). =========================================================== Ramawati Kuwar & Ors v. Raghunath Manjhi & Ors
Case Details
Patna High Court SA No.257 of 1988 dt.11-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.257 of 1988 (Against the judgment and decree dated 24.02.1988 passed by 5th Additional District Judge, Siwan in Title Appeal No.43 of 1981 reversing the judgment and decree of the trial court dated 11.05.1981 passed by learned 1st Additional Munsif, Siwan in Title Suit No.101 of 1977/99 of 1981). =========================================================== Ramawati Kuwar & Ors. .... .... Plaintiffs-Respondents-Appellants Versus Raghunath Manjhi & Ors .... .... Defendants-Appellants-Respondents =========================================================== Appearance : For the Appellant/s : Mrs. Namrata Mishra, Advocate. For the Respondent/s : None. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL JUDGMENT Date: 11-07-2013 Mungeshwar Sahoo, J. 1. The plaintiffs-respondents-appellants have filed this Second Appeal against the judgment and decree dated 24.02.1988 passed by the learned 5th Additional District Judge, Siwan in Title Appeal No.43 of 1981 whereby the Lower Appellate Court allowed the title appeal and thereby set aside the judgment and decree of the trial court dated 11.05.1981 passed by the learned 1st Additional Munsif, Siwan in Title Suit No.101 of 1977/99 of 1981. 2.
Legal Reasoning
The plaintiffs-appellants had filed the suit for declaration of title and confirmation /recovery of possession of the suit property measuring 8 katthas 12 dhurs comprised within plot no.1022. Patna High Court SA No.257 of 1988 dt.11-07-2013 2 3. The plaintiffs claimed the aforesaid relief alleging that the suit land originally belonged to the ex-landlady, Surajmukha Devi which was recorded as Gairmajarua Malik in the record of right. The landlady on 15.03.1941 by executing a sada patta, Exhibit 8 settled the land in favour of the plaintiff on receiving Nazrana of Rs.45 and gave the possession of the suit land for the purpose of cultivation. The said patta was written by admitted Karinda, Bindeshwari Tiwary. After death of the landlady, Surajmukha Devi, her daughter-in-law, Kanti Devi was realizing the rent from the plaintiffs. The plaintiffs subsequently donated 2 katthas of land to the primary school which was adjacent to the suit land. The further case of the plaintiff is that subsequently the defendants got a collusive suit filed by Kanti Devi being Title Suit No.1773 of 1958 with respect to the suit property but subsequently an amendment application was filed by Kanti Devi i.e. Exhibit 6/A whereby Kanti Devi prayed for amendment for deleting the suit property from the subject matter of the earlier suit. However, the defendant obtained a collusive rent receipt and, therefore, the plaintiff filed an application for cancellation of the said rent receipt which was rejected. Therefore, on the basis of the said order passed by the revenue authority, the defendant threatened the appellant to dispossess. 4. The defendants-respondents filed contesting Patna High Court SA No.257 of 1988 dt.11-07-2013 3 written statement alleging that in fact, the suit land was settled by the ex-landlady in their favour in the year 1933 along with other several lands. Jamabandi has been created in their names. According to the defendants, the plaintiffs themselves filed an application i.e. Exhibit B before the B.D.O., Bhagwanpur wherein they claimed that the suit land was settled with them with Kanti Devi whereas in the present suit they are claiming settlement from Surajmukha Devi. 5. The trial court after considering the entire evidences adduced by the parties recorded a finding that the statements made in Exhibit B to the effect that the suit land was settled by Kanti Devi has been sufficiently explained by the plaintiff and this Exhibit B is of the year 1962 whereas the patta, Exhibit 8 is of the year 1941. The trial court also considering Exhibit 6/A held that the daughter-in-law of Surajmukha Devi namely Kanti Devi filed the application for amendment in earlier suit for deleting the suit plot alleging that the same had already been settled by Surajmukha Devi. The trial court also after considering the mortgage deed dated 19.03.1959 recorded the finding that in fact, one of the plaintiffs mortgaged the suit property in the year 1959 which indicates that the plaintiffs are in possession of the property and are dealing with the same whereas the defendants have only produced the rent receipt after the year 1962. The trial court also recorded the finding that the Patna High Court SA No.257 of 1988 dt.11-07-2013 4 defendants never denied settlement of the suit land in favour of the plaintiffs. Their simple case is that the lands have been settled in their favour by Kanti Devi in the year 1933. On these findings, the trial court decreed the plaintiff-appellant’s suit. 6. On appeal, the Lower Appellate Court reversed the finding of the trial court and held that because Exhibit B i.e. the application filed by the plaintiff before the B.D.O., Bhagwanpur which is of the year 1962, it is mentioned that the plaintiffs obtained settlement from Kanti Devi, therefore, on the date of filing this Exhibit B, the plaintiffs were not possessing Exhibit 8. If Exhibit 8 was in their possession on the date of filing Exhibit B, the plaintiffs could not have made the name of Kanti Devi because according to them, they have obtained settlement from ex-landlady, Surajmukha Devi. Therefore, Exhibit 8 is not genuine. On this ground, the learned Lower Appellate Court allowed the appeal. 7. At the time of admission of this Second Appeal on 13.03.1991, the following substantial question of law was formulated: “Whether the finding in regard to the genuineness and validity of Exhibit A is correct and binding on this Court in Second Appeal?” 8. At the very outset, the learned counsel for the appellants submitted that in fact, in place of Exhibit 8 wrongly it has Patna High Court SA No.257 of 1988 dt.11-07-2013 5 been typed as Exhibit A. From perusal of judgment of both the courts below and the case of the parties, it appears that it is merely a typing mistake. The plaintiffs are claiming title on the basis of Exhibit 8, the patta alleged to have been issued by the ex-landlady in the year 1941. 9. The learned counsel for the appellants submitted that the judgment of the Lower Appellate Court is perverse because the finding of fact regarding genuineness of Exhibit 8 has been recorded by the Lower Appellate Court ignoring/excluding the relevant materials and taking into consideration Exhibit B which has already been explained. Therefore, the finding of fact recorded by the court below is not binding in Second Appeal. In support of her
