HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.259 of 2010 ====================================================== Md. Safi, son of late Hafiz Mohamad Jehoor resident of Mohalla-Ratanpura, Farbish Bazar at present resident of Bhagawan Bazar, P.S.-Bhagawan Bazar, P.o. Chapra, District-Saran. Versus .... .... Appellant/s 1. Md. Teki son of late Hafiz Mohamad Jehoor resident of Mohalla- Ratanpura, Farbish Bazar at present resident of Mohalla-Bhagawan Bazar, P.S.-Bhagawan Bazar, P.o. Chapra, District-Saran. 2. Md. Zaki both son of late Hafiz Mohamad Jehoor resident of Mohalla- Ratanpura, Farbish Bazar P.S+ P.O. Chapra, District-Saran at present Bhagwan Bazar, P.S. and P.O. Chapra, District-Saran.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Kamala Kant Tiwary For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 12 14-01-2013 Heard the learned counsel for the appellant. The defendant no. 3 in the suit is the appellant in this second appeal against the judgment and decree dated 22.04.2010 passed by Additional District Judge-VIII, Chapra in T.A. No. 28 of 1996/57 of 2009 affirming the judgment and decree dated 29.02.1996 passed by Sub-Judge-I, Chapra in T.S. No. 193 of 1991 whereby the suit filed by the plaintiff for partition has been decreed. There is no dispute between the parties that both the plaintiff and the defendants are the sons of Hafiz Md. Zahur and Patna High Court SA No.259 of 2010 (12) dt.14-01-2013 2 his wife Most. Talbandi. The plaintiff has claimed that the suit property had earlier been taken in settlement by his father Hafiz Md. Zahur in the year 1935 from the ex-landlord-Hathua Raj. After taking the settlement two houses were constructed and in one of them a tailoring shop was established. The defendant no. 3 has come out with the case that the suit property was purchased by Most. Talbandi by registered sale deed dated 07.07.1959 and thereafter she constructed the house over the same and later on gifted the same to the defendant no. 3. The trial court after considering the pleadings and evidence of the parties has come to the finding that the suit house has been in existence much before 1959. It has been further held that the sale deed dated 07.07.1959 in favour of Most. Talbandi was only a showee document and it did not confer any exclusive title upon her. Sequentially, it has been held that the defendant no. 3 did not acquire any right title and interest over the suit property on the basis of the gift deed executed by Most. Talbandi. The appellate court below, on reappraisal of evidence, has concurred with the findings of the trial court by coming to the conclusion that the plaintiff has succeeded in proving the settlement of the suit property to his father Hafiz Md. Zahur and construction of the suit houses much before 1959. It has also come Patna High Court SA No.259 of 2010 (12) dt.14-01-2013 3 to the finding that the sale deed in favour of Most. Talbandi in the year 1959 was only a showee document and did not confer exclusive title over the suit property on her. The learned counsel for the appellant has assailed the impugned judgments firstly on the ground that both the courts below have failed to consider that the entire documentary evidence filed by the plaintiff relate to some other property and not the suit property and therefore the findings of both the courts below are perverse. It has been further contended by the learned counsel that the suit property was the personal property of the vendor of Most. Talbandi and not the property of his estate known as Hathua Raj and therefore, he was fully competent to transfer by sale the suit property in favour of Most. Talbandi. Elaborating his submission, the learned counsel has asserted that both the courts below have adopted the double standard in the appreciation of evidence and have committed illegality in totally discarding the documentary evidence of the defendant no. 3-appellant. It has been also urged that the defendant-appellant in his deposition has specifically stated that all the documentary evidence adduced by the plaintiff are forged and fabricated. The learned counsel has strenuously submitted that the issue regarding the error of record committed by both the courts below has been raised in the memo of appeal in Patna High Court SA No.259 of 2010 (12) dt.14-01-2013 4 this regard and has also tried to impress the court to reappreciate the documentary evidence of the plaintiff and also the sale deed in favour of Most. Talbandi, donor of the defendant-appellant. The plaintiff has based his claim on the settlement taken by Hafiz Md. Zahur from the ex-landlord-Hathua Raj in the year 1935 after payment of Nazarana and grant of rent receipts. It is the specific case of the plaintiff that his father Hafiz Md. Zahur after taking the settlement constructed two houses over the settled land and also established a shop in one of the houses. In support of his claim the plaintiff has adduced documentary evidence besides examining witnesses. The defendant-appellant on the other hand has claimed title over the suit property by way of gift from his mother Most. Talbandi on the ground that the suit property was the exclusive property of Most. Talbandi which she purchased on 07.07.1959. It is manifest from the judgments of both the courts below that the evidence of the parties have been meticulously scanned and thereafter the finding of fact has been recorded that the suit property has bee settled with Hafiz Md. Zahur who was father of the plaintiff and defendant and the husband of Most. Talbandi. On the basis of the documentary evidence adduced on behalf of the plaintiff as well as the deposition of D.W.-2, D.W.-3 Patna High Court SA No.259 of 2010 (12) dt.14-01-2013 5 and D.W.-7 (defendant-appellant), it has been further found that the suit house existed even before 1959 and Hafiz Md. Zahur resided in the same till his death which occurred before 1959, which fact falsifies the case of the defendant-appellant that after the purchase in 1959, Most. Talbandi has constructed the house. Although, , it has been shown on behalf of the appellant that the defendant examined as D.W.7 has stated that the documentary evidence adduced by the plaintiff are all forged and fabricated but it does not appear that any further step was taken by the defendant to substantiate the said allegation. Moreover both the courts below have also observed that the defendant-appellant during course of his deposition was trying to suppress the real facts. Much emphasis has been laid on behalf of the appellant regarding the ground taken in the second appeal relating to the error of record committed by both the courts below. However, it could not be shown on behalf of the appellant that at any point of time in the appellate court below such plea had been raised. The conclusion arrived by both the courts below appear to be correct on the basis of the appreciation of evidence by them. In the second appellate jurisdiction, reappreciation of evidence is not permissible unless the findings are shown to be perverse in any manner. Definitely, it was for the defendant-appellant to lead Patna High Court SA No.259 of 2010 (12) dt.14-01-2013 6 evidence and establish that the documentary evidence relied on by the plaintiff were forged and fabricated but he omitted to do so in both the courts below and now he cannot be allowed to raise the said objection for the first time in this second appeal. The submission with regard to adopting the double standard by the courts in appreciating the evidence also could not be substantiated and it does not appear from the discussions of the evidence by the courts below that any partial approach has been adopted. The issues of facts arising between the parties have been concluded by concurrent finding of facts. I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)