====================================================== Ratan Yadav v. Biswa Nath Mahto
Case Details
Patna High Court SA No.585 of 2011 (4) dt.04-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.585 of 2011 ====================================================== Ratan Yadav .... .... Appellant/s Versus Biswa Nath Mahto .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ashok Kumar Sinha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 4 04-07-2013 (1) Heard the learned counsel, Mr. K.K.Tiwary appearing on behalf of the appellant under Order 41 Rule 11 C.P.C. (2) This Second Appeal has been filed by the
Legal Reasoning
defendant-appellant-appellant against the judgment and decree dated 20.08.2011 passed by the learned 2nd Additional District Judge, West Champaran, Bettiah in Title Appeal No.8 of 2009 whereby the Lower Appellate Court dismissed the appeal and confirmed the judgment and decree of the trial court dated 24.12.2008 passed by the learned Munsif, Bettiah in Title Suit No.225 of 2000. (3) The plaintiff-respondent filed the aforesaid title suit praying for declaration of title and further for declaration that the defendant is trespasser. The plaintiff also prayed for recovery of possession with respect to 4 ½ dhurs land of plot no.137 and 5 Patna High Court SA No.585 of 2011 (4) dt.04-07-2013 2 dhurs land of plot no.135 i.e. the suit land. (4) The plaintiff claimed the aforesaid relief alleging that plot no.137 and 138 was Gairmajarua Malik land whereas plot no.135 was the ancestral land of Thakur Rai. The father of the plaintiff was the freedom fighter. Many years prior to the vesting of zamindari, the father of the plaintiff with the permission of the landlord came in possession of plot no.137 measuring 10 dhurs and plot no.138 measuring 11 decimals and constructed house thereon. Accordingly, the plaintiff’s father came in possession of total 15 decimals. On partition, some portion of plot no.135 fell in the share of Thakur Rai and from him Khedan Rai purchased 12 dhurs by registered sale deed dated 26.08.1983. In the said sale deed, there was mistake in the khata number, therefore, subsequently, a correction deed was also registered on 03.09.1990. Subsequently, the lands of plot no.137 and 138 were settled in the name of Khedan Mahto by the State Govt. in Rent Fixation Case No.3 of 1969-70 and Settlement Case No.227 of 1992-93. However, the defendant on 16.01.2000, forcibly took possession over the disputed land by keeping the straw on it. (5) The defendant’s case is that in the year 1973-74, the defendant along with his brother, Jhagru Yadav and Shivratan Yadav came to the village, Mangalpur Kala and with the Patna High Court SA No.585 of 2011 (4) dt.04-07-2013 3 permission of the ex-landlord, they came in possession of 1 katha 8 dhrus of plot no.137. The land of plot nos.135 and 136 were the ancestral land of Babu Chandrama Rai. The defendant purchased 8 dhurs land of plot no.136 and 1 katha 6 ½ dhurs land of plot no.135 orally in nominal price in the year 1973-74 and subsequently on 23.01.1984, a registered sale deed was executed and likewise, the other lands of plot no.137 was purchased by the brothers of the defendant by registered sale deeds of the year 1991. All other facts alleged by the plaintiff were denied. (6) The trial court after appreciating the oral as well as documentary evidences recorded the finding that the plaintiff’s sale deed is of the year 1983 whereas the defendant’s sale deed is of the year 1984. Therefore, the sale deed of the plaintiff will prevail over the subsequent sale deed. The trial court also disbelieved the case of the defendant that they orally purchased in the year 1973-74 and accordingly, decreed the plaintiff’s suit. (7) The defendant filed title appeal before the Lower Appellate Court. The Lower Appellate Court recording the same finding, dismissed the title appeal.
Legal Reasoning
(8) The learned counsel, Mr. K.K. Tiwary appearing on behalf of the appellant submitted that the Lower Court has wrongly not relied upon the case of the defendant that they have Patna High Court SA No.585 of 2011 (4) dt.04-07-2013 4 purchased the land orally in the year 1973-74 and came in possession of the property. The sale deed was executed in the year 1984, therefore, the title will pass from the date of oral purchase i.e. in the year 1973-74. In such circumstances, the findings recorded by both the courts below are vitiated. The learned counsel further submitted that the defendant-appellant is in possession of the suit property but both the courts below wrongly declared the title in favour of the plaintiff. (9) From perusal of the Lower Appellate Court judgment, it appears that in addition to the oral evidences considered by the Lower Appellate Court at paragraph 20, the Lower Appellate Court considered the documentary evidences, Exhibit 2, 3, 4 and 5 and on the basis of appreciation of these documentary evidences, recorded the finding that the plaintiff was in possession of the suit land. At paragraph 21, the Lower Appellate Court considered the sale deeds of the defendant which are Exhibit A series and thereafter recorded the finding that the sale deed of the defendant are subsequent to the sale deed of the plaintiff. On the basis of these findings, the Lower Appellate Court dismissed the appeal. So far the submission of the learned counsel for the appellant that the defendant had purchased orally the land in the year 1973-74 is concerned, it may be mentioned Patna High Court SA No.585 of 2011 (4) dt.04-07-2013 5 here that the defendant’s case is based on the registered sale deed which is Exhibit A. This registered sale deed is of the year 1984. If in fact, the defendant had purchased the land orally in the year 1973-74 and was in possession of the property, then they had acquired the title in 1973-74 itself. If they were title holder then there is no question of purchasing the said land again in the year 1984 arises. They have also not disclosed about the consideration amount paid to the vendor in the year 1973-74. It is not the case of the defendant that in the sale deed of the year 1984, there is any reference of the oral purchase of the year 1973-74. Moreover, the courts below have recorded the finding of fact that the plaintiff has been able to prove his title and possession on the basis of the oral as well as documentary evidences. Both the courts below also recorded the finding that prior to the dispossession, the plaintiff was in possession of the suit property. These findings of the courts below are pure finding of fact. Therefore, in second appellate jurisdiction, the same cannot be interfered with. (10) So far the submission that the defendant is in possession or that they had already purchased orally in 1973-74 but the courts below have wrongly recorded otherwise is concerned, it may be mentioned that the courts below have found that the defendant dispossessed the plaintiff and that the oral Patna High Court SA No.585 of 2011 (4) dt.04-07-2013 6 purchase claimed by the defendant is not reliable and, therefore, they had not relied upon the case of the defendant. The High Court, therefore, in second appellate jurisdiction, cannot substitute the finding of fact by appreciating evidences. (11) In view of my above discussion, in my opinion, none of the points raised by the learned counsel for the appellant is substantial question of law. Accordingly, no substantial question of law is involved in this Second Appeal. Therefore, it is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Saurabh/-