Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.202 of 2011 ====================================================== Prabhunath Yadav son of Lakshman Yadav, resident of village-Hakhauli, P.S. and P.O. Mirganj, District-Gopalganj. .... .... Appellant/s Versus 1. Hari Kishore Bhagat. 2. Nand Kishore Bhagat, both sons of late Ram Prit Bhagat. 3. Sunaina Devi wife of Krishna Bhagat. 4. Binda Devi wife of Sarda nand Singh, both daughters of Ramprit Bhagat, all are residents of village-Pipra Khas, P.O. +P.S-Mirganj, District-Gopalganj. 5. Devendra Singh son of late Ganga Bhagat. 6. Sonamati Devi wife of Ram Pukar Sinh daughter of late Ganga Bhagat. 7. Suntara Devi wife of Prem Singh, daughter of late Ganga Bhagat, respondent no. 5 to 7 are resident of village-Trilokpur, P.O.+P.S. Mirganj, District-Gopalganj. 8. Sheo Nath Singh. 9. Bishwanath Singh. 10. Baijnath Singh. 11. Ram Kishun Singh, all son of late Mahabir Bhagat respondent no. 8 to 11 are resident of village-Pipra Khas, P.O. and P.S. Mirganj, District- Gopalganj. 12. Rapda Devi wife of Ram Chandra Prasad daughter of late Mahabir Bhagat, resident of village Utter Tola, Harkauli, P.O. and P.S. Mirganj, District-Gopalganj.
Legal Reasoning
====================================================== Appearance : For the Appellant/s : Mr. K.N. Choubey, Sr. Adv with .... .... Respondent/s Mr. Madhukar Pandey, Adv and Mr. Suresh Chandra Pd. Sinha, Adv. For the Respondent/s : Mr. Nagendra Rai, Adv with Mr. Navin Nikunj, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER Patna High Court SA No.202 of 2011 (8) dt.10-04-2013 2 8 10-04-2013 Heard Mr. K.N. Choubey, the learned counsel for the appellants. Mr. Nagendra Rai, the learned counsel for the contesting respondents is also present. The intervener-defendant is the appellant in this appeal against the judgment of reversal by the appellate court setting aside the dismissal of the suit by the trial court. The suit was filed for declaration of title and recovery of possession over the suit land consisting an area of 3 katha 15 dhur of plot no. 2305 under khata no. 156 of village Piprakhas, District- Gopalganj, Bihar. Originally, the suit was filed having two defendants namely Ganga Bhagat and Mahabir Bhagat as parties. During the pendency of the suit the defendant no. 1 Ganga Bhagat transferred part of the suit property in favour of Prabhunath Yadav who was allowed to be impleaded as intervener-defendant no. 3 in the suit. Mr. Choubey, at the out set, has submitted that the defendant no. 2 Mahabir Bhagat died during the pendency of the appeal in the court below and a substitution petition was filed for bringing his heirs and legal representations on record which was also allowed. However, it has been further submitted that the names of the heirs were not incorporated in the memo of appeal and therefore no notice was issued to them and in their absence, Patna High Court SA No.202 of 2011 (8) dt.10-04-2013 3 the appeal has been allowed. It has been submitted that in such a circumstance there would be chance of conflicting decrees as the judgment and decree attained finality as against the heirs of the deceased respondent no. 2 Mahabir Bhagat. Mr. Rai, the learned counsel for the contesting respondents has submitted that he has no instruction with regard to the aforesaid submission. It transpires from the record in this regard that an affidavit had been filed on 27.04.2011 in response to the defect pointed out by office in this appeal, wherein also the similar fact has been stated that the respondent no. 2 Mahabir Bhagat died on 23.09.2002 during the pendency of the appeal in the court below and petition for substitution was filed within time by the respondents (appellants in the court below) and the said application was allowed on 13.11.2002. As such, it is evident that this is not a case of abatement of the appeal in the court below against the heirs of the deceased respondent no. 2 which could have led to the chance of conflicting decrees. Moreover the defendant no. 2 did not appear in the suit and had not filed his written statement. It also transpires from the written statement of the defendant no. 1 that his claim over the suit property is distinct and severable from the right of the defendant no. 2. This appeal Patna High Court SA No.202 of 2011 (8) dt.10-04-2013 4 has been preferred by the intervenor-defendant no. 3 alone who is asserting his right, title and interest over the suit land as a transferee from the defendant no. 1. As such I do not find force in the submission on behalf of the appellant that there was chance of conflicting decrees. The plaintiffs have claimed their title over the suit property on the ground that the suit property is their ancestral property. The admitted fact is that the property belonged to one Jai Mahto who had two sons Sukat Mahto and Halkhori Mahto. The plaintiffs are the descendents of Sukat Mahto and Halkhori Mahto whereas the conflicting defendant no. 1 has claimed the title and possession over the suit property on the basis of the transfer by Sukat Mahto and Halkhori Mahto of the suit property in favour of Tilakdhari