====================================================== Sushil Jha @ Bodhu Jha v. Chulhai Jha & Ors
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.159 of 2009 ====================================================== Sushil Jha @ Bodhu Jha .... .... Appellant/s Versus Chulhai Jha & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. V.R.P.Singh For the Respondent/s : Mr. Surendra Kishore Thakur ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 18 02-07-2013 1. Heard the learned counsel, Mr. V.R.P. Singh appearing on behalf of the appellant and the learned counsel, Mr. Surendra Kishore Thakur appearing on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure. 2. This second appeal has been filed by the defendant second party-appellant-appellant against the Judgment and Decree dated 17.12.2008 passed by the learned Addl. District Judge, Fast Track Court No.VII, Sitamarhi in title appeal No.4 of 2002 /22 of 2008 whereby the lower appellate Court dismissed the appeal and
Legal Reasoning
confirmed the Judgment and Decree dated 5.12.2001 passed by the learned Munsif, Sadar Sitamarhi in title suit No.48 of 1997. 3. The plaintiff respondent filed the aforesaid suit praying for declaration of title and recovery of possession over the suit land and further for declaration that the sale deed dated 11.04.1997 executed by defendant No.1 to 3 in favour of defendant No.7 is forged, fabricated, without consideration and not binding on the 2 Patna High Court SA No.159 of 2009 (18) dt.02-07-2013 2 / 6 plaintiff. 4. The plaintiff claimed aforesaid relief alleging that one Babelal Jha had two sons, namely, Fauzdar Jha and Chulhai Jha. Chulhai Jha is the plaintiff. The defendant No.1 to 6 are the heirs of Fauzdar Jha. The defendant No.7 is the purchaser of suit land measuring 9 dhur from defendant No.1 to 3. The plaintiff alleged that in the partition, this suit land was allotted in the share of the plaintiff and not in share of Fauzdar Jha. The heirs of Fauzdar Jha sold the suit land in favour of defendant No.7 by registered sale in the year 1997. According to the plaintiff, since the land belonged to the plaintiff allotted to him in the partition, the defendant first set had no right to sell the property. 5. The defendants including the appellants filed contesting written statement. Their main defence is that in fact the suit property was allotted in the share of Fauzdar Jha because out of 16.5 decimal of land. Fauzdar Jha was entitled for half share and the plaintiff was entitled for half share and, therefore, the said land was divided equally half and half and not as alleged by the plaintiff that Fauzdar Jha was allotted only 7 decimal because homestead land was given to him and rest land was allotted to Chulhai Jha, the plaintiff. 6. The trial Court accepted the case of the plaintiff recording the finding that in partition, Fauzdar Jha was allotted only 7 decimal because he was given homestead land with house and the suit land was allotted in favour of the plaintiff. 3 Patna High Court SA No.159 of 2009 (18) dt.02-07-2013 3 / 6 Accordingly, decreed the plaintiff respondent’s suit. 7. On appeal, the lower appellate Court also uphold the finding of the trial Court and dismissed the appeal. 8.
