Nand Kishore Sah v. Jai Ma Kali Maharani, Kali Asthan at Champanagar Makdum Sah Dargah Lane
Case at a glance
- Decided
- 20 Aug 2013
- Bench
- V NATH
Provisions considered
Key paragraphs
- Para 1515. Mere because the plaint says in the prayer such other relief be granted to the plaintiff it does not mean that without a specific plea for possession and disregarding bar under Section 42 (proviso) of the Specific Relief Act, the suit could be decreed…
- Para 4646. From a plain reading of Order 26 of Rule 9 of Patna High Court SA No.85 of 1999 dt.20-08-2013 14 the Code, it would appear that in most of the matters referred to therein, evidence would be necessary a Commissioner. However, there may be…
Judgment
katha. It is the further case of the plaintiffs that after the purchase they made construction over some portions of the purchased land in which they are residing and carrying on their business and the rest portion on the western side has been left as parti and is being used by the plaintiffs as Sahan and for ingress and egress from their house. It has been stated in the plaint that the land mentioned in schedule-B of the plaint is part of the purchased land of the plaintiffs as mentioned in schedule-A of the plaint and that is the suit land. It has also been stated that the defendant no. 2 who is Shewait of the defendant no. 1 Kalisthan has executed a deed of Ekrarnama on 01.12.1952 acknowledging the right, title, interest and possession of the plaintiffs over the schedule-A land. It has been alleged, however, by the plaintiffs that in the recent municipal survey, the defendant no. 2 in collusion with the survey employees got recorded the name of the defendant no.
1 Kalisthan with respect to the suit land. The plaintiffs have asserted that in spite of the wrong survey entry they are in possession of the suit land and are using the same as their Sahan and Patna High Court SA No.85 of 1999 dt.20-08-2013 4 for egress and ingress from the house but in view of the wrong survey entry casting a cloud on their title over the suit land, the present suit for declaration of title over the suit land has been filed. The defendants filed their written statement and contested the claim of the plaintiffs. It has been asserted by the defendants that though the plaintiffs acquired an area of 5 katha 17 dhur and 8 dhurki of land by sale deed dated 27.11.1952 but the said area has not been acquired as per the measurement of 1361 sqft.= 1 katha. It has been asserted that the prevalent measurement in the town of Bhagalpur is 1 katha= 1101 sqft. It has been further asserted that Champanagar where the purchased land of the plaintiffs is situated, is within the municipal area of Bhagalpur and the plaintiffs have purposely mentioned the scale of measurement as 1 katha = 1361 sqft. because a larger area of land than what has been purchased by them has been recorded in the survey khatiyan.
The defendants have further stated that the plaintiffs have been residing and carrying on business in schedule-A land and portion of the said land is being used by them as egress and ingress but it has been denied that the schedule-B land is the part and parcel of schedule A land and it has been asserted that the schedule-B land never belonged to the plaintiffs rather the same is the part of the land of Kalisthan and has been coming in possession, use and enjoyment of Kalisthan since Patna High Court SA No.85 of 1999 dt.20-08-2013 5 time immemorial. The defendants have specifically denied the right, title, interest and possession of the plaintiffs over the suit land and have asserted that the plaintiffs have never used the suit land. The defendants have also denied to have executed any Ekrarnama on
01.12.1952 and alleged the same to be a forged and fabricated document. It has been further submitted by the defendants that the survey authorities after being satisfied with the actual physical possession of the defendants over the suit land, described in schedule-B, recorded the same in the name of the defendants and the said entry is correct and legal. The defendants thus have asserted their perfect right, title, interest and possession over the suit land. In view of the rival pleadings of the parties, the trial court framed several issues out of which the material issues were the issue nos. 5 and 6 relating to the title of the plaintiffs over the suit land and issue no. 7 relating to the right and title of the defendants over the suit land. After considering the pleadings and evidence of the parties, the trial court returned the findings that the suit land mentioned in schedule-B of the plaint belonged to the plaintiffs over which they had got title and possession and the survey entry in the name of the defendant no.
