Anil Singh v. Raj Kumar Dhobi & Ors.

3. The plaintiff-respondent no.3 filed the aforesaid Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 2 title suit for declaration of title and recovery of possession on the ground that she has purchased the property from Puna Dhobi son of Daso Dhobi, who was the son of Bhattu Dhobi, by registered sale deed dated 08.02.1999 measuring 3 decimals comprised within plot no.2778.

4. The case of the intervener-defendant is that in fact Bhattu Dhobi had no son named Daso Dhobi as he died issueless. On his death the property devolved on his agnate, the father of Brihashpati. The intervener has purchased the property from the heirs of Brihashpati by registered sale deeds dated 12.04.1999 and

16.04.1999 and he amalgamated the purchased land measuring 3 decimals comprised within plot no.2778 and his own land comprised within plot no.2777 measuring 2 decimals.

5. The trial court on consideration of the materials available on record dismissed the plaintiff’s suit recording a finding that plaintiff’s vendors are the strangers to the family of Bhattu Dhobi. The plaintiff thereafter filed title appeal before the learned lower appellate court. The learned lower appellate court allowed the appeal recording a categorical finding that Daso Dhobi was the son of Bhattu Dhobi, therefore, Puna Dhobi being the son of Daso Dhobi had right to transfer the property in favour of the plaintiff. Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 3

6. The learned counsel Mr. Binod Kumar Singh appearing on behalf of the appellant submitted that while reversing the judgment and decree of the trial court the lower appellate court has not met the reasonings of the trial court for not relying Ext.2 and Ext.4. Ext.4 is the voter list wherein the names of four sons of Daso Dhobi have not been mentioned. The trial court on the basis of the age mentioned in the voter list and the age mentioned in the genealogical table (Ext.2) held that there is discrepancy, therefore, Ext.4 is not reliable, whereas the lower appellate court without meeting these reasonings of the trial court simply relied on Ext.2 and Ext.4. According to the learned counsel, Ext.2 is the genealogical table obtained by the appellant after institution of the suit, therefore, it has got no evidentiary value but the lower appellate court relied upon this inadmissible evidence, therefore, the judgment of the lower appellate court is vitiated.

7. The learned counsel further submitted that the lower appellate court has not considered the Pleader Commissioner’s Report, which indicates that the suit land measuring 3 decimals has already been amalgamated by the appellant within his own land measuring 2 decimals and now it has been assigned one plot number in the revisional survey record of right which has been finally published in the year 1979. This Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 4 aspect of the matter has not been considered by the lower appellate court and has wrongly decreed the plaintiff’s suit without recording any finding that who is in possession of the property. On these grounds, the learned counsel submitted that the impugned judgment of the lower appellate court is vitiated.

8. On the other hand, learned counsel Mr. Om Prakash Pandey appearing on behalf of respondent no.3 submitted that initially the lower appellate court remanded the matter to the trial court for recording a finding as to whether Daso Dhobi is the son of Bhattu Dhobi or not because the trial court did not frame any issue on this question and this issue was the most important and only controversy between the parties. Without framing this issue the trial court recorded the finding that the vendors of the plaintiff are strangers to the family of Bhattu Dhobi. The present appellant filed miscellaneous appeal before this High Court challenging the order of remand. The High Court set aside the order of remand of the lower appellate court and directed the lower appellate court to frame specific issue on the question as to whether Daso Dhobi is the son of Bhattu Dhobi or not and decide this question on the basis of evidences available on record. After the order of this court the lower appellate court has framed this issue and then on the basis of evidence categorically recorded the finding that Daso Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 5 Dhobi is the son of Bhattu Dhobi. Therefore, this finding is a pure question of fact which cannot be interfered with in second appellate jurisdiction.

9. The learned counsel further submitted that so far Ext.4 is concerned, the trial court on extraneous grounds has not relied upon Ext.4 and moreover, relying on evidence or rejecting evidences on a particular ground is not a substantial question of law. The learned counsel submitted that only on the ground that reasonings of the trial court has not been considered by the lower appellate court, the judgment of the lower appellate court cannot be said to be vitiated. The learned counsel further submitted that the defence of the intervener is only that Daso Dhobi is not the son of Bhattu Dhobi but he has not stated/clearly pleaded in the plaint who is the said Daso Dhobi and whose son is Daso Dhobi, therefore, adverse inference be drawn against the intervener. On these grounds, the learned counsel submitted that the grounds raised by the learned counsel for the appellant are not at all substantial questions of law.

10. Admittedly plot no.2778 measuring 3 decimals was recorded in the name of Bhattu Dhobi and Chhotan Dhobi (two brothers). According to the plaintiff, Bhattu Dhobi died leaving behind a son Daso Dhobi and the plaintiff has purchased Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 6 the property from the son of Daso Dhobi. On the contrary, the defendant’s case is that Bhattu Dhobi died issueless, therefore, his property devolved on the agnate i.e. the father of Brihashpati and the intervener-defendant has purchased the property from the son of Brihashpati. In view of the above facts and circumstances the only controversy between the parties is with regard to parentage of Daso Dhobi.

