Johari Kumari v. Defendants-Appellants-Appellants

For the appellants : M/s Shrinandan Pd. Singh and Manoj Kumar No.1, Advocates. For the respondents : None ----------- 10/

12.05.2009 I.A. No.8133 of 1997 has been filed on behalf of the appellants for condoning the delay in the filing of the instant second 2 appeal. It is apparent that against the judgment and decree of the learned lower appellate court dated 16.04.1994, this second appeal was filed on 14.11.1994, although according to stamp report limitation had expired on 31.10.1994 and hence there is about a fortnight delay in the filing of the second appeal. Considering the facts and circumstances of the case, it appears that genuine reasons have been shown which prevented the appellants from filing the second appeal earlier. Accordingly this interlocutory application is allowed and delay in the filing of the second appeal is condoned. Heard learned counsel for the appellants. This second appeal has been filed by defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. The matter arises out of Title Suit No.26 of 1970 which was filed by the plaintiffs-respondents-respondents for declaration of their right and title over the suit land and for recovery of possession as well as for other ancillary reliefs, including mesne profits, etc. The said title suit was decreed by the learned Special Execution Munsif, Muzaffarpur vide his judgment and decree dated

30.04.1977. Against the aforesaid judgment and decree of the trial court the defendants-appellants filed Title Appeal No.52 of 1977 which was dismissed on contest by the learned 2nd Additional District Judge, Muzaffarpur vide his judgment and decree dated

16.04.1994. 3 From the arguments as well as from the materials on record, including the impugned judgments and decree of both the learned courts below, it is quite apparent that after considering the pleadings and evidence of the parties the learned courts below came to the concurrent findings that no documentary evidence was produced by the defendants-appellants to support their claim of compensation or exchange and hence their claim was based only on their oral evidence. So far oral evidence is concerned, the learned courts below found that they were not even able to describe the details of the suit land nor could they say anything about exchange as claimed by the defendants and hence the story of the defendants regarding exchange or compensation of land were not supported by any evidence. Both the learned courts below specifically found that the plaintiffs had succeeded in proving their title and their illegal dispossession recently by the defendants, by valid and reliable evidence. So far additional evidence produced by the defendants- appellants before the lower appellate court is concerned, it has been found that the said documents were not at all relevant for the purposes of the case and there was absolute absence of any cogent explanation as to why those documents could not be produced during the pendency of the title suit. Learned counsel for the appellants vehemently stresses a point that the suit was barred under the provision of section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. However, the said plea of the defendants- 4 appellants was rejected by the trial court holding that they failed to substantiate that consolidation proceeding was pending hence it was held that consolidation proceeding was not pending. It further transpires from the judgment of the learned court of appeal below that the said point was not taken by the defendants, who were appellants in the title appeal and hence the said issue was never taken up by the learned court of appeal below. It may be noted here that the said question is a question of fact which has to be decided by the court of facts, specially the lower appellate court, which is the final court of facts, on the basis of materials on record, but in the instant case it is quite apparent that the defendants neither raised the said issue before the lower appellate court, nor produced any material to show the various circumstances and requirements on the basis of which the provisions of the said Act could be attracted. In the said facts and circumstances there appears no occasion for this court to take a view different from the view taken by the trial court with respect to the aforesaid issue. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S.N.Hussain, J)