Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.471 of 1980 Against the judgment and decree dated 23.4.1980 passed by the 3rd Additional Subordinate Judge, Siwan in Title Suit No. 254 of 1976/ 97 of 1979. =========================================================== Raj Mohammad Mian Ansari and others .... .... Appellants Fuleman Mian and others Versus .... .... Respondents =========================================================== Appearance : For the Appellants : Mr. D.P. Sharma, Advocate. Mr. Kamal Pd. Rai, Advocate. For the Respondents : Mr. Gopal Pandey, Advocate. Mr. Shambhu Prasad, Advocate. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL JUDGMENT Date: 28-01-2013 Mungeshwar Sahoo, J. 1. The defendants have filed this first appeal against the judgment and decree dated 23.2.1980 passed by the learned 3rd Additional Subordinate Judge, Siwan in Title Suit No. 254 of 1976/ 97 of 1979 whereby the learned trial court decreed the plaintiffs respondents’ suit for partition. 2. The original plaintiff Fuleman Mian filed the aforesaid title suit praying for partition to the extent of his two ana share in the suit propery. 3. The plaintiff claimed the aforesaid relief alleging that the
Legal Reasoning
Patna High Court FA No.471 of 1980 dt.28-01-2013 2 property belonged to the joint family is in joint possession of the parties. Garibullah Mian and Ali Mardan Mian were the pattidars. Out of them Garibullah Mian died issueless before R.S. but prior to his death he gifted portion of the suit property to his wife Most. Basmatiya as such her name was recorded in R.S. khatiyan. However, she also died issueless after making an oral gift to Jhapas Mian and Ali Mardan Mian. Accordingly, the share of Jhapas Mian is half and the share of Ali Mardan is half. They came in joint possession of the property. Jhapas Mian had two wives. From the first wife he had got four sons and from second wife Most. Batuliya he had got a son Fuleman who is the plaintiff. The decendant i.e. the son and decendant from the first wife are the defendant in the suit. There is unity of title between the parties and the property is joint possession of the parties. 4. The defendants appellants filed contesting written statement. Besides taking various legal and ornamental plea mainly the defendants appellants contented that the plaintiff Fuleman Mian is not the son of the Jhapas Mian through his second wife Most. Batuliya rather he is the son of Hussaini Mian. The defendants are in possession of the suit property ousting the plaintiff as such the appellants have acquired title by adverse possession. The plaintiff is Patna High Court FA No.471 of 1980 dt.28-01-2013 3 stranger to the plaintiff. 5. On the pleadings of the parties the trial court framed following issues :- (i) Whether the suit as framed is maintainable ? (ii) Whether the plaintiff has got a valid cause of action for the suit ? (iii) Whether the court fee paid is adequate and proper ? (iv) Whether the plaintiff is the son of Jhapas Mian ? (v) Whether there is unity of title and unity of possession between the plaintiff and the defendants in respect of the suit properties ? (vi) Whether the defendants are entitled to the suit properties on the basis of adverse possession and ouster of the plaintiff ? (vii) Whether the plaintiff is entitled to the reliefs as claimed by him ? 6. After the evidences produced by the parties, by the impugned judgment and decree the trial court decreed the plaintiffs- respondents’ suit for partition recording a finding that the plaintiff Fuleman Mian is the son of Jhapas Mian. 7.