Ram and further transfer by the descendants of Tilakdhari Mahto in favour of the defendant No. 1. The present appellant is the purchaser from the defendant no. 1 and has supported the pleadings of the defendant no. 1. The plaintiff has asserted that the defendants were allowed by the plaintiffs to come in possession of the suit plot for some time till the construction of their house whereas the defendants claimed their own independent title and possession acquired in the abovementioned manner. It would be pertinent to notice here that the defendant no. 2 Mahabir Bhagat Patna High Court SA No.202 of 2011 (8) dt.10-04-2013 5 did not appear in the suit and contested the same after filing the written statement. The trial court, after considering the pleadings and evidence of the parties, dismissed the suit. In appeal, the appellate court, on reappraisal of evidence, has allowed the appeal. Mr. Choubey, the learned senior counsel has submitted that the name of Tilakdhari Ram, the purchaser of the vendor of the defendant no. 1 was mentioned in the recent survey khatiyan with regard to the suit land and the said entry had remained unchallenged. It has been urged that this fact alone supports the case that the suit land had been transferred in favour of the Tilakdhari Ram by the predecessor of the plaintiffs. In this regard it appears from the perusal of the impugned judgment that the appellate court below has scrutinized the evidence on record including Ext. 5A and 5B which are the certified copies of the sale deeds in favour of Tilakdhari Mahto, on the basis of Ext. 6 (certified copy of the index) and thereafter has come to the finding that the suit plot no. 2305 was never transferred in favour of Tilakdhari Ram along with other plots and therefore Tilakdhari Ram did not acquire any title over the said plot. It has been found that the suit plot no. 2305 has been carved out of C.S. plot no. 1406 which was not included in the plots transferred by the sale Patna High Court SA No.202 of 2011 (8) dt.10-04-2013 6 deeds (Ext. 5/A and 5/B). Further, the appellate court has also taken into consideration the entries in the recent survey khatiyan (Ext. 3/A and D/1) and has found that the possession of Tilakdhari Ram has been shown along with Moti Mahto with regard to plot no. 1331 only whereas the suit plot no. 2305 has been recorded in possession of Sukat Mahto(predecessor of the plaintiffs). On the basis of these findings, the appellate court below has come to the conclusion that the predecessor-in-interest of the vendor of the contesting defendants did not acquire any title and possession over the suit plot no. 2305. This finding is clearly based on the appreciation of evidence by the appellate court below and no perversity in the same could be established on behalf of the appellant. Mr. Choubey, the learned senior counsel for the appellant next submitted that the plaintiffs never sought any relief against the sale deeds of the contesting defendants but the appellate court has made out a third case and granted the relief to the plaintiffs against those sale deeds. It is manifest that the plaintiffs have claimed their title over the suit property claiming it to be their ancestral property whereas the contesting defendants have claimed their title over the same on the basis of the sale deed claiming it to be the purchased land of their vendors. In view of the finding that Patna High Court SA No.202 of 2011 (8) dt.10-04-2013 7 the suit land was never sold to Tilakdhari Ram the predecessor-in- interest of the vendors of the defendants, it has been rightly found that the sale deeds (Ext. B, E and F) of the defendants cannot confer any right, title or interest on the defendants over the suit land. Mr. Choubey next contended that the plaintiff no. 2 appeared as a witness at the time of redemption of the mortgage which has been created by Janki Devi who was the vendor of the defendant no. 1. It has been urged that this fact again leads to the inference that the plaintiffs were aware of the title of the vendor of the defendant. The appellate court has taken into notice this aspect of the matter also and has rightly held that the fact that the plaintiff no. 2 appeared as a witness to the redemption of the mortgage would not alone be sufficient to confer title upon the defendant no. 1. Moreover, the fact cannot be overlooked that the plaintiff no. 2 is the husband of plaintiff no. 1 and the title holders of the suit land were the ancestors of the plaintiff no. 1. The action of the plaintiff no. 2 appearing as a witness to the redemption of mortgage cannot be the circumstance which alone can be sufficient to denude the plaintiff no. 1 of her title from the property. The impugned judgment of the appellate court below is a well considered judgment with the findings recorded on the basis Patna High Court SA No.202 of 2011 (8) dt.10-04-2013 8 of appreciation evidence and in accordance with law. For the aforesaid premised reasons, I do not find any substantial question of law arising for consideration in this appeal which is accordingly dismissed. Devendra/- (Vijayendra Nath, J)