1 for the suit land was wrong as the defendants had no title over the same. The suit was accordingly decreed. Patna High Court SA No.85 of 1999 dt.20-08-2013 6 The defendants filed the appeal assailing the judgment and decree of the trial court. After reappraisal of the pleadings and evidence, the appellate court below has reversed the finding of the trial court and held that the suit land described in schedule-B of the plaint is not the part of the purchased land of the plaintiffs as described in schedule-A of the plaint. It has been further held that the plaintiffs are not in possession of the suit land which is the Sahan land of defendant no. 1 Kalisthan. The appellate court, on the basis of this finding that the plaintiffs are not in possession over the suit land, has also held the suit to be barred under the proviso to section 34 of the Specific Relief Act as the plaintiffs has failed to seek the consequential relief for possession.
This second appeal has been admitted on the following substantial questions of law:- (i) Whether the lower appellate court is correct in holding that the suit is hit by Section 34 of the Specific Relief Act for not seeking consequential relief for recovery of possession or confirmation possession when plaintiffs emphatically stated that they are in possession of the suit land since purchased and as such the question of seeking any consequential relief does not arise and finding in this regard by the lower appellate court is contrary to law? (ii) Whether the lower appellate court is correct Patna High Court SA No.85 of 1999 dt.20-08-2013 7 in holing that the sale deed (Ext.2) does not show that it covers schedule-B land, it is contrary to the boundary mentioned in the sale deed (Ext.2) and also deed of agreement (Ext. 3) executed by Sewait of defendant no. 1? Criticising the impugned judgment of the appellate court below, Mr.
Ganpati Trivedi, the learned counsel appearing for the appellants, has submitted that in view of the categorical case of the plaintiffs that they are in possession of the suit land since after the purchase, the necessity for seeking the consequential relief of recovery of possession or confirmation of possession does not arise. It has been urged that it is the specific case of the plaintiffs that the land mentioned in schedule-A of the plaint is their purchased land in a part of which they have constructed their house and left the remaining part as described in schedule-B of the plaint for their use as Sahan and also for egress and ingress in their house. It has been further contended that as the suit land has always been the part of the purchased land of the plaintiffs and in their continuous use, there was no need to seek consequential relief either for recovery of possession or confirmation of possession.
It has been further submitted by the learned counsel that the finding of the appellate court below against the title and possession of the plaintiffs over the suit land has been arrived by ignoring the material evidence of the plaintiffs. It has been Patna High Court SA No.85 of 1999 dt.20-08-2013 8 pointed out that the report of the pleader commissioner has been wrongly discarded by the appellate court below which has also ignored the acknowledgement of the title and possession of the plaintiffs by the defendant no. 2 who had executed an Ekrarnama acknowledging the title and possession of the plaintiffs soon after the plaintiffs purchased the land in the year 1952 and also made admission in this regard in the written statement and deposition. It has been further submitted the report of the pleader commissioner has been wrongly discarded on the sole ground that the pleader commissioner has not been examined in the suit, ignoring the provision of Order 26 Rule 10 (2) C.P.C. which makes the report of the pleader commissioner per se evidence in the suit forming the part of the record.
The learned counsel has also canvassed that the appellate court should normally accept the finding of the trial court so far it is based on the appreciation of oral evidence. Per contra, Mr. K.N. Choubey, the learned senior counsel for the respondents has submitted that the bar provided in the proviso to Section 34 of the Specific Relief Act is clearly applicable in the facts and circumstances of the case where the plaintiffs have claimed to be in possession over the suit land in the plaint but the defendants in their written statement have specifically denied such possession of the plaintiffs and claimed themselves to be in exclusive Patna High Court SA No.85 of 1999 dt.20-08-2013 9 possession of the suit land. In such a case, it has been urged, the plaintiffs are required to seek the consequential relief of recovery of possession or confirmation of possession but in the present case the plaintiffs have admittedly not sought for such a relief.
It has been contended that in view of the assertion of the title and possession by the defendants it was necessary for the plaintiffs to seek the consequential relief in order to clothe the court with jurisdiction to exercise the discretion and grant the declaration which has been sought for. It has been submitted that the learned appellate court below has committed no error in holding that the suit is barred by the proviso to Section 34 of the Specific Relief Act as in the facts and circumstances of the case the court lacks the jurisdiction to grant the relief to the plaintiffs as prayed. It has been further submitted that there is no limitation on the power of the appellate court to reappraise the entire evidence and reach to entirely different conclusion and there is no such principle that the appellate court should in all cases accept the conclusion of the trial court with regard to oral evidence.