Legal Reasoning
The learned counsel Mr. D.P. Sharma appearing on behalf of the appellants submitted that the documents which have been Patna High Court FA No.471 of 1980 dt.28-01-2013 4 relied upon by the trial court are of doubtful character and the learned trial court could not have relied upon those documentary evidences to record the finding that the plaintiff is the son of Jhapas Mian. The learned counsel also placed the evidences in ex tenso. According to the learned counsel the defendants have adduced reliable evidences in support of the fact that Fuleman Mian the plaintiff is the son of Hussaini Mian from his wife Most. Batuliya but the learned court below wrongly did not rely the evidences of the defendants. The learned counsel further submitted that the Parivarik Pustika has been produced by the plaintiff which has been marked as Ext.4. PW 10 in evidence clearly admitted that there are cutting in Ext.4 and therefore, it is of doubtful character so the trial court could not have relied on this document. So far the Ext.-6 is concerned it is not also helpful to the plaintiff rather it is helpful to the appellants’ case. In the said Ext.-6 Most. Batuliya has been described as wife of Hussaini Mian. 8. It may be mentioned here that on behalf of the appellants an application under Order 41 Rule 27 C.P.C. has been filed. The plaintiff respondents have filed counter affidavit to the interlocutory application. In view of the decision of the Apex Court in the case of Union of India vs. Ibrahim Uddin and another 2013 (1) PLJR 48 (SC) this interlocutory application is also heard at the time of Patna High Court FA No.471 of 1980 dt.28-01-2013 5 hearing of this first appeal. In this interlocutory application two documents have been produced and it is prayed that the said documents are essential for the just decision of the controversies between the parties as such the said documents are marked as exhibits on behalf of the appellants. The learned counsel Mr. Sharma appearing on behalf of the appellants submitted that a complaint was filed by the plaintiff respondent after disposal of the suit in the court of C.J.M. wherein he himself has described as son of Hussaini Mian and likewise another partition suit was filed by Mubarak Mian and others wherein the present appellant and the plaintiff was defendant and in the said partition suit the father’s name of the present appellant has been mentioned as Hussaini Mian. Inspite of notice the present plaintiff did not appear and denied this fact. Therefore, this document also proves that he is not the son of Jhapas Mian rather he is the son of Hussaini Mian. On these grounds, the learned counsel for the appellants submitted that the impugned judgment and decree be set aside and the plaintiffs’ suit for partition as dismissed with cost. 9. On the other hand, the learned counsel appearing on behalf of the respondents submitted that there are overwhelming evidences available on record, documentary as well as oral, in support of the case that the plaintiff Fuleman Mian is the son of Jhapas Mian. After Patna High Court FA No.471 of 1980 dt.28-01-2013 6 considering all the evidences the trial court recorded clear finding accepting the case of the plaintiff. Therefore, the impugned judgment and decree is not liable to be interfered with in this first appellate jurisdiction. According to the learned counsel so far the additional evidences is concerned it is not at all necessary for the decision in this present first appeal because it cannot be said that on the basis of evidences available on record the issue which is to be decided cannot be decided. Further the appellants have filed the certified copy of the complaint case. There was mistake in the description of the father’s name therefore, application was filed and on the order of the Court the name of the father of the plaintiff who was complainant has been changed to Jhapas Mian therefore, the document relied upon by the appellants is liable to be thrown. The learned counsel submitted that the certified copy obtained by the appellant is of the year 1978. Subsequently when the plaintiff detected the mistake he filed application for correction of the father’s name and in the year 1988 by the order of the Court his father’s name has been corrected. A corrected copy of the complaint has been filed along with the counter affidavit. 10. So far the judgment and decree filed along with the application under Order 41 Rule 27 is concerned the learned counsel submitted that in that case the present plaintiff respondent was party Patna High Court FA No.471 of 1980 dt.28-01-2013 7 but he neither appeared nor contested the suit and moreover the statement made by a third person regarding the parentage of the plaintiff will not affect him and, therefore, merely because he has not appeared and denied the correctness or otherwise of the description of the father’s name, it cannot be said that he is not the son of Jhapas Mian rather he is the son of Hussaini Mian. 11. It may be mentioned here that the original appellant No.1 Suleman Mian died and in his place one Raj Mohammad Mian Ansari was substituted. A substitution application being I.A. No. 2550 of 2012 has been filed by the appellants. I have heard the parties on this interlocutory application. Since the application is within time the prayer for substitution is allowed. The legal representatives of the deceased appellant No.1 (a) have already appeared by filing vakalatnama. In the said application it has been mentioned that the appellant No.11 died leaving behind the legal representatives who are already on record as appellant No.12 and 13.
