Munga Lal Sah v. Chandra Kala Murti & Ors.

Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 2 plaintiff/ respondents.

3. The case of the plaintiff in his plaint was that one Guni Mandal was the Khatiyani raiyat of Khata No. 46, Khesra No. 1/699 comprising area 4 Bigha, 13 Kathas and 12 Dhur. He died leaving behind his only son Ram Kishun Mandal who had three sons, namely, Bal Govind Mandal, Brij Mohan Mandal and Balram Mandal. During his life time, he had sold 10 Katha land in Khesra No. 1/699 in northern side to one Manohar Lal Dwarka Prasad, whereas 10 Katha 11 Dhur land in the Southern side was acquired by the Public Works Department, Government of Bihar. Thus, Ram Kishun Mandal remained in possession of 3 Bighas 12 Kathas and 1 Dhur land. After death of Ram Kishun Mandal, his three sons noted above have came in joint possession over the land as title holder. Mutation was done in the name of eldest son Bal Gobind Mandal, but during survey and consolidation the Khata was opened in the name of three brothers, namely, Bal Govind Mandal, Brij Mohan Mandal and Balram Mandal. The plaintiffs pleaded that they orally partitioned the land among themselves. As per the plaintiff‟s case from south to north the land got more and more wider, therefore, the land was divided in five parts. Balram Mandal was given 12 Katha land from extreme south and its Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 3 adjacent 12 Katha land towards north was allotted to Bal Govind Mandal. Towards north adjacent to Bal Govind Mandal 24 Katha was allotted to Brij Mohan Mandal and adjacent to him again 12 Katha land was allotted to Bal Govind Mandal towards north and extreme north 12 Katha land was allotted to Balram Mandal.

4. It was the case of the plaintiff that three brothers came in possession over the aforesaid lands who were the respective sharer of the land and as it would appear, each of them was allotted 24 Katha of land. After the death of Bal Govind Mandal, his three sons, namely, Raja Ram Mandal @ Rameshwar Mandal, Siya Charan Mandal and Amrendra Mandal came in possession over 24 Katha of land. Similarly, after the death of Brij Monan Mandal and Balram Mandal their sons came in possession over their respective share of land. The plaintiffs further pleaded that on 05.04.1991, Raja Ram Mandal @ Rameshwar Mandal along with Siya Charan Mandal sold 2.5 Katha land of South portion of his 12 Katha land from northern side in favour of Mohan Yadav, Bindeshwari Yadav, Guneshwar Yadav, Parmeshwar Yadav, Bhuneshwr Yadav, Sikandra Mandal, Umesh Prasad Mandal and Sumitra Devi.

5. On 21.04.1993, Raja Ram Mandal @ Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 4 Rameshwar Mandal sold 1 katha 2 dhur land adjacent to Sumitra Devi in southern side to Mohan Sharma and Sakaldeo Sharma.

6. On 15.03.1994, Siya Charan Mandal along with Amremdra Mandal sold 4 katha land adjacent to the land of Sakali Devi in south and executed sale deed in favour of Krishna Gopal Murti, the minor son of the plaintiff. The plaintiffs pleaded that during partition, the area of land was adjusted among the three brothers in the land of other Khesra.

7. The plaintiffs‟ case is that in the year 1995 when they were unable to take proper care of land which they had purchased due to illness, the defendants taking advantage of such situation started construction of a house over their land in unauthorized and illegal manner.

8. In such view of the matter the original plaintiff filed a suit for declaration of his right and title over the property as described in Scheduled 1 of the plaint and for declaration that possession of Defendant no. 1 and defendant no. 2 (Appellant no. 1, Respondent no. 6) over the property as described in Scheduled 2 and 3 of the plaint was illegal and without jurisdiction. The plaintiff also sought for a decree to direct the defendant to vacate the suit land within stipulated as also recovery of possession. Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 5

9. Learned trial court after framing the issues and after conclusion of the trial came to a positive finding that the plaintiff succeeded to prove his title over Scheduled 1 property and further that they were dispossessed from the suit land and were entitled to get recovery of possession over the land.

