====================================================== Most. Shanti Kuar & Ors v. Ranjan Singh & Ors
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.161 of 2011 ====================================================== Most. Shanti Kuar & Ors .... .... Appellant/s Versus Ranjan Singh & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Harendra Prasad For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 9 31-07-2013 Heard learned counsel Mr. Harendra Prasad, appearing on behalf of the appellants under XLI Rule 11 of the Code of Civil Procedure. 2. The plaintiffs-appellants-appellants have filed this Second Appeal against the judgment and decree dated 24.12.2010 passed by the learned Additional District Judge, Fast Track Court No.-V, Gopalganj in Title Appeal No.126 of 1994 whereby the
Legal Reasoning
lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated 09.09.1994 passed by the learned Subordinate Judge-I, Gopalganj in Title Suit No.39 of 1981. 3. The plaintiffs-appellants filed the aforesaid suit praying for declaration that the two registered sale deeds dated 22.07.1980 executed by defendant nos.3 to 4 in favour of defendant no.1 are forged, fabricated and without consideration, Patna High Court SA No.161 of 2011 (9) dt.31-07-2013 2 which are not binding on the plaintiffs. 4. The plaintiffs claimed the aforesaid relief alleging that Chattar Awadhiya was the common ancestor of the parties. He had three sons, namely, Gokhula, Mathura and Gulab. The first son Gokhula died leaving behind a daughter Piyaria much prior to the survey. Therefore, the son of Piyaria was not necessary party. The share of Gokhula devolved on the remaining two sons, namely, Mathura and Gulab. Mathura died in the year 1940 leaving behind his widow Tetari and son Ramdhani. Ramdhani and his wife Subhagiya also died leaving behind a son Bishwanath. There was partition between Mathura and Gulab just after the survey i.e. of the year 1917-1918. Tetari died in the year 1947 and Bishwanath also died in the year 1948. Therefore, Gulab became the absolute owner of the entire property. Gulab died leaving behind Awatari, Jiria, Deoki (Plaintiff no.1), Awadh Awadhia (plaintiff no.2), Harihar (defendant no.2) and Ramratia. There is no partition between the heirs of Gulab but Ramratia executed the sale deed in question in favour of Laxmi Awadhia (defendant no.1), who is son of Harihar (defendant no.2). 5. The contesting defendants filed the written statement alleging that in fact Mathura died leaving behind a daughter Ramratia. Ramratia was not the daughter of Gulab. Patna High Court SA No.161 of 2011 (9) dt.31-07-2013 3 Ramratia died in the year 1947 and his sons Tokhraj, Lakhraj and Devraj have sold the property of Mathura in favour of defendant no.1 by two registered sale deeds. 6. The trial court after considering the evidences documentary and oral recorded the finding that Ramratia was not the daughter of Gulab rather she was the daughter of Mathura. Accordingly, the plaintiffs’ suit was dismissed. 7. On appeal, the lower appellate court also recorded the same finding and dismissed the appeal. 8. The learned counsel appearing on behalf of the appellants submitted that while dismissing the appeal, the lower appellate court has not considered the fact that Ramratia was limited owner even if it is found that she was the daughter of Mathura. Since Mathura died in the year 1940 she became the maintenance holder only and had not acquired the property of Mathura. So far recording of finding regarding parentage of Ramratia is concerned, according to the learned counsel for the appellants both the courts below have not considered the evidences properly because the defendants never produced any evidence in support of the case that Ramratia was the daughter of Mathura. Learned counsel further submitted that both the courts below have placed the onus on the plaintiffs to prove the parentage Patna High Court SA No.161 of 2011 (9) dt.31-07-2013 4 of Ramratia. When both the parties have adduced the evidences, the burden of proof loses its importance and, therefore, the judgment of both the courts below are vitiated. Learned counsel further submitted that the lower appellate court has discarded the documentary evidences such as the rent receipts, Pariwarik Pustika, sale deeds and other evidences wrongly. According to the learned counsel, the plaintiffs are in possession of the property and are dealing the same as owner thereof and defendants did not produce any chit of paper either to say that Ramratia was the daughter of Mathura or she was in possession of the property or after her death her sons are in possession of the property. 