Dismissed

Sheo Mangal Sharma v. Sipahi Singh and Ors.

Patna HC17 Jul 2014SA/542/2011

Case brief

AI extract

What is this about?

This second appeal challenging property and partition judgments was dismissed. The bench held that the lower courts did not commit any legal flaw in considering evidence regarding possession and that the limitation arguments were legally defeated, finding no substantial question of law.

What did the court decide?

Second appeal dismissed; the judgment and decree of the learned lower appellate Court are confirmed.

Sheo Mangal Sharma Vs Sipahi Singh and Ors. — Partition | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.542 of 2011

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Sheo Mangal Sharma son of Late Dipa Sharma Resident of village Bal Chandwa, P.S. Bikramganj, District Rohtas at present residing at Village and P.O. and Police Station Sanjhauli, Dist. Rohtas

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.... .... Defendant/Appellant/ Appellant/s Versus

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Sipahi Singh son of Ram Lakhan Singh

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Ayodhaya Singh

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Lallu Singh Both are sons of Sipahi Singh, resident of village Bal Chandwa, P.S. Bikramganj,P.O. Jonhi, Via Bikramganj District Rohtas …. …..Plaintiffs/Respondents/Respondent 1^st set

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Subhash Sharma

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Rajendra Sharma

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Ramjee Sharma 7. Suresh Sharma All are sons of Late Dipa Sharma

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Smt. Lakho Devi D/O Late Dipa Sharma,W/O Lallu Sharma All ( 4 to 8) are resident of village Bal Chandwa, P.S. Bikramganj,,District Rohtas at present residing at village and P.S. Sanjhauli, Dist. Rohtas. 9. Smt. Nirmal Devi @ Bhikhariya D/O Late Dipa Sharma,W/O Kameshwar Sharma resident of village Bal Chandwa, P.S. Bikramganj,,District Rohtas at present residing at village Mohani Tola, P.S. Bikramganj, Dist. Rohtas.

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.... .... Defendants/Appellants/ Respondent IInd set. ====================================================== Appearance : For the Appellant/s : Mr. Jitendra Prasad Singh For the Respondent/s : Mr.

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

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16 17-07-2014 Defendant of the suit has filed the present appeal under Section 100 of the CPC aggrieved by the judgment and decree dated 06.05.2011 and 19.05.2011 respectively passed by Additional District Judge, Fast Track Court No. I, Rohtas at Sasaram in T.A. No. 35 of 2002 giving its seal of approval to the judgment and decree dated 22.02.2002 and 05.03.2002 respectively passed by Munsif, Bikramganj at Sasaram in T.S.No. 27 of 1997.

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Patna High Court SA No.542 of 2011 (16) dt.17-07-2014

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For sake of convenience this Court would refer the

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parties by their status at the trial.

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The plaintiff filed the suit as karta of the joint family stating that the suit land being old survey plot no.37 measuring an area of 12 decimals was recorded in the name of grand father of the plaintiff who had three sons . Disclosing the details of the heirs of the three sons it was stated that after the death of grand father his three sons partitioned the suit land on which house and sehan was existing fell in the share of Ram Lakhan Singh, Daroga Singh and the plaintiffs. Western side of this plot fell in the share of Hawaldar Singh whereas western portion of the said plot was allotted to Subedar Singh. Daroga Singh and the plaintiffs on being separated the disputed land under new plot nos. 162,163 and155 carved out from old plot no.37 came in the share of the plaintiffs. Due to the mistake of the survey karamchari during the revisional survey in respect of land of plot no. 155, the name of the defendants was recorded as Sikmi Dakhal in the remark column. It was the result of the sheer cunningness on the part of the Dipa Sharma father of the defendants. Dipa Sharma and other defendants never resided in the house situated upon the disputed land. The plaintiffs came to know about the wrong entry made in the survey khatiyan showing sikmi Dakhal of the defendants as also the chak entry made in respect of the suit land in favour of the Dipa Sharma based on which the defendants threatened to

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dispossess the plaintiffs and hence the suit. The cause of action arose on 10-02-1997 when the defendants lastly denied to treat the plaintiffs as the owner in possession.

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The defendants in written statement besides raising issue(s) of non maintainability contended that there was no partition in between the sons of Mosadi Singh in which suit land was allotted to the plaintiffs. Dipa Sharma was rightly recorded as Sikmi Dakhalkar. The ancestors of the plaintiffs had called the ancestors of the defendants to serve them and gave some land for livelihood. The house situated over the disputed land was constructed by the defendants and during revisional survey they were rightly recorded as Sikmi Dakhalkar in the remark column of the khatiyan although the plaintiffs and his brothers were shown as the raiyat(s). On the basis of rival pleadings the learned trial Court framed issues and permitted the parties to lead evidence.

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Plaintiffs examined 07 (seven) PW’s besides placing on record certain documents marked Ext.-1, 1/A, Ext-2 (C.S. Khatiyan), Ext-3 (R.S.Khatiyan) and Ext.-4 (Chakbandi Khatiyan).

