HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.445 of 2011 ====================================================== 1. Ash Mohammad Mukeri @ Ash Mohammad Mian, Son of Late Ali Sher Mukeri, Resident of village- Rani Pakari, P.S.-Bettiah Mufassil, District- West Champaran-Plaintiff-Appellant in the court below..... Appellant. Versus 1. Banhu Gaddi, Son of Late Shkhal Gaddi. 2. Bigani Khatoon, Wife of Rajddin, Daughter of Sanhu Gaddi. Both residents of village- Pipra Pakari Tola Godiyani, P.O.- Pipra Pakari, P.S.- Bettiah Mufassil, District-West Champaran. ------------------------------Defendants-Respondents. ====================================================== Appearance : For the Appellant/s : Mr. Bishwa Nath Chaudhary, Adv. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 5 30-04-2013 Heard Mr. Bishwanath Choudhary, the learned counsel appearing on behalf of the appellant. 2. The plaintiff is the appellant in this second appeal against
Legal Reasoning
the judgment and decree of affirmance by the appellate court upholding the dismissal of the suit. 3. The plaintiff has filed the suit for declaration of his title and confirmation of possession over the suit land described in Schedule I of the plaint. 4. The matrix of the facts would unveil that admittedly one Keshar Gaddi was the title holder of the suit land. The plaintiff has claimed that Keshar Gaddi in the year 1940 orally sold the suit land to the predecessor of the plaintiff and also executed an unregistered sale deed as the value of the suit land was only Rs. 2 Patna High Court SA No.445 of 2011 (5) dt.30-04-2013 2 / 5 91/-. The plaintiff has further asserted that he has been coming in possession over the suit land since thereafter, and has got his name entered in the revenue records as well as consolidation records and has also been paying rent and getting rent receipts. 5. The defendants who are the descendants of the alleged vendor Keshar Gaddi have denied the claim of the plaintiff with the assertion that their predecessor never transferred the suit land in favour of the predecessor of the plaintiff. The categorical stand of the defendants was that the unregistered sale deed (Ext.4) was not a genuine document and did not bear the thumb impression of Keshar Gaddi. 6. Both the courts below after scrutiny of the pleadings and evidence of the parties have come to the concurrent finding that the unregistered sale deed (Ext.4) does not bear the thumb impression of Keshar Gaddi, and therefore, is not a genuine document.
Legal Reasoning
7. Mr. Bishwanath Choudhary, the learned counsel appearing on behalf of the appellant has submitted that that the plaintiff has claimed his title as well as the possession over the suit land and had adduced cogent evidence in support of the same but both the courts below have not properly appreciated the evidence. It has been urged that P.W.16(handwriting expert) has clearly 3 Patna High Court SA No.445 of 2011 (5) dt.30-04-2013 3 / 5 opined that the thumb impression appearing on the unregistered sale deed(Ext.4) is that of Keshar Gaddi, and therefore, the said opinion should have been given due weightage. It has been contended that the plaintiff’s possession over the suit land has been established by evidence, and therefore, the relief regarding confirmation of possession ought to have been given to the plaintiff. Mr Choudhary, the learned counsel for the appellant has submitted that as the valuation of the suit land was less than Rs. 100/- no registration was required particularly in view of the fact that the possession had been handed over to the purchaser. 8. After considering the submissions of the learned counsel for the appellant and perusing the impugned judgments of both the courts below, it is pellucid that the plaintiff has admitted the title of Keshar Gaddi and claimed the suit property as his transferee. The plaintiff has relied upon the unregistered sale deed of the year 1940 to establish the sale transaction. It is specific case of the plaintiff that Keshar Gaddi had sold the suit land to the predecessor of the plaintiff and in recognition of the said sale transaction, the unregistered sale deed was executed as the value of the property was less than Rs. 100/- . In view of the assail of the genuineness of the thumb impression of Keshar Gaddi on the said unregistered sale deed by the defendants, the parties were allowed 4 Patna High Court SA No.445 of 2011 (5) dt.30-04-2013 4 / 5 to lead their evidence as well as to get the thumb impression examined by the handwriting expert. However, in view of the contradictory reports by the handwriting experts of the respective parties, the courts below themselves ventured to examine the disputed thumb impression with the admitted impression and have thereafter concurrently come to the finding that there is no similarity between the admitted thumb impression with the disputed thumb impression of Keshar Gaddi. Both the courts have given their reasonings for coming to the said conclusion and no perversity in the reasonings could be established on behalf of the appellant. Thus, I do not find any error in the findings of the courts below that the unregistered sale deed (Ext.4) is not a genuine document. 9. The claim of the plaintiff on the basis of possession over the suit land has also been considered by both the courts below in view of the evidence on record. From the averments made in the plaint and the relief sought therein, it is manifest that the plaintiff has claimed the relief for declaration of title and the consequential relief is for confirmation of possession. As such if it has been found that the plaintiff has not derived title on the basis of the alleged sale transaction with Keshar Gaddi, the consequential relief for confirmation of possession cannot be allowed. The 5 Patna High Court SA No.445 of 2011 (5) dt.30-04-2013 5 / 5 learned counsel for the appellant has accepted that no other case has been pleaded by the plaintiff in support of his possession over the suit land. In this view of the matter, I find that the issues arising between the parties have now been concluded by concurrent findings of fact based upon the consideration of pleadings and evidence on record. 10 There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)