Patna High Court · 2003
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.195 of 2003 ====================================================== Nand Kishore Singh Versus .... .... Appellant/s Sarvanand Singh & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Basant Kumar Singh For the Respondent/s : Mr. Arun Kumar Rai ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 9 25-06-2013 Heard the learned counsel Mr. Nagendra Rai appearing on behalf of the appellant and learned counsel Mr. Arun Kumar Rai appearing on behalf of the respondent under Order 41 Rule 11 C.P.C.
Facts
The defendant appellant appellant has filed this second appeal against the judgment and decree dated 31st May 2003 passed by the learned Additional District Judge, 9th Saran at Chapra in Title Appeal No. 100 of 1992/ 41 of 1996 whereby the lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated 31st August 1992 passed by the learned Munsif, Chapra in Title Suit No. 27 of 1986/ 124 of 1989. The plaintiff respondent respondent filed the aforesaid title suit for declaration that the gift deed dated 9.5.1984 in favour of the defendant said to have been executed by Shitali Devi, Patna High Court SA No.195 of 2003 (9) dt.25-06-2013 2 defendant No.2 is forged, fabricated and ineffective. The plaintiff prayed the aforesaid relief alleging that originally the suit land belonged to one Hanuman Singh who died leaving behind Shitali Devi, defendant No.2 who gifted the property by registered gift deed dated 2.6.1984 in favour of the plaintiff who is Bhagina of Shitali Devi as Hanuman Singh and Shitali Devi were issueless. The defendant No.1 obtained a forged gift deed from one fictitious lady in the name of Shitali Devi which was executed on 9.5.1984 and registered on 13.8.1984. According to the plaintiff the gift deed of the defendant is forged and fabricated, not executed by defendant No.2 Shitali Devi rather she was impersonated. The further case of the plaintiff respondent is that the gift deed is registered at Madora Sub Registry office and for giving jurisdiction to the Madora Sub Registrar office one kattha land was included although the said one kattha land was not of Hanuman Singh. On the other hand, the defendant appellant’s case is that in fact the gift deed in favour of the plaintiff is forged and fabricated and not executed by Shitali Devi, defendant No.2. The defendant No.2 Shitali devi had executed the gift deed in favour of the defendant which is genuine and valid. The land measuring one kattha of Madora belonged to Hanuman Singh and therefore, it Patna High Court SA No.195 of 2003 (9) dt.25-06-2013 3 was included in the gift deed. The assertion of the plaintiff was denied. On the basis of the aforesaid pleadings, the trial court framed various issues and after trial recorded the finding that in fact the land measuring one kattha of Madora was not of Hanuman Singh. The trial court also found that the gift deed Ext. A which is in favour of the defendant No.1 is forged and fabricated document. On appeal, the lower appellate court recorded the same finding and dismissed the appeal.
Legal Reasoning
concerned it is settled principles of law. Likewise it is settled law that the law will apply on the facts of the case, In the present case the fact is that the deed itself is forged and fabricated and lower appellate court found that at the time of execution of the gift deed i.e. on 9.5.1984 the executant i.e. Shitali Devi, defendant No.2 was not present there and, therefore, non-consideration of Section 47 of the Registration Act will not vitiate the judgments of both the courts below. In view of my above discussion, I find that the questions raised by the learned counsel for the appellant are not at all substantial questions of law involved in this second appeal for decision. I also find that the substantial questions of law involved in this appeal and dispute between the parties has already been concluded by finding of facts. Accordingly, this second appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) S.S./-
Arguments
The learned counsel Mr. Nagendra Rai appearing on behalf of the appellant raised two grounds. Firstly, according to the learned counsel the lower appellate court has wrongly recorded the finding that one kattha land of Madora was not of Hanuman Singh and for that reason assigned by the lower appellate court is on technical ground only. The learned counsel further submitted that on the basis of this finding the lower appellate court recorded the finding that the deed is forged and fabricated. Secondly, the learned counsel submitted that both the courts below have not considered the impact of Section 47 of the Registration Act. According to the plaintiff the gift deed of the defendant is antedated and in view of the provisions as contained in Section 47 of the Registration Act even if the gift deed was executed on Patna High Court SA No.195 of 2003 (9) dt.25-06-2013 4 9.5.1984 and was registered subsequently on 13th August 1984 the title will pass on the donee from the date of execution as soon as the gift deed is registered. According to the learned counsel the lower appellate court has not recorded any finding that the deed in favour of the appellant is antedated. So far the finding of the court below that the gift deed Ext. A in favour of the defendant is forged is concerned the learned counsel submitted that both the parties has examined their respective private finger print experts and both of them gave report in favour of the parties respectively. In such circumstances, the court should not have decided the disputed questions. On the other hand, the learned counsel for the respondent submitted that the lower appellate court has considered every aspect of the matter. The documentary evidences and the oral evidences have been considered by the lower appellate court and the lower appellate court recorded the finding that the defendant in his evidences himself stated that at the time of execution of the gift deed on 9.5.1984 Shitali Devi was not present as she had gone to perform Pooja. Thereafter there is no explanation as to what happen and why the deed was registered on 13.8.1984. The lower appellate court also found that originally the defendant No.1 filed the written statement on behalf of the Patna High Court SA No.195 of 2003 (9) dt.25-06-2013 5 respondent No.1 and 2 but after service of notice on defendant No.2 Shitali Devi, she appeared separately and filed a separate written statement supporting the case of the plaintiff that she had executed and registered the gift deed in favour of the plaintiff and not in favour of the defendant No.1. From perusal of the lower appellate court judgment it appears that the lower appellate court after considering the evidences oral as well as documentary including the finger print experts recorded the finding that the L.T.I. on the money-order coupon was itself disputed which was examined by the finger print expert of the defendant with the L.T.I. occurring on the gift deed of the defendant and also in the written statement filed earlier. The lower appellate court also recorded the finding that the L.T.I. on M.O. coupon itself is not reliable and, therefore, the comparison on behalf of the defendant No.1 is unfounded and ineffective. On the contrary, the lower appellate court also recorded the finding that the gift deed in favour of the plaintiff is genuine and valid gift deed. At paragraph 14 the lower appellate court also found that the plaintiff respondent had produced the widow of Hanuman Singh i.e. the Shitali Devi defendant No.2 in the witness box who was examined as special witness and she has supported the case that she had executed the gift deed in favour of the plaintiff Patna High Court SA No.195 of 2003 (9) dt.25-06-2013 6 respondent. So far this finding of the courts below is concerned, it is concurrent finding of fact. As has been held by the Apex Court in the case of Koppisetty Vankat Ratnam (Dead) through LRs. Vs. Pamarti Venkayamma (2009) 4 SCC 244 merely because another view is possible the High Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure will not substitute its own finding after reappreciation of evidence. Here it may be mentioned that it is not the case of the appellant that the finding recorded by the lower appellate court is perverse or is based on no evidence. So far the grounds raised by the learned counsel for the appellant to the effect that the land of Madora belonged to Hanuman Singh and no finding has been recorded and that the courts below have not considered the impact of Section 47 of the Registration Act are concerned it may be mentioned here that even if both these points are decided in favour of the appellant to the effect that the property of one kattha at Madora belonged to Hanuman Singh then also and the gift deed Ext. A in favour of defendant No.1 appellant will not be valid because as has been found by the lower appellate court it is not executed by defendant No.2 Shitali Devi. Likewise according to the learned counsel in view of Section 47 the title will pass from the date of execution is Patna High Court SA No.195 of 2003 (9) dt.25-06-2013 7