Dismissed

Panchu Mahto @ Yadav and Ors. v. Meera Devi and Ors.

Patna HC8 Jul 2014SA/246/2012

Case brief

AI extract

What is this about?

The Patna High Court dismissed the second appeal in a title suit regarding property partition. The court held that concurrent findings of fact by lower courts were supported by evidence and no substantial question of law arose for interference.

What did the court decide?

The second appeal is dismissed as it does not raise any substantial question of law meriting admission.

Panchu Mahto @ Yadav and Ors. Vs Meera Devi and Ors. — Partition | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.246 of 2012

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Panchu Mahto @ Yadav S/O Late Sardai Mahto Resident Of Village- Gangti, P.S- Dhoraiya, P.O Bijay Hatvia Phunsiya, DistrictBanka.

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Gobardhan Yadav S/O Late Sardari Mahto Resident Of VillageGangti, P.S- Dhoraiya, P.O Bijay Hatvia Phunsiya, District- Banka.

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Janardhan Yadav S/O Late Sardari Mahto Resident Of VillageGangti, P.S- Dhoraiya, P.O Bijay Hatvia Phunsiya, District- Banka.

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Sukhdev Yadav S/O Late Darbeshi Yadav Resident Of VillageGangti, P.S- Dhoraiya, P.O Bijay Hatvia Phunsiya, District- Banka.

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Chhabinath Yadav S/O Late Darbeshi Yadav Resident Of VillageGangti, P.S- Dhoraiya, P.O Bijay Hatvia Phunsiya, District- Banka.

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Wakil Yadav S/O Late Darbeshi Yadav Resident Of VillageGangti, P.S- Dhoraiya, P.O Bijay Hatvia Phunsiya, District- Banka.

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Mosomat Chhangu Devi W/O Late Darbeshi Yadav Resident Of Village- Gangti, P.S- Dhoraiya, P.O Bijay Hatvia Phunsiya, DistrictBanka.

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.... .... Appellant/s

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Versus

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Meera Devi W/O Late Jagdish Mahto Resident Of Village- Gangti, P.S- Dhoraiya, P.O- Bijay Hatvia Phunsiya, District- Banka.

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Smt. Shanti Devi D/O Late Jagdish Mahto And W/O Kailash Yadav Resident Of Village- Jhaka, P.O- Sri Pather, P.S- Dhoraiya, DistrictBanka.

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Parmila Devi D/O Late Jagdish Mahto And W/O Jagdish Yadav Resident Of Sankhapra, P.O- Sripather, P.S- Dhoraiya, DistrictBanka.

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Kabita Devi D/O Late Jagdish Mahto And W/O Binay Yadav Resident Of Village- Bagduma, P.O- Bagdumavia Bounsi, DistrictBanka.

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Sabita Devi D/O Late Jagdish Mahto And W/O Dipo Mahto Resident Of Village Bhelai, P.O- Bhelai, P.S- Dhoraiya, DistrictBanka.

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Mahadeo Yadav S/O Late Ajabi Mahto Resident Of Village- Gangti, P.O- Bijayhat, P.S- Dhoraiya, District- Banka.

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Jogi Yadav S/O Late Jagdish Yadav Resident Of Village- Gangti, P.O- Bijayhat, P.S- Dhoraiya, District- Banka.

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Dhananjay Yadav S/O Jagdish Yadav Resident Of Village- Gangti, P.O- Bijayhat, P.S- Dhoraiya, District- Banka.

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Shashikant Yadav S/O Jagdish Yadav Resident Of Village- Gangti, P.O- Bijayhat, P.S- Dhoraiya, District- Banka.

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Biran Yadav S/O Jagdish Yadav Resident Of Village- Gangti, P.OBijayhat, P.S- Dhoraiya, District- Banka.

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Subodh Yadav S/O Mahadeo Yadav Resident Of Village- Gangti,

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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P.O- Bijayhat, P.S- Dhoraiya, District- Banka.

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Arbind Yadav S/O Mahadeo Yadav Resident Of Village- Gangti, P.O- Bijayhat, P.S- Dhoraiya, District- Banka.

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Mohan Yadav S/o Mahadeo Yadav, Resident Of Village- Gangti, P.O- Bijayhat, P.S- Dhoraiya, District- Banka.

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... Respondent/s

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Appearance: For the Appellant/s : Mr. Ganpati Trivedi, Advocate For the respondent/s :

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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL

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ORAL ORDER

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5 08-07-2014

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Plaintiffs are the appellants. The appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 28-02-2012 and 21.03.2012 respectively passed by the learned Additional District Judge, Fast Track Court-I, Banka in Title Appeal No. 110 of 2006/Suppl. Trial Register Sl. No. of 2012 affirming the judgment and decree dated 27.05.2006 and 12.06.2006 respectively passed by the learned 3^rd Sub-Judge, Banka in Title Suit No. 35 of 2000.

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For the sake of convenience this Court would refer the parties as they stood at the trial of the suit.

