Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.206 of 2012 ====================================================== Tulo Yadav & Ors .... .... Appellant/s Mahendra Yadav & Ors Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ray Saurabh Nath For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 6 02-08-2013 1. Heard the learned counsel,, Mr. Ray Saurabh Nath appearing on behalf of the appellant and the learned counsel, Mr. Satyendra Narayan Singh appearing on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiff have filed this second appeal against the Judgment and Decree dated 21st February, 2012 passed by the learned 5th Addl. District Judge, Bhagalpur in title appeal No.32 of 2009 / 48 of 2012 whereby the lower appellate Court dismissed
Legal Reasoning
the appeal and confirmed the Judgment and Decree of the learned trial Court dated 12th February, 2009 passed by Sub Judge I, Bhagalpur in title suit No.170 of 2004. 3. The plaintiff filed the aforesaid suit for partition claiming 1/3rd share in the suit property alleging that Chattu Yadav was the father of the plaintiff and the defendant No.1 and Chattu Yadav married with two wives. From first wife, the plaintiff, Faguni Yadav were born and from second wife, Hari Yadav defendant No.7, Mahendra Yadav, defendant No.1 and one Sikandar Yadav were 2 Patna High Court SA No.206 of 2012 (6) dt.02-08-2013 2 / 7 born. Sikandar died issueless. There has been no partition between the parties. According to the plaintiff, the suit property was purchased by Chattu Yadav in the name of Mahendra Yadav, defendant No.1 through the registered sale deed dated 10.05.1957 ext. ‘C’. On the death of Chattu Yadav, the parties have got equal share in the property. 4. The defendant No.1 filed contesting written statement alleging that in fact the plaintiff Tullo Yadav and the defendant No.7 Hari Yadav are the sons of second wife of Chattu from her first husband. They came as Laghor with the second wife when Chattu Yadav married the second wife. Therefore, the plaintiff or the defendant No.7 have no title, interest in the property of Chattu Yadav because they are not the sons of Chattu Yadav. Faguni Yadav is the only daughter from first wife. Property was purchased by Mahendra Yadav, the defendant No.1. 5. The trial Court dismissed the plaintiff’s suit finding that the plaintiff Tullo and Hari defendant No.7 are Laghor and they came with their mother and subsequently their mother married with Chattu Yadav however, the trial Court recorded a finding that the property is the joint family property. The plaintiff filed appeal before the lower appellate Court. In the said appeal, the defendant No.1 filed cross objection regarding the finding on the question that the property is joint family property. The lower appellate Court recorded the finding that the plaintiff Tullo Yadav and defendant No.7 Hari are Laghoras and are not the son of Chattu Yadav. The lower appellate Court also recorded the finding 3 Patna High Court SA No.206 of 2012 (6) dt.02-08-2013 3 / 7 that the property is not the joint family property rather it was acquired by Mahendra Yadav defendant No.1 Accordingly, the lower appellate Court dismissed the plaintiff’s appeal. 6.
Legal Reasoning
The learned counsel for the appellant submitted that the Judgment of the lower appellate Court is perverse because while recording the finding that the plaintiff and Hari are Lagor the lower appellate Court has not considered ext. 1, the khatiyan and the evidence of P.W.1 and P.W.4 who have categorically stated that the plaintiff and Hari are the sons of Chattu Yadav from second wife. According to the learned counsel, P.W.1 was not even cross- examined by the defendant. Therefore, in view of the settled proposition of law that if no cross examination is made, it will be presumed that the evidence is admitted by the defendant but the lower appellate Court without considering the settled legal position has recorded the finding contrary to the evidence of P.W.1. According to the learned counsel, in ext.1 in Khatiyan it is specifically mentioned that plaintiff and Hari both have been shown as sons of Chattu Yadav and that entry was not considered by the lower appellate Court, therefore, the Judgment of the lower appellate Court is vitiated. The learned counsel submitted that Faguni Devi was the daughter of first wife but the real Faguni Devi was not examined as witness in the Court, however, no findings is recorded by the Court below regarding this point. 7. On the contrary, the learned counsel appearing on behalf of the respondent submitted that the finding of Lagors is pure finding of fact. Therefore, it cannot be interfered with in second 4 Patna High Court SA No.206 of 2012 (6) dt.02-08-2013 4 / 7 appellate jurisdiction. According to the learned counsel, the entry in ext.1, i.e., Khatiyan is not the conclusive proof of parentage and moreover, the plaintiff themselves challenged the correctness of the said ext.1. The learned counsel further submitted that all the evidences have been discussed by the trial Court and thereafter disbelieving the evidence of the plaintiffs recorded the finding. The lower appellate Court has not reversed the finding, therefore, it is not necessary for the lower appellate court to reiterate the same evidence and same reasoning of the trial Court. According to the learned counsel, none of the grounds raised by the