Dismissed

Jag Narain Pd. Sah and Ors. v. Most. Shanti Kunwar and Ors.

Patna HC23 Jul 2014SA/110/2011

Case brief

AI extract

What is this about?

This is a first appellate order dismissing an appeal under Section 100 CPC. The court affirmed the subordinate courts' finding that the plaintiffs retained title and possession of the land via a Sada Hukumnama and that the defendants' deed of gift was invalid due to lack of possession by the donor. No substantial question of law was found.

What did the court decide?

The second appeal was dismissed with no substantial question of law found.

Jag Narain Pd. Sah and Ors. Vs Most. Shanti Kunwar and Ors. — Partition | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.110 of 2011

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Jag Narain Prasad Sah, son of Late Satya Narain Sah.

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Raj Kumar Sah, son of late Ganga Sah.

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Sunil Sah, son of late Ganga Sah.

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Pabitra Kunwar, wife of Late Ganga Sah.

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Nos. 1 to 4 are residents of village Pachaina Bazar, P.S.- Koilwar, District- Bhojpur. .... .... Appellant/s

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Versus

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Most. Shanti Kunwar, wife of late Bishwanath Sah.

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Hari Nath Sah, son of Late Bishwanath Sah

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Gopal Sah, son of late Bishwanath Sah

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Rameser, son of late Bishwanath Sah.

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Nos. 1 to 4 are residents of village Pachaina, P.S.- Koilwar, P.O.- Naya Mohammadpur, District- Bhojpur

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Most. Mukhchani Kuer, wife of late Bishwanath Sah, daughter of Bishwanath Sah, resident of village Dhandiha, P.S.- Koilwar, P.O.Dhandania, District- Bhojpur.

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At present residents of Mohalla Nawada-Ara, P.S.- Ara-Nawada, Near Thana Nawada, P.O.- Nawada, District- Bhojpur.

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Bimla Devi, daughter of late Bishwanath Sah, wife of Rajendra Prasad, resident of village Garh Devi, Mohalla, P.O.- and P.S.- Garhwa, District- Garhwa (Jharkhand).

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Rajendra Sah

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Chandrama Prasad.

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Nos. 7 and 8 are sons of Ram Awatar Sah, residents of Sirpalpur, P.S.Koilwar, District- Bhojpur.

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Shyam Narain Sharma, son of Late Daroga Sharma, resident of Barka Chanda, P.S.-Koilwar, P.O.- Katkaira, District- Bhojpur.

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The State of Bihar through Collector, Bhojpur at Arrah.

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Anchal Adhikari, Koilwar Block, Koilwar, District- Bhojpur.

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.... .... Respondent/s

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====================================================== Appearance :

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For the Appellant/s : Mr. Anish Chandra Sinha For the Respondent/s : Mr. Yogendra Prasad Sinha

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====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER

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7 23-07-2014 Heard Mr. Anish Chandra Sinha in support of the appeal. Mr. Yogendra Prasad Sinha appeared on behalf of the respondents to submit that the appeal does not raise any

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Patna High Court SA No.110 of 2011 (7) dt.23-07-2014

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substantial question of law.

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The defendants 3^rd set have filed the present appeal under Section 100 of the Code of Civil Procedure aggrieved by the judgment and decree dated 21.12.2010 passed by learned Addl. District Judge-cum-F.T.C.-IV, Bhojpur at Ara in T.A. No. 1 of 2002 affirming the judgment and decree dated 22.10.2001 and 7.11.2001 respectively passed by learned Munsif, Ara in T.S. No. 3 of 1988.

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The plaintiffs/respondent(s) filed the suit for declaration of their right, title and possession and also confirmation of possession over the land/property set out in Schedule-I of the plaint bearing Khata no. 128, Plot no. 129 measuring an area of 17 decimals which was recorded as Gair Mazarua Mallik land. Since the father of the plaintiff was occupying the same, the Ex-landlord after taking Nazrana settled the same by a Sada Hukumnana on 25^th Ashwin 1340 fasli in favour of father of the plaintiffs. The suit land continued in possession of the father of the plaintiffs and thereafter the plaintiffs who constructed house and shop over the same. During the revisional survey, while the plaintiff(s) was residing outside the State, the suit land was recorded as Anawad Bihar Sarkar showing possession of one Ramawtar Sah, father of defendant nos.

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Patna High Court SA No.110 of 2011 (7) dt.23-07-2014

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1 and 2. Finding such entry wrong and erroneous since the plaintiffs remained throughout in possession of the land right from the day of settlement thereof, he fought litigation(s) for correction thereof. Having failed in the attempt, the suit was filed for the reliefs noted hereinabove.

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The appellants-defendants 3^rd set contested the suit and filed written statement disputing the case put up by the plaintiff(s). According to them, the father of the plaintiffs had no concern with the suit land and the story of settlement is false. The further case of the defendants was that Daroga Mistry, original defendant no. 3, had taken the suit land on settlement from the Exlandlord in the year 1342 fasli after paying Nazrana and came in possession thereof. The rent receipts were also granted by the Exlandlord. At the time of vesting of zamindari, the return was also filed in the name of Daroga Mistry. Subsequently, aforesaid Daroga Mistry transferred the suit land to the contesting defendants by virtue of a deed of gift dated 13.1.1986 (Ext.C) which was followed by another registered document effecting correction in the details of the deed of gift. During revisional survey, the suit land was recorded as Anawad Bihar Sarkar which again was wrong and erroneous. The Zamabandi Case no. 22/1971-72 was, therefore, filed by Daroga Mistry which was

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allowed and the suit land was mutated in his name. In sum and substance, the case of the contesting defendants was that the suit land neither belonged to the plaintiff(s) nor to the State of Bihar rather it was the property/land of the Daroga Mistry who transferred the same in favour of the appellants-defendants by a deed of gift.

