Most.Sugiya Devi v. Sikandar Yadav

3. The original plaintiff Govind Yadav had filed Title Suit No. 34 of 1992, seeking a declaration that he and these defendants were entitled to half share each of the suit land appertaining to Khata No. 356 admeasuring 5 acres 77 decimals, as described in Schedule to the plaint.

4. The case of the original plaintiff before the Court below was that Gopal Gope the common ancestor of the plaintiff and the defendant died during revisional survey operation, leaving behind four sons, namely, Jitan Gope, Buniyad Gope, Roop Lal Gope 3 Patna High Court SA No.118 of 2005 (13) dt.18-02-2013 and Keerath Gope. Roop Lal and Keerath Gope died issueless. Buniyad Gope died leaving behind his only son Govind Yadav, the original plaintiff. Jeetan Gope died leaving behind his son Baso Gope. It was pleaded that initially Khatiyan was prepared in the name of all four sons of Gopal Gope. However, in course of time Keerath Gope separated from all his brothers. Three brothers, namely, Jeetan Gope, Buniyad Gope and Roop Lal Gope purchased from their own savings the suit land admeasuring 5 acre 77 decimals at Mauza Taraun after Keerath separated himself from joint family. It was contended that immediately after survey, Keerath and Rooplal died unmarried and issueless and, therefore, the rest two brothers Jeetan and Buniyad came in exclusive possession over the suit land. The further plea before the trial Court on behalf of the plaintiffs/appellant was that after the death of Jeetan and Buniyad the plaintiff, namely, Govind and Baso and his sons, namely, Bharat Yadav and Lakhan Yadav came in possession over the suit land. Further plea was that 4 Patna High Court SA No.118 of 2005 (13) dt.18-02-2013 Jeetan and Buniyad after coming into exclusive possession over the lands were cultivating the lands, according to their share and they also sold some land through registered sale-deeds and the vendees were in possession over such part of the sold land.

5. A written statement was filed on behalf of the defendants, contending that Gopal Gope died prior to the revisional survey and, therefore, Khatiyan of Khata nos. 78 and 79 was prepared in the name of all his four sons, namely, Jeetan, Buniyad, Rooplal and Keerath and further that Keerath never separated from his brothers prior to survey. It was pleaded that the suit land was acquired by Gopal and due to mistake the name of Keerat Yadav did not figure in Khatiyan. The plea was that the title and possession of all the four brothers continued over Khata Nos. 78,79 and 356 ( Suit land) and specifically denied that the suit land was self acquired property of Jeetan, Buniyad and Rooplal. They pleaded that Rooplal died as minor before the death of Keerath Yadav and, therefore, the entire estate of Gopal Gope was divided 5 Patna High Court SA No.118 of 2005 (13) dt.18-02-2013 between rest three brothers having 1/3rd share each. Keerath’s wife died during his life time and as he was issueless he depended on the family of Baso Yadav for serving him variously. They alleged that nearly 52 to 53 years ago Buniyad Gope and his father Govind Yadav murdered Baso Yadav, the father of respondent nos. 2 and 3. For the reason that Keerath was pleased with the service of Dhaniya Devi, wife of Baso Yadav, he executed sale deed in her favour of his 1/3rd share of the suit land along with other lands. This is how Dhania Devi came in possession over 2/3rd share of the suit land and receipt of 1 acre and 92 decimal were issued in the name of Dhania Devi. Dhania died in the year 1989, whereafter her sons,namely, Lakhan Yadav and Bharat Yadav came in possession over it. They were, therefore, impleaded as party defendants before the Courts below and are respondent nos. 2 and 3 in the present second appeal.

