Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.449 of 2009 ====================================================== 1. Dai Rani Devi , 2. Parmod Devi 3. Mahesh Pd. Choudhary 4. Umesh Prasad Choudhary. 5. Dinesh Kumar Choudhary. .... .... Appellant/s Versus 1. Umakant Choudhary. 2. Udai Chandra Choudhary Both Nos. 1 and 2 are sons of Ram Swaroop Choudhary, both are residents of Rampur Jalalpur, P.O.-Rampur Jalalpur, P.S. Dalsingsarai., District – Samastipur. 3. Chitra Rekha Devi, wife of Late Pawan Kumar Choudhary. 4. Vinit Kumar Choudhary. 5. Manish Kumar Choudhary. Both Nso. 4 and 5 are minor sons of Pawan Kumar Choudhary, under guardianship of and through their mother Chitra Rekha Devi 3 to 5 are resident of village Rampur Jalalpur, P.O.- Rampur Jalalpur, P.O.- Rampur Jalalpur, P.S.-Dalsingsarai, District- Samastipur. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. D N Tiwari Mr.Abbu Haeder Md. Nazir Ansari Md. Abu Shagir For the Respondent/s : Mr. Uma Shankar Mr. Jai Prakash ======================================================
Legal Reasoning
consideration by this Court in the present second Appeal. I am further of the view that findings of the First Appellate Court, can not be said to be perverse, without any evidence or contrary to evidence. On the basis of re-appraisal of evidence on record and after detailed discussion and analysis of such evidence, learned first appellate reached to his own conclusion. The dispute in the present case is purely of facts. The appeal, in my opinion, does not involve any substantial question of law. The appeal thus does not merit admission and is accordingly dismissed. (Chakradhari Sharan Singh, J) Sudha/-
Arguments
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH 2 Patna High Court SA No.449 of 2009 (13) dt.09-04-2013 ORAL ORDER 2 / 8 13 09-04-2013 Heard learned counsel for the appellants and learned counsel for the respondents. 2. The defendants before the Trial Court are appellants in the present Second Appeal under section 100 of the Code of Civil Procedure, which has been placed before me for hearing under order 41 Rule 11 of the Code. The appellants are aggrieved by the Judgement and decree dated 16.5.2009 and 09.07.2009, respectively passed by the learned Additional District Judge, Samastipur in Title Appeal No. 24 of 2008 whereby he has set aside the judgement and decree dated 18.2.2008 and 29.02.2008 respectively passed in Title Suit No.31 of 1999 by learned Munsif, Darsingsarai and allowed the appeal preferred on behalf of the plaintiffs/ respondents. 3. As per the plaintiffs‟ case, the suit land admeasuring 18 decimal of plot No. 4465 of Mauja Rampur Jalalpur was owned and possessed since cadastral survey by Chamru Choudhary, son of Tekan Choudhary. Chamru Choudhary, as per the plaintiffs, died issueless and his family became extinct. By way of survivorship, the property is said to have devolved upon Kanti Choudhary and Ram Swaroop Choudhary, both sons of Nunu Choudhary. During the life time of Kanti Choudhary, there was partition in the family of Kanti Choduary and Ram Swaroop Choudhary by mutual consent. 0.9. dec. of land on the Northern side of the said land was allotted to the share of Kanti Choudhary while remaining 0.9. dec. was allotted to the family of Ram Swaroop Choudhary. Ram Swaroop Choudhary died leaving behind his only son Ram charitra Choudhary. Ram Charitra Choudhary had three sons namely, Pawan Kumar Choudhary (paintiff No. 3), Uma kant Choudhary (plaintiff No.1) and Udai Chandra Choudhary (plaintiff No.2). 4. It was pleaded that the plaintiffs constructed a 3 Patna High Court SA No.449 of 2009 (13) dt.09-04-2013 house over the land facing East and towards the West of the house 3 / 8 some open land was left. 5. The plaintiffs claimed that in the year 1999, the defendant No.1, Original appellant in the present Second Appeal, whose heirs have been substituted after his death, forceibly installed „Bhuskar‟ encroaching upon the land of the plaintiffs and inspite of objection, they continued to occupy the same and also dug a tube well and thus dis-possessed the plaintiffs from the suit property. As inspite of request made by the plaintiffs, the defendants refused to remove the tube well, they had no other option but to file the suit. 6. This is to be noted that the heirs of Kanti Choudhary were not impleded as defendant in the suit on the plea that dispute was between the family of Ram Swaroop Choudhary on the one hand and the defendants, the outsider, on the other hand. 7. The defendants