In a second appeal concerning title dispute over ancestral land, the High Court held that the lower appellate court was not liable to disturb the evidence-based findings on possession and title as they were neither perverse nor illogical under Section 100 of the CPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.292 of 2012
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.... .... Defendant 1st set party Respondents Appellant/s Versus
…Plaintiff-Appellants-Respondents 1st set
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Pandaul, Distt. - Madhubani 16. Md. Salim S/O Md. Liyakat R/O Vill. - Biraul Tola Palasbari, P.S. Pandaul, Distt. - Madhubani 17. Md. Mokhtar S/O Late Md. Gafoor R/O Vill. - Biraul Tola Palasbari, P.S. Pandaul, Distt. - Madhubani 18. Bibi Jubaida Khatoon W/O Late Md. Gafoor R/O Vill. - Biraul Tola Palasbari, P.S. Pandaul, Distt. - Madhubani 19. Bibi Jamila W/O Kalim, D/O Late Md. Gafoor R/O Vill. - Biraul Tola Palasbari, P.S. Pandaul, Distt. - Madhubani 20. Md. Kalim S/O Late Md. Liyakat R/O Vill. - Kanhauli, P.S. Jhanjharpur, Distt. - Madhubani 21. Bibi Halima W/O Md. Kalim R/O Vill. - Kanhauli, P.S. Jhanjharpur, Distt. - Madhubani 22. Mustakim ( Minor ) S/O Md. Kalim ( Natural Guardian ) R/O Vill. - Kanhauli, P.S. Jhanjharpur, Distt. - Madhubani 23. Mojabir ( Minor ) S/O Md. Kalim ( Natural Guardian ) R/O Vill. - Kanhauli, P.S. Jhanjharpur, Distt. - Madhubani 24. Md. Akhtar S/O Late Md. Gafoor R/O Vill. - Biraul Tola Palasbari, P.S. Pandaul, Distt. - Madhubani .... ....Defendants 2nd set/Respondent 2nd set ====================================================== Appearance : For the Appellant(s) Mr. Mahendra Pathak Mr. Nagendra Upadhyay ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 9 03-07-2014 Heard Mr. Mahendra Pathak in support of the appeal. The present appeal has been filed by the defendant(s) of the suit aggrieved by and dissatisfied with the judgment and decree dated 21.04.2012 and 27.04.2012, respectively passed by the Addl. District Judge, F.T.C. III, Madhubani in Title Appeal No. 10 of 2007 whereby the judgment and decree passed by the learned Munsif II, Madhubani in Title Suit No. 60 of 1999 was reversed in so far as schedule-II of the suit property/land. For the sake of convenience, the parties will be referred
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by their status at the trial.
The plaintiff(s) being the descendants of Sk. Ramjani filed the suit for declaration of their right, title and interest in respect of the land/property set out in schedule-II of the plaint which appertained to R.S. Plot No.1054 measuring an area of 8 katha 01 dhur. They also sought injunction permanently restraining the defendants from interfering with the possession stating therein, inter alia, that Sk. Akbar died leaving behind two sons namely Sk. Ramjani and Sk. Abdul who succeeded the property. They also acquired jointly some land under khata no.237 in the name of Sk.Ramjani and Sk. Abdul. Both the parties had equal share in those lands/properties. Until completion of cadastral survey both of them remained in joint possession. Sk. Ramjani died leaving behind two sons namely Md. Gafoor and Md. Sakur. Sk. Abdul died leaving behind three sons who partitioned schedule-I property half and half. The dispute here pertains to land in schedule-II in respect whereof it was pleaded that the land of survey plot no. 1054 fell in the share of Sk. Ramjani and as such the defendants had no right, title and interest over the said property.
The defendants filed written statement and contested the suit stating therein that after partition of plot no.1054 (schedule-II
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property) measuring a total area 16 katha 01 dhur, an area of 08 katha 01 dhur with other land was allotted to Sk. Ramjani and remaining 08 katha 01 dhur was allotted to the share of Sk. Abdul. Ramjani subsequently orally sold his share to Buniyadi for a consideration of Rs. 25/- and delivered possession. Buniyadi later executed mortgage deed (Ext.E) in favour of Sk.Ismail which was subsequently redeemed. Buniyadi sold the land of plot no.1054 to Rahman and Miyajan by sale deed (Ext.D) and delivered possession. Accordingly, Rahman and Miyajan, both sons of Sk. Abdul, got possession of entire area under plot no. 1054 i.e. 16 katha 01 dhurs.
