Siya Ram Mahto v. Rambilash Mahto

Sri Ajay Kumar Shukla, the learned Additional District Judge, Madhubani in Title Appeal No. 35 of 1998 dismissing the appeal and confirming the judgment and decree dated 30.4.1988 passed by Sri S.K. Srivastava, 3rd Subordinate Judge, Madhubani in Title Suit No. 152 of 1983.

3. The plaintiff filed the aforesaid title suit praying for a decree for declaration that sale deed dated 8.2.1980 executed by Pulkit Mahto, Tej Narayan Mahto defendant 3rd set in favour of defendant 1st set are forged, fabricated, unaffected, useless and Patna High Court SA No.486 of 2008 (4) dt.02-07-2012 2 void.

4. The plaintiff claimed the aforesaid relief alleging that Rupal Mahto had two sons namely Bhagirath Mahto and Bhatan Mahto who succeeded and came in possession of the property of Rupan Mahto. Prior to C.S. they separated and partitioned the land. Bhatan owned and possessed 2 bigha 8 kattha and 7 dhur which is mentioned in schedule 5 of the plaint. He had two sons namely Bhokhrahu and Badar. On the death of Bhatan his two sons came in possession. Bhokhrahu died 70 – 75 years ago issueless and the property devolved on his brother namely Badar. On 2.11.1932 he sold entire schedule 2 property to father of the plaintiff. After death of their father the plaintiffs are coming in possession of the same. On 4.2.1980 plaintiffs sold schedule 4 land.

5. The defendant No.1 filed written statement contending that the suit is barred by law of limitation. Bhokhrahu and his brother separated and partitioned their lands and came in separate possession. Bhokhrahu died in the estate of separation leaving behind his only daughter Kalri who was mother of defendant Nos. 8 and 9. In this way the defendant 2nd set owned and possessed the land of Bhokhrahu. The plaintiff’s vender had no concerned with the land of Kalri. The defendant 2nd set sold schedule 1 land of the Patna High Court SA No.486 of 2008 (4) dt.02-07-2012 3 plaint to defendant 1st set on 8.2.1980. Bhokhrahu when became old he chose his one maternal grand-son and made him his Kartaputra and later on he wrote deed of Yaddasta on 15.7.1955. The sale deed and mortgage deed of the plaintiffs are created documents.

6. After trial the learned court below recorded a finding that there had been a partition between the two brothers Bhokhrahu and Badar @ Badri. Both the courts below concurrently found that Kalri is the daughter of Bhokhrahu. On the basis of this finding the plaintiffs suit was dismissed by both the courts below.

7. The learned counsel appearing on behalf of appellant submitted that no issue was framed regarding as to when Bhokhrahu died although it is pleaded by the plaintiff that Bhokhrahu died 70 75 years ago and there is no denial by the defendant in the written statement. So far this submission is concerned, it may be mentioned here that from perusal of the judgment of both the courts it appears that the defendants specifically pleaded that in 1955 Yaddast deed was written by Bhokhrahu. Therefore, both the parties were knowing the case of each other and entered into trial and adduce evidence. After considering the evidences the courts below recorded a finding that Patna High Court SA No.486 of 2008 (4) dt.02-07-2012 4 Bhokhrahu died in the year 1957. In my opinion, therefore, only because of no issue has been framed no prejudice is being caused to the appellants. So far year of the death of Bhokhrahu is concerned, it is finding of fact. In such view of the matter, I find no force in the submission of the learned counsel for the appellants, as such in my opinion it is not a substantial question of law involved in this case.

8. The learned counsel next submitted that there is no issue regarding as to whether there was partition between Bhokhrahu and his brother but the courts below have recorded a finding. So far this submission is concerned also it appears that both the courts below have found that there was partition between Bhokhrahu and his brother. As stated above the parties entered knowing the case of each other therefore, non-framing of any issue on that question is not material particularly, when both the parties adduced evidence. Therefore, in my opinion, this is also not a substantial question of law.

9. The learned counsel next submitted that the evidences produced by the parties regarding the parentage of Kalri is concerned were not admissible under Section 50 of the Evidence Act. So far this submission of the learned counsel is concerned it appears that this question was never raised either in the trial court Patna High Court SA No.486 of 2008 (4) dt.02-07-2012 5 or before the appellate court. It depends on the appreciation of evidence of particular witness as to whether he has got any special means of knowledge expressed by him as a relation of the family and his conduct treating her as daughter of Bhokhrahu being the villager or neighbor. Had this question been raised, the court would have gone into this matter and scrutinized the evidence of the witnesses as to whether they have got a special means of knowledge because from perusal of the trial court judgment it appears that the trial court has considered many oral evidences and then recorded a finding that Kalri is daughter of Bhokhrahu. This is a finding of fact now therefore, in second appeal the appellant cannot be allowed to agitate this question which is dependent on the inference of fact or statements of facts made by the witnesses. In my opinion therefore, it is not a substantial question of law as now merely on the basis of submission of the appellant that the statements of witness are inadmissible under Section 50 or 60 of Evidence Act, it cannot be presumed that the courts below have not considered this aspect or that there is no such statement of the witnesses. As stated above this point was never raised. I therefore, find no force in the submission also. In the case of Dolgobind vs. Nimai Charan Misra and others AIR 1959 SC 914 the Apex Court has clearly interpreted Section 50 of Patna High Court SA No.486 of 2008 (4) dt.02-07-2012 6 the Evidence Act. In the said decision it has been held that what is relevant is the opinion of the witness expressed by conduct. This expression of the witness by conduct is dependent on the examination of the statements made by the witness which was never disputed in the courts below.

10. The learned counsel next submitted that even if it is held that Kalri is the daughter of Bhokhrahu then also the plaintiffs will be entitled to half share that is share of Badar in view of the sale deed of the year 1932. It may be mentioned here that the plaintiffs never prayed for partition of his share. His prayer was only to set aside the sale deed. Therefore, I find no force in this point also.

11. In view of the above discussion, I find no substantial questions of law involved in this case and in my opinion the finding recorded by the courts below are concurrent finding of fact which cannot be interfered with in second appeal. Accordingly, this second appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) S.S.