Smt. Gidari Devi v. Lakshmi Mahto @ Lakshman Mahto

For the Respondent : ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 8 04-01-2013 Heard learned counsel for the appellant.

This appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated

12.11.2009 passed by Court of learned Additional District and Sessions Judge-III, West Champaran at Bettiah in Title Appeal 2 Patna High Court SA No.49 of 2010 (8) dt.04-01-2013 No. 13 of 1996 affirming thereby the judgment and decree dated

20.12.1995 passed by learned Sub-Judge-I, Bettiah, West Champaran in Title (Partition) Suit No.136 of 1993 whereby the plaintiff’s suit for partition claiming half share in the suit property came to be dismissed.

The facts as pleaded on behalf of the plaintiff-appellant before the Courts below was that one Mushar Mahto was the common ancestor of both the parties who died leaving behind his three sons, namely, Nira Mahto, Sheobalak Mahto and Ramphal Mahto, prior to the recent survey operation. Chun Mahto was the nearest pattidar of Mushar Mahto who also died prior to the recent survey operation leaving behind his two sons, namely, Brahamdeo Mahto and Sahdeo Mahto. In the recent survey operation ancestral property belonging to Mushar Mahto and Chun Mahto was recorded in the name of Nira Mahto, Sheobalak Mahto and Ramphal Mahto, being sons of Mushar Mahto; three sons have equal share each of them in the names of Brahamdeo Mahto and Sahdeo Mahto sons of Chun Mahto one share having equal share in Khata No. 91. Further case of the plaintiff-appellant was that prior to the recent survey operation Nira Mahto, Sheobalak Mahto, Ramphal Mahto and separated from each other and after separation Nira Mahto has purchased some property in his name 3 Patna High Court SA No.49 of 2010 (8) dt.04-01-2013 and in the name of his son Ramgovind Mahto. In the recent survey operation property of Khata No. 223 Area 2 Bigha 15 Katha and 19 Dhur was recorded in the name of Nira Mahto and Khata No. 242 Area 15 Katha 13 Dhur was recorded in the name of Ramgovind Mahto. Both the properties are situated in Chanayanbandh Mauza and other co-sharers has no concern with the said properties.

Subsequently, after the recent survey operation all the properties of Khata No. 91 Area 7 Bigha 5 Dhur were partitioned between Nira Mahto and Sheobalak Mahto, Brahamdeo Mahto, Ramphal Mahto and Sahdeo Mahto with mutual consent and for their convenience their names were recorded in Khatiyan according to their shares.

Nira Mahto died leaving behind his son Ramgovind Mahto who came in possession of the property held by Nira Mahto, along with his sons, namely, Nathu Mahto, Jangi Mahto and Muni Mahto. Muni Mahto died issueless in the state of jointness with his brothers Nathu Mahto and Jangi Mahto; his wife had predeceased him. According to the plaintiff-appellant, Nathu Mahto and Jangi Mahto succeeded his (Muni Mahto’s) property by way of survivorship. Jangi Mahto died in the year 1947 leaving behind his wife Rajkalia Devi and daughter Gidari Devi 4 Patna High Court SA No.49 of 2010 (8) dt.04-01-2013 (the plaintiff-appellant). The case of the plaintiff was that after death of Jangi Mahto the plaintiff and the heirs of Jangi Mahto came in possession of the properties held by him and were continuing in possession ever since then. Nathu Mahto after the death of Muni Mahto, Jangi Mahto and his father Ramgovind Matho died behind his three sons namely, Laxmi Mahto defendant No. 1, Baccha Mahto- husband of defendant no. 8 and Ramdhari Mahto defendant no. 10 came in joint possession.

In the background of the aforesaid facts, the plaintiff- appellant claimed before the Courts below that she and Nathu Mahto were entitled to 1/2 shares of Ramgovind Mahto.

The case of the defendants-respondents on the other hand was that Jangi Matho died in the year 1947 and his wife Rajkalia Devi died in the year 1946, Nathu Mahto died in the year 1950 and Ramgovind Mahto died in the year 1954. As such on the death of Muni Mahto and his widow in or about the year of 1940 and on the death of Jangi Mahto in 1947 and his wife in 1946 prior to his death, the entire property of the family devolved on Ramgovind Mahto and Nathu Mahto by virtue of survivorship. In such view, the defendants pleaded that the plaintiff could not and did not inherit any property and never came in joint possession or any possession in any manner over any property detailed in 5 Patna High Court SA No.49 of 2010 (8) dt.04-01-2013 Schedule 1 and 2 of the plaint at any time. The Trial Court on the basis of the pleadings framed following issues:-

1. “Whether the suit as framed is maintainable?

