Patna High Court
Case Details
Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.233 of 2012 ====================================================== Ram Chandra Sah & Ors. Versus .... .... Appellant/s Hanary Mosses & Ors. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ranjan Kumar Dubey For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV ORDER 12 24-09-2013 (1) I have already heard the learned senior counsel, Mr. S.S.Dvivedi on behalf of the appellants and the learned senior counsel, Mr. Kamal Nayan Choubey on behalf of the respondents under Order XLI Rule 11 C.P.C. (2) The defendants-appellants-appellants have filed this Second Appeal against the judgment and decree dated 24.03.2012 passed by the learned 5th Additional District Judge, Bhagalpur in Title Appeal No.66 of 1997 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree of the trial court dated 31.05.1997 passed by the learned 1st Additional Munsif, Bhagalpur in Title Suit No.75 of 1991. (3) The plaintiffs-respondents filed the aforesaid suit for declaration of her title over the suit land and recovery of possession on allegation that one Francis Cristian @ Kesey, the
Legal Reasoning
grandfather of the plaintiff was owner of 9 kathas land. The said Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 2 land was in two blocks, one was of 4 kathas which was rent payee and the second plot was of 5 kathas which was rent free. The grandfather of the plaintiff sold the block measuring 4 kathas rent payee land to the defendant, Rukmini Devi and Daso Devi by registered sale deed in the year 1961. The other land i.e. 5 kathas remained in possession of the grandfather of the plaintiff which is the suit land. The grandfather gifted the property and executed a registered gift deed in favour of the plaintiff on 27.02.1978 and possession was delivered. In 145 Cr.P.C. proceeding, possession of Jagdish Sah i.e. husband of Rukmini Devi was declared. Therefore, the suit was filed. (4) The defendants filed written statement contending that they have purchased the entire land with specific boundary and since 1961, they are coming in possession over the entire suit land. The deed of gift is forged and fabricated document. Their case is that the entire land of Robert Kesey comprised in one boundary and the same was sold to Rukmini Devi and Daso Devi. (5) The trial court decreed the plaintiff’s suit recording a finding that the defendants have only purchased 4 kathas land out of 9 kathas. On appeal, the Lower Appellate Court confirmed the judgment of trial court and recorded the same finding that the defendants have purchased only 4 kathas land out of 9 kathas land. Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 3
Legal Reasoning
(6) The learned senior counsel, Mr. S.S.Dvivedi on the basis of the decisions reported in AIR 1926 Patna 257(Raghunandan Thakur v. Babu Kishundeo Narain Mahta and others), AIR 1948 Privy Council 207(The Palestine Kupat Am Bank Co-operative Society Ltd. v. Government of Palestine and others) and 1979 Calcutta 50(M/S Roy and Co. and another v. Sm. Nani Bala Dey and others) submitted that where a land conveyed is described by boundary as well as by area, if there is difference between the boundary and the area, the land actually comprised within the boundary will be treated to have been conveyed. The learned counsel submitted that it is not disputed that in the sale deed in favour of the defendants-appellants, the boundary of the entire land of 9 kathas has been mentioned. It is the mistake that the area instead of 9 kathas, it has been mentioned 4 kathas only. The courts below without considering the settled proposition of law laid down have held that the defendants have purchased 4 kathas land, therefore, the judgment is vitiated and liable to be set aside. According to the learned counsel, the settled proposition of law is that whenever there is dispute between the area and the boundary, the boundary will prevail. The learned counsel secondly submitted that the Lower Appellate Court has not considered the evidences independently as required under Order Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 4 41 Rule 31 C.P.C. and also Exhibit A, C, D, E, F, G, H and I series, therefore, the judgment is vitiated. Further, the possession of the appellant was declared under Section 145 Cr.P.C. on 15.01.1983 in Case No.317 of 1978 but the courts below assumed possession of the plaintiffs and dispossession in the year 1991, therefore also, the judgment is vitiated. Moreover, there is no determination by any survey knowing Pleader Commissioner regarding the extent of area from which the plaintiffs have been dispossessed. (7) On the contrary, the learned senior counsel, Mr. Kamal Nayan Choubey appearing on behalf of the respondents submitted that none of the decisions relied upon by the appellants are applicable in the present case. The learned counsel further submitted that in the written statement, the defendants specifically pleaded that they have purchased only 4 kathas land and in evidence, the witnesses of the defendants admitted that application for mutation was filed with respect to only 4 kathas land. According to the learned counsel, there cannot be any universal law that whenever there is discrepancy in the boundary and area of land, the boundary will prevail irrespective of the fact that the party claims the area which is mentioned in the deed/document. The learned counsel further submitted that after perusing the Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 5 contents of the document and the pleading of the appellants and the evidences, the courts below have recorded a finding that the appellants have purchased only 4 katha land. This finding is pure finding of fact. So far the other points raised by the appellants are concerned, according to the learned counsel, both the courts below have considered the relevant evidences for decision on the question of the area purchased by the appellants and then recorded the finding. Therefore, for non-consideration of other evidences which are not relevant for the decision, the judgment cannot be said to be vitiated. (8) It is the specific case of the plaintiffs that there were two blocks, one block measuring 4 kathas which was rent payee whereas the other block measuring 5 kathas was rent free land. This 4 kathas land was sold to the plaintiffs. The defendants also in the written statement specifically pleaded that he has purchased 4 kathas land with specific boundary. From perusal of the judgment of the courts below, it appears that he also filed mutation case claiming mutation of the land measuring 4 kathas only. From perusal of the trial court judgment, it appears that the trial court found that the witnesses of the plaintiffs have stated that the lands at the spot are in two blocks. One block is measuring 4 kathas and the other block is measuring 5 kathas and there is a ridge between Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 6 two plots. Some of the witnesses of the defendants have also admitted this fact. Further, the