Brahmdeo Sah v. Ganesh Thakur

CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 7 08-01-2013

Heard Mr. Shri Prakash Srivastava, learned counsel for the appellants.

This appeal under Section 100 of the Code of Civil Procedure has been filed against the Judgment and decree dated

24.05.2008 and 19.06.2008 respectively, passed by the learned Additional District Judge (F. T. C. No. IV), Motihari, East Champaran in Title Appeal No.70 of 2004/02 of 2004 whereby he has set aside the judgment and decree dated 14.07.2004 and 2 Patna High Court SA No.198 of 2008 (7) dt.08-01-2013

24.07.2004 respectively passed by the learned Munsif, Raxaul in Title Suit No. 21 of 1995.

The appellants herein were the defendants in Title Suit No. 21 of 1995. The suit was filed by the plaintiff Gopi Chand Thakur seeking relief for declaration of title and possession over the suit land on the plea that the sale deed dated 17.10. 1989 executed by Bhagwan Sah in favour of the appellants and the deed of gift executed by the appellants in favour of his wife Shanti Devi was illegal, void and ineffective in respect of 2 ¼ dhurs of plot no. 3110 appertaining to Khata no. 84 of village Darpa, P.S. Chhoradano, District- East Champaran.

There are certain facts which are not in dispute. Land measuring 1 katha 1 dhur under plot no.3310 appertaining to Khata No. 84 originally belonged to Joint family of Brahamdeo Sah and Bhagelu Sah, who after partition got 10 1/2 dhurs each out of the said plot.

Subsequently, Bhagelu Sah sold 1 ¾ dhurs in favour of Narsingh Mahto by registered sale deed dated 17.04.1967 and delivered possession thereof. Further by two sale deeds registered on 18.03.1973, the said Bhagelu Sah transferred 8 dhurs of land (5 dhurs + 3 dhurs) in favour of Gopi Chand Thakur, the father of respondent nos. 1 and 2. By another sale deed dated 17.10.1989 3 Patna High Court SA No.198 of 2008 (7) dt.08-01-2013 the said Bhagelu Sah is said to have transferred 2 and ¼ dhurs of land in favour of Brahmdeo Sah, the appellant. This is to be noted that Bhagulu Sah had got 10 and ½ dhurs as his share in the joint family property and if the transfers by the aforementioned three registered sale deeds executed on 17.04.1967 and 18.03.1973 were valid and acted upon, he could not have executed further sale deed with respect to 2 and ¼ dhurs on 17.10.1989. The plaintiff challenged the validity of said sale deed dated 17.10.1989 in this back ground. The plaintiff also claimed that the land sold in his favour by Gopi Chand Thakur in fact measured 8 ¾ dhur and not 8 dhurs and further that he was in actual possession of 8 ¾ dhurs from the very date of purchase. Challenging the sale deed dated

17.10.1989, the plaintiff asserted that it was executed without taking any consideration and the appellants never came in possession over the said land.

The appellants who were defendants before the Court below, took a plea before the Trial Court in their written statement, interalia, that Bhagelu Sah had in fact sold only 4 kanwa towards Western side to Narsingh Mahto but 1 ¾ dhurs was wrongly mentioned instead of 4 kanwa .It was pleaded that actually he came in possession only over 4 kanwa of the land over which he has got a pucca house constructed. 4 Patna High Court SA No.198 of 2008 (7) dt.08-01-2013

The appellants took a plea before the Trial Court that the suit was not maintainable being barred by limitation in view of the Articles 56 and 59 of the Scheduled to limitation Act, 1963. On the basis of the rival claims, the issues were framed by the Court of leanred Munsif, Raxaul and after considering the evidence on record learned trial court decided the issues in favour of the present appellants and dismissed the suit.

The plaintiffs preferred an appeal vide Title Appeal No. 217/1995 dated 14.7.2004 which was allowed by the learned Additional District Judge (F.T.C-IV), East Champaran, Motihari on appraisal of the evidence on record. Dealing with the plea that the suit was barred by limitation, learned Additional District Judge, in paragraph-12 of his judgment recorded a finding that the plaintiff got the knowledge of sale deed on 29.6.1995 and held that the suit was filed within the period prescribed under the Limitation Act. The learned Additional District Judge, F.T.C.-IV, Motihari, East Champaran while reversing the finding of the Trial Court took into the account the fact that the Court below wrongly disbelieved the documentary evidence on record. As regards the area of land transferred to Narsingh Mahto, after appreciating the documentary evidence and other evidence on record, learned Additional Judge came to a finding that the plaintiff had no title 5 Patna High Court SA No.198 of 2008 (7) dt.08-01-2013 and possession over the suit land. The sale deed executed on

17.10.1989 by Bhagelu Sah was illegal and void and accordingly, deed of gift of land was also illegal and void and allowed the appeal.

Learned counsel appearing on behalf of the appellant submits that the lower appellate court wrongly decided the issues of limitation and contends that in view of Articles 56 and 59 of the Schedule- II of the Limitation act, 1963 the suit was hopelessly barred by limitation. He further submits that Narsingh Mahto was a necessary party, who ought to have been impleaded as a defendant. He was neither impleaded as a defendant nor was he brought as a witness in course of trial before the Court below and as such, the suit deserves to be dismissed.

Learned counsel appearing on behalf of the appellants however, is not able to point out any perversity in the order passed by lower appellate Court in the judgment of the lower appellate Court under Appeal nor he has pointed out that any finding of learned Additional District Judge, was without any evidence or contrary to any material available on record.

It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last court of fact. In a case where from a given set of 6 Patna High Court SA No.198 of 2008 (7) dt.08-01-2013 circumstances, two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible. The High Court can not substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the first appellate court were erroneous being contrary to the mandatory provisions of law applicable. Reference may be made3 in this regard to the Apex Court judgment reported in (2006) 11 SCC 587, Sugani (Mst.) Vs. Rameshwar Das and Another.

I do not find any such perversity or error in the findings of the first appellate Court. I am of the further opinion that erroneous appreciation of facts and the documentary evidence and the contents of the documents can not be said to be raising substantial question of law, where the first appellate Court is shown to have exercised its discretion in a judicial manner.

This appeal does not merit admission for the reasons aforesaid and is accordingly dismissed. (Chakradhari Sharan Singh, J) Sudha/-