2. Whether the plaintiff has got right to sue or cause of action for the suit?

3. When Jangi died and when his wife Rajkalia died?

4. Whether there is unity of title and possession between the plaintiff and the defendants?

5. To what other relief or reliefs, if any, is the plaintiff entitled to?”

After scrutinizing the evidence on record, the learned Trial Court came to specific finding that the father of the plaintiff Jangi Mahto and her mother Rajkalia Devi died around 1946-47. The Trial Court also came to a positive finding that Jangi Mahto and Rajkalia died during the lifetime of Ramgovind Mahto. With these findings of facts, learned Trial Court held that on the death of Muni Mahto and his wife in or about the year 1940 and on the death of Jangi Mahto in the year 1947 and his wife in the year 1946, the entire properties of the family devolved upon Ramgovind Mahto and Nathu Mahto by operation of the rule of survivorship. The Trial Court held that in such circumstances, the plaintiff could not inherit any property as detailed in Schedule-1 6 Patna High Court SA No.49 of 2010 (8) dt.04-01-2013 and 2 of the plaint at any time. Learned Trial Court rejected the contention of the plaintiff that Jangi Mahto died in the year 1950 and his wife Rajkalia Devi died in 1960. In such view, the learned Trial Court held the suit for partition was not to be maintainable.

The plaintiff preferred appeal against the said judgment and order dated 20.12.1995 passed by the learned Sub-Judge, Bettiah in Title (Partition) Suit No. 136 of 1993 vide Title Appeal No. 13 of 1996. By the impugned judgment dated 12.11.2009, the learned Additional District Judge, III, West Champaran, dismissed the appeal affirming the judgment and decree passed by Sub- Judge-I in Title Suit No. 136 of 1993.

I have perused the impugned order which on the face of it discloses appreciation of relevant material available on record. The learned Additional District Judge, III on examination of the material on record also came to the specific finding that the father and mother of the plaintiff-appellant i.e. Rajkalia Devi and Jangi Mahto died in the year 1946-47 and further that both of them died during the lifetime of Ramgovind Mahto who was the Karta of the joint family till he was alive.

Learned counsel appearing on behalf of the appellant challenging the findings of the Courts below has strenuously contended that the finding of both the Courts are erroneous and the 7 Patna High Court SA No.49 of 2010 (8) dt.04-01-2013 Courts below have failed to appreciate the evidence on record in its correct perspective.

After going through the impugned judgments and considering the submissions made on behalf of the appellant, I am of the opinion that the case does not involve any substantial question of law to be determined in the present Second Appeal. Learned counsel for the appellant has not been able to point out as to how the concurrent findings of fact of the Court below are perverse so as to warrant interfere by this Court under Section 100 of the Code of Civil Procedure.

In my opinion, the jurisdiction of this Court to interfere with the concurrent findings of fact under Section of the Code of Civil Procedure is limited to a situation case where the finding is either perverse or is based on no evidence or is contrary to the material available on record. This Court will not interfere with the concurrent findings of fact until and unless the judgments suffer from perversity. Reference may be made in this regard to Judgments of Apex Court reported in (2006) 11 SCC 587 (Sugani (Mst.) V. Rameshwar Das and another), (2007) 1 SCC 546 (Gurdev Kaur and others V. Kaki and others), (2004) 5 SCC 762 (Prakash Kumar Vs State of Gujarat and Others) and (2009) 5 SCC 264 (Narayanan Rajendran and another V. Lekshmy Sarojini 8 Patna High Court SA No.49 of 2010 (8) dt.04-01-2013 and others).

As regards the plea on behalf of the appellants that the evidence on record were not duly appreciated by the Courts below and the finding of fact of the Courts below are erroneous, I am of the considered opinion that this Court in exercise of power under Section 100 of the Code of Civil Procedure cannot re-appreciate evidence even if two views are possible. This Court in exercise of the power under Section 100 of the Code would not interfere with concurrent finding of fact unless the same are found to be perverse and this view finds support from the judgments of Apex Court reported in (2000) 7 SCC 409 (Thimmaiah and others V. Ningamma and another) and (1999) 3 SCC 722 (Kondiba Dagadu Kadam Vs. Savitri Bai Sopan).

In view of the above, I do not find any merit in this appeal and the appeal is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Saif/-