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On a consideration of pleadings of the parties, the learned Trial Court formulated diverse issues and the parties were permitted to lead evidence. On a consideration of the evidence on record, the learned Trial Court answered all the core/crucial questions arising in the case in favour of the plaintiffs and the suit was decreed. Aggrieved thereby, the defendants-appellants filed appeal vide T.A. No. 1 of 2002. The learned Lower Appellate Court on a consideration of the case of the parties and the submissions made by the appellants, formulated three points which are lifted verbatim and extracted hereinbelow:

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“I. Whether it has rightly been decided by the learned court below that plaintiff has got subsisting right title and possession over the suit land?

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II. Whether the court below rightly decided that the deed of gift said to be executed in favour of deft/appellant is void, inoperative and hit with provision of section 32 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act?

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III. Whether the court below has rightly decreed the suit granting reliefs in favour of

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Patna High Court SA No.110 of 2011 (7) dt.23-07-2014

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plaintiff?”

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The learned Lower Appellate Court permitted the defendants-appellants to place on record some more documents (Ext.D and E series) and considered the case in the light of evidence on record. The learned Lower Appellate Court found that the defendants had not produced any receipt issued by the Exlandlord in 1342 fasli which was the case put up by the defendants. The rent receipts produced by the defendants pertained to only 3 decimals of land whereas the suit land measured 12 decimals. Although the defendants put up a case that the Zamindar had filed return in the name of defendant Daroga Sharma @ Daroga Mistry but no such document was produced at the trial. The learned Lower Appellate Court further considered the deed of gift which did not recite conveyance of possession inasmuch as the creator thereof namely Daroga Sharma had not been examined by the defendants to support the stand of the defendant that he continued in possession of the suit land and after executing the deed of gift (Ext.3), the possession of the suit land was also handed over to the defendants 3^rd set. On appraisal of the oral and documentary evidence adduced/produced by the parties, the learned Lower Appellate Court, like the Trial Court, came to similar conclusion that the plaintiffs remained throughout in

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possession of the suit land. Turning to the case of the plaintiff, the learned Lower Appellate Court found that Sada Hukumnama can be taken into consideration to find whether settlement followed by possession was made by the Ex-landlord. Be it noted that the counsel for the appellants has not disputed the legal proposition that the title can pass through Sada Hukumnama on payment of Nazrana followed by delivery of possession. The learned Lower Appellate Court found that Ext.-1 did indicate that the suit land was settled in favour of the father of the plaintiffs inasmuch as possession was also delivered. The oral evidence also demonstrated that the plaintiffs and before them their father was in possession of the suit land following settlement thereof made by the Ex-landlord in the year 1340 fasli. The learned Lower Appellate Court, thus, held that the plaintiffs had subsisting right, title and possession over the suit land. Similarly, point no. (II) was also answered in favour of the plaintiff(s). The deed of gift (Ext.C) was not found valid since the maker thereof was not found having any subsisting right or title in the suit land which was conveyed under the deed of gift. The donee as well as the donor was not found in possession of the suit land. The contention of the defendants that the dispute between the parties stood settled by the order of the Consolidation Officer was also found not acceptable

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Patna High Court SA No.110 of 2011 (7) dt.23-07-2014

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considering the fact that the suit land was homestead land over which the Consolidation Authority had no jurisdiction to adjudicate. Having held so, the said point was also answered in favour of the plaintiff(s). Resultantly, the appeal was dismissed and the findings on all crucial issues rendered by the learned Trial Court was/were affirmed.

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Mr. Sinha, learned counsel for the appellants has submitted that after having permitted the appellants to produce some more documents in the shape of Ext.D and E series, the learned Lower Appellate Court ought to have remitted the case to the learned Trial Court for recording fresh finding in the light of documents which were crucial in nature to decide the dispute. It has further been submitted that the findings of the Courts below are contrary to the evidence on record.

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I have considered the submissions of Mr. Sinha and perused the judgment(s) under appeal. There is concurrent findings of both the Courts below that the settlee (ancestors of the plaintiffs) continued in possession of the suit land after settlement of the suit land by Sada Hukumnama (Ext.1). The specific case pleaded by the defendants was not found proved by cogent/reliable evidence. The learned Lower Appellate Court in order to do justice between the parties permitted the defendants-appellants to

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produce some documents on record which were considered in the light of evidence already on record and the points formulated by the learned Trial Court were answered against the defendantsappellants. The concurrent findings on the point of subsisting title and possession of the plaintiff(s) and the legal defect in the deed of gift (Ext.C) cannot be interfered with by this Court until and unless they are shown to be perverse. The limitation of this Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure have been appropriately adumbrated by the Hon’ble Apex Court in the case of D. Pattabhiramaswamy vs. S. Hanymayya AIR 1959 SC 57 . This Court would have no jurisdiction to entertain Second Appeal even if the findings of fact are shown to be erroneous.

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For the reasons noted above, this Court does not find

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the appeal raising any substantial question of law.

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Consequently, the appeal fails and it is dismissed.

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(Kishore Kumar Mandal, J)

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Pankaj/-

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