The learned trial court noticed that the real dispute was the title and possession over schedule-II land. The court below thus proceeded to examine the rival claims of the parties in the light of the evidence adduced. The consideration made in this regard is found in paragraph 13 of the judgment. The court below heavily relied on the oral evidence to conclude that the plaintiff(s) failed to prove by cogent and reliable evidence their right, title and interest over the schedule-II land. The said issue framed by the learned trial court was answered against the plaintiffs. Be it noted that the learned trial court allowed the suit in respect of the land covered under schedule-I and III of the plaint.
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Aggrieved by the judgment and decree of the learned trial court the plaintiffs filed appeal vides Title Appeal No. 10 of 2007. Be it further noted that the defendants did not file any appeal. On perusal of the case of the parties the learned lower appellate court also found the solitary issue related to the claim and counter claim of the parties in relation to schedule-II land. Accordingly point no.1 was framed and considered in the light of the evidence both oral and documentary on record. On perusal of paragraph 11 of the judgment under appeal this Court finds that learned lower appellate court not only examined the case in the light of oral evidence adduced by the parties but also considered diverse documents placed on record by way of Exts. 1,2,3 and 4 and held that the case put up by the defendants that they acquired right, title and interest over the entire land appertaining to khata no.1054 was not proved. The land covered by schedule-II was equally partitioned between Sk. Ramjani and Sk. Abdul and the parties were found in possession of their respective portion/part of the suit land under khata no.1054. To reach this conclusion, the learned lower appellate court also referred to Ext. 3/A filed on behalf of the defendants to hold that the land covered therein did not touch the suit land(schedule-II land). The appellate court having extensively considered the evidence on record concluded
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that no part/portion of the land of plot no. 1054 was ever sold by Sk. Ramjani nor it was dealt with by Buniyadi at any point of time. Having held so, the finding of the learned trial court on this issue was reversed.
Learned counsel for the appellants urged that relevant evidence adduced on behalf of the defendants has not been considered in right perspective by the learned lower appellate court for reversing the finding(s) recorded by the learned trial court in respect of schedule-II land. It has also been contended that the finding with regard to possession over the suit land (scheduleII) recorded by the learned lower appellate court is contrary to the evidence on record.
I have considered the submissions and perused the judgment under appeal.
The learned trial court in order to decide the said point/issue mainly engaged itself in consideration of oral evidence whereas the learned lower appellate court while deciding the said point framed by it considered not only the oral evidence but also documentary evidence placed on record by both parties. It does not appear therefrom that any relevant evidence was ignored. The conclusion(s) derived by the court on consideration of evidence are not liable to be interfered with while
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exercising jurisdiction under section 100 of the Code of Civil Procedure until and unless the same is/are demonstrably shown to be wholly perverse or patently illogical.
This Court may refer in this connection to the case of Viddyadhar vs. Manik Rao, (1999) 3 SCC 573 and the case of Abdul Rahim vs. Karnataka Electricity Board, (2007) 14 SCC 138 wherein it has been held that the High Court in a second appeal should not disturb the findings of fact unless it is shown that they are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. Simply because another view based on evidence on record is possible the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. The contention(s) made by the counsel are not evident from the judgment under appeal.
The appeal is found devoid of merit. Dismissed.
(Kishore Kumar Mandal, J)
HR/-
U
2 issues framed by the court
Whether the findings of fact regarding title and possession of schedule-II land made by the lower appellate court are perverse under Section 100 of the CPC.
Whether the evidence adduced by the parties regarding the sale and transfer of the disputed land was properly evaluated by the trial and appellate courts.
Colour shows how this judgement treated each authority
Viddyadhar vs. Manik RaoReferred¶37
Viddyadhar vs. Manik Rao, (1999) 3 SCC 573 · Who else cites this
Abdul Rahim vs. Karnataka Electricity BoardReferred¶37
Abdul Rahim vs. Karnataka Electricity Board, (2007) 14 SCC 138 · Who else cites this
1 provisions across 1 enactments
Md. Jahoor
Md. Kayum
Hasbul Khatoon
Md. Ali
Md. Yakub
Md. Mannan
Kishore Kumar Mandal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