filed their written statement and contested the suit. Whereas the defendants admitted that the said Survey Plot No. 4465 admeasuring 18 decimal was recorded in the name of Chamru Choudhary; that Chamru Choudhary died issueless and his family became extinct; that C.S. Plot No. 4465 came in joint possession of Kanti Choudhary and that Ram Swaroop Choudhary but they denied that there was any partition between Kanti Choudhary and Ram Swaroop Choudhary. According to them the defendants‟ property remained joint. The defendants at the same time developed a case that the ancestors of the plaintiffs namely, Ram Swaroop Choudhary and his co-sharer Deo Narayan Choudhary and others had their land and houses in East and West of C.S. Plot No. 4466 and 4467 of the defendants and therefore, for convenience, they had approached the original defendant for exchange of land of an area of 6 dhurs equivalent to 1 ½ decimal of survey plot no.4466 and in lieu thereof, they agreed to transfer the same area of C. S .Plot No. 4465 in 4 Patna High Court SA No.449 of 2009 (13) dt.09-04-2013 4 / 8 exchange to the defendants from West. As per the defendants‟ case, the exchange was affected in the year 1979.The defendants gave 6 dhurs equal to 1 ½ decimal of plot No. 4466 from West to the plaintiffs and their co-sharers and in lieu thereof, the plaintiffs and their co-sharers gave equal area of 1 ½ decimal in exchange to the defendants in C.S plot No. 4465 from West. Thereafter, the defendants amalgamated the plot No. 4466 and 4467 and, made a compact block. They, thereafter, installed BHUSKAR and sunk a tube well thereon. 8. Learned Trial Court on the basis of the pleadings framed ten issues including issues nos. 7 and 8 which read as follows:- “7 Whether the story of possession and dispossession as asserted by the plaintiffs over the lands detailed in schedule II of the plaint is correct? 8. Whether the plaintiffs have got right and title over the schedule II land?” 9. After framing of the issues, the evidences both oral and documentary were led by the parties. It would appear from the judgments of learned Trial Court that without discussing the evidence on record, learned Trial Court came to a finding that the plaintiffs failed to establish their case of possession and dis-possession over the suit property and that they also failed to establish their right, title and interest over the suit property.Learned Trial Court accepted the plea of the defendants as regards the story of the defendants of having acquired the suit land by way of exchange and did not accept the plea of partition having taken place as raised by the plaintiffs. 10. The First Appellate Court after considering the grounds taken in first Appeal as also evidences available on record formulated following three points for consideration, two of which, which are important, are being quoted herein below:- “1. Whether the learned Court rightly dismissed the 5 Patna High Court SA No.449 of 2009 (13) dt.09-04-2013 5 / 8 suit holding that plaintiff failed to prove story of partition and their exclusive possession over the land and story of possession and dis-possession ignoring the failure of the defendants to establish the story of exchange. 2. Whether the Court below was justified in holding that the suit was filed for rejoinder for the parties.” 11. Dealing with the point no.1, the learned first Appellant Court after considering the oral evidence as well as the documentary evidence and analysing them in detail, came to a finding that the learned Trial Court wrongly held that the plaintiffs failed to establish the case of private partition and their exclusive possession over the disputed land. 12. From the judgment of the First Appellate Court, it will appear that it considered various sale deeds which were exhibited in the course of trial in order to reach to a finding that the families of Kanti Choudhary and Ram Swaroop Choudhary were dealing with the property separately. From Paragraphs-15 and 16 of the judgment under appeal, it will appear that several sale deeds have been referred to along with other materials on record, by the First Appellate Court to come to a finding that there was private partition between Kanti Choudhary and Ram Swaroop Choudhary. Learned First Appellate Court disbelieved the story of exchange as propounded on behalf of the defendants. 