Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.71 of 2012 ====================================================== Md. Mumtaj Alam & Ors Versus .... .... Appellant/s Md. Abdul Sattar Khan & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Amarnath Jha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 7 14-08-2013 1. Heard the learned senior counsel, Mr.Dhruv Narain appearing on behalf of the appellant under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiff respondent appellants have filed this second appeal against the Judgment and Decree dated 30.1.2012 passed by the learned Addl. District & Sessions Judge, Fast Track Court No.I, Madhepura in title appeal No.40 of 2009 whereby the learned lower appellate Court allowed the appeal and reversed the
Legal Reasoning
Judgment and Decree of the trial Court dated 27.4.2009 passed by the learned Civil Judge, Jr. Division, Madhepura in title suit No.37 of 2002. 3. The plaintiff respondent appellant filed the aforesaid suit for declaration of right, title and possession over the suit land and also for declaration that the R.S. record of right recording in the name of defendant is wrong, null and void. 4. The plaintiff claimed the aforesaid relief alleging that the suit land was settled by registered Kabuliyat in the year 1925 in the name of ancestor of the plaintiff, namely, Dhodhai Nadaf. 2 Patna High Court SA No.71 of 2012 (7) dt.14-08-2013 2 / 6 Jamabandi was open in the name of Dhodhai Nadaf. However, relevant papers, rent receipts of the ex.landlord were burn in fire. During lifetime, he remained as Raiyat of the land and thereafter his descendents that the plaintiff were and are in possession of the property. However in the year of revisional survey the suit land has been recorded in the name of the defendant and on the basis of the said wrong entry, the defendants are claiming title over the suit property. 5. The defendants appeared and filed contesting written statement alleging that in fact Mohiuddin Khan acquired the land through settlement in the year 1948 from ex.landlord and executed registered Kabuliat and Jamabandi was running in the name of father of the defendant in the Shresta of ex.landlord. The ex.landlord submitted return in the name of Mohiuddin Khan and thereafter, the Jamabandi was running in the name of the father of the defendant. 6. The trial Court on the basis of evidences came to the conclusion that the plaintiffs proved the settlement of the suit land by the ex.landlord in the name of Dhodhai Nadaf and the defendant could not demolish the case of the plaintiff. Accordingly, the trial Court decreed the plaintiff’s suit. 7. The defendants thereafter filed appeal before the lower appellate court. The lower appellate Court re-appreciated all the evidences oral and documentary and thereafter meeting the reasonings of the trial Court recorded the finding that the plaintiffs never produced any documents in support of the fact that the plaintiffs were in possession since after the settlement in the year 3 Patna High Court SA No.71 of 2012 (7) dt.14-08-2013 3 / 6 1925. The documents produced by the plaintiff, ext.2 and 4, were also considered. The lower appellate Court found that in the registered Kabuliyat of the plaintiff, ext.4, it was specifically mentioned that if the rent is not paid by the settlee to the ex.landlord, the ex.landlord will come in possession of the property. Admittedly, the plaintiff did not produce any rent receipt nor any return was produced. The lower appellate Court also on the basis of evidences recorded the finding that the plaintiff failed to prove his possession also. On the contrary, the lower appellate Court also considering the registered Kabuliyat of the defendant ext.B the cadastral survey khatiyan ext.A-1 and the return ext.D and also the rent receipts from the year 1948 to the year 1990, ext.‘F’ and ‘A’ series, recorded clear finding that the defendants are coming in possession of the suit property since year 1948 and accordingly, the lower appellate Court allowed the appeal and reversed the finding of the trial Court. 8. The learned senior counsel appearing on behalf of the appellant firstly submitted that the lower appellate Court while reversing Judgment of the trial Court has not properly considered reasoning assigned by the trial Court and also the legal position. The learned counsel further submitted that the plaintiffs have given satisfactory explanation about non-filing of document in support of their title and possession but the lower appellate Court did not accept it wrongly. Secondly, the learned counsel submitted that the lower appellate Court has made a third case to the effect that the defendants have acquired title by adverse possession, although there is no pleading of the defendant to that effect and that there is no evidence adduced by the plaintiff in support of the case of 4 Patna High Court SA No.71 of 2012 (7) dt.14-08-2013 4 / 6 adverse possession, therefore, on these grounds, the impugned Judgment of the lower appellate Court is vitiated. Thirdly, the learned counsel for the appellant submitted that the registered Kabuliyat of the year 1948 could not have been relied upon by the lower appellate Court but on the basis of the certified copy of the registered Kabuliyat, the lower appellate Court has disbelieved the case of the plaintiff. 9. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court independently has considered the evidences. It further appears that the learned lower appellate Court also considered the reasonings of the trial Court. For example, at paragraph 11, the lower appellate Court found that the trial Court at paragraph 8 mentioned that the claim of the plaintiff is that the suit land was Malik Gair Majrua land under Khas possession of ex.landlord. So far this statement of the trial Court according to the lower appellate Court was not the case of the plaintiff pleaded and likewise regarding the certified copy of the registered Kabuliyan dated 9.7.1948 ext. B produced by the defendant, the trial Court at paragraph 9 held that the defendants filed original Kabuliyat from their custody which is surprising because original Kabuliyat were in possession of the ex.landlord that shows that the defendants prepared a registered Kabuliyat and kept for future dishonest use. The lower appellate Court considered this reasonigns of the trial Court at page 13 and held that this is not correct because the defendant filed certified copy of the Kabuliyat dated 9.7.1948 and the original registered volume No.35, Book No.1, page No.12 to 15, document No.3976 of the year 1948 was called for from the Saharsa Registry Office. D.W.16 5 Patna High Court SA No.71 of 2012 (7) dt.14-08-2013 5 / 6 brought the said register from the Registry office and proved the same on the basis of that the certified copy was marked as ext.B. From this reasonings of the lower appellate Court, it appears that the trial Court has not even tried to look into the matter as to how this ext.B was marked exhibit. It further appears that the admissibility of ext.B was never challenged by the plaintiff either in the trial Court or before the appellate Court and moreover the lower appellate Court has assigned good reasons for not relying with the reasons assigned by the trial Court. The lower appellate Court also recorded clear finding that the defendant has filed ext.D, the return, submitted by ex.landlord. The document ext.A/1 is the khatiyan which shows that it was recorded in the name of Hitlal and Hitlal had settled the land by registered Kabuliyat, ext.B, in favour of father of the defendant. So far this ext.A/1 is concerned, the learned counsel for the appellant submitted that this is not the case of the defendant that the ex.landlord Hitlal has settled the land in favour of the defendant. So far this submission is concerned, it may be mentioned here that the plaintiffs is required to prove his case. BY producing this document, the defendant shows that in fact Hitlal was recorded in possession of the property who has settled land in favour of defendant by ext.B. 10. On the contrary according to the lower appellate Court, no paper has been produced to show that after settlement in the year 1925, the settlee continued in possession of the property because no rent receipts has been produced and in view of the contents of ext.4, the lower appellate Court recorded the finding that if no rent is paid to the ex.landlord , the ex.landlord shall come in possession of the property. No explanation has been 6 Patna High Court SA No.71 of 2012 (7) dt.14-08-2013 6 / 6 given by the plaintiff as to how the ex.landlord came in possession of the property. It is settled again in 1948 and return was submitted in the name of father of the defendant. The only case of the plaintiff is that in the revisional survey, the name of the defendant has been recorded wrongly. 11. It is settled proposition of law that the inference or appreciation of facts from recitals or contents of a document are question of fact. In the present case after considering the contents of Kabuliyat, ext.4, and the kabuliyat, ext.B, and the return, ext.D, and also considering the evidences of the witnesses, the lower appellate Court categorically recorded that the plaintiff failed to prove title and also possession over the suit land. 12. So far the submission that Court has made a third case to the effect that defendants acquired title by Adverse possession is concerned, it may be mentioned that even if it is wrong observation then also the Judgment is not vitiated because only on this ground the plaintiff’s suit has not been dismissed. Finding is that the plaintiff failed to prove title and possession and defendant has proved title and possession. 13. In view of the above facts, in my opinion, the question raised by the learned counsel for the appellant are finding of fact and the same cannot be interfered with in second appellate jurisdiction because none of the points raised by the appellant is substantial question of law. Accordingly, this Second Appeal is dismissed at the admission stage itself. Sanjeev/- (Mungeshwar Sahoo, J)