Legal Reasoning
contention, the learned counsel relied upon a decision of the Hon’ble Supreme Court reported in (2010) 13 Supreme Court Cases 216(Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board and others). According to the learned counsel, while recording this finding of fact, the Lower Appellate Court has not considered the other documentary evidences in their right perspective and discarded Exhibit 6/A on wrong assumption that the suit was filed by Kanti Devi against the defendant which indicates that defendant was the tenant of Kanti Devi. The learned counsel submitted that the Lower Appellate Court failed to consider the fact that in Exhibit 6/A, Kanti Devi prayed for deleting the suit plot i.e. plot no.1022 measuring 8 Patna High Court SA No.257 of 1988 dt.11-07-2013 6 katthas 12 dhurs on the ground that the same was settled by Surajmukha Devi in favour of the plaintiffs. The learned counsel further submitted that while reversing the judgment of the trial court, the Lower Appellate Court has not considered the Exhibit 1 by which 2 katthas land was donated by the plaintiffs in favour of a school in the year 1953 and also not considered the rent receipts filed by the plaintiffs being Exhibit 3 series which indicates that the plaintiffs are in possession of the property. 10. From perusal of the trial court judgment, it appears that trial court after considering the evidences of the plaintiffs regarding the mentioning of name of Kanti Devi in Exhibit B i.e. in the year 1962 held that the plaintiff has explained the mistake occurring in Exhibit B. However, from perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court did not accept this explanation given by the plaintiff that in fact, in the application, Exhibit B, by mistake the name of Kanti Devi has been mentioned and only because that mistake, the Lower Appellate Court has concluded that Exhibit 8, the pattta of the year 1941 was not in possession of the plaintiff rather it was created after 1962. It may be mentioned here that it is not the case of the defendants that the patta filed by the plaintiff is a forged document. From perusal of the trial court judgment, it appears that the trial court noticed the fact that the Patna High Court SA No.257 of 1988 dt.11-07-2013 7 defendants never denied the settlement made by the ex-landlady in favour of the plaintiffs. The trial court also considered that the defendants only asserted his right on the basis of alleged settlement made in their favour in the year 1933. The trial court also considered the fact that except the suit land, the other lands are either road or the lands which are in the use of public at large on which the defendants are claiming title on the basis of Exhibit C, their patta. From perusal of the Lower Appellate Court judgment, it appears that the Lower Appellate Court has neither considered the documents, Exhibit 1 by which the plaintiffs donated 2 katthas of land in the year 1953 in favour of school which is adjacent to the plot of plaintiff which sufficiently proves that in the year the plaintiffs were in possession of the property. Exhibit 6/A clearly says that the Kanti Devi filed the application in earlier title suit wherein she admitted that the suit land plot no.1022 measuring 8 katthas 12 dhurs was settled by her mother- in-law, Surajmukha Devi in favour of the plaintiffs. The Lower Appellate Court has also not considered the mortgage deed dated 19.03.1959 which clearly indicates that the property was being dealt with by the plaintiff. This mortgage deed was executed by the plaintiff in favour of Mahesh Prasad. This document also clearly indicates that the plaintiffs were in possession of the property. 11. In the case of Municipal Committee, Hoshiarpur Patna High Court SA No.257 of 1988 dt.11-07-2013 8 vs. Punjab State Electricity Board and others, (2010) 13 Supreme Court Cases 216, the Hon’ble Supreme Court held that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. 12. In the case of Bharatha Matha and another vs. R. Vijaya Renganathan and others, (2010) 11 Supreme Court Cases 483, the Hon’ble Supreme Court has held that if the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. 13. In the present case at our hand as stated above, the Lower Appellate Court merely on the basis of mistake committed in Exhibit B recorded the finding that Exhibit 8 is antedated and that is a forged document. Therefore, it can be termed as the ipse dixit of the court and while coming to this conclusion, the Lower Appellate Court has not considered the implications mentioned in the application, Exhibit 6/A to the effect that the lands had already been settled in favour of the plaintiff by Surajmukha Devi in the year 1953 and also not considered the mortgage deed and also not considered Exhibit 1 Patna High Court SA No.257 of 1988 dt.11-07-2013 9 which are produced by the plaintiffs. 14. In view of my above discussion, I find that the judgment of the Lower Appellate Court is vitiated being perverse as the finding regarding genuineness of Exhibit 8 has been arrived at by excluding the relevant documentary evidences indicated above. 15. Therefore, the substantial question of law formulated is answered in favour of the appellants. Thus, this Second Appeal is allowed and the impugned judgment and decree of the Lower Appellate Court is set aside and that of the trial court is restored. In the facts and circumstances of the case, no order as to cost. Saurabh/- (Mungeshwar Sahoo, J)