Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.187 of 2010 ====================================================== Muneshwar Safi @ Munia Safi .... .... Appellant/s Nagendra Pendey & Ors. Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Prem Sheela Pandey Mr. Ashok Kumar Keshyap For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 14 19-06-2013 Heard learned Senior counsel Mr. Yogesh Chandra Verma on behalf of the appellant and learned senior counsel Mr. S.S Diwedi for the respondent under Order 41 Rule 11 C.P.C. 2. This Second Appeal has been filed by the
Legal Reasoning
defendant appellant against the judgment and decree dated 5.3.2010 passed by the learned District Judge, Madhubani, in Title Appeal No. 65 of 2008 whereby the Lower Appellate Court dismissed the appeal and confirmed the judgment and decree of the trial court dated 29.08.2008 passed by the learned Munsif-I Madhubani, in Title suit no. 11 of 2005. 3. The plaintiff respondent filed the aforesaid Title suit praying for declaration of his title and recovery of possession of the suit property. The plaintiff prayed for declaration of title Patna High Court SA No.187 of 2010 (14) dt.19-06-2013 - 2 - over the plot no. 439 of Khata no.62 measuring 1 Katha 12 dhurs alleging that it belongs to Ram Sahai Pandey. On his death ultimately the property came in possession of Parmeshwar pandey, the property was partitioned by his two sons and the plaintiff came in possession of the suit land. According to the plaintiff the defendant no. 1 appellant has his house on survey plot no. 460, which is adjacent to survey plot no. 459. The defendant dispossessed the plaintiff on 15.01.2005 and constructed a thatched house in absence of the plaintiff. 4. The defendant appellant filed contesting written statement alleging that survey plot no. 888,889 and 892 are recorded in the name of the plaintiff and his brothers whereas plot no. 893 is recorded in the name of father of the defendant appellant. The ancestors of the defendant had been coming in peaceful possession over the portion of the land of plot no. 459 and 460 and accordingly defendant’s father was in exclusive possession. New Revisional Survey plot no.893 was carved out of the aforesaid survey plot. The defendant is living there since 70 - 80 years. The further pleading is that plot no. 459 was recorded as Garmajura land in possession of Ram Sahai Pandey. There was no washerman so grandfather of defendant no. 1 was allowed by the villagers including the landlord to construct a thatched house over Patna High Court SA No.187 of 2010 (14) dt.19-06-2013 - 3 - the suit land. 5. After trial the trial court decreed the plaintiff suit recording the finding that the plaintiff has been able to prove his title and was in possession of the suit land prior to dispossession. On appeal the appellate court recorded the finding that there is not evidence on record to show that the plot no. 893 has been carved out from plot no. 459 and 460. The appellate court further held that the defendant has got his house on plot no. 460. Exhibit- D (Khatian) shows that the defendant is recorded with respect to plot no. 893 and 460 which are not the disputed plot . The Lower Appellate Court also found that the documents produced by the defendant appellant that is Exhibit- A series (rent receipt). Parwana, Exhibit-B, Exhibit-C, the order sheet passed under Section 144 Cr.P.C are the documents issued during the pendency of the suit therefore those documents did not confer title on the defendant. The Appellate Court also recorded a finding that on the date of vesting the ex-landlord was in khas possession of the suit property therefore the land did not vest in the State of Bihar. Accordingly dismissed the Title appeal.
