed

Rama Shankar Giri and Ors. v. Sheojee Giri and Ors.

Patna HC2 May 2013SA/635/2011

Case brief

AI extract

What is this about?

In this second appeal regarding a title suit over disputed land, the Patna High Court dismissed the appeal. The court held that the appellants failed to formulate valid substantial questions of law and that the factual findings of the lower courts were not perverse or unsupported by evidence. The High Court refused to interfere with the concurrent findings of fact. The judgment states that no seco

What did the court decide?

The second appeal was dismissed, and the decree and judgment of the lower courts were upheld.

Rama Shankar Giri and Ors. Vs Sheojee Giri and Ors. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.635 of 2011

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====================================================== 1. Rama Shankar Giri 2. Vikrama Giri both sons of Late Dharichan Giri, resident of village Dhorha, P.O. & P.S. Raghunathpur, District Siwan .... .... Appellants Versus 1. Sheojee Giri S/o Late Sadhu Giri of village Dhorha P.O. & P.S. Raghunathpur, District Siwan 2. Badshah Giri S/o Late Giri resident of village, Dhorha, P.O. & P.S. Raghunathpur, District Siwan .... .... Respondents ====================================================== Appearance : For the Appellants : Mr. Kaushal Kishore Mishra, advocate For the Respondents : Mr.

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

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6 02-05-2013 Heard learned counsel for the appellants.

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The appellants were defendants before the trial court. They are aggrieved by the judgement and decree dated 24-08-2011 and14-09-2011 respectively, passed by learned Additional District Judge, Fast Track Court, 3, Siwan in T.A. No. 14/2008 whereby he dismissed the appeal preferred by these appellants and confirmed the judgement and decree dated 19-12-2007 and 14-01-2008 respectively, passed by learned 2^nd Munsif at Siwan in T.S. No. 177 of 1998.

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Respondent No.1 filed the suit being Title Suit No. 177 of 1998 for declaration of title over the suit property described as khata No. 105, survey plot No. 494, area 9 dhurs, as described in the plaint. Plaintiff/ respondent No.1 also claimed confirmation of his possession over the suit land and, in case of his dispossession, recovery of possession of suit land in his favour. The plaintiff claimed to be karta of joint Hindu family being heirs

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Patna High Court SA No.635 of 2011 (6) dt.02-05-2013

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of Sadhu Giri.

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As per plaintiff’s case, Ram Lagan Giri and Khakhuni Giri were full brothers who, after having partitioned the ancestral property in equal shares, came in possession over their respective shares before revisional survey operation. Ram Lagan Giri had three sons, namely, Dharichan Giri, Sadhu Giri and Kawleshwar Giri. Plaintiff and Satya Narayan Giri (since deceased) happened to be sons of late Sadhu Giri and plaintiff and sons of Late Satya Narayan Giri lived in jointness. Plaintiff was the karta of such joint family.

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The case of the plaintiff was that, after the death of Ram Lagan Giri, the agricultural and homestead land owned and possessed by Ram Lagan Giri were partitioned equally among the three brothers namely, Dharichan Giri, Sadhu Giri and Kawleshwar Giri with 1/3^rd share each. As per the plaintiff, Ram Lagan Giri was allotted 1 katha and 7 dhurs (27 dhurs) being half of 2 katha and 14 dhurs of the joint family consisting of Ram Lagan Giri and Khakhanu Giri. Ram Lagan Giri got the southern part of the said plot. 27 dhurs of land of the share of Ram Lagan Giri was partitioned among the three brothers namely, Dharichan Giri, Sadhu Giri and Kawleshwar Giri and they got 9 dhurs each. The plaintiff claimed that his father Sadhu Giri got his shares of 9 dhurs of homestead land (survey plot No. 494, khata No. 105) on the eastern side of which there was an old house which had collapsed 2-3 years back. The plaintiff asserted that he resided in Bahraich in connection with his business. The defendants had on several occasions approached him for selling his share of 9 dhurs which he had refused. He claimed that there were two huts over the suit land constructed by the plaintiff and the suit land was in possession of the plaintiff and his joint family.

