Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.96 of 2011 ====================================================== Mosamat Jira Devi .... .... Appellant/s Most. Panchi Devi & Ors Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Md. Faiz Ahmad For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 5 26-07-2013 Heard Mr. Md. Faiz Ahmad, learned counsel appearing on behalf of the appellant under Order XLI Rule 11 of the Code of Civil Procedure.
Legal Reasoning
2. This Second Appeal has been filed by the plaintiff- appellant-appellant against the judgment and decree dated 15.12.2010 passed by the learned Additional District Judged, Fast Track Court No.I, Bhagalpur in Title Appeal No.23 of 2003 affirming the judgment and decree dated 11.03.2003 passed by the learned Munsif, Banka in Title Suit No.54 of 1998. 3. The plaintiff-appellant filed the suit for declaration of title over the suit land on the basis of purchase made by registered sale deed dated 19.02.1996 from Ram Chandra Purbey and also for declaration that the sale deed dated 12.06.1998 executed in favour of defendant 1st party is illegal, fraudulent and not binding on the plaintiff. Patna High Court SA No.96 of 2011 (5) dt.26-07-2013 2 4. The plaintiff claimed the aforesaid relief alleging that the property belonged to Ram Chandra Purbey, which he had got in family arrangement between the family members and according to his possession the name of Ram Chandra Purbey was recorded in the revisional survey khatiyan. The plaintiff purchased 95 decimals of land through registered sale deed dated 19.02.1996 from Ram Chandra Purbey. The defendant no.1 has purchased 44 decimals of land in plot no.213/546 from the daughter of Late Jagdish Chandra Purbey (brother of Ram Chandra Purbey) on 14.06.1998. 5. The defendant 1st party appeared and filed contesting written statement alleging that Chandrajeet Purbey and Indrajeet Purbey were full brothers and after the death of Chandrajeet Purbey in the year 1965, there was amicable partition between the parties i.e. Indrajeet Purbey and three sons of Late Chandrajeet Purbey. Thereafter amicable arrangement took place between the three sons of Indrajeet Purbey and they came in separate possession over their respective shares. The plaintiff purchased 95 decimals of land from Ram Chandra Purbey in all three plots, which were in exclusive possession of Ram Chandra Purbey and accordingly, the purchaser came in possession over 22 decimals of plot no.340/452, 43 decimals of plot no.340/96 and Patna High Court SA No.96 of 2011 (5) dt.26-07-2013 3 about 30 decimals of plot no.213/546 and she never came in possession over 45 decimals of plot no.213/546. 6. The trial court dismissed the plaintiff’s suit recording the finding that the plaintiff failed to prove that how much area of which plot she has purchased through the sale deed. On appeal, the lower appellate court also held that no separate area for the various plots, has been mentioned in the sale deed so the plaintiff’s claim to the various area in all various plots is not supported by the documentary evidence. The lower appellate court also found that the plaintiff failed to prove that she came in possession of the suit land as detailed in the plaint.
Legal Reasoning
7. The learned counsel for the appellant submitted that the defendants only filed the written statement but they did not contest the suit. In spite of the fact that the defendants did not contest the suit, the courts below have wrongly dismissed the plaintiff’s suit. According to the learned counsel, since the boundary has been mentioned in the sale deed, the area could have been gathered or measured from the said boundary and moreover the defendants themselves admitted in written statement that the plaintiff has purchased 30 decimals of land of plot no.213/546. Learned counsel for the appellant further submitted that whenever there is a dispute between plot number and boundary, the Patna High Court SA No.96 of 2011 (5) dt.26-07-2013 4 boundary will prevail. Learned counsel for the appellant further submitted that the name of plaintiff has been mutated and rent receipt has been granted but the lower appellate court has not considered these evidences. 8. From perusal of the judgment of both the courts below, it appears that the courts below have considered that the sale deed produced by the plaintiff on the basis of which the plaintiff is claiming title, mentions the whole area of the land comprised within the three plots. It may be mentioned here that in view of the written statement, the only dispute is with regard to plot no.213/546. According to the plaintiff, she has purchased 45 decimals of this plot, whereas according to the defendants in partition i.e. in family arrangement Ram Chandra Purbey was given only 30 decimals of this land out of 76 decimals and Ram Chandra Purbey sold that property. The trial court has quoted the details of the property mentioned in the sale deed, which was transferred to the plaintiff. 9. So far plot no.213/546 is concerned, it is mentioned that it measures 76 decimals and thereafter the boundary has been mentioned. According to the plaintiff, she has purchased 45 decimals of this land. In the sale deed, there is nothing specific as to whether she purchased the entire 76 decimals or 45 decimals. Patna High Court SA No.96 of 2011 (5) dt.26-07-2013 5 Further from the boundary it is also not clear as to whether the boundary of the whole area of 76 decimals has been mentioned or the area of 45 decimals has only been mentioned. Considering these aspects of the matter, both the courts below recorded the finding that no separate area for the various plots has been mentioned in the sale deed of the plaintiff. Now the question will be whether the plaintiff will be entitled to lead evidence contrary to the statements made in the registered sale deed. In my opinion, in view of section 92 of the Indian Evidence Act on the basis of oral evidence, plaintiff cannot prove the area contrary to the sale deed. 10. So far the submission of learned counsel that the defendants have not contested the suit is concerned, in my opinion also because the defendants have not contested the suit, the courts are not bound to decree the plaintiff’s case. The plaintiff’s case can be decreed only if the case pleaded by the plaintiff is proved by leading cogent and reliable evidence. 11. So far the submission of learned counsel that the defendants have admitted that the plaintiff has purchased only 30 decimals is concerned, it may be mentioned here that the defendants never admitted that the plaintiff has purchased 45 decimals. The specific case pleaded in the written statement that Patna High Court SA No.96 of 2011 (5) dt.26-07-2013 6 the plaintiff purchased only 30 decimals, which was in possession of Jagdish Chandra Purbey, which he had got in amicable family settlement. 12. So far the submission that from the boundary the area could have been ascertained is concerned, in my opinion, this relates to the question of fact. It is settled principle of law that inference or appreciation of facts from recitals or contents of a document are questions of fact. However, legal effects of terms of a document, or construction of document involving application of any principle of law, are questions of law. In the present case considering the contents of the sale deed, both the courts below concurrently found that the plaintiff failed to prove that she has purchased 45 decimals of plot no.213/546. Therefore, since this question is pure finding of fact.
Decision
13. In view of the above facts, the points raised by the learned counsel for the appellant are not at all substantial questions of law. Therefore, in my opinion, no substantial question of law is involved in this second appeal and accordingly, this second appeal is dismissed at the stage of admission itself. Harish/- (Mungeshwar Sahoo, J)