13. Learned first appellate Court took note of the fact that the learned Court missed to take into account the statement of D.W.1 in Course of his examination/cross-examination which supported the plaintiffs‟ case of partition. DW 1 happened to be the grandson of Khanti Choudhary who had come as witness to disprove the story of partition of the plaintiffs. From the judgement of the first appellate Court it will appear that DW 1 is said to have admitted that there had been partition between Khanti Choudhary and Ram Swaroop Choudhary, father of the plaintiff. 6 Patna High Court SA No.449 of 2009 (13) dt.09-04-2013 6 / 8 While being cross- examined he also said that total area of the plot No. 4465 was 4 katha and few dhurs out of which plaintiff‟s father had got half share on the southern side where as Kanti Choudhary got his share on the Northern side. On the basis of analysis of the evidence of Defendant witnesses read with evidence led on behalf of the plaintiffs and other material on record came to a finding that the learned trial court wrongly held that the plaintiffs failed to establish the case of private partition and their exclusive possession over the disputed land. 14. This is further to be noted that the First Appellate Court has considered the evidence of several defendant witnesses and has come to a finding that the defendant could not establish the story of exchange. 15. Learned First Appellate Court further held that in view of a judgment of this Court reported in 1985 PLJR 653 the story of mutual exchange could not be established in the absence of registration, which was mandatory. 16. Dealing with Point No.2, non-joinder of Khanti Choudhary and members of his branch as defendant, learned 1st Appellate Court, relying upon a full Bench Judgment of His Court held that in suit for recovery of possession against a third person trespasser/ co-sharer was not required to be impleaded as party. 17. Learned counsel for the appellants has very vehemently submitted that the finding of the First Appellate Court rejecting the defendant‟s case of exchange is perverse and contrary to record. He has placed heavy reliance on the report of the Pleader Commissioner, who, according to him, supported the story of exchange as developed on behalf of the defendants. Learned counsel for the appellants further submits that Trial Court ought to have framed distinct issue on the defendants‟ plea of exchange as raised in the written statement. Learned counsel for the appellant has further submitted that in the absence of any positive evidence to support 7 Patna High Court SA No.449 of 2009 (13) dt.09-04-2013 7 / 8 the case of partition, the First Appellate Court‟s finding that there was partition in the family of Kanti Choudhary and Ram Swaroop Choudhary is totally perverse. 18. From the pleadings of the parties and evidence led on their behalf in course of trial as has been noted in the judgment of the Courts below, it will appear that the defendants claim over the suit property was based solely on the ground that they had taken the land in exchange in lieu of some other land of equivalent area. Learned counsel for the appellants would not disagree that if his story of exchange failed, the defendants could not claim any title over the suit property as their title over the suit property was based solely on exchange theory. This is also an admitted position that the said exchange was not registered. 19. Learned First Appellate Court has come to a finding that in the absence of registration, story of exchange could not be accepted. 20. Learned counsel for the appellant has placed heavy reliance on the report of the Pleader Commissioner, who according to him after spot verification had submitted a report supporting the defendants‟ story of exchange. 21. However, after having gone through the judgment of the First Appellate Court as well as the Judgement of the learned Trial Court, I am of the view that the finding of the First Appellate Court on the question of partition is based on oral evidence as well as other documentary evidence, which demonstrate that the parties were dealing with the property separately and thus came to a finding that their was a partition in the family of Kanti Choudhary and Ram Swaroop Choudhary. 22. Learned First Appellate Court has assigned reason for not accepting the story of exchange as developed by the defendants with reference to a judgment of this Court that registration was mandatory. In my view, the present Second Appeal does not 8 Patna High Court SA No.449 of 2009 (13) dt.09-04-2013 8 / 8 involve any substantial question of law, which has been wrongly decided by the First Appellate Court, which would require