Decision
In view of the above submission the name of the appellant No.11 is expunged from the cause tile of memo of appeal. 12. In view of the above rival contentions of the parties the only point arises for consideration in this appeal is as to whether Fuleman Mian the plaintiff is the son of Jhapas Mian or not and Patna High Court FA No.471 of 1980 dt.28-01-2013 8 whether there is unity of title and possession between the parties with respect to the suit properties and whether the impugned judgment and decree is sustainable in the eye law. 13. Admittedly, the mother of the plaintiff Most. Batuliya was the wife of Hussaini Mian. According to the plaintiffs after death of first wife Jhapas Mian married Most. Batuliya and from Batuliya Jhapas has a son who is the plaintiff. From first wife Jhapas Mian has four sons who are the defendants in the partition suit. On the contrary, the defendants’ case is that the plaintiff Fuleman is not the son of Jhapas Mian rather he is the son of Hussaini Mian. In support of their respective cases both the parties have adduced oral evidences as well as documentary evidences. 14. PW 1 has stated that Most. Batuliya was the wife of Jhapas Mian and the plaintiff was calling her as mother. PW 2 has also fully supported the case of the plaintiffs regarding the parentage. PW 3 is also stated that Jhapas Mian had a son through Most. Batuliya who is the plaintiff Fuleman, likewise the other witnesses PW 4, 5, 7 and 9 all have stated that plaintiff is the son of Jhapas Mian and plaintiff was calling Batuliya as mother. Most. Batuliya was the second wife of Jhapas Mian. From perusal of the evidences aforesaid of all these witnesses it appears that the witnesses are either of the same village Patna High Court FA No.471 of 1980 dt.28-01-2013 9 or had got special means of knowledge about parentage of the plaintiff. In my opinion, therefore, their evidences are admissible under Section 50 of the Evidence Act as has been held by the Apex Court in the case of Dolgobinda Paricha vs. Nimai Charan Misra and others AIR 1959 SC 914. 15. So far the documentary evidences are concerned, the plaintiffs have produced Zarpesgi deed which has been marked as Ext. 5 which is dated 19.9.2012. In this Zarpesgi deed Most. Batuliya had executed the same with respect to the property of her former husband Hussaini Mian. The learned counsel for the appellants submitted that she was the wife of Hussaini Mian therefore, she has executed the Zarpesgi with respect to the property of her husband. On the contrary, according to the learned counsel in the year 2012 Hussaini Mian was not alive. Therefore, Most. Batuliya was the only heir of Hussaini Mian so she executed the Zarpesgi. It means that on the date of execution of this Zarpesgi deed the present plaintiff Fuleman was not in existence. In such circumstances the case of the appellant that the plaintiff is the son of Hussaini Mian is not acceptable. 16. No doubt, in this Ext.-5 it is mentioned that Batuliya was wife of Hussaini Mian but the document is of the year 1912. If the Patna High Court FA No.471 of 1980 dt.28-01-2013 10 plaintiff was son of Hussaini then he should have also joined to the said document. The other Zarpesgi deed Ext. 2(a) has been produced by the plaintiff. This Zarpesgi deed has been executed by one Rudal Noniya in favour of Fuleman Mian describing him as the son of Jhapas Mian on 6th July 1970. Likewise, another Zarpesgi deed i.e. Ext.-2 is dated 30.5.1970. In the said deed also the plaintiff has been described as son of Jhapas Mian. Ext. 3 is redemption in the Zarpesgi deed wherein also the plaintiff has been described as son of Jhapas Mian. In these two Zarpesgi deed Ext.-2 and 2(a) the original defendant No.1 Mohd. Suleman Mian is a witness. 