Mosafir Sah v. Jai Gobind Sah

The defendant appellant appellant has filed this Second Appeal against the Judgment and Decree dated 9.12.2010 passed by he learned Addl. District Judge XIth, Saran in title appeal No.49 of 2006 whereby the learned Addl. District Judge dismissed the appeal and confirmed the Judgment and Decree dated 16.9.2006 passed by the learned Civil Judge Ist, Junior Division, Chapra in title suit No.159 of 2002.

3. The plaintiff respondent filed the aforesaid suit for declaration of title and recovery of possession of the suit property comprised within plot No.4615 measuring 8 dhurs. The plaintiff claimed the aforesaid relief alleging that Ramjay Sah, Babu Lal Sah and Achchlal Sah, 3 brothers had got 1/3rd share each. Babu Lal Sah and Achchlal Sah sold their 2/3rd share to Surendra Thakur. Ramjay Sah purchased the same by registered sale deed on 21st 2 Patna High Court SA No.124 of 2011 (6) dt.29-08-2013 February, 1972. On his death his two sons Bisun Sah and plaintiff Jai Govind came in possession. In 1975, there was partition between Bisun Sah, father of the defendant and the plaintiff and Schedule I property were divided to the extent of half in between them. When a gift deed was executed in favour of defendant, partition suit No.159 of 1992 was filed by the plaintiff wherein the defendants filed written statement accepting the partition in the year 1975 between the parties. However, the suit was dismissed and ultimately the appeal being title appeal No.17 of 1998 was also dismissed. Since after the disposal of the aforesaid suit, the plaintiff was coming in possession of the suit property. However on 27.04.2002, the defendant dispossessed the plaintiff from Schedule II property except plot No.4613.

4. The defendant’s case in short is that in fact the plot No.4615 having 16 dhurs was obtained in settlement by his father Bisun in the year 1951 from the ex. landlord. Jamindari return was also filed. All the papers has been destroyed because of collapse of the house. The purchaser from Babu Lal and Achchlal Sah never came in possession and the vendors also were never in possession of the property. By mistake in partition suit No.159 of 1992, the defendant wrongly admitted that the plot No.4615 was also divided in between the parties but actually plot No.4615 was excluded in the partition between the parties.

5. The trial Court on the basis of the evidences and materials recorded the finding that plot No.4615 is not the self acquired property of father of defendant. On the basis of the documentary evidences, i.e., the written statement and the 3 Patna High Court SA No.124 of 2011 (6) dt.29-08-2013 Judgment of partition suit No.159 of 1992, the trial Court recorded the finding that the defendant had admitted in that suit that the property was partitioned between the two brothers. Accordingly, the trial Court decreed the plaintiff’s suit. On appeal, the lower appellate Court confirmed the Judgment and Decree of the trial Court and dismissed the appeal.

6. The learned counsel, Mr. Mahesh Narain Parwat, appearing on behalf of the appellant raised two grounds. Firstly, he submitted that there is no clear admission in the written statement that this property was partition between the parties. Reference was made in the written statement but the Courts below have wrongly interpreted the said admission made in the written statement to be conclusive proof. Secondly, the learned counsel submitted that the defendants respondents are in possession of the property and the documentary evidences have been destroyed because of natural calamities but the lower Court did not consider this aspect of the matter and disbelieved the story of the defendants.

7. On the other hand, the learned counsel appearing on behalf of the respondent submitted that none of the points raised by the learned counsel for the appellants are substantial question of law.

8. From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court considered the question as to whether the land in question is self-acquired property of Bisun Sah or ancestral property. After considering the oral as well as 4 Patna High Court SA No.124 of 2011 (6) dt.29-08-2013 documentary evidence, the lower appellate Court recorded the finding that survey plot No.4615 was joint family property. The lower appellate Court also found that the defendant had admitted in the written statement filed in the earlier suit that the property was divided between the parties.

9. It may be mentioned here that during the course of hearing in admission matter, the plaint and the written statement was produced before this Court. From perusal of the plaint, it appears that the plaintiff categorically stated that plot No.4615 was divided in three parts and the plaintiff’s father was in possession of 1/3rd share. This pleading in paragraph 1 of the plaint was specifically admitted to be correct in paragraph 5 of the written statement. Further, it may be mentioned here that nowhere any case was made out by the ancestor of the defendant or this defendant that plot No.4615 was the self acquired property of Bisun Sah by settlement from the ex.landlord. On the contrary it is pleaded in the present case that in fact wrongly the defendant admitted the fact of partition of the suit plot No.4615. The further defence is that although the property, i.e., part of plot No.4615 was sold by Babulal Sah and Achchlal Sah, the purchaser never came in possession. So far these defence are concerned, the Courts below have concurrently disbelieved. In such view of the matter the question as to whether the suit plot was self acquired property of Bisun or it is joint family property is pure question of fact and the same cannot be said to be a substantial question of law as has been held by the Hon’ble Supreme Court in the case of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi 2009 (3) SCC 5 Patna High Court SA No.124 of 2011 (6) dt.29-08-2013

10. So far the submission of the learned counsel that there is no clear admission in written statement filed in the earlier suit is concerned, I have gone through the statements made in the written statement filed in the earlier suit. There is no case made out by the defendant regarding self acquired property of Bisun and in fact the statement at paragraph 1 of the plaint has been admitted categorically in the written statement, therefore, in view of the settled proposition of law that admission is the best evidence unless it is satisfactorily explained to the conscience of the Court, the same can be admitted to be reliable evidence as has been held by the Hon’ble Supreme Court in the case of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi AIR 1960 SC 100 and again reiterated in the case of Ahmedsaheb (Dead by Lrs & Ors) Vs. Sayed Ismail 2012 (8) SCC 516.

11. In view of the above facts and circumstances of the case, in my opinion, the controversy between the parties has already been concluded by findings of facts of the Courts below. The points raised by the learned counsel for the appellant is not at all substantial question of law. Therefore, since no substantial question of law involved in this second Appeal, this Second Appeal is dismissed at the admission stage itself. Sanjeev/- (Mungeshwar Sahoo, J)