Anil Kumar Srivastava v. Kumari Poonam Rani & Anr.

learned counsel, Mr. Anish Akhtar appearing on behalf of the appellant under Order 41 Rule 11 C.P.C. The plaintiff-respondent-appellant has Second Appeal against the judgment and decree dated 10.05.2010 passed by the learned District Judge, Muzaffarpur in Title Appeal No.15 of 2009 whereby the learned District Judge allowed the appeal and thereby set aside the judgment and decree of the trial court dated 05.02.2009 passed by the learned Munsif, East Muzaffarpur in Title Suit No.76 of 2003. The plaintiff-appellant filed the aforesaid Title Suit No.76 of 2003 praying for declaration of title and recovery of possession of the properties detailed in Schedule II of the plaint. The plaintiff claimed the aforesaid relief alleging that suit plot Patna High Court SA No.332 of 2010 (6) dt.18-07-2013 2 no.137 measuring 18 decimals belonged to Kameshwar Mishra, s/o Upendra Mishra. He left 3 feet wide lane north to south from western part of the said plot and sold 9 decimals to the daughters of Ganesh Chandra Jha by registered sale deed dated 30.03.1984 and put them in possession. In the said sale deed, by mistake of the scribe, in the western boundary, instead of 3 feet wide road, it has wrongly been mentioned as Ram Janki. After said sale at the spot, only 1 kattha 18 dhurs land remained with Kameshwar Mishra which he sold to wife of Ganesh Chandra Jha on the same date by registered sale deed dated 30.03.1984 but by mistake, in place of 1 kattha 18 dhurs, it has wrongly been mentioned as 9 decimals. The wife of Ganesh Chandra Jha also died and the property was inherited by her daughters. The