17. Ext. 4 is the Parivarik Pustika. In this Parivarik Pustika which has been marked as Ext.4 again the plaintiff has been described as son of Jhapas Mian. The learned counsel for the appellant with respect to this Ext.4 submitted that PW 10 had admitted that there are some interpolation and cuts therefore, the document is doubtful. From perusal of this document it appears that in the original which is available on record there is no cutting with respect to the parentage of the plaintiff. However, in the certified copy it appears that there are some cutting with respect to the place of birth and date of birth. This certified copy is also available on record. So far both these original and certified copies are concerned there is no cutting in the parentage portion. Ext.6 is cadastral survey Patna High Court FA No.471 of 1980 dt.28-01-2013 11 khatiyan published on 5th March 1919 wherein also Batuliya has been described as wife of Jhapas Mian. 18. On the contrary, the defendants have adduced the evidences denying the case of the plaintiff. The witnesses examined all have stated that the plaintiff is not the son of Jhapas Mian. Therefore, the evidences of the defendants are in negative form. We have examined the positive evidence adduced on behalf of the plaintiff. The further case is that according to the defendants the plaintiff is the son of Hussaini Mian. So far the case of the defendant is concerned there is no reliable evidences according to the Section 50 of the Evidence Act. Except this bald statement the defendants appellants have not produced any documentary evidence regarding the parentage of the plaintiff. The only documentary evidence i.e. Ext.1 series and Ext. B series are the rent receipt and Chaudidari receipts. These documents have been produced only to prove that the defendants appellants are in possession of the suit property. In my opinion, therefore, these two evidences are not related to the point for decision i.e. as to whether the plaintiff is the son of Jhapas Mian or not. 19. In view of my above discussion I find that the plaintiffs respondents has been able to prove that the plaintiff Fuleman Mian Patna High Court FA No.471 of 1980 dt.28-01-2013 12 is the son of Jhapas Mian. The defendants have failed to prove that the plaintiff is the son of Hussaini Mian. Accordingly the point formulated is answered in favour of the plaintiff respondent and against the appellants. The finding of the trial court on these points is thus confirmed. 20. So far the possession is concerned it may be mentioned here that the only defence of the defendant appellant is that the plaintiff is not the son of Jhapas Mian. This point has been decided against the appellant. The next defence is that they have acquired title by adverse possession. So far this point is concerned it may be mentioned here that except this bald statement there is nothing on record to suggest that the appellants have acquired any title by adverse possession and moreover since the plaintiff has been held to be the son of Jhapas Mian therefore, possession of one co-sharer will be possession of the other co-sharer. No evidence has been adduced to prove the ouster of the plaintiff by the defendants. In my opinion therefore, the learned counsel below has rightly disbelieved the case of acquisition of title by adverse possession. I therefore, confirmed the finding of learned trial court on this point also. 21. In the case of Union of India vs. Ibrahim Uddin and another 2013 (1) PLJR 48 (SC) (Supra) the Apex Court held that Patna High Court FA No.471 of 1980 dt.28-01-2013 13 the appellate court may permit additional evidence only and only if the conditions laid down under Order 41 Rule 27 exists. The parties are not entitled as of right to the admission of such evidence and if on the basis of the evidence on record the appellate court can pronounce a satisfactory judgment, provision does not apply. In the present case as has been discussed above the uncorrected copy of the complaint application has been filed by the appellant. The corrected certified copy can file by the respondent which shows that the mis- description of father’s name has been corrected. So far the judgment and decree passed in another suit where the plaintiff did not contest are concerned those are not at all relevant for the decision of the point which arises for consideration in this appeal. Moreover here none of the conditions provided under Order 41 Rule 27 C.P.C. is applicable. I therefore, find no merit in the interlocutory application filed under Order 41 Rule 27 C.P.C. accordingly, it is rejected. 22. In the result, I find no merit in this first appeal and accordingly, this first appeal is dismissed. No order as to costs. Patna High Court, Patna. Date : 28.01.2013 S.S. (Mungeshwar Sahoo, J)