Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.213 of 2008 ====================================================== Sunayana Devi & Ors Versus .... .... Appellant/s Ravindra Singh@Rabindra & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sunil Kumar Mr. Upendra Mishra For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 3 25-07-2013 Heard the learned counsel Mr. Ram Sumiran Singh appearing on behalf of the appellants under Order 41 Rule 11 of the Code of Civil Procedure.
Legal Reasoning
The plaintiffs-appellants-appellants have filed this second appeal against the judgment and decree dated 25.4.2008 passed by the learned Additional District Judge-1st, Buxar in Title Appeal No. 70 of 1997, whereby the learned lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court dated 6.10.1997 passed by the learned 2nd Additional Munsif, Buxar in Title Suit No. 250 of 1988. The plaintiffs-appellants filed the aforesaid suit praying for declaration that the sale deed with respect to 10 decimal lands executed by Most. Duliya in favour of defendant No.1 Ravindra Nath Singh is illegal, fraudulent, without title and Patna High Court SA No.213 of 2008 (3) dt.25-07-2013 2 further declaration that the entry in the recent survey Khatiyan is wrong. According to the plaintiffs, the plaintiffs claimed the aforesaid relief on the facts inter alia that the property belonged to two brothers namely Maharaj Singh and Pratap Singh. There was partition between the two brothers before cadastral survey record of right. In the partition, the suit property fell in the share of Maharaj Singh. The plaintiffs are the heirs of Maharaj Singh where the defendants including Duliya are descendants of Pratap Singh. Although in partition the property fell in the share of Maharaj Singh and plaintiffs were in possession of the same, the heirs of Pratap Singh namely Most. Duliya sold the property in favour of the defendant No.1 by registered sale deed dated 26.6.1981. The plaintiffs had no knowledge about the sale deed. During mutation the plaintiffs came to know about this fraudulent sale deed executed by Duliya in favour of defendant No.1. The plaintiffs further alleged that if the property is found to be joint then decree for partition be passed. The contesting defendants who are purchasers filed written statement and contested the suit. According to the written statement there had already been partition between the two brothers Maharaj Singh and Pratap Singh but in the said partition Patna High Court SA No.213 of 2008 (3) dt.25-07-2013 3 the suit property fell in the share of the ancestor of the defendant Duliya and accordingly Most. Duliya had right, title and interest in the property, therefore, she sold the same on 26.6.1981 in favor of the defendant No.1 after receiving the consideration amount. The other allegations of the plaintiffs are denied. The trial court on the basis of the materials available on record came to the conclusion that the suit fell in the share of Most. Duliya and the defendant Radha Charan Singh and Most. Duliya after receiving the proper value of the consideration amount sold the suit land to the defendant No.1. The purchaser defendant No.1 is continuing in possession of the suit property after purchase. The trial court also held that the suit is barred by law of limitation, accordingly dismissed the plaintiffs’ suit. The plaintiffs then filed title appeal before the lower appellate court. The lower appellate court dismissed the appeal recording the finding that the purchasers are in possession and the plaintiffs failed to prove their title over the suit property. Accordingly, the appeal was dismissed. The
Legal Reasoning
learned counsel Mr. Ram Sumiran Singh appearing on behalf of the appellants submitted that the plaintiffs’ suit has been dismissed on the ground of possession only. Both the courts below relied upon the order passed in a proceeding under Patna High Court SA No.213 of 2008 (3) dt.25-07-2013 4 Section 144 Cr.P.C. and the plaintiffs’ suit has been dismissed. According to the learned counsel the courts below have wrongly held that the suit is barred by law of limitation because the plaintiffs had no knowledge about the execution of the sale deed in favour of the defendant No.1. The learned counsel further submitted that the lower appellate court as well as trial court have wrongly held that the suit is barred by non-joinder of the necessary party because the Karta of each family (branch) has been made party-respondent in the suit. From perusal of the trial court judgment it appears that the trial court after appreciation of evidence categorically recorded a finding that the property in suit was allotted in the share of the defendant’s ancestor Pratap Singh. The trial court categorically recorded also that the plaintiffs failed to prove that in the partition between the two brothers the suit properties fell in the share of the plaintiffs’ ancestor i.e. Maharaj Singh. The appellate court at page 12 has also after appreciation of the materials including the oral evidences recorded categorical finding that the plaintiffs had failed to prove their title over an area of 20 decimal as such they are not the owner thereof. On the basis of other various evidences including the Advocate commissioner and the survey entry and oral witnesses the lower appellate court also Patna High Court SA No.213 of 2008 (3) dt.25-07-2013 5 recorded the finding that the plaintiffs are not in possession of the suit property. So far the case of the plaintiffs that the plaintiffs had no knowledge about the execution of the sale deed is concerned, except this statement the plaintiffs have not adduced any satisfactory evidences and, therefore, the courts below have recorded categorical finding that the suit for declaration that the sale deed of the year 1981 is void or not binding is not acceptable. The lower appellate court recorded the finding that by creating wrong cause the suit has been filed alleging that the appellants have no knowledge. In view of the above findings of the courts below that the plaintiffs failed to prove the fact that the suit property fell in the share of the ancestor namely Maharaj Singh which is based on appreciation of the evidence, the finding being a pure finding of fact, in second appellate jurisdiction the said finding of fact cannot be disturbed. Once it is held that the plaintiffs failed to prove that in the partition the property fell in his share, the plaintiffs’ case entirely falls. So far possession is concerned, also it is pure finding of fact and the same cannot be interfered with. From perusal of the judgment it appears that it does not appear that the finding of possession has been based only on the order passed in 144 Cr.P.C. proceeding. Patna High Court SA No.213 of 2008 (3) dt.25-07-2013 6 In view of the above facts, the points raised by the learned counsel for the appellants are not at all substantial questions of law. Therefore, in my opinion, no substantial question of law is involved in this second appeal and accordingly, this second appeal is dismissed at the stage of admission itself. S.S./- (Mungeshwar Sahoo, J)