9. From perusal of the judgments of both the courts below, it appears that both the courts below have considered the evidences. The trial court considered the evidence of each and every witness examined on behalf of the plaintiffs in support of the case of parentage of Ramratia Devi. After considering the evidences, the trial court recorded the finding that the evidences produced by the plaintiffs are not according to section 50 of the Indian Evidence Act because none of the witnesses have disclosed their special means of knowledge regarding the parentage, whereas after considering the evidences of the defendants the trial court recorded the finding that she was the daughter of Mathura. Patna High Court SA No.161 of 2011 (9) dt.31-07-2013 5 10. So far the submission that the documentary evidences have been discarded by lower appellate court without cogent reason is concerned, from perusal of the lower appellate court judgment it appears that the lower appellate court has taken note about these exhibits i.e. Ext.2, the Pariwarik Pustika wherein the name of Ramratia did not find place. This document was produced by the plaintiffs to prove that she was the daughter of Gulab. The lower appellate court said that in the Pariwarik Pustika of Gulab the name of Ramratia is absent which clearly give death blow to the case of the plaintiffs. So far the other documentary evidences i.e. Ext.4 series, the mortgage deed and Ext.5 series relating to the mortgage amount and Ext.7, Ext.8 series and Ext.9 series, irrigation tax receipts are concerned, the lower appellate court said that on the basis of these documents no parentage of Ramratia can be decided. Admittedly, therefore, there is no documentary evidence produced by either parties regarding their respective cases as to whether she was the daughter of Gulab or she was the daughter of Mathura. After considering the oral evidences, both courts recorded categorical finding that she was the daughter of Mathura. In such circumstances, this court being the second appellate court has no jurisdiction to re-appreciate the evidences that too oral evidence and substitute its own finding of Patna High Court SA No.161 of 2011 (9) dt.31-07-2013 6 fact because this finding is pure question of fact. 11. So far the submission of the learned counsel regarding possession is concerned, it may be mentioned here that if the plaintiffs are in possession of the property, it will not prove the case of the plaintiffs that Ramratia was the daughter of Gulab. It may be mentioned here that the plaintiffs have only prayed for declaration with respect to the sale deeds. They have not claimed any declaration of their title or recovery of possession. Now, therefore, in view of the finding that Ramratia was the daughter of Mathura, the question will be whether she will be limited owner. According to the learned counsel for the appellants, she will be limited owner because her father Mathura died in 1940. At the time of hearing this Second Appeal, a copy of the plaint was produced before this court. From perusal of paragraph 3 of the plaint, it appears that there is specific assertion made by the plaintiffs that there was a partition between Mathura and Gulab just after the recent survey i.e. the survey of year 1917-1918. Since there was partition between Gulab and Mathura, the property of Mathura would naturally go to his daughter Ramratia in view of the fact that the daughter is in Entry no.(5) of Article 43 of Mulla’s Hindu Law 16th Edition. Now, therefore, the property of Mathura will be inherited by his daughter Ramratia because Patna High Court SA No.161 of 2011 (9) dt.31-07-2013 7 according to the plaintiffs it is admitted case that there was partition between Mathura and Gulab. In such circumstances, there is no question of any limited ownership arises. When she inherited the property of Mathura after her death in the year 1947, the property was inherited by her three sons Tokhraj, Lakhraj and Devraj who have executed sale deeds in favour of defendant no.1. 12. So far the grounds taken by the appellants that the sale deeds are forged, fabricated or no consideration passed is concerned, it may be mentioned here that since the plaintiffs have no semblance of title in the property of Mathura and being the third party, they cannot challenge passing of consideration in presence of the seller and purchaser. 13. In view of the above facts and circumstances, in
Legal Reasoning
my opinion, none of the grounds raised by the learned counsel for the appellants are substantial questions of law. Thus, I find no substantial question of law is involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Harish/-