10. Learned first appellate court also concurred with the findings of fact and dismissed the first appeal filed on behalf of the defendants. In these circumstances that the present second appeal has been preferred on behalf of the defendant no. 1. Learned counsel appearing on behalf of the appellant fairly submitted that only substantial question of law which is involved in the present case is that the trial court failed to frame issues as regards partition in the family of the vendors which was seriously disputed by the parties. Learned counsel has submitted that in the absence of any issue having framed in this regard evidence could not be led and, therefore, the finding of the first appellate court on the issue of partition could not be sustained. He has submitted that the case of the defendant was seriously prejudiced as evidence could not be led in course of trial as regards the jointness or otherwise of the family of the vendors and, therefore, he submits that the judgments of the courts below need interference in Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 6 exercise of power under Section 100 of the Code of Civil Procedure.

11. I have gone through the judgment of the court below. There is no dispute as regards the execution of sale deed in favour of the plaintiff nor regards his title over the suit land. The only dispute is as regards the identity of the land purchased by the respective parties. In that background, it has been submitted that factum of partition was an important issue which ought to have been framed by the trial court.

12. On perusal of the judgments of the court below, I find that the issue of partition was raised in course of trial as well as before the first appellate court elaborately by the parties concerned. From the judgment of the first appellate court, I find that the Trial Court as well as the First Appellate Court have dealt with the issue of partition quite elaborately dealing with the evidence available on record and came to a finding that there was partition in the family as asserted by the plaintiff. Such finding of the learned first court below cannot be said to be not based on any material or based on merely conjectures and surmises. So far as the submission that non-framing of issue as regards to partition was the vital issue and non-framing of issue on this aspect Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 7 prejudiced the case of the defendant, I am of the view that the same cannot be accepted. When the parties went to trial knowing well the rival case and adduced evidence not only in support of their contention but also in refutal of those facts, non-framing of an issue cannot be a ground for assailing the Judgment.

13. Reference may be made in this regard to a judgment of the Apex Court reported in AIR 1963 S.C. 884, Nedunari Kameswaramma versus Sampati Subba Rao, paragraph 6 of which reads as follows:- “No doubt no issue was framed and the one which was framed could have been more elaborate. But since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutal of those of the other side, it cannot be said that the absence of an issue was fatal to the case or that there that mis-trial which vitiates proceedings”.

14. This view finds support also from Judgment of Supreme court reported in AIR 1956SC 593 Nagubai Ammal and others Vs B. Shama Rao and others, paragraph 12 of which is relevant and is being quoted herein below:- “It was argued for the appellants that Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 8 as no plea of lis pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into and, that no decision could be given based on Exhibit J. series the sale dated 30-1-1920 was affected by lis ; and reliance was placed on the observations of Lord Dunedin in Siddik Mahomed Shah V. Mt. Saran, 1930 P C. 57(1) (AIR V 17) (A) that "no amount of evidence can be looked into upon the plea which was never put forward." The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. The rule applicable to this class of cases is that laid down in Rani Chandra Kunwar v. Narpat Singh 34 Ind. App 27 (B). There, the defendants put forward at the time of a trial a contention that the plaintiff had been given away in adoption and was in consequence not entitled to inherit. No such plea was taken in Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 9 the written statement nor was any issue framed thereon. Before the Privy Council, contention was raised on behalf of the plaintiff that in view of the pleadings, the question of adoption was not open to the defendants.” It was held by Lord Atkinson overruling this objection that as both the parties had gone to trial on the question of adoption, and as the plaintiff had not been taken by surprise the plea as to adoption was open to the defendants, indeed, defendants succeeded on that very issue. This objection must accordingly be overruled”.

15. From the Judgment of the leaned trial court it will appear that the parties led evidence on the question of partition before the trial court knowing fully well and keeping in mind the rival case of the parties even on the question of partition. As has been held in the case of Nagubai Ammal and others Vs B. Shama Rao and others (Supra), „rule‟ that “no amount of evidence can be looked into upon a plea which was never put forward” will have no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto. Leaned First Appellate Court also has considered the evidence on the issue of partition quite in detail. The plea, in such Patna High Court SA No.483 of 2011 (7) dt.22-02-2013 10 circumstance that non-framing of issue on the issue of partition prejudiced the case of appellant cannot be sustained and fit to be rejected.

16. In view of the above I am of the opinion that the present second appeal does not involve any substantial question of law so as to warrant interference in exercise of power under Section 100 of the Code. (Chakradhari Sharan Singh, J) Bhardwaj/-