Legal Reasoning
The learned counsel, Mr. Vaidehi Raman Prasad Singh appearing on behalf of the appellant raised two grounds. Firstly, that the lower appellate Court should have drawn adverse inferences against the plaintiff because the plaintiff Chulhai Jha was not examined as witness in the case. Therefore, the plaintiff has withheld the best evidence. In support of his contention, the learned counsel relied upon a decision of the Apex Court reported in A.I.R. 1968 SC 1413 Gopal Krishnaji Ketkar Vs. Md. Haji Latif. Secondly, the learned counsel submitted that the burden was on the plaintiff to prove his case but the lower appellate Court instead of investigating the case of the plaintiff decreed the plaintiff’s suit by finding the weakness of the defendant’s case. According to the learned counsel, the lower appellate Court was required to give findings on all issues but after discussing the evidences as a whole in the last paragraph only recorded the finding, therefore, also the Judgment of the lower appellate Court is vitiated. 9. On the other hand, the learned counsel, Mr. Surendra Kishore Thakur appearing on behalf of the respondent submitted that in the lower appellate Court, the appellant raised the question of drawing adverse inference against the appellant. The lower appellate Court considered this ground and recorded the finding that the plaintiff Chulhai i Jha was old and ailing person, therefore, 4 Patna High Court SA No.159 of 2009 (18) dt.02-07-2013 4 / 6 unable to give evidence. Moreover, since there are evidences on record available on behalf of the plaintiff. In such circumstances, no adverse inferences could have been drawn and, therefore, the lower appellate Court has rightly not drawn adverse inference. The learned counsel in support of his contention relied upon a decision of the Apex Court reported in 2003 (1) P.L.J.R. 166 SC. So far the finding of weakness of the defendant by the lower appellate Court is concerned, the learned counsel submitted that the submission of the learned counsel for the appellant is not born out from the records. On these grounds, the learned counsel submitted that none of the questions raised by the appellant are substantial question of law. 10. From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court recorded categorically that Fauzdar Jha was allotted only 7 decimal and plaintiff was allotted 9.5 decimal out of 16.5 decimal in partition between them. The question raised by the learned counsel is that the plaintiff himself was not examined, therefore, adverse inference should have been drawn. 11. From perusal of the decision relied upon by the learned counsel for the appellant, i.e., the case of Gopal Krishnaji (Supra), it appears that in that case, the appellant was examined in the Court but he withheld the important documents. The Hon’ble Supreme Court found that the appellant in his evidence admitted that he was enjoying the income of plot No. 134 but he did not produce any accounts to substantiate his contention. He 5 Patna High Court SA No.159 of 2009 (18) dt.02-07-2013 5 / 6 also admitted in his evidence that he had the documents about the income of the said plot but he did not produce any such document in the Court which according to the Hon’ble Supreme Court were the best evidence which could have thrown light. Therefore, adverse inference was drawn. In the present case, it is the finding of the lower appellate Court that the plaintiff was old and ailing persons. Moreover, it is not the case that no evidence has been adduced. On the contrary, the plaintiff has adduced evidence regarding partition and allotment of the lands as alleged by the plaintiff. Therefore, only because the plaintiff has not been examined, no adverse inference can be drawn in view of the decision relied upon by the learned counsel in the case of Ratandeo Vs. Pasam Devi 2003 (1) P.L.J.R. 166 SC. I, therefore, find that this point raised by the learned counsel for the appellant is not a substantial question of law for decision involved in this case. 12. So far the submission of the learned counsel for the appellant that the lower appellate Court has found the weakness of the defendants is concerned, from perusal of the lower appellate court Judgment, it appears that it is not the fact. The lower appellate Court has considered each and every witnesses examined on behalf of the plaintiff as well as defendant. It is not the case of either party that there was partition through any documents. Admittedly, there was a oral partition between the parties. Both the parties adduced oral evidence in support of their respective case regarding partition and / or land allotted in their favour. After 6 Patna High Court SA No.159 of 2009 (18) dt.02-07-2013 6 / 6 considering the evidences, the Court below recorded the finding that the Chulhai Jha the plaintiff was allotted 9.5 decimal out of 16.5 land and Fauzdar Jha was allotted only 7 decimal. So far this findings is concerned, it is pure finding of fact based on appreciation of oral evidence. Therefore, the said finding being question of fact cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. It is not the fact that the lower appellate Court recorded the finding in favour of plaintiff on the ground that the defendant failed to prove that the brothers were allotted equal share out of 16.5 decimal. Moreover, in second appeal, the onus to proved losses its importance, when both the parties have adduced the evidences and after considering the evidences of both the parties, recorded the finding. I, therefore, find that this ground raised by the learned counsel for the appellant is also not a substantial question of law. 13. In view of my above discussion, no substantial question of law is involved in this second appeal. Accordingly, this second appeal is dismissed at the stage of admission itself. The interim stay, if any, is vacated. (Mungeshwar Sahoo, J) Sanjeev/-