Chandrama Bari & Ors. v. Kishun Bari & Ors

The defendants have filed this second appeal against the judgment and decree dated 5.9.1990 passed by the learned 6th Additional District Judge, Arrah in Title Appeal No. 123 of 1987 whereby the learned lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated

20.8.1987 passed by the learned Munsif-1st Class, Arrah in Title Suit No. 47 of 1985.

#2. The plaintiffs respondents filed the aforesaid suit praying for declaration of title and recovery of possession over plot No. 2600 on the ground that Chunni Bari had two sons namely, Gahan Bari and Durga Patna High Court SA No.512 of 1990 dt.11-07-2013 2 Bari. In partition the properties were given half and half to both the brothers. Durga Bari was allotted plot No. 2600 whereas the plot No. 2601 was allotted in favour of the Gahan Bari. However, in the revisional survey record of right both the plots were amalgamated and it has been recorded exclusively in the name of the defendants. In 145 Cr.P.C. proceeding the possession has been declared in favour of the defendants, therefore, the plaintiffs filed the suit. The defendants appellants filed contesting written statement alleging that Durga Bari was not the son of Chunni Bari therefore, there is no question of partition arises and the properties were admittedly of Chunni Bari and the defendants have inherited the same being the descendant of Chunni Bari.

#3. The trial court recorded the finding that Durga Bari is not the son of Chunni Bari. However, the trial court decreed the plaintiffs’ suit on the basis of Ekrarnama (Ext.-4) said to have been executed by Gahan Bari in favour of Durga Bari in the year 1925 wherein Gahan Bari admitted the title and possession of Durga Bari.

#4. The defendants filed the appeal before the lower appellate court. The lower appellate court also recorded the finding that Durga Bari is not the son of Chunni Bari. However, the lower appellate court also recorded the finding that because in the year 1925 Ekrarnama (Ext.- 4) was executed by Gahan Bari admitting the title of Durga Bari, the title has already passed to the plaintiffs and accordingly, dismissed the Patna High Court SA No.512 of 1990 dt.11-07-2013 3 appeal filed by the defendants.

#5. At the time of admission of this second appeal on 3.12.1992, following substantial question of law was formulated : “Whether the courts below having disbelieved the case of the plaintiffs that they were coparceners were justified in holding that the plaintiffs have acquired title on the basis of an unregistered deed of Ekrarnama (Ext.-4) specially in view of the fact that none of the to courts below has recorded any finding that the plaintiffs have acquired title by adverse possession.”

#6. The learned counsel Mr. Ajay Kumar Thakur appearing on behalf of the appellants submitted that both the courts below recorded clear finding that Durga Bari was not the son of Chunni Bari. The courts below could not have decreed the plaintiff’s suit for declaration of title only on the basis of so called Ekrarnama Ext.-4 which is not a registered document. According to the learned counsel by admission title will not pass. If status requires that title will pass only after registering a document then title will pass only after the registration of the document but the lower courts below have decreed the plaintiffs’ suit by making a third case to the effect that Ext.-4 although is unregistered but is of the year 1925 therefore, at that time the valuation of the property must not be more than Rs.100/- therefore, Ext.-4 conferred title on the plaintiffs. According to the learned counsel the court cannot make a third case. In support of his contention the learned counsel relied upon AIR 1966 SC Patna High Court SA No.512 of 1990 dt.11-07-2013 4