Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.593 of 2011 ====================================================== Ashok Manjhi & Ors .... .... Appellant/s Rajendra Dusad & Ors Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ranjeet Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV ORDER 9 13-08-2013 1. I have heard the learned counsel, Mr. Jitendra Kishore
Legal Reasoning
Verma on behalf of the appellant and the learned counsel Mr. Arun Kumar Singh on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure. 2. The defendants appellants appellants have filed this second appeal against the Judgment and Decree dated 13.05.2011 passed by the learned Addl. District Judge, Fast Track Court No.II, Gopalganj in title Appeal No.50 of 1977 / 192 of 2009 whereby the lower appellate Court dismissed the appeal and confirmed the Judgment and Decree dated 16.04.1977 passed by the learned Addl. Munsif, II, Gopalganj in title suit No.49 of 1968. 3. The plaintiffs-respondents filed the aforesaid suit for declaration of title and recovery of possession on the disputed land. According to the plaintiff, the suit land was granted by the ex. landlord to Ganaur Manjhi for his service to the ex. landlord as Goraiti. After his death, Mukhdeo Manjhi being his son became Goraiti. Mukhdeo Manjhi died 35 years ago leaving his widow 2 Patna High Court SA No.593 of 2011 (9) dt.13-08-2013 2 / 4 Mostt. Ghuini and his sisters Most. Mahajani. Mahajani was married to the plaintiff. After death of Mukhdeo, plaintiff did Goraiti of the ex.landlord and was looking after the property. After vesting of Jamindari, the said land became kast land of the plai6niff. The defendant took forged sale deed from Shivkalia and was claiming title. 4. The defendant filed written statement alleging that Mukhdeo Manjhi was not the only Goraiti but Khakhnu and Makhnu were joint Goraiti with Mukhdeo’s father, namely Ganaur. After death of Khakhnu, his son Ramdeo became Goraiti with Mukhdeo Manjhi. Mukhdeo Manjhi died leaving behind his widow Ghuini and two sisters Sahjani and Mahajani. Mukhdeo Manjhi was married to Mahajani. After death of Mukhdeo Manjhi, Ramdeo was the only mail member, therefore, he continued Goraitii of the ex.landlord. The suit land were given to him by the ex. landlord. After death of Ramdeo, his daughter came in possession of the property and in 1962, she sold the land to the defendant. 5. The trial Court held that Ishwari Manjhi did Goraiti after Mukhdeo and not Ramdeo. Shivkaliya had no title so the sale deed executed by her is void document. Accordingly, the suit was decreed. The defendant filed appeal before the lower appellate Court. The lower appellate Court confirmed the finding of the trial Court and dismissed the appeal. 6. The learned counsel, Mr. Verma appearing on behalf of the appellant submitted that both the Courts below categorically recorded that none of the parties have filed any document in 3 Patna High Court SA No.593 of 2011 (9) dt.13-08-2013 3 / 4 support of appellant as Goraiti and the rent receipts filed by the plaintiff are not related to the suit land but the plaintiff’s suit for declaration of title has been decreed. According to the learned counsel since the defendant is in possession of the property on the basis of sale deed, he cannot be evicted from the suit land unless the plaintiffs proves his title. His case is that on the death of Mukhdeo, the plaintiff was appointed as Goraiti but no documents have been filed in support of this fact. 7. On the contrary, the learned counsel for the respondent submitted that the dispute is who was doing Goraiti of the ex. landlord. This question is pure question of fact. Both the Courts below recorded the finding on the basis of oral evidence that Ishwar Manjhi ancestor of the plaintiff was Goraiti after death of Mukhdeo. Ramdeo was not the Goraiti. Therefore, the finding being finding of fact, it cannot be interfered with in second appeal. 8. From perusal of the Judgment of both the Courts below, it appears that the evidences have been discussed by the Courts below. No doubt, no documents regarding appointment of as Goraiti has been filed by either party. However, both the parties adduced oral evidences in support of their case. On the basis of oral evidence, the Courts have concurrently found that Ishwari Manjhi was Goraiti. Ramdeo was not Goraiti. The defendant is claiming to have purchased from the daughter of Ramdeo. So far this finding is concerned, it is pure question of fact. Therefore, there cannot be any hard and fast rule that unless a document of appointment as Goraiti is produced, no finding can be recorded on 4 Patna High Court SA No.593 of 2011 (9) dt.13-08-2013 4 / 4 the basis of oral evidence. The defendant appellant is also claiming that father of Ramdeo namely Khakhnu was also joint Goraiti but he has also not produced any document in support of his case. Both the parties adduced oral evidences and Courts below after considering oral evidence have recorded the finding. In such circumstances, the manner of appreciation of oral evidence or non-consideration properly or in the manner alleged by the appellant, the Judgment of the lower appellate Court cannot be said to be vitiated. This Court being the second appellate Court cannot re-appreciate the evidence and substitute the finding of fact unless it is shown that no prudent person can arrive to the finding recorded by the Courts below on the basis of the evidence. In my opinion, therefore, the controversy between the parties as to whether Ramdeo was also a joint Goraiti with Mukhdeo or not has been concluded by concurrent finding of fact. Therefore, the point raised by the learned counsel for the appellant is not a substantial question of law. 9. I, therefore, find that no substantial question of law is involved in this Second Appeal. Accordingly, this Second Appeal id dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Sanjeev/-