====================================================== Bhelou Pandit v. Triloki Pandit & Anr
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.598 of 2010 ====================================================== Bhelou Pandit .... .... Appellant/s Versus Triloki Pandit & Anr. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Viveka Nand Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 9 29-08-2013 Heard learned counsel Mr. Binod Kumar Singh appearing on behalf of the appellant and learned counsel Mr. Bishwanath Choudhary appearing on behalf of the respondents under Order XLI Rule 11 of the Code of Civil Procedure.
Legal Reasoning
2. The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 30.06.2010 passed by the learned Additional District Judge, Fast Track Court No.3, Khagaria in Munsif Title Appeal No.09 of 2000 whereby the learned lower appellate court dismissed the appeal and confirmed the judgment and decree dated 06.05.2000 passed by the learned Munsif, Khagaria in Title Suit No.73 of 1996. 3. The plaintiff-appellant-appellant filed the aforesaid suit alleging that the suit land measuring 18 dhurs belonged to Neem Chand, who was khatiyani raiyat. He had three sons. In Patna High Court SA No.598 of 2010 (9) dt.29-08-2013 2 partition each got 6 dhurs. The plaintiff and brother of plaintiff no.1 purchased the share of two sons of Neem Chand, therefore, they are absolute owners of the suit land being plot no.724 khata no.279 measuring 18 dhurs. However, in 145 Cr.P.C. proceeding possession of the defendants had been declared. 4. The defendants filed contesting written statement alleging that in fact the property is the Gairmajarua Khas land of the ex-landlord and after vesting it is vested in the State of Bihar. The defendants are residing there on payment of rent receipt to the State of Bihar. The defendants have got house on the property. 5. The trial court found that the plaintiff in order to obtain a decree in his favour interpolated the khatiyan i.e. Ext.6, therefore, held that since the plaintiff is playing fraud by interpolating the document, dismissed the plaintiff’s suit. On appeal the lower appellate court considering the evidences adduced by the parties found that the plaintiff failed to prove the title and the manner of acquisition of title. The lower appellate court also found that the property after vesting is recorded in the name of State of Bihar and the plaintiff in order to obtain a decree in his favour interpolated and inserted in column no.10 the name of ancestor of the plaintiff, namely, Neem Chand. Therefore, the lower appellate court held that Ext.6 on the basis of which plaintiff Patna High Court SA No.598 of 2010 (9) dt.29-08-2013 3 is claiming title is doubtful document. Accordingly, the lower appellate court dismissed the appeal and confirmed the judgment of the trial court.
Legal Reasoning
6. Learned counsel Mr. Binod Kumar Singh appearing on behalf of the appellant submitted that when the defendants have admitted that two sons of Neem Chand have sold their share in favour of plaintiff and Kamleshwari Pandit, the court below should have considered the acquisition of title by the plaintiff through the registered sale deed. According to law, the registered sale deed is presumed to be genuine unless it is proved that it is sham or fictitious document. Here, the sale deeds executed by the vendors of the plaintiff i.e. two sons of Neem Chand are admitted, therefore, the courts below have wrongly dismissed the plaintiff’s suit. Learned counsel further submitted that the plaintiff produced the certified copy of khatiyan (Ext.6) wherein in column no.10 the name of Neem Chand was mentioned showing his possession whereas certified copy was produced by the defendants, which was marked as Ext.K, which shows that in column no.10 there was no entry. In such circumstances, the lower appellate court should have drawn a proceeding to enquire about who has committed the forgery or interpolation in Ext.6. 7. On the other hand, learned counsel for the Patna High Court SA No.598 of 2010 (9) dt.29-08-2013 4 respondents submitted that the lower appellate court has considered the evidences produced by the plaintiff and thereafter recorded the finding that the plaintiff failed to show that how he became the owner of the property. The points raised by the learned counsel are not all substantial questions of law. 8. From perusal of the lower appellate court judgment, it appears that the lower appellate court considered each and every witness produced by the plaintiff, who has been examined as material witness in the case. After considering the evidences at paragraph-9 the lower appellate court held that the plaintiff failed to prove that in fact Neem Chand was the owner of the property. The lower appellate court also found that khatiyan (Ext.K) shows that the property is recorded as Gairmajarua Khas land which vested in the State of Bihar. The lower appellate court found that in Ext.K there is no mention of name of Neem Chand (ancestor of the plaintiff). It is settled principles of law that entry in the record of right will not create title in favour of any person nor extinguish title of real owner of the property. No evidence has been adduced on behalf of the plaintiff as to how Neem Chand became the owner of the property particularly when the property has been found to be Gairmajarua Khas land. The plaintiff is not claiming settlement form the landlord. Patna High Court SA No.598 of 2010 (9) dt.29-08-2013 5 9. So far Ext.6 is concerned, in view of Ext.K the same was disbelieved by the lower appellate court. In such circumstances only on the basis of Ext.6 no finding can be recorded that Neem Chand was the owner of the property. Now the question will be if Neem Chand was not the owner of the property then there is no question of transfer by the heirs of Neem Chand i.e. two sons of Neem Chand in favour of the heirs of third son of Neem Chand arises and by the sale deeds no title will be conferred on the purchaser. In such circumstances the points raised by learned counsel for the appellant that the lower appellate court should have considered the genuineness of the sale deeds has also got no merit because in view of the above facts the vendors had no title to transfer the property. Therefore, the lower appellate court has rightly dismissed the plaintiff’s suit. 10. In view of the above facts, the points raised by learned counsel for the appellant are not at all substantial questions of law. Therefore, in my opinion, no substantial question of law is involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the stage of admission itself. Harish/- (Mungeshwar Sahoo, J)