defendants claimed 7 kathas land which has been found to be wrong by the trial court. It is the case of the defendants that Kesey had only 4 kathas land and they have purchased the entire land of holding no.1. Existence of 9 kathas land has not been denied. The trial court found that the boundary has been wrongly described. The learned trial court has also rightly relied on two decisions of this court i.e.: (i) AIR 1944 Patna 254, D.B., wherein it is held that if there is discrepancy between two descriptions given of an immovable property, the leading description should be accepted. Here, in this case, the leading description is 4 kathas in the deed but subsequently in the last portion of the deed, 7 kathas has been mentioned which has been found by the trial court to be wrong. (ii) AIR 1983 Patna 244, D.B., wherein it is held that the terms of grant will prevail upon map showing less or area. (9) So far the decision relied upon by the learned counsel for the appellants i.e. AIR 1926 Patna 257(supra) is concerned, it appears that in that case, the dispute was regarding the boundary and area mentioned in the sale certificate. Here, it is the area mentioned in the registered sale deed and moreover, the plaintiff himself in the written statement stated that he has Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 7 purchased 4 kathas. He has also admitted as has been found by the trial court that the said land which was rent payee was sold to the defendants-appellants. In my opinion, therefore, the fact of this case is entirely different. There cannot be any universal law that whenever there will be discrepancy in the boundary and area irrespective of the evidence adduced by the parties, there will be presumption that the boundary will prevail over the area. In my opinion, the presumption will be always rebuttable. If it is satisfactorily explained to the conscience of the court that in fact, the area of land which was admitted was sold, the person who purchase cannot take advantage of the mistake in the sale deed in the description of boundary. Here, the defendants never claimed that they have purchased 9 kathas land. (10) So far 1948 Privy Council 207(supra) is concerned, it appears that in that case, the consideration was with regard to grant made by the Government in favour of Bank in Turky i.e. foreign country and not in India. (11) The other decision relied upon by the learned counsel for the appellants i.e. AIR 1979 Calcutta 50(supra) is concerned, it may be mentioned that in that case, the defendant’s contention was that the property which is in possession of the defendants is not included in the sale deed of the plaintiffs and the Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 8 defendants have acquired title by adverse possession. A Pleader Commissioner was appointed. He submitted a report to the effect that the Pleader Commissioner measured the land with respect to the description of the boundary. The argument was advanced to the effect that the Pleader Commissioner did not apply the area test. In that context, the High Court of Calcutta stated that if there are discrepancies between the area and boundary, the boundary will prevail. (12) From the aforesaid discussion, it is clear that the settled proposition of law that the description of boundary will prevail is dependent on the facts of each case. In the present case, as stated above, on the basis of evidences available on record, the courts below have recorded the finding that there are two plots, one measuring 4 kathas and the other is 5 kathas. The defendants have purchased only 4 kathas land. Now, therefore, because the defendants are claiming that the boundary will prevail, their title on the basis of sale deed cannot be upheld over 9 kathas. (13) In the case of Hero Vinoth(Minor) vs. Seshammal, (2006) 5 Supreme Court Cases 545, the Hon’ble Supreme Court has held that inference or appreciation of facts from the recitals or contents of a document are question of fact. However, the legal effect of terms of a document, or construction Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 9 of document involving application of any principle of law are question of law. In the present case, after perusing the recitals of the sale deed and on the basis of the evidences of both the parties oral and documentary, the courts below concurrently found that the defendants have purchased only 4 kathas land. Therefore, in view of the decision of the Hon’ble Supreme Court, this finding is a pure question of fact. In such circumstances, this finding of fact from recitals of the sale deed cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure on the mere ground that the boundary covers 9 kathas land. It may be mentioned here that subsequently two blocks of land have been numbered as Holding Nos.126 and 126A. (14) So far the submission of the learned counsel that some of the evidences i.e. Exhibit A and C to I have not been considered, those are either recitals issued by Bhagalpur Municipality, khatiyan, Ext. D, rent receipts of Rs.1 for 4 kathas, order passed in 145 Cr.P.C. proceeding etc. These evidences have been considered by the trial court and moreover, it cannot be said that on the basis of the evidences considered by the Lower Appellate Court, no person could have reached to the conclusion which have been recorded by the Lower Appellate Court. In other words, only because some of the evidences have not been Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 10 considered by the Lower Appellate Court, the judgment cannot be said to be vitiated. (15) In the case of Madamanchi Ramappa and another v. Muthaluru Bojjappa, AIR 1963 Supreme Court 1633, the Hon’ble Supreme Court has held that insufficiency or inadequacy of evidence is not a substantial question of law. No case has been made out by the defendants that what is the relevancy of these evidences for considering the point as to whether the defendants-appellants have purchased 4 kathas or has purchased 9 kathas. In my opinion, therefore, on the question raised by the learned counsel for the appellants, it cannot be said that the judgment of the Lower Appellate Court is vitiated. (16) So far the submission of the learned counsel that Pleader Commissioner has not measured the land and there is no evidence to the extent that upto what area the defendants have dispossessed the plaintiffs is concerned, it may be mentioned here that the plaintiffs filed the suit for declaration of title and recovery of possession of 5 kathas land gifted by the owner and that is the case of the plaintiffs that over the said area, the defendants have encroached. In such circumstances also, in my opinion, the judgment of the Lower Appellate Court cannot be said to be vitiated. Patna High Court SA No.233 of 2012 (12) dt.24-09-2013 11 (17) In the result, I find that the grounds raised by the learned counsel for the appellants are not substantial questions of law involved in the present Second Appeal. Accordingly, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Saurabh/-