HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.512 of 2011 ====================================================== Ram Sakal Sah, S/o Ram Narain Sah, resident of village Basawan Bishanpur @ Jawaharpur, P.S.-Ujiarpur, P.O. Konaila, Dist-Samastipur. Plaintiff…………..Respondent.... .... Appellant/s Versus 1.Usha Devi , W/o Shambhu Rai, village –Lawtok, P.S.-Mohiuddin Nagar, Dist-Samastipur. 2. Ram Pravesh Rai 3 Nitesh Kumar Rai 4. Sita Kumari 5. Geeta Kumari, all resp. nos. 2 to 5 are minor sons and daughter of late Ram Nath Rai through their next friend Ram Jyoti Rai(own uncle), resident of village-Konaila, Tola-Makdampur, P.S.-Dalsingsarai, Dist- Samastipur
Legal Reasoning
Defendant 2nd Set………….Appellant…..Respondent 1st set 6. Mahendra Rai 7. Dashrath Rai, sons of Prem Lal Rai 8. Kailash Devi , W/o Prem Lal Rai 9. Suresh Rai 10.Tilak Rai 11. Ram Pravesh Rai, sons of Shatrughan Rai 12. Leelawati Devi, w/o Shatrughan Rai, all 6 to 12 are residents of village- Konaila, Tola-Makdampur, P.S.-Dalsingsarai, P.O. – Konaila, District-Samastipur. 2 Patna High Court SA No.512 of 2011 (4) dt.07-05-2013 2 / 6 Defendants 1st set………..Respondent 2nd set……Respondent 2nd set 13. Rajendra Isser, s/o Jado Isser, resident of village-Konaila, P.S. Dalsingsarai, Dist-Samastipur. Defendant 3rd Set…….Respondent 3rd Set…..Respondent 3rd set ====================================================== .... .... Respondent/s Appearance :
Legal Reasoning
For the Appellant/s :Mr. B.K. Choudhary,Sr.Adv.& Mr. Arvind Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 4 07-05-2013 Heard Mr. B. K. Choudhary, the learned senior counsel for the appellant. 2. The plaintiff is the appellant in this second appeal against the judgment and decree of reversal passed by the appellate court dismissing the suit after reversing the decree passed by the trial court in favour of the plaintiff. 3. The plaintiff has filed the suit for declaration of his title over the suit land mentioned in Schedule-III of the plaint, which is one katha land of R.S.Plot no. 2008. The plaintiff has also sought for confirmation of possession over the suit land. 3 Patna High Court SA No.512 of 2011 (4) dt.07-05-2013 3 / 6 4. As the factual matrix of the case would unveil, it is the case of the plaintiff that R.S.Plot no. 2008 has been carved out of C.S. Plot no. 1116, which is the purchased land of the plaintiff from one Budhi Sharma. The defendants, on the other hand, have contested the claim of the plaintiff asserting that the suit land in R.S. Plot no. 2008 has been carved out of C.S. Plot No. 2087. There is no dispute between the parties with regard to title of the plaintiff over Plot no. 1116 and the title of the defendants over Plot no. 2087. The demonstrable facet of discord between the parties is the fact whether the suit land in R.S.Plot no. 2008 has been carved out of Plot No. 1116 of the plaintiff or Plot No. 2087 of the defendants. 5. The trial court, after scrutiny of the pleadings and evidence of the parties, returned the finding that the suit land in Plot No. 2008 has been carved out from Plot no.1116. The appellate court, however, has reversed the finding of the trial court and has come to the conclusion that the suit land in R. S. Plot no. 2008 has been carved out of C.S. Plot no. 2087. 6.Mr. Choudhary, the learned senior counsel for the appellant has submitted that the appellate court below has ignored the material evidence on record and has wrongly non-suited the plaintiff. It has been urged that the Survey Khatiyan(Ext.6) with regard to Plot no.2008 has been prepared in 4 Patna High Court SA No.512 of 2011 (4) dt.07-05-2013 4 / 6 the name of Budhi Sharma, who was the vendor of the plaintiff for Plot no.1116. It has been pointed out that the trial court has considered the said documentary evidence, but the appellate court while reversing the same has not taken the same into consideration. Elaborating his submission further, the learned senior counsel has urged that the reports of the Pleader Commissioners, submitted both on behalf of the plaintiff as well as the defendants, are confusing reports and could not substantiate the case of either parties, but the appellate court has relied upon the said reports and has reached to the wrong conclusion. It has also been canvassed that the appellate court below should have affirmed the findings of the trial court, as there was no material to differ from the findings. 7. After hearing the submission on behalf of the appellant and perusing the impugned judgments of both the courts below, it is manifest that the crucial issue between the parties is the question whether the suit land in plot no.2008 has been carved out of the plaintiff’s plot no.1116 or the defendants’ plot no. 2087. It transpires that the Pleader Commissioners have been examined on behalf of the appellant and the defendants in support of their respective cases. The Pleader Commissioner of the plaintiff has been examined as P.W. 24 in the suit and his report has also been 5 Patna High Court SA No.512 of 2011 (4) dt.07-05-2013 5 / 6 brought in evidence as Ext.9. However, the report of the said Pleader Commissioner and his deposition do not support the case of the plaintiff, as it has been found in the report that the land of plot no.2008 includes the land of plot no. 2087. The Pleader Commissioner of the defendants has been examined as D.W.10 and his report has also been brought in evidence as Ext.E . The deposition and report of this Pleader Commissioner support the case of the defendants that the suit land in Plot no.2008 has been carved out from Plot no.2087. On behalf of the defendants, Ext.B has been produced which is the information supplied by the Revenue Department with regard to the carving out of the plots under the recent survey out of the plots of the cadastral survey and it has been reported therein that R.S.Plot no. 2008 has also been carved out of C.S. Plot no. 2087. It is pertinent to notice that this Ext.B has not at all been considered by the trial court. Then, there is Ext.F, which is the ordersheet of Case No. 3/90 which also supports the fact that the plaintiff is not in possession of the suit land. The appellate court below has evaluated the evidence of the parties and thereafter has come to the conclusion that the suit land mentioned in Schedule –III of the plaint is part of C.S. Plot no. 2087 and has been carved out of that plot and not from .C. S. Plot no. 1116. As such, there is no substance in the submission on behalf of he appellant that the finding by the appellate court below is not 6 Patna High Court SA No.512 of 2011 (4) dt.07-05-2013 6 / 6 supported by evidence. 8. It will be apposite to mention here that the plaintiff has also claimed to have acquired title by adverse possession. Mr. Choudhary has fairly conceded that the plaintiff could not have asserted his title over the suit land along with his claim of title by adverse possession. However, the appellate court has also found that the plaintiff has failed to establish his case of possession over the suit land. The findings of fact recorded by the appellate court are based on the appreciation of material evidence on record. The submission on behalf of the appellants that the recent Survey Khatiyan(Ext.C) which has been prepared in the name of the vendor of the plaintiff has not not been considered has no substance in view of the information by the Revenue Department and as it is well-settled that survey Khatiyan has got only a rebuttable presumption. I do not find any perversity in the findings of fact by the court of appeal below. 9. In the ultimate eventuate, I find no substantial question of law arising in this appeal, which is, accordingly, dismissed. B.Roy/- (V. Nath, J)