11. From perusal of the judgments of the courts below, it appears that the only pleading of the defendant is that Bhattu Dhobi died issueless and Daso Dhobi is not the son of Bhattu Dhobi. There is no pleading regarding parentage of Daso Dhobi by the defendant. Nowhere there is pleading that the appellant does not know Daso Dhobi. In the case of Toral Mahto Vs. Chandeshwar Mahto, reported in A.I.R. 1972 Patna 13, the Division Bench of this court at paragraph-5 has held that the plaintiff was known to Toral Mahto from before but in the written statement he simply said that the plaintiff’s father Gopi Mahto was not the son of Man Singh. He never stated in his written statement about the parentage of Gopi Mahto. In these circumstances the defendant no.1 should have alleged that Gopi Mahto was the son of a particular person and was not the son of Man Singh. The court below, therefore, was right in drawing adverse inference from the Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 7 omission on the part of defendant no.1. As stated above in the present case there is no pleading that the appellant was not knowing Daso Dhobi and Daso Dhobi is the son of such and such person in the written statement. From perusal of the lower appellate court judgment, it appears that the lower appellate court has considered the positive oral evidence of the plaintiff. It appears that the witnesses, who are next door neighbours of Bhattu Dhobi and the persons, who are of the same village, have been examined by the plaintiff in support of the fact that Bhattu Dhobi had a son named Daso Dhobi. So far the evidence of these witnesses, who are next door neighbours of Bhattu Dhobi or are residents of the same village, is admissible under section 50/60 of the Evidence Act as has been held by the Hon’ble Supreme Court in the case of Dolgobinda Paricha Vs. Nimai Charan Misra, reported in A.I.R. 1959 SC 914.

12. From perusal of lower appellate court judgment, it appears that the lower appellate court discussed Ext.2 and Ext.4, which are documentary evidences produced by the plaintiff in support of the parentage of Daso Dhobi. After considering, the lower appellate court relied upon the said documentary evidences. So far the submission of the learned counsel for the appellant that the reasonings for not relying on Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 8 these documents given by the trial court have not been considered by the lower appellate court is concerned, it may be mentioned here that this question raised by the learned counsel relates to the placing of reliance on an evidence and non-meeting of reasonings of the trial court. It is not the case of the appellant that Ext.4, the voter list, is inadmissible in evidence. It is settled principles of law that voter list is a public document.

13. In the case Arumugham Vs. Sundarambal and another, reported in A.I.R. 1999 SC 2216 the Hon’ble Supreme Court relying on the earlier decision of the Hon’ble Supreme Court in the case of V. Ramachandra Ayyar and another Vs. Ramalingam Chettiar and another, reported in A.I.R. 1963 SC 302 held that the second appellate court cannot interfere with the judgment of the first appellate court on the ground that the first appellate court had not come to close grips with the reasoning of the trial court. It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence of one side or rejecting the evidence on other side. In my opinion, it is not the condition precedent that the appellate court first meet the reasonings assigned by the trial court for not relying a particular evidence prior to giving its reasons for relying the evidence. Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 9

14. So far the submission of the learned counsel that the Pleader Commissioner’s Report has not been considered or that the fact that subsequently two plots being plot nos.2777 and 2778 measuring total 5 decimals have been amalgamated and are in possession of the appellant is concerned, in my opinion, it is not relevant at all for the decision about the parentage of Daso Dhobi. Moreover, only on this ground that the lower appellate court has not considered the Pleader Commissioner’s Report, which is not relevant for the decision of the controversy between the parties, the judgment of the lower appellate court cannot be said to have been vitiated. It is settled principles of law that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. Solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure as has been held by various decisions of the Hon’ble Supreme Court in the cases of Vidhyadhar Vs. Manikrao and another, reported in (1999) 3 SCC 573; Abdul Raheem vs. Karnatka Electricity Board and others, reported in (2007) 14 Supreme Court Cases 138 and Patna High Court SA No.267 of 2007 (16) dt.14-11-2013 10 Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal, reported in (2012) 7 Supreme Court Cases 288 paragraph 37.

15. From perusal of the judgment of the lower appellate court as stated above, the lower appellate court has considered the evidences oral and documentary and it cannot be said that on the basis of evidences discussed by the lower appellate court, no reasonable person could have recorded the finding which has been recorded by the lower appellate court. In my opinion, therefore, this question as to whether Daso Dhobi is the son of Bhattu Dhobi or Bhattu Dhobi died issueless is a pure question of fact, which has been concluded by the lower appellate court.

16. In view of the above discussions, the points raised by the learned counsel for the appellant are not at all substantial questions of law involved for decision in this Second Appeal. Therefore, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Harish/-