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Patna High Court SA No.635 of 2011 (6) dt.02-05-2013

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As per the plaintiff’s case on 29-04-2005 the defendants removed the two huts and started doing foundation work over the suit land, owned and possessed by the plaintiff, which led to filing of the suit.

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The defendants appeared and filed their written statement. They took plea of maintainability of the suit on various grounds. The defendants did not deny the fact that Ram Lagan Giri got half share on the southern side of the plot and he died leaving behind his three sons, namely, Dharichan Giri, Sadhu Giri and Kawleshwar Giri. They also did not deny the fact that after death of Ram Lagan Giri, his three sons partitioned the property. According to them, father of plaintiff, Sadhu Giri, got his share in middle whereas Dharichan Giri got his share in the eastern side and Kawleshwar Giri in the western side. The defendants, however, disputed the plaintiff’s case that the plaintiff and family of his brother Satya Narayan Giri were in the state of jointness and, according to them, the share allotted to them was also partitioned between Shivaji Giri and Satya Narayan Giri. Shivaji Giri got his share in western side whereas Satya Narayan Giri on the eastern side of share of Sadhu Giri. The defendants contended that Satya Narayan Giri died leaving behind his three sons and two daughters. The sons of Satya Narayan Giri lived in Assam and as the defendants required land for the purpose of shop, with the permission of sons of Satyanarayan Giri, the defendants constructed a pucca house facing south over 4½ dhurs. The defendants further contended that Shivaji Giri also lived in Bahraich, his share of 4½ dhurs had been orally purchased by heirs of Kawleshwar Giri and they constructed house over the said land. According to defendants, there was no land measuring 9 dhurs left over the disputed plot.

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Patna High Court SA No.635 of 2011 (6) dt.02-05-2013

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From the judgements of learned trial court, it appears that after filing of the written statement the defendants/appellants left doing the pairvi in the suit. However, on the basis of rival pleadings, the trial court framed altogether six issues. Issue No. v which is most crucial issue for the purpose of adjudication is being quoted hereinbelow:-

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“(v) Whether the plaintiff has title in relation to the disputed land? If yes whether the plaintiff is entitled for recovery of possession?”

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As the defendants did not appear before the trial court, after filing written statement, learned trial court proceeded ex parte in terms of Order 17 Rule 21 of the Code of Civil Procedure.

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In course of ex parte trial, the plaintiff led evidence in support of his case. Learned trial court, on the basis of evidence adduced in course of trial, came to a conclusive finding, particularly, in view of the fact that no counter evidence was adduced on behalf of the defendants, that the plaintiff had title over the suit property which was illegally encroached upon by the defendants and that the plaintiff was entitled for recovery of possession and, thus, decided the issue No. v in favour of the plaintiff. The decree was, accordingly, passed in favour of the plaintiff by learned trial court. Thereafter, the appellants herein preferred appeal under section 96 of the Code of Civil Procedure.

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From the judgement of learned first appellate court, it appears that, on the basis of appraisal of evidence on record, it concurred with the findings of fact arrived at by learned trial court. Learned first appellate court appears to have assessed the oral evidence as well as documentary evidence adduced on behalf of the plaintiff before concurring with findings of fact.

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Learned counsel for the appellants referring to the

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Patna High Court SA No.635 of 2011 (6) dt.02-05-2013

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memo of appeal has raised 15 questions of law which, according to him, are substantial questions of law which are quoted hereinbelow:-

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“(i) Whether or not the Ist appellate court has singularly failed to apply its independent mind to omissions misreading misinterpretation and improper appreciation of evidence on record.

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(ii) Whether or not the judgement of Ist appellate court is based on assumption and presumptions and non consideration of oral documentary and circumstantial evidence on record sufficient enough to reverse the findings and judgement arrived at by it.

