Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.97 of 2011 ====================================================== 1. Mahendra Narayan Yadav 2. Bande Lal Yadav Sons of Late Ram Kishun Yadav, resident of village-Kajhi Hriday Nagar, Tola-Bariyahi, P.S. Banmankhi District Purnea .... .... Appellant/s Versus 1. The State Of Bihar through Collector, Purnea 2. Bindeshwari Yadav, son of late Bishundeo Yadav, resident of village-Kajhi Hriday Nagar, Tola Bariyahi, P.O. Debottar, P.S. Banmankhi, District-Purnea 3. Ghutar Mahto, S/o Basu Mahto 4. Jagdish Mahto, S/O Late Mohan Mahto 5. Laleshwar Mahto S/o Late Mohan Mahto 6. Gaitri Devi, D/o Basu Mahto, W/o Domi Mandal 7. Gyanwati Devi D/O Basu Mahto W/o Hari Mandal. Respondent nos. 3 to 5 are resident of village Kajhi Hriday Nagar, Tola- Bariyahi, P.O. Debottar, P.S. Banmankhi, District Purnea and Respondent nos. 6 & 7 are resident of village Belour, P.S. Sadar P.O.- Belouri, District-Purnea . .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shri Prakash Srivastava ,Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 13 10-04-2013 1. The plaintiffs before the trial Court are the appellants in the present second appeal and have lost their case before both the Courts below. 2. The appeal has been placed before me for hearing under Order 41 Rule 11 of the Code of Civil Procedure. The appellants are aggrieved by the judgment and decree dated 27.12.2010 and 4.1.2011 respectively, passed by learned 2
Facts
Patna High Court SA No.97 of 2011 (13) dt.10-04-2013 2 / 7 Additional District Judge, FTC-IV, Purnea in Title Appeal No. 54 of 2008/08 of 2010, whereby he has affirmed the judgment and decree dated 17.10.2008 and 25.10.2008 passed by the learned Munsif Sadar, Purnea in Titile Suit No. 55 of 2003. 3. The plaintiffs had filed the suit for a declaration that the judgment and decree passed in Title Appeal No. 24 of 1986/9 of 1988 was fraudulent and was therefore, null and void and also for declaration that the plaintiffs had exclusive title over the suit land. 4. As per the plaintiffs’ case, plaintiffs’ father Ram Kishun Yadav and father of Bishun Deo were own brothers. There was a partition suit vide T.S. No. 52 of 1963 filed by the plaintiffs’ father Late Ram Kishun Yadav. The suit ended in compromise and as per the said compromise decree R.S. Plot No. 4932 fell in the share of Late Ram Kishun Yadav. 5. Further case of the plaintiffs in the plaint was that Late Bisun Yadav filed subsequently a Title Suit No. 222 of 1964 against the State of Bihar and plaintiffs’ father Late Ram Kishun Yadav and others by impleading them as defendants. The said suit, as alleged by the plaintiffs was decreed on contest against the State of Bihar and ex-parte against the plaintiffs’ father late Ram Kishun Yadav, suppressing the service of summons against the 3 Patna High Court SA No.97 of 2011 (13) dt.10-04-2013 3 / 7 plaintiffs. The State of Bihar filed a title appeal vide T.A. No. 24 of 1986 in which Bisun Yadav and Ram Kishun Yadav were impleded as respondents. The said T.A. No. 24 of 1986 was decided by the learned 3rd Additional District Judge, Purnea exparte and thus, according to the plaintiffs, judgment in T. A. no. 24 of 1986/9 of 1988 was obtained by fraud without service of summons to the plaintiffs’ father and, therefore, the same was nullity. The plaintiffs claimed that their father Ram Kishun Yadav died during the pendency of the appeal and the decree was passed without substituting the legal heirs. According to the plaintiffs, excess area had been included in the decree of title appeal and that the learned Additional District Judge had no reason to declare that the appellants/plaintiffs had failed to prove to their case of adverse possession. 6. The State of Bihar, being the defendant first party filed a written statement denying averments made in the plaint regarding the plaintiffs’ claim over the suit land and regarding suppression of service of summons. It was pleaded that the suit land belonged to State of Bihar and supported the judgment and decree passed in title appeal. Defendant second set, who is son of Bisun Yadav also filed separate written statement pleading that the suit plot No. 4932 have been wrongly recorded in the name of 4 Patna High Court SA No.97 of 2011 (13) dt.10-04-2013 4 / 7 State of Bihar showing the possession of Awadhesh Mahto. He contested the claim of the plaintiffs with the plea that Title Appeal No. 24 of 1986 was decided during the life time of Late Ram Kishun Yadav. 