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The plaintiffs filed Title Suit No. 35 of 2000 praying for the following relief(s):-

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(i) That they have absolute right, indefeasible title, valid interest and peaceful exclusive ownership over the land detailed in schedule-D & E suit property respectively.

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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(ii) The revisional survey entries and consolidation record of rights in respect to suit lands is wrong, incorrect, null, void, inoperative not binding the plaintiffs.

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(iii) That the sale deed dated 17.05.1960 executed by Darveshi Mahto in favour of Mostt. Sukho Devi in respect of 1.32 acres of land of Plot no. 340 of Khata no. 11 Kha ( Ext-2), is illegal and not binding on the plaintiffs.

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Before narrating the case of the parties, it may be noticed that according to the case of both the parties, one Suddhu Mahto was their common ancestor. Suddhu Mahto had three sons, namely, Sardari Mahto (ancestor of plaintiff 1^st set), Darbeshi Mahto ( ancestor of plaintiff second set) and Ajabi Mahto (ancestor of defendants) and they had in common one acre forty seven decimals ( 1.47 acres) of land acquired through HUKUMNAMA and six acre twelve decimals (6.12 acres) of land acquired through Kabuliyat (Ext.3). According to the plaintiffs their family had 5.36 acres of khatiyani land whereas according to the defendants they had five acres 22 and ½ decimals of Khatiyani land and 23 decimals of land acquired through sale deed. Seen thus, while according to the plaintiffs their family had total 12.95 acres of land whereas according to the defendants their family had 13.4 & ½ acres of land. According to the plaintiffs all the three brothers jointly sold 1.97

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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decimals of land to one Ram Prasad Mahto and 07 decimals of land to one another person, in total 2.04 acres of land in 1957 leaving behind 12.95-02.04 =10.91 acres of land, which was subsequently partitioned amongst themselves after 1957. In partition while defendants got 3.65 acres of Schedule-A land, plaintiffs 1^st and 2^nd set each got 03.63 acres( embodied in Schedule-B and C). The defendants cunningly during the revisional survey and consolidation operation got part of Schedule-B lands recorded in their names although the said land belonged to the plaintiffs 1^st and second set fully described in Schedule- D and E of the plaint. It is further the case that Jagdish Mahto S/o Ajabi Mahto fraudulently got the sale deed dated 17.05.1960 (Ext.2) executed in favour of his mother Sukho Devi who had not executed the same, hence the suit.

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The defendants contested the suit. In their written statements it was stated that the partition between the three brothers had actually taken place sometimes in or about 1945 in which out of total 13.04 and ½ acres of land, according to convenience and valuation defendants’ ancestor Ajabi Mahto got 04.76 acres whereas plaintiffs 1^st party’s ancestor namely Sardari Mahto got 04.03 acres of land and the ancestor of the plaintiffs’ second party, namely Darveshi Mahto got 04.25 acres of land. Since the date of partition amongst themselves the plaintiffs and

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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defendants are exclusively dealing with lands of their respective shares. Further case of the defendants was that in the sale deed dated 17.05.1960 (Ext.2) Darveshi Mahto, father and husband of defendant second party was the identifier. Since the partition took place in 1945 there was no question of sale of total 02.04 acres of land falling in the share of plaintiffs jointly with the defendants. However, since the vended land originally belonged from the stock of land acquired through HUKUMNAMA in the name of Ajabi Mahto and there was no registered deed of family partition of the ancestral land and allotment of the said lands exclusively in the share of the vendor( plaintiff), therefore, the purchaser agreed to purchase the land executed through Jagdish Mahto and Mahadeo Mahto sons of Ajabi Mahto also. Therefore, in order to help in redemption and adjustment of mortgage money of mortgage vide Ext-C executed by Sardari and Darveshi, ancestor of plaintiffs 1^st and 2^nd set, the defendants joined as executor in the sale deed dated 19.07.1957 for 1.36 acres of land of plot no. 335 of khata no. 30 ka and 02 decimals of land of plot no. 56 of khata no. 01 without sharing in the proceeds thereof. Similar arrangement was made in execution of the another sale deed on the same day through which 61 decimals of land equivalent to 1 bigha 02 katha and 09 dhur was sold vide Ext. 2/A. Darveshi Mahto ancestor of plaintiffs’ 2^nd party

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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further sold 7.25 acres of land of plot no. 404 of khata no. 12 kha ( 1/3^rd of total 23 decimals of land) acquired through sale deed out of grand total of 13.04 and ½ acres which belonged to the joint family to Baldeo Panjiyara on 21.10.1957 (Ext. C/1). It was, thus, contended by the defendants that the plaintiffs turned dishonest and taking benefit of joint execution of Exts. 2/A and 2/C and concealing sale of his share of land through Ext. C/1 filed the suit. The defendants further contended that the sale deed dated 17.05.1960 executed by the Darveshi Mahto in favour of Smt. Sukho Devi in respect of 01.32 decimals of land of plot no. 340 under khata no. 11 kha (Ext.2) is valid, legal and operative and for consideration. According to the defendants, on the same day Ext. 2/B was also brought into existence in which Radha Krishna Singh is the identifier.

