====================================================== 1. Uma Kant Sharma son of Bindeshwari Sharma. 2. Bindeshwari Sharma. 3. Madan v. 1
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.346 of 2010 ====================================================== 1. Uma Kant Sharma son of Bindeshwari Sharma. 2. Bindeshwari Sharma. 3. Madan Singh. 4. Dina Nath Sharma, all are sons of Prasidh Singh. 5. Chando Singh son of Narsingh Singh, all are resident of village-Tisaur Tola, Dongra, P.O. Ginji, P.S.-Ghoshi, District- Jehanabad. …..Appellants Vs. 1. Smt. Chandramani Devi wife Beer Singh. 2. Sri Beer Singh son of late Prithavi Singh, both are resident of village Tisaur Tola, Dhongra, P.S. Ghoshi, District-Jehanabad. 3. Nusri @ Murari Sharma son of Mathura Singh. 4. Surendra Singh son of Ram Khelawan Singh. 5. Satyadeo Singh son of Ram Khelawan Singh. 6. Bishundeo Singh son of Ram Khelawan Singh, all three to six are resident of village-Tisaur Tola Dongra, P.O. Ginji P.S. Ghoshi, District-Jehanabad at present Jayantipur Okari, P.S. Ghoshi, District-Jehanabad. 7. Mahendra Sharma son of Prasidh Singh resident of village- Tisaur Tola Dongra, P.O. Ginji P.S. Ghoshi, District- Jehanabad. …….Respondents.
Legal Reasoning
====================================================== Appearance : For the Appellant/s : Mr. Jitendra Pd. Singh, Adv. Mr. Abhishek,Adv. Mr. Prabhat Kr. Dipak,Adv. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 8 04-03-2013 Heard the learned counsel for the appellants. 2. The defendant 1st set are the appellants in this second Patna High Court SA No.346 of 2010 (8) dt.04-03-2013 2 appeal against the judgment and decree of reversal by which the appellate court below has set aside the dismissal of the suit and granted the decree as prayed by the plaintiffs. 3. The basic facts are not in dispute that four brothers, namely Mathura Singh, Bishundeo Singh, Satyadeo Singh and Surendra Singh had the title over the suit property which had been given to them by registered deed of gift dated 26.10.1968 by their uncle Sakal Singh. The gifted properties also consisted of a homestead land measuring 8 decimal in plot no. 3144/2339 out of which 6 dec land is the disputed land in the suit. The plaintiffs have claimed their title and possession over the disputed land through purchase by sale deed dated 16.07.1983 by the three brothers, namely Mathura Singh, Satyadeo Singh and Surendra Singh. It is the case of the plaintiffs that there had been amicable partition among the four brothers in which each brother was allotted 2 decimal in the gifted property and thus the plaintiffs have validly acquired title and possession over the disputed land by purchase from the three brothers which was their shares. 4. The defendant 1st set, however, staked his claim over the entire 8 decimal of the gifted property in plot no. 3144/2339 on the basis of the assertion that in the amicable partition Bishundeo Singh, who was one of the four brothers, was allotted the entire 8 Patna High Court SA No.346 of 2010 (8) dt.04-03-2013 3 decimal of the gifted property and the other three brothers were in lieu allotted properties elsewhere. It was further case of the defendant 1st set that the said Bishundeo Singh entered into an agreement for sale on 13.04.1983 with the defendant 1st set and thereafter on 19.03.1985 he executed the sale deed transferring the entire area of 8 decimal in the gifted plot of land to the defendant 1st set. The defendant 1st set has claimed to be in possession of the suit land on the basis of purchase and has asserted that his possession has also been found in the proceeding under Section 145 Cr. P.C. 5. The trial court after considering the pleading and evidence returned the finding that Bishundeo Singh was allotted entire 8 decimal of the gifted land in amicable partition and was thus entitled to validly transfer the same in favour of defendant 1st set who has acquired valid title and possession over the entire 8 decimal. Sequentially, it was further held that the remaining 3 brothers did not have the title and possession over the gifted land to alienate in favour of the plaintiffs by sale. The appellate court, on reappraisal of evidence, however, has found that the case of the allotment of the entire 8 decimal of the gifted land could not be established by the defendant 1st set. It has also been found that the defendant 1st set has also failed to establish the legal validity of the Patna High Court SA No.346 of 2010 (8) dt.04-03-2013 4 agreement for sale dated 16.07.1983. Consequently, the appellate court has set aside the order passed under Section 145 Cr.P.C. in favour of the defendant 1st set and has upheld the title of the plaintiffs over their purchased 6 decimal of land and also found them entitled to the relief for recovery of possession over the suit land. 6. The learned counsel for the appellants has submitted that the appellate court