It has been further submitted the report of the pleader commissioner has rightly been discarded by the appellate court below as the pleader commissioner has not appeared before the court to prove his report and there was no opportunity to the defendants to cross examine him to test the veracity of his report. It has also been Patna High Court SA No.85 of 1999 dt.20-08-2013 10 contended by the learned senior counsel that the findings of fact by the appellate court below are based upon its appreciation of evidence and it cannot be interfered in the second appellate jurisdiction by venturing into reappraisal of evidence when it is not the case of the appellants that the findings are perverse in the sense that the same are not based on evidence or the conclusions are patently unreasonable. The plaintiffs have claimed in the plaint that they had purchased an area of 5 katha 17 dhur 8 dhurki of land by registered sale deed dated 27.11.1952 and have described the said purchased land in the schedule-A of the plaint.
Further after stating that they made construction in a part of their purchased land, the plaintiffs have further stated that the remaining area of the land has been left to be used as Sahan and for ingress or egress from their house and the said land has been described in detail in schedule-B of the plaint. It has been stated by the plaintiffs that the defendants have got the name of the defendant no. 1 Jai Ma Kali Maharani @ Kalisthan recorded in the recent municipal survey over the schedule-B land and therefore the suit has been filed for declaration that the schedule B land which is the suit land belongs to the plaintiffs. The defendants have accepted the purchase by the plaintiffs of the land mentioned in schedule-A of the plaint but have denied that the land mentioned in schedule-B of the plaint is a part of the schedule-A land over which Patna High Court SA No.85 of 1999 dt.20-08-2013 11 the plaintiffs have got title and possession.
It is the specific case of the defendants that the schedule-B land belongs to the defendant no. 1 who is in possession of the same from time immemorial. The trial court accepted the case of the plaintiffs and decreed the suit but the appellate court on reappraisal of evidence has come to the finding that the schedule-B land does not belong to the plaintiffs and the plaintiffs are not in possession over the same. It has been further found that the defendants are in possession of the land mentioned in schedule-B of the plaint which is the Sahan land of Kalisthan and has a separate identity being plot no. 179 (kha) whereas Kalisthan is situated on plot no. 179 (ka). It has been submitted by the learned counsel for the appellants that the appellate court below has wrongly discarded the report of the pleader commissioner, which completely substantiates the case of the plaintiffs, only on the ground that the pleader commissioner has not been examined in support of the report.
The reliance has been placed in this regard on a decision in the case of Ramautar Gopal Vs. Sheonandan Mistri, A.I.R. 1962 Pat. 273 wherein the learned single Judge of this Court has held that in view of the provision in Order 26 Rule 10 (2) C.P.C., the non-examination of the pleader commissioner during trial cannot make his report inadmissible in evidence. It has been canvassed by the learned Patna High Court SA No.85 of 1999 dt.20-08-2013 12 counsel that according to the provision contained in Order 26 Rule 10 (2) C.P.C. the report of the pleader commission becomes evidence in the suit and forms part of the record and therefore the appellate court below has committed illegality in ignoring the same and the findings of fact are therefore vulnerable. It transpires from the records that the prayer of the plaintiffs for appointment of a pleader commissioner was allowed by order dated 14.03.1996 by the trial court which appointed a senior member of the bar Sri.
Nurul Hoda, advocate to ascertain the facts mentioned in the petition filed by the plaintiffs as well as the rejoinder filed by the defendants. The said pleader commissioner submitted his report on 14.05.1996 before the court. It further appears from the perusal of the report that it does not accompany any evidence recorded by the said pleader commissioner and it is thus a report simpliciter recording the facts which were seen or found by the pleader commissioner after local inspection. Such a report in view of the provision of Order 26 Rule 10 (2) cannot by itself be evidence in the suit forming part of the record rather it will be only one of the pieces of the evidence on record. It is only the report of the pleader commissioner and the evidence taken by him (but not the evidence without the report) which shall become evidence in the suit forming part of the record in view of the express wordings of the Patna High Court SA No.85 of 1999 dt.20-08-2013 13 Order 26 Rule 10 (2). This view is supported by a full bench judgment of this Court in the case of Asifunisa Vs. Ali Imam 1992 (1) P.L.J.R. 380 (Ranchi Bench) where their lordships have held as follows:-
“……….Sub-Rule (2) of Rule 10 specifically provides that the report of the commissioner and the evidences taken by him (but not the evidence without report) shall be evidence in the record and would form part of the record.