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The learned trial Court, on a consideration of the rival pleadings of the parties, formulated diverse issues of which issue nos. IV, V and VI being the core issues are noticed hereunder:-

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“Issue no. IV-whether the plaintiffs have absolute right, indefeasible title and valid interest over the suit land as given in schedule-D and E of the plaint?

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Issue no. V-Are the revisional survey and chakbandi entry with respect to suit land in the name of the defendant correct, legal and valid?

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Issue no. VI- Is the sale deed purported to have been executed by

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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Derveshi Mahto, father of plaintiff no. 4,5 & 6 in favour of Mostt. Sukho Devi with respect to the suit land measuring 01.32 acres detailed in schedule-E of the plaint, legal valid or illegal, null and void, without consideration, obtained by fraud and fit to be declared void and not binding on the plaintiffs?”

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The parties were allowed to lead evidence both oral

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and documentary.

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The plaintiffs examined seven (07) witnesses besides placing on record diverse papers/documents. Similarly, the defendants also adduced oral evidence of eight (08) DWs and brought on record several documents. The learned trial Court upon conspectus of evidence on record decided all those issues in favour of the defendants and against the plaintiffs. Resultantly, the suit was dismissed. Aggrieved by the judgment and decree passed by the learned trial Court the plaintiffs filed appeal vide T.A. No 110 of 2006. Learned trial Court considered the case of the parties and found that the first and foremost issue involved in the appeal was the consideration of the fact whether the partition through family arrangement amongst the three brothers had taken place in or around 1960 or in or around 1945 as pleaded by the defendants. Other issues found dependent on the consideration of the said issue. Having held so, the learned lower appellate Court re- appraised the evidence on record and

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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found that none of the witnesses adduced on behalf of the plaintiffs had even stated the year of partition. Even the plaintiff no.1 in paragraph no. 23 clearly conceded that he is unable to say in which year the partition had taken place between his father and his brothers. The case put forth by the plaintiffs was , therefore, not found substantiated. Turning to the evidence of the defendants the lower appellate Court found that DW-6 considering his age was the competent witness who had clearly deposed that partition between the father and uncles of the plaintiff had taken place in 1945 and they were since then separated completely. In his cross-examination nothing fruitful was elicited by the plaintiffs. The learned lower appellate Court then appreciated the documentary evidence produced on record by the parties and found that Exts.–C and C/1 clearly demonstrated separation in the family and exclusively dealing of the share by the three brothers. Having re-considered the evidence in the light of the core issues raised by the appellant in the appeal the learned trial Court concurred with the findings of fact recorded by the learned trial Court for non suiting the plaintiffs. Aggrieved by the judgment and decree rendered by the learned lower appellate Court the present appeal has been filed.

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Heard Mr. Trivedi for the appellants and perused the judgment(s) under appeal.

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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Learned counsel for the appellants contended that there is no dispute between the parties with regard to factum of partition. The dispute is only with regard to the year of partition. The Courts below erred in placing the onus on the plaintiffs to prove that the partition in the family had taken subsequent to 1945. It has next been contended that the evidence of the plaintiffs have not been considered by the Courts below in right perspective keeping in focus the pleadings of the parties and the reliefs claimed.

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In my view, none of the above contention of the appellants, in the facts and circumstances of the case, raise a substantial question of law for consideration in the present appeal. The Courts below have rightly approached the case in considering whether the case put forth by the plaintiffs has been proved by cogent and reliable evidence or not ? Conclusions derived by both the Courts below on a consideration of the evidence brought on record by the parties would not be considered as a substantial question of law until and unless the same are demonstrably shown to be perverse. The two Courts below have concurrently decided on all the core issues against the plaintiffs. This Court is, therefore, unable to find any merit in the appeal. It is by now well-settled proposition of law that when there is concurrent findings of fact of both the Courts below on

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Patna High Court SA No.246 of 2012 (5) dt.08-07-2014

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core issues, the High Court shall have no jurisdiction to interfere therewith in the second appeal. Reference in this regard be made to the case of Vidhyadhar vs. Manikrao & Anr. 1999(3) SCC 573 and Abdul Raheem vs. Karnataka Electricity Board & Ors. (2007)14 SCC 138 wherein the Apex Court expressed a note of caution that the High Court in second appeal should not disturb the concurrent findings of fact unless those findings are shown to be perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. Simply because any other view is possible on the basis of the evidence it would be unjust on the part of the High Court to exercise the jurisdiction under Section 100 of the C.P.C.

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In the light of my discussions made hereinabove, this court does not find the appeal raising any substantial question of law meriting its admission for hearing. The appeal is dismissed.

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(Kishore Kumar Mandal, J)

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Shyam/-

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U T

Panchu Mahto @ Yadav and Ors. v. Meera Devi and Ors.

Case brief

What is this about?

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Panchu Mahto @ Yadav and Ors. v. Meera Devi and Ors.

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