learned counsel for the appellant is substantial question of law. 8. From perusal of the Judgment of both the Courts below it appears that the Courts below have considered the evidence oral and documentary and thereafter discarded the evidence of the plaintiffs. The trial Court has discussed in extent so. In such circumstances in view of the decision of the Hon’ble Supreme Court reported in AIR 1967 SC 1124 Girijanandini Devi Vs. Bijendra Narain Choudhary, it is not necessary that the lower appellate Court to reiterate the evidence in the same line as that of the trial Court or reiterate the reasons of the trial Court. It may be mentioned here that this decision has been explained by the Hon’ble Supreme Court in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs. 2001 (3) SCC 179 and it has been held by the Hon’ble Supreme Court that the appellate court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by 5 Patna High Court SA No.206 of 2012 (6) dt.02-08-2013 5 / 7 the trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. However, expression of general agreement with the finding recorded in the Judgment under appeal should not be a device or camouflage adopted by the appellate Court. In the present case at our hand from perusal of the Judgment of the lower appellate Court by no stretch of imagination, it can be said that Judgment of the lower appellate Court has been passed by the lower appellate Court for shrinking the duty cast on it. 9. So far the submission of the learned counsel that some of the evidences such as the evidence of P.W.1 P.W.4 or ext.1 have not been considered by the lower appellate Court, it may be mentioned here that this submission relates to the sufficiency or adequacy of evidence. In the case of Madamanchi Ramappa Vs. Muthaluru Bojjappa AIR 1963 SC 1633, the Hon’ble Supreme Court has held that the sufficiency or adequacy of evidence is not a substantial question of law. Once the finding is recorded on the basis of relevant and admissible evidence, the party aggrieved against that finding cannot be allowed to raise the question that the evidence is in sufficient in support of the finding recorded by the Court. 10. So far the submission of the learned counsel for the respondent that cross-examination was not made by the defendant to the plaintiff witness No.1, therefore, his evidence is admitted is concerned, it may be mentioned here that the question about Lagors is the main controversy between the parties. In such 6 Patna High Court SA No.206 of 2012 (6) dt.02-08-2013 6 / 7 circumstances on the principle of no cross-examination has been made the finding cannot be recorded, particularly when the Courts below have recorded the finding that they are the Lagors and there are supporting evidence in support of the said finding. It is not that the finding recorded by both the Courts below regarding Lagors is based on no evidence or inadmissible evidence. 11. In the case of Bishwanath Aggrawal Vs. Sarla Aggrawal 2012 (7) SCC 288, the Hon’ble Supreme Court has held that even if two views are possible on the basis of the evidences available on record the High Court in exercise of power under Section 100 of the Code of Civil Procedure cannot substitute its finding of fact after re-appreciating the evidence unless it is shown that no prudent person can record the finding which has been arrived at by the lower Courts. In such view of the matter so far the finding regarding Lagors is concerned, is pure question of fact concurrently found by the Courts below. Therefore, it cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 12. It appears that the plaintiff themselves claimed that the property in question was purchased by Chattu Yadav in the name of defendant No.1 It is not the case of the plaintiff that the family has purchased the property in the name of co-personer. In my opinion, therefore, this claim by the plaintiff that defendant No.1 was benamidar of Chattu is barred under Section 4 of the Benami Transaction Prohibition Act, 1988. Now, therefore, it is admitted 7 Patna High Court SA No.206 of 2012 (6) dt.02-08-2013 7 / 7 fact that the property is standing in the name of defendant No.1. Unless the plaintiff proves that it is the joint family acquisition, he has no right, title interest over the same. The lower appellate Court has recorded the finding that it is self acquired property and not the joint family property. No case has been made out by the plaintiff that it was acquired by the family out of joint family fund in the name of defendant No.1. The only claim of the plaintiff is that Chatto Yadav acquired in the name of defendant No.1 in the year 1957. The lower appellate Court recorded the finding that Chatto Yadav died in 1953 and in the said deed, it is mentioned that Chatto Yadav has died. Therefore, the very basis of claim or plaintiff fail. Moreover, question as to whether the property is joint family property or a self acquired property is also pure question of fact and cannot be substantial question of law as has been held by Hon’ble Supreme Court in the case of Narendra Gopal Bidyarthi Vs. Rajak Bidyarathi 2009 (3) S.C.C. 287. 13. In view of the above facts and circumstances of the case, in my opinion, none of the grounds raised by the learned counsel for the appellant are substantial question of law. Thus, this second appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Sanjeev/-