The Legislature, therefore, did not contemplate that the report alone shall form part of the record nor the evidence alone would form part of the record but the report together with the statements taken by the Commissioner would form part of the record.
It is, therefore, evident that although the report of the Commissioner and evidence taken by him reduced to writing together form evidence in the suit and form part of the record but not one divorced from each other.
In my opinion, therefore, Rule 10 of Order 26 applies in a case only where the Commissioner not only makes a local inspection but also reduces to writing the evidence taken by him only then his report together with such evidence become evidence in the suit and form part of the record.
From a plain reading of Order 26 of Rule 9 of Patna High Court SA No.85 of 1999 dt.20-08-2013 14 the Code, it would appear that in most of the matters referred to therein, evidence would be necessary a Commissioner. However, there may be a case, where the Court wants only the report of Commissioner which he may make upon making local inspection upon an inspection made by him from which no evidence is required to be by him and reduced to writing. Such a report will not come within the purview of Rule 10 of the Code………..” In view of the aforesaid full bench decision of this Court, the submission on behalf of the appellants that the report of the pleader commissioner submitted in this case should have been considered as an evidence forming part of the record in view of the provision of Rule 10 (2) of Order 26 C.P.C. cannot be accepted. Sequentially, the reliance on behalf of the appellants on the decision in the case of Ramautar Gope (Supra) is also held to be misplaced.
This Court in the case of Ram Dayal Sharma Vs. Dhanmanti, 2004(3) PLJR 437 has followed the full bench decision in the case of Asifunisa (supra), and relying on the said decision, it has been held that if the commissioner did not support his report, the report could have no legal value. As such the refusal by the appellate court below to rely on the pleader commissioner‟s report cannot be held to Patna High Court SA No.85 of 1999 dt.20-08-2013 15 erroneous. It has been further submitted by the learned counsel for the appellants that the plaintiffs have claimed themselves to be in possession and therefore there was no requirement to pray for consequential relief with regard to possession and the suit for simple declaration filed by the plaintiffs would not be hit by Section 34 of the Specific Relief Act. From the perusal of the averments in the plaint, it appears that the plaintiffs have asserted themselves to be in possession over the suit land.
However, the defendants in their written statement have categorically denied the case of the plaintiffs and claimed themselves to be in possession over the suit land from the time immemorial. Even after this assertion by the defendants, the plaintiffs did not chose to make amendment in the plaint and seek consequential relief for possession and thus have taken a calculated risk. The appellate court has come to the finding, on reappraisal of evidence, that the plaintiffs are not in possession over the suit land which is the Sahan of the defendant-Kalisthan and in view of this finding the appellate court has further held the suit to be barred under Section 34 of the Specific Relief Act. The Apex Court in the case of Vinay Krishan Vs. Keshav Chandra A.I.R. 1993 S.C. 957, almost under similar facts, has held the suit to be barred by the provision of Section 42 (now Patna High Court SA No.85 of 1999 dt.20-08-2013 16 Section 34) of the Specific Relief Act.
Their Lordships have held as follows:- “……..13. From the reading of the plaint, it is clear that the specific case of the plaintiff Jamuna Kunwar was that she was in exclusive possession of property bearing no. 52 as well. She thought that it was not necessary to seek the additional relief of possession. However, in view of the written statement of both the first and the second defendant raising the plea of bar under Section 42, the plaintiff ought to have amended and prayed for relief of possession also. In as much as the plaintiff did not choose to do so she took a risk. It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.
Mere because the plaint says in the prayer such other relief be granted to the plaintiff it does not mean that without a specific plea for possession and disregarding bar under Section 42 (proviso) of the Specific Relief Act, the suit could be decreed even with reference to the Patna High Court SA No.85 of 1999 dt.20-08-2013 17 portions of which the plaintiff has been in possession. In the result, we find no merit in the appeal which stands dismissed. There will be no order as to costs…….” In the case of Ram Saran Vs. Smt. Ganga Devi A.I.R. 1972 S.C. 2685 where the plaintiffs filed the suit for declaration alone and did not claim the relief for possession but the fact finding court found the defendants to be in possession to some of the suit properties, the Apex Court has held as follows:- “…………We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act.