7. On the basis of the pleadings of the parties, learned trial Court framed six issues including issue Nos. iv and v which reads as follows:- “iv. Whether the judgment and decree passed by the learned 3rd Additional District Judge is against dead person Ram Kisun Yadav and the same is nullity? v. Whether the plaintiff’s have got exclusive title over R.S. Plot No. 4932 measuring an area of 1.30 acres? 8. Dealing with Issue No.v learned trial Court came to a finding that the plaintiffs could not prove the story of death and referring to the death certificate showing date of registration on 10.9.2007, the learned trial Court came to a finding that such document was prepared during the pendency of the title appeal for the purpose of the suit only. Learned trial Court considered the documents exhibited in course of trial and the evidence of plaintiffs as well as defendants witnesses to reach to a finding that the story of date of death of the plaintiff’s father Ram Kishun Yadav during the pendency of Title Appeal No. 24 of 1986 was 5 Patna High Court SA No.97 of 2011 (13) dt.10-04-2013 5 / 7 not acceptable. Learned trial Court also came to a finding on the basis of the materials on record that the plaintiffs could not establish their title over the suit property. 9. Aggrieved by the judgment and decree passed by the learned trial Court in Title Suit No. 55 of 2003 the appellants preferred appeal which was registered in the file of learned Additional District Judge, FTC-IV, Purnea. Learned first appellate Court formulated two points for consideration in the appeal i.e.:- “(1) Whether the judgment and decree in Title Suit no.222/64 and Appeal No. 24 of 1986 was obtained by committing fraud and (2) Whether the decree passed in appeal No. 24 of 1986 was a nullity having been passed against the dead person, namely, Ram Kishun Yadav?” 10. From the judgment of the first appellate Court, it will appear that after dealing in detail the evidence on record both documentary or oral concurred with the finding of fact that the appellants could not establish a case that the judgment and decree in question were obtained by committing fraud so as to attract Order 6 Rule 4 of the Code of Civil Procedure. 11. Dealing with the assertions of the plaintiffs that Ram KishunYadav was no more on the date of judgment passed in Title Appeal No. 24 of 1986, learned first appellate 6 Patna High Court SA No.97 of 2011 (13) dt.10-04-2013 6 / 7 Court came to a finding that the plaintiffs failed to prove that Ram Kishun Yadav was no more on the date of delivery of the judgment by the first appellate Court. Learned first appellate Court came to a finding that the plaintiffs failed to prove the date of death of Ram Kishun Yadav. 12.
Legal Reasoning
circumstances as indicated above, by this Court in exercise of 7 Patna High Court SA No.97 of 2011 (13) dt.10-04-2013 7 / 7 power under Section 100 of the Code of Civil Procedure. 14. The present second appeal does not involve any substantial question of law. The findings of the Courts below cannot be said to be perverse being contrary to evidence or without evidence available on record. 15. The appeal, therefore, does not merit admission and is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-
Arguments
Shri Prakash Srivastava, learned counsel appearing on behalf of the appellants has vehemently contended that there was enough evidence before the Courts below to come to a conclusion Ram Kishun Yadav had died prior to judgment passed in Title Appeal No. 24 of 1986. 13. After having heard learned counsel for the appellants and having considered the judgments of the Courts below, I am of the view that the only controversy in the present case is as regards the date of death of Ram Kishun Yadav. On the basis of evidence on record both the courts below have concurrently held that there was no document to establish that Ram Kishun Yadav died before the date of death of the delivery of judgment in Title Appeal No. 24 of 1986. This question is purely a question of fact and does not involve any question of law. There is concurrent finding of facts by the Courts below which need no interference in the facts and