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(iii) Whether or not the findings of learned Ist appellate court misconsidering the evidence and without considering and meeting the findings of trial court are wholly perverse being unsupported by evidence on record and are compelling enough for interference.

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(iv) Whether or not the Ist appellate court has arrived at the conclusion disregarding the material evidence and circumstances on record particularly in view of the fact that the plaintiff has to stand on his own legs and witnesses of defendant’s of no help to him.

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(v) Whether or not the abdication of powers of Ist appellate court u/s 96 of C.P.C. under the judgement and decree of Ist appellate court unreasonable renders the judgement without jurisdiction and a nullity.

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(vi) Whether the impugned judgement is in consonance with settled law and findings in conformity with judicial pronouncement on issue.

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(vii) Whether or not the judgement of Ist appellate court

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is perverse and unsustainable for being against the weight of evidence and circumstances governing the case.

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(viii) Whether conclusive circumstantial evidence can be vanished away to support dishonest plaintiff/ respondents on the basis of a cryptic judgement.

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(ix) Whether or not the mode of partition given by plaintiff/ respondents illusory absurd misleading and baseless compelling the Ist appellate court to believe the case of present appellant.

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(x) Whether or not conduct of appellant was a sufficient justification to hold that defendant appellants deserves to get an opportunity to adduce evidence allowing remanding the appeal setting aside the judgement and decree of learned trial court in ends of substantial justice on weagna cost.

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(xi) Whether the courts below were legally justified to base their case on pleadings in written statement in an ex parte hearing.

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(xii) For that the learned Ist appellate court ought to have held that claim of respondents in plaint para 4/6 are contradictory and thus unbelievable and absurd.

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(xiii) For that the Ist appellate court ought to have held that the suit in fact had inherent defects of nonjoinder of necessary parties and R.S. entry bellies the claim of plaintiff/ respondents.

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(xiv) For that the learned Ist appellate court ought to have held that plaintiff/ respondents have singularly failed to prove than case the oral and documentary evidence stands no where on test and is absurd vexatious and perverse.

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(xv) Whether the courts below have observed the tilting onus one way or the other and reached bonafide conclusion with sound reasonings in the circumstances of this case.” (quotes are

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Patna High Court SA No.635 of 2011 (6) dt.02-05-2013

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verbatim)

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From a bare perusal of such questions, formulated in the memo of appeal, it appears that the same cannot be said to be even questions of law, much less substantial questions of law. The substantial questions of law formulated in the memo of appeal do not even refer to specific instances or findings by the courts below which, according to appellants, has been wrongly decided by the courts below.

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Before stating the scope and limitation of Section 100 of the Code of Civil Procedure against concurrent findings of fact by the courts below, I would like to refer to the dispute involved in the present case.

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There is no dispute over certain important facts. It is admitted that the plaintiff’s father got 9 dhurs as his share equally with Kawaleshwar Giri and Dharichan Giri. The defendants did not dispute the fact that the plaintiff was son of Sadhu Giri. The only claim which the defendants raised in their written statement was that the defendants with the permission of heirs of Satya Narayan Giri constructed house over 4½ dhurs whereas Kawaleshwar constructed house over the portion which according to defendants allotted to Shivaji Giri, the plaintiff. Title of the plaintiff and sons of Satya Narayan Giri is not in any dispute. Findings of the court below in such circumstances cannot be said to be perverse.

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This is to be noted that the plaintiff claimed jointness in the family and among heirs of Sadhu Giri and there was no evidence before the trial court to have a different view.

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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

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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 587; 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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In view of above, I find that the findings of fact arrived at by the trial court or the first appellate court cannot be faulted with. I do not find any merit in the present second appeal and it is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Rama Shankar Giri and Ors. v. Sheojee Giri and Ors.

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Rama Shankar Giri and Ors. v. Sheojee Giri and Ors.

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