As found by the fact- finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation………..” The Apex Court in the case of Union of India Vs. Ibrahim Uddin 2012 (8) SCC 148 has reiterated the same principle with regard to the bar of Section 34 of the Specific Relief Act. Aligning myself with the preponderant opinion of the Apex Court, there is no difficulty in holding that after the finding of Patna High Court SA No.85 of 1999 dt.20-08-2013 18 fact by the appellate court below that the plaintiffs were not in possession over the suit land, the proviso to Section 34 of the Specific Relief Act takes away the discretion of the court with regard to the grant of the declaratory decree as prayed.
From the perusal of the judgment of the appellate court below it transpires that the findings of fact have been recorded after meticulous scanning of the evidence on record as well as after consideration of the findings of the trial court. The learned counsel for the appellants has laid much emphasis on the aspect that the appellate court below has not correctly appreciated the evidence and has not met the reasonings of the trial court. In fact the attempt has been made by placing the evidence in detail to persuade this Court to reappreciate the evidence. However, such a course is permissible in the second appellate jurisdiction only in the circumstance where the findings recorded by the court below are found to be perverse for any reason, and not for the purpose of reviewing those findings. The principles in this regard has been illumined by a three Judge Bench of the Apex Court in the case of Ramachandra Ayyar Vs.
Ramalingam Chettiar A.I.R. 1963 SC 302 as follows:-
………Even if the appreciation of the evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot Patna High Court SA No.85 of 1999 dt.20-08-2013 19 be said to introduce a substantial error or defect in the procedure……… ……………………… ………………………………………………… But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however erroneous the said conclusions may appear to be to the High Court, because, as privy council has observed, however gross or inexcusable the error may seem to be, there is no jurisdiction under Section 100 to correct an error……
Even otherwise also, is evincible from judgment of the appellate court below that Ext. B and B/1 (khatiyan) as well as the sale deed (Ext.-2) and Ekrarnama (Ext.-3) along with other material oral and documentary evidence have been considered in detail before recording the finding that the schedule-B land is not part of the purchased land of the plaintiffs in schedule-A. It has been found, after considering Ext.-B (khatiyan) that the plaintiffs‟ name has been recorded for 6 katha 6 dhur land which is more than the area purchased by them and it has been further found on the basis of Ext.
B/1 (khatiyan) that the suit land having area of .0100 acres has been recorded in the name of the defendant no. 1 Kalisthan and further on the basis of the survey map (Ext.-C), it has been also found that the suit land which is plot no. 179 „kha‟ is part of the plot Patna High Court SA No.85 of 1999 dt.20-08-2013 20 no. 179 „ka‟ of Kalisthan. The plaintiffs‟ assertion that the schedule A land has been purchased by them on the scale of 1361 sq.ft.=1 katha has been also disbelieved on the basis of consideration of the revised valuation and assessment list of different years (Ext. D series) and Ext. A (old map) and Ext. C (new map) and it has been concluded that the prevalent scale in the area was 1102 sq.ft.=1 katha. Further after examining the pleading of the defendants and the deposition of the D.W. 5, it has been also held that the trial court has wrongly found the defendants to have admitted the title and possession of the plaintiffs over the suit land.
The impugned judgment by the appellate court reflects that it has been conscious of the reasonings assigned by the trial court and has given cogent reasons for taking a different view on reappraisal of the evidence and pleadings. The findings by the appellate court or the trial court are not based upon oral evidence alone and therefore there is no substance in the submission by the learned counsel for the appellants that the appellate court should not have ordinarily differed with the findings of the trial court. It is, thus, plain and patent that these are findings of facts based on evidence and cannot be reopened in the second appellate jurisdiction. In view of the aforesaid reasons and discussions the substantial questions of law as formulated are answered against the Patna High Court SA No.85 of 1999 dt.20-08-2013 21 appellants. This appeal is, accordingly, dismissed and the impugned judgment and decree of the appellate court below is upheld. There shall be no order as to costs. Devendra/- (V. Nath, J)
Questions this judgment answers
Which statutory provisions did this judgment involve?
Specific Relief Act — ss. 34, 42; Code of Civil Procedure, 1908.
Which court decided this case, and when?
Patna High Court, on 20 Aug 2013. The bench was V NATH.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.