Patna High Court · 2013

Legal Reasoning

For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 4 10-05-2013 Heard Mr. Bajrangi Lal, the learned counsel for the appellant. The plaintiff is the appellant in this second appeal against the judgment and decree by the appellate court whereby the appellate court below has reversed the judgment and decree of the trial court.

2. From the facts appearing in the impugned judgments of the courts below and in the submissions of the learned counsel appearing on behalf of the appellant, it is manifest that the plaintiff and the defendant are the descendants of a common ancestor. Both the parties admit that there had been partition in the year 1969 2 Patna High Court SA No.526 of 2011 (4) dt.10-05-2013 between the branch of the plaintiff and the branch of the defendant, and it has also been accepted that in Plot No. 2532 an area of ten dhurs has been allotted to the branch of the defendant and an area of thirteen and a half dhurs from Plot no. 2532 along with Plot No. 2533 was allotted in the share of the branch of the plaintiff. It is, however, the case of the plaintiff that there had been an exchange subsequently wherein the defendant has given a piece of land measuring twenty eight feet long and four and a half feet wide out of his allotted land in Plot no. 2532, to the plaintiff and the plaintiff in lieu has given the area of thirteen and a half dhurs of Plot nos. 2532 and 2533 which was allotted to him in partition. This area being twenty eight feet long and four and a half feet wide is the suit land and the plaintiff has claimed that he has got exclusive title and possession over the same and has prayed for restraining the defendant permanently from interfering in his possession over the same.

3. The defendant, on the other hand, has denied the case of exchange, as set up by the plaintiff and has stated that he is in possession of the land allotted to him in Plot No. 2532 in the partition of 1969 and the suit land being part of that allotted area is his land.

4. The trial court after considering the pleadings and 3 Patna High Court SA No.526 of 2011 (4) dt.10-05-2013 evidence of the parties has not believed the case of exchange, as set up by the plaintiff. However, the trial court has passed a decree granting the right of user over the suit land to both the plaintiff and the defendant.

5. In appeal, the appellate court below on reappraisal of evidence has come to the conclusion that the plaintiff has failed to establish his case of oral exchange and acquisition of title over the suit land on that basis. It has also been held that the trial court has committed an error in passing the judgment granting the right of user to both the parties in the suit land. In the result, the appeal was dismissed and the judgment and decree passed by the trial court was also set aside.

6. Mr. Bajrangi Lal, the learned counsel appearing for the appellant has submitted that there are ample evidence on record to establish that the plaintiff has taken the suit land in exchange with the defendant, but both the courts below either ignored or misconstrued the evidence on record. It has been urged that the Pleader Commissioner after local inspection has submitted the report that the defendant has constructed his house over thirteen and a half dhurs of land which was allotted to the plaintiff in partition but given to the defendant in exchange and this fact alone is sufficient to establish the case of exchange, as set up by the 4 Patna High Court SA No.526 of 2011 (4) dt.10-05-2013 plaintiff. The learned counsel, however, has accepted that there is no documentary evidence to establish the case of exchange, as set up by the plaintiff, but simultaneously maintained that the oral evidence and the report of the Pleader Commissioner clearly lead to the conclusion that the oral exchange, as claimed by the plaintiff, is established.

7. In view of the admitted fact that there has been partition in the year 1969 between the parties by metes and bounds of the joint family property wherein the defendant has been allotted the suit land along with other land in his share, the burden of proof was clearly on the plaintiff to establish the case of exchange whereby he has claimed to have got the suit land from the defendant. The appellate court below has found that the report of the Pleader Commissioner, which is the sheet anchor of the case of the plaintiff, cannot be relied upon for the reason that the Pleader Commissioner was not a survey-knowing Pleader Commissioner and also for the reason that the report was prepared without giving information/notice to the defendant. It has also been found by the appellate court below that the Pleader Commissioner was not asked to report on the point whether the defendant has got his house constructed over thirteen and a half dhurs of land of the plaintiff. It has been rightly observed by the 5 Patna High Court SA No.526 of 2011 (4) dt.10-05-2013 appellate court below that the plaintiff ought to have included that point as one of the points of reference the Pleader Commissioner. The appellate court has, therefore, rightly refused to rely on the report. It has also been found that the law recognizes exchange which has been effected by a registered instrument. The plaintiff has not come out with any other case to support his claim of acquisition of title over the suit.

8. Further, in view of the case of the plaintiff and the relief sought by him, the trial court has clearly made out a third case by granting/recognizing the right of both the plaintiff and the defendant to use the suit land. The appellate court below has correctly set aside that part of the judgment and decree of the trial court and thereafter has correctly dismissed the suit.

9. In the result, I do not find any substantial question of law arising in this appeal which is, accordingly, dismissed. B.Roy/- (V. Nath, J)