Urmila Devi v. Chandra Kala Murti & Ors.

Heard the learned counsel, Mr. Dharnidhar Mishra on behalf of the appellant. (2) This Second Appeal has been filed by the defendant-appellant against judgment and decree dated

10.06.2011 passed by Additional District Judge, F.T.C. II, Supaul in Title Appeal No.15 of 2006 dismissing the appeal and thereby confirming the judgment and decree dated 27.04.2006 passed by Sri V.K.Srivastava, Sub Judge I, Supaul in Title Suit No.94 of 1998 decreeing the plaintiff-respondent’s suit. (3) It is admitted fact that the defendant-appellant is purchaser from Balram Mandal by registered sale deed, Exhibit 2/7 and Exhibit 2/9. The plaintiffs are the purchasers of 4 katthas land from 2 sons of Balgovind Mandal. The plaintiffs never challenged the sale deed of the defendant-appellant. The Patna High Court SA No.482 of 2011 (4) dt.25-07-2012 plaintiff’s only case is that in absence of the plaintiffs, the defendant made construction on portion of his purchased land. The further case of the plaintiffs is that there was already partition between the 3 sons of Ram Kishun Mandal namely Balgovind Mandal, Brij Mohan Mandal and Balram Mandal.

The defendant’s case is that there was no partition and he has purchased the property from Balram Mandal. (4) The trial court recorded a finding that there had already been partition between the 3 sons and the plaintiffs have acquired title over the purchased land through the sale deed, Exhibit 2/6 dated 15.03.1994. On appeal, the appellate court dismissed the title appeal and also recorded a finding that there had already been partition between the 3 sons of Ram Kishun Mandal. (5) The learned counsel for the appellant raised two grounds. Firstly, that no issue regarding partition was framed by the trial court and, therefore, the finding recorded by the trial court was vitiated. As soon as the appellate court found the same to be true that without framing an issue on this question the trial court recorded the finding, the appellate court should have remanded the case for a fresh decision before the trial court after framing the said vital and important issues but he himself decided the issue Patna High Court SA No.482 of 2011 (4) dt.25-07-2012 after framing the same.

Secondly, the plaintiffs themselves adduced the contrary evidences oral as well as documentary. It is well settled that documentary evidence will prevail over the oral evidence and in the present case, Exhibit 2 shows that all the co- sharers jointly executed the sale deed which proves jointness. The learned counsel in support of his contention relied upon a decision of the Orissa High Court, AIR 1967 Orissa 99(Badri Das Goenka and others vs. Gopal Jew Thakur and others). (6) So far the first contention of the learned counsel for the appellant is concerned, that relates to finding regarding partition. Admittedly, the plaintiffs have filed the suit for declaration of title on the basis of the sale deed executed by the two sons of Balgovind Mandal alleging that there had already been partition between the brothers of Balgovind Mandal and the suit property was allotted in the share of Balgovind Mandal.

On the contrary, the defendant’s case is that there was no partition between the parties. Therefore, the parties were knowing the case of each other and then entered into trial with open eyes. In the case of Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 Supreme Court 884, the Apex Court has held that since the parties went to trial fully knowing the rival case and laid all the evidences not only in support of their contentions but in rebuttal Patna High Court SA No.482 of 2011 (4) dt.25-07-2012 also, it cannot be said that the absence of an issue was fatal to the case. This very decision of the Apex Court has been relied upon in the decision of the Orissa High Court which has been cited on behalf of the appellant. Moreover, this question was also raised before the Lower Appellate Court and thereafter the Lower Appellate Court considering the overwhelming documentary evidences i.e. the sale deeds executed by different branches independently and also the sale deeds in favour of the defendant executed by one branch have recorded a finding that there had already been partition between the 3 co-sharers.

In my opinion, therefore, only because issues regarding previous partition or no partition have not been framed, no prejudice has been caused to the appellant particularly when they also purchased the property from one co-sharer. In my opinion, therefore, this is not a substantial question of law involved in this case. (7) So far second ground is concerned, it is well settled principles of law that the documentary evidence will always prevail over the oral evidence but that will apply when there is conflict between the documentary evidence and oral evidence. In the present case, according to the learned counsel for the appellant, Exhibit 2 has been executed by all the co-sharers. So far this submission is concerned, only because Exhibit 2 has Patna High Court SA No.482 of 2011 (4) dt.25-07-2012 been executed by all co-sharers, by no stretch of imagination it can be held that the parties are still joint.