Legal Reasoning
6. The learned senior counsel Mr. Yogesh Chandra Verma placing paragraph 14 of the judgment of the first appellate Patna High Court SA No.187 of 2010 (14) dt.19-06-2013 - 4 - court submitted that the Lower Appellate Court has gravely erred by expunging the documentary evidence produced by the appellant and likewise the reasons that the documents are created during the period of suit is not a ground for disbelieving the same. The learned counsel further submitted that Exhibit- D shows that the suit land that is plot no. 459 is recorded in the name of the appellant. The documents produced by the appellant clearly show that the said land is in possession of the appellant and moreover the State of Bihar had granted the Purcha and Token thereof Parwana which clearly indicates that the title has passed on the defendant appellant but the Lower Appellate Court on wrong legal approach did not rely on the documentary evidences and therefore, the judgment of the Lower Appellate Court is vitiated. 7. On the other hand the learned Senior counsel Mr. Diwedi appearing on behalf of the respondents submitted that of the question raised by the learned counsel for the appellant is substantial question of law. According to the learned counsel there is no evidence on the record to support the fact that plot no. 893 has been carved out of old plot no. 460 and 459. The plaintiff is not disputing the fact that the defendant no. 1 has house on plot no. 460. Moreover the defendant no. 1 who has been examined as DW1 has clearly admitted this fact that his house is on plot no, Patna High Court SA No.187 of 2010 (14) dt.19-06-2013 - 5 - 460, so far Exhibit- D is concerned. The learned counsel submitted that it relates to plot no. 893 and 460 but the suit land is plot no. 459. So far the rent receipt and Parwana are concerned, the learned counsel submitted that those documents are the documents which came into existence during the pendency of the suit therefore, those documents cannot be relied upon and the learned court below had rightly not placed reliance on those documents. 8. From perusal of the judgment of the Lower Appellate Court it appears, that considering the evidences oral as well as documentary of both the parties recorded the finding that there is no reliable evidence to the effect that plot no. 893 has been carved out of plot no, 459 and 460. Admittedly Exhibit- D shows that survey plot no. 893 and survey plot no. 460 are recorded in the name of the defendant first party appellant. It may be mentioned here that the disputed land is of survey plot no. 459 . It is also admitted fact that during pendency of the suit the rent receipt exhibit A series, the Parwana Exhibit- B were issued by the authorities which have been produced. The grievance of the appellant is that at paragraph 14 the Lower Appellate Court has wrongly held that these documents are liable to be expunged. From perusal of paragraph 14 it appears, that the witness who was examined on behalf of the appellant respondent has again been Patna High Court SA No.187 of 2010 (14) dt.19-06-2013 - 6 - examined on behalf of the defendant appellant. Therefore the evidence of DW4 is not reliable however, the Lower Appellate Court has not used suitable words and instead he has mentioned that the evidence of DW4 and the documents are liable to be expunged. Further from perusal of the other part of the judgment it appears that the Lower Appellate Court considered the documents and stated that these documents have been created during pendency of the suit therefore, not relied upon. In such circumstances the submission of the learned counsel cannot be termed as a substantial question of law. So far as the ground that the property vested to the State of Bihar is concerned, it may be mentioned here that according to the defendant themselves they were in possession of the property since last 70 -80 years therefore, on the date of vesting, the return should have been filed by the landlord in the name of the defendant and moreover if they were in possession of the property the right of a tenant would not have vested in view of the provision of the Bihar Land Reforms Act 1950. The Raiyat who is in possession of the property would be deemed to be the Raiyat under the State of Bihar. In this case it may further be mentioned that this is not the case of the defendant appellant that the property was not in Khas possession of the ex- landlord therefore, the property vested in the State of Bihar and Patna High Court SA No.187 of 2010 (14) dt.19-06-2013 - 7 - then State of Bihar has settled the land. It appears that the pleading is that the State of Bihar has granted Purcha under Bihar Privilege Persons Homestead Tenancy Act but as has been found by the Lower Appellate Court, the Purcha was never produced. The Lower appellate Court considering the submission of the appellant has categorically recorded the finding that the property did not vest in the State of Bihar. All these findings recorded by the Lower Appellate court are findings of fact. 9. In the case of Abdul Raheem v. Karnataka Electricity Board and others, (2007) 14 Supreme Court Cases 138 and in the case of Koppysetty Venkat Ratnam Vs. Pamarty Venkayamma, (2009) 4 Supreme Court Cases 244, the Hon’ble Supreme Court has held that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the court below are perverse being based on no evidence or that on the evidence on record no reasonable person would have come to that conclusion. Merely because another view is possible on the basis of the evidence the High court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. 10. In view of the above proposition of law in my Patna High Court SA No.187 of 2010 (14) dt.19-06-2013 - 8 - opinion question raised by the learned counsel for the appellant had already concluded by recording findings of fact therefore, the same cannot be interfered in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 11. Accordingly this Second Appeal is dismissed at the admission stage. Namita/- (Mungeshwar Sahoo, J)