Deosharan Raut v. Asharfi Sah

Smt. Koari Devi wife of Gorakh Raut, daughter of Paragan Raut, resident of village Bahathi, Post Office Sakran Police Station Ramgarhwa, District East Champaran.

Smt. Nagina Devi wife of Jang Bahadur Sah, daughter of Daroga Sah, resident of village Gamharia, Post Office Gamharia, Police Station Adapur, District East Champaran.

Smt. Kunti Devi wife of Satya Narayan Sah, daughter of Daroga Sah, resident of village and post office-Lakhaura, Police Station Motihari, District East Champaran.

Jang Bahadur Raut son of Patwari Raut 8. Bir Bahadur Raut son of Patwari Raut Both resident of village-Pipra Post office and police station- Pokharia, District-Parsa (Nepal). -- Opposite parties-Appellants-Respondents. ---- For the appellant : Mr. Shashi Shekhar Dwivedi, Senior Advocate M/s R.S.Dwivedi, Binay Kumar Choubey, Shambhu Sharan Singh, Pathak Dhananjay & Umesh Kumar Singh, Advocates. For respondent no.1: Mr. Yogendra Prasad Sinha, Advocate ----

O R D E R

23.04.2009 Heard learned counsel for the appellant and learned counsel for respondent no.1.

This second appeal has been filed by defendant- appellant-appellant challenging the judgments and decree of both the - 2 - learned courts below.

The matter arises out of Miscellaneous Case No.09 of 1993 which was filed by respondent no.1 Asharfi Sah under the provision of Section 144 of the Code of Civil Procedure for restitution of possession.

4. The said miscellaneous case was allowed on contest by learned Munsif, Raxaul vide his judgment dated 06.09.2000 and allowed restitution of possession in Execution Case No.14 of 1982 which was earlier pending before the learned Munsif, Motihari. Against the aforesaid judgment of the trial court, the appellant filed Title Appeal No.70 of 2000 which was dismissed on contest by learned Ist Additional District Judge, East Champaran, vide his judgment and decree dated 05.03.2001. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed by the defendant-appellant.

5. From the arguments of learned counsel for the parties as well as from the materials on record, including the judgments of both the learned courts below, it transpires that after considering the pleadings and evidence of the parties, both the learned courts below came to the conclusion that the defendant-appellant had earlier filed Title Suit no.333 of 1969 for declaration of title, recovery of possession and setting aside the impugned sale deeds in favour of respondent no.1, whereafter the said suit was decreed by the trial court vide judgment and decree dated 23.04.1977 (Ext.-1), the registered sale deed in favour of respondent no.1 was set aside and - 3 - recovery of possession was ordered from respondent no.1 in favour of the appellant and his brother and for execution of the said decree, Execution Case No.14 of 1982 was filed by the appellant and his brother in which delivery of possession was effected by the learned Munsif, Motihari on 31.10.1982 after dispossessing respondent no.1.

6. It also transpires that against the aforesaid decree passed in Title Suit No.333 of 1969, respondent no.1 filed Title Appeal No.79 of 1977 which was allowed by the learned lower appellate court vide its judgment and decree dated 21.03.1983 and the said judgment and decree was affirmed by this court vide judgment dated

15.02.1984 passed in Second Appeal No.190 of 1983 holding that the sale deed in favour of respondent no.1 was legal and valid and the appellant and his brother had no title or right for possession.

7. The said judgment of this court having attained finality, respondent no.1 filed the aforesaid Miscellaneous Case No.09 of 1993 for restitution of possession in accordance with the judgments and decree of the learned court of appeal below as well as of this High Court. It was also found that admittedly the aforesaid Miscellaneous Case was filed in the year 1993 and no suit or appeal had been filed by the appellant against the said judgment and decree or for any other purpose with respect to the suit land. It was also found by the learned courts below that after knowing about the aforesaid miscellaneous case, the appellant in collusion with his sister Kaushalya Devi got a partition suit bearing P.S. No.127 of 1995 filed by the said Kaushalya Devi, but the said Kaushalya Devi - 4 - did not appear either in the miscellaneous case or in the title appeal arising out of the miscellaneous case which clearly shows that the said partition suit was filed merely to frustrate the claim of respondent no.1 which was affirmed by this court in the earlier second appeal. Furthermore, the judgment and decree of the aforesaid partition suit filed by Kaushalya Devi is also under challenge in a Title Appeal in the learned court of appeal below.

In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)