6. The trial Court framed altogether nine issues for determination on the basis of rival pleadings which included issue nos. V,VI and IX which are as 6 Patna High Court SA No.118 of 2005 (13) dt.18-02-2013 follows:- “V. Whether the suit land of Khata no. 356 was purchased by three brothers, namely, Jeetan, Buniyad and Rooplal from their own earnings in the state of separation Keerath Yadav? VI. Whether sale deed executed favour of Dhaniya was valid and she came into possession over the suit land after paying the consideration money? IX. Whether there was partition of the suit land among Jeetan, Buniyad and Keerat merely 60-62 years ago in Khata nos. 78,79 and 356 and all the brothers got 1/3rd share?”

7. Learned trial Court, however, came to the finding that though there was no sale deed supporting purchase of the suit land by Jeetan, Buniyad and Rooplal but there was also no evidence that they had not purchased the said suit land. However, relying upon the entry in R.S. Khatiyan, learned trial Court came to a finding that had the land been purchased by the ancestor Gopal, name of Keerath would also have been mentioned. Learned trial Court on the basis of this presumption came to the conclusion that 7 Patna High Court SA No.118 of 2005 (13) dt.18-02-2013 the suit land was purchased by Jeetan, Buniyad and Rooplal and not by Gopal Gope. He, accordingly, held that Keerath had no right title and interest over the said property and execution of sale as regards the said property in favour of Dhania was invalid.

8. Learned trial Court further held, in such circumstance that the plaintiff was entitled for half share with the defendant over the suit land and thus decreed the suit in favour of the plaintiff. Dealing with issue no.IX, learned trial Court decided the same in favour of the plaintiff and came to the finding that there was no partition by metes and bounds among Jeetan, Buniyad and Keerat Yadav nearly 60-62 years ago.

9. An appeal was preferred to the file of learned Additional District Judge-FTC-V, Jamui vide Munsif Title Appeal No. 37 of 2001 who taking note of the fact that Rooplal died issueless prior to Keerath came to the conclusion that there was no material on record to support the plea that the suit land was purchased by Jeetan, Buniyad and Rooplal 8 Patna High Court SA No.118 of 2005 (13) dt.18-02-2013 after the death of their father Gopal. He, therefore, held that Keerath was entitled for 1/3rd share in the suit land. Learned first Appellate Court allowed the appeal recording that the entries made in the revenue records cannot be decisive for determination of title over plot of land. Having held so, learned first appellate Court, on the basis of evidence available on record, held that keerath Gope valid right to transfer his share in favour of Dhania wife of Baso Gope and the mother of defendants/respondents Lakhan Yadav and Bharat Yadav.

10. Having heard learned counsel for the appellants, at the first place I find that the present appeal does not involve any substantial question of law. The appeal involves the pure question of fact, firstly as to whether the suit land was purchased by the common ancestor Gopal Gope or by his three sons, namely, Jeetan, Buniyad and Rooplal jointly from their own earnings in the state of separation of Keerath Yadav from his brothers. The reasoning given by the learned trial Court that in absence of no 9 Patna High Court SA No.118 of 2005 (13) dt.18-02-2013 objection having been raised by Keerath on the entries made in the Khatiyan, it could be presumed that suit land was purchased by Jeetan, Buniyad and Rooplal Yadav, on the face of it, is falacious. This aspect has to be seen in the background, which has also been taken note of by the learned trial Court, that no document showing purchase of the suit land by three brothers, namely, Jeetan, Buniyad and Ropplal yadav was produced as evidence.

11. Thus being the pure questions of fact and the findings recorded by the Court below on such facts, I am of the view that the judgment of the first appellate Court does not require any interference as it had taken into account the evidence and material available on record. Learned counsel for the appellants has not been able to demonstrate that any of the findings arrived at by the learned appellate Court was without any evidence or contrary to any material available on record, so as to term the impugned judgment of the first appellate Court as perverse. Learned counsel for the appellants has also 10 Patna High Court SA No.118 of 2005 (13) dt.18-02-2013 not been able to point out that the appeal involves any substantial questions of law. In such view of the matter, the appeal does not deserve admission and is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-