below has not correctly appreciated the evidence on record and also ignored the material evidence on behalf of the defendant 1st set. It has been urged that the sale deed in favour of the defendant 1st set has been executed through the process of the court in pursuance to the decree in the suit for specific performance of contract and therefore its validity cannot be open to assail. It has also been argued that the order passed under Section 145 Cr.P.C. declaring the possession of the defendant 1st set must have been given due weightage and accepted as conclusive evidence of title and possession of the defendant 1st set over the entire 8 decimal of land purchased by him. 7. After perusal of the judgments of both the courts below and consideration of the submissions of the learned counsel for the appellants, the demonstrable facet of discord emanating Patna High Court SA No.346 of 2010 (8) dt.04-03-2013 5 between the parties is the allotment of the entire 8 decimal of the gifted land in favour of one brother Bishundeo Singh only who is the vendor of the defendant 1st set. The amicable partition of the gifted property among four brothers is an admitted fact. Bishundeo Singh, the vendor of the defendant 1st set has been examined as D.W.-17 in the suit wherein, he has deposed that he was allotted the entire 8 decimal which was the gifted property in the amicable partition among four brothers in 1969 and as such he did not take any share in the lands of Plot No. 559 and 1590. He has further stated that his brothers sold away their shares in those plots which were allotted to them in that amicable partition. However, no evidence has been adduced by the defendants to substantiate the sale of those plots by the three brothers said to have been allotted to them in the said amicable partition nor any details of such transfers have been mentioned. To the contrary the sale deeds of the year 1980 and 1982 (Ext. 1/b, Ext. 1/d and Ext. 1/e) adduced in evidence on behalf of the plaintiffs depict an entirely different picture wherein all the four brothers together had sold lands and in one sale deed Ext. 1/d when one brother did not join the execution of the sale deed for the plot having area of 40 decimals, the three brothers including the vendor of the defendant 1st set together had sold only 30 decimals. This clearly shows that all the four brothers Patna High Court SA No.346 of 2010 (8) dt.04-03-2013 6 have got equal shares. The appellate court has considered these evidence and has rightly come to the conclusion that all the four brothers were allotted equal shares in the amicable partition between them. 8. The defendant 1st set has also failed to establish the genuineness of the agreement for sale dated 13.03.1993 by cogent evidence. No independent witness has been examined to support the execution of the agreement for sale in question. The sale deed executed in pursuance to a decree in a suit for specific performance of contract cannot per se become unassailable and it is always open to assail by a person, not party to that suit, on all valid grounds in accordance with law. The submission on behalf of the appellants, that the sale deed in his favour cannot be questioned on this basis, is clearly not acceptable. The finding by the appellate court that the agreement for sale was an ante dated and collusive document and the decree in the suit for specific purpose of contract was a collusive decree, is based upon the appreciation of evidence and I do not find perversity in any manner in the same. In view of the admitted amicable partition among the four brothers it was for the defendant 1st set or their vendor defendant no. 8 to establish that the defendant no. 8 was alone allotted the entire 8 decimal of the gifted land, which they Patna High Court SA No.346 of 2010 (8) dt.04-03-2013 7 have failed to establish by leading cogent evidence. 9. The submission on behalf of the appellants on the basis of the order under Section 145 Cr.P.C. has also got no force. In the case of Shanti Kumar Panda Vs Shakuntala Devi, 2004(1) PLJR 239(SC), the Apex Court has laid down that the order of the Magistrate under Section 145 Cr.P.C., being rendered in summary enquiry, does not bind the competent civil court which is free to record its own findings based on the materials before it even on the question of possession which may be inconsistent with or contrary to the findings arrived by the Magistrate. 10. The appellate court below has meticulously scrutinized the pleadings and evidence of the parties and its conclusion are based on evidence on record and in accordance with settled principles of law. The issues arising between the parties have now been concluded by the findings of fact and no perversity in any manner in those findings could be established on behalf of the appellants. 11. It is, therefore, held that there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)