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The defendants examined four witnesses and placed on record Ext.-A, Ext.-B, Ext.-C and C/1 (Chakbandi khatiyan). The learned trial Court found issue nos. 8,9 and 10 interlinked and considered them jointly and answered in favour of the plaintiffs.The trial Court found the title and possession of the

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plaintiffs over the suit land and entry in the R.S.Khatiyan in the name of the father of the defendants as Sikmi Dakhalkar as well as Chakbandi khatiyan illegal. Similarly issue no.4 was also decided in favour of the plaintiffs when learned trial Court held that the suit was not barred by limitation. The suit was also not found suffering from any defect of non-joinder of necessary party. In sum and substance all issues framed by the learned trial Court were decided in favour of the plaintiffs and against the defendants.

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Aggrieved by the judgment and decree authored by the learned trial Court the defendants filed appeal . The learned lower appellate Court considering the submissions of the parties in the light of the pleadings on record formulated four points which are noticed hereinbelow:-

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“(i) Whether the plaintiffs have possession over the disputed land and recording the name of defendants as sikmi Dakhalkar in R.S. Khatiyan and Chakbandi Khatiyan are illegal ?

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(ii) Whether the suit of the plaintiff is barred by law of limitation ?

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(iii) Whether the suit is bad for non-joinder or necessary parties because the all heirs of Mosadi Singh have not been made parties?

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(iv) Whether the judgment and decree passed by the learned lower court is correct in the eye of fact and of law both”

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Dealing with point no.1 the learned lower appellate

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Court on re-appraisal of the evidence, both oral and documentary, found that the plaintiffs were in possession of the suit land and during R.S. operation plot no. 155, 162 and 163 were carved out

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from CS plot no. 37 which was rightly prepared in the name of the plaintiffs but wrongly showing Ramdip Sharma as Dakhalkar in the remark column. The plaintiffs continued in possession over the suit land. It was established from the documents on record and the deposition of the witnesses that the suit land consisted of house and sehan i.e. homestead land. Even Ext.2 (C.S. Khatiyan) demonstrably proved that house over the disputed land was existing before the CS operation. There was no evidence either to prove that the disputed land was given by the ancestor of the plaintiffs to the ancestor of the defendants. There was nothing on record to show that the plaintiffs ever admitted possession of the defendants. Accordingly, the learned lower appellate Court found that entries made in RS khatiyan as well as consolidation khatiyan as Sikmi Dakhalkar was without any basis and, therefore, concurred with the findings recorded on those issue(s) by the learned trial Court.

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Dealing with the second point the learned lower appellate Court considering the relief prayed for in the suit relied on Article 120 of the Limitation Act to hold that the right to sue would accrue when the plaintiffs were threatened by the defendants of infringement of right. There was no acceptable evidence to establish that the plaintiffs had the knowledge about the wrong entries made in the RS khatiyan and/or the chakbandi records. The lower appellate Court concurred with the findings of

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fact recorded on this issue/point by the learned trial Court that the suit as framed was not barred by law of limitation. Similarly, the contention that the suit was not maintainable for non-joinder of necessary party was considered and rejected. The relevant consideration in this regard was made in paragraph nos. 21 and 22 of the judgment under appeal. Having held so, the learned lower appellate Court dismissed the appeal and confirmed the judgment passed by the learned trial Court.

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Heard Mr. Jitendra Prasad Singh learned counsel for the appellants. Arguing in support of the appeal, it has been submitted that both the judgments rendered by the Courts below stand vitiated in law on account of non consideration of oral evidence of the defendants on the point of possession. It has further been submitted that the Courts below failed to consider that the suit as framed was barred by the provisions contained under the B.T. Act and/or Article 113 of the Indian Limitation Act. In this connection, he has highlighted that RS khatiyan was prepared and published in 1971 whereas consolidation khatiyan was published in 1982.

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The first contention of the appellant, in my view, does not raise a substantial question of law. As noticed, the Courts below have considered relevant evidence both oral and documentary on the point of possession. No legal flaw in this regard has been shown to the Court. The next contention of the

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appellant is that the suit as framed was barred by the provisions of the B.T. Act wherein any such objection against recording of Sikmi right could have been filed within specified time as contemplated under Schedule III of the B.T. Act. The learned lower appellate Court considered this aspect of the matter in paragraph no.19 and while negating the submissions gave reasons therefor. Entries in the records of right as per the provisions of the B.T. Act, raises only a presumption of correctness which is always rebuttable. The Court below has discarded the submission of the defendant that on publication of original khatiyan the plaintiffs got the knowledge about the wrong entry. The Courts below found the case covered by Article 120 of the Limitation Act and, accordingly, negated the submission. Any incurable fallacy in the said reasoning(s) /findings has not been shown to this Court.

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The appeal is found devoid of raising any substantial question of law. It is, accordingly, dismissed.

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(Kishore Kumar Mandal, J)

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Shyam/U

Sheo Mangal Sharma v. Sipahi Singh and Ors.

Case brief

What is this about?

What did the court decide?

Sheo Mangal Sharma v. Sipahi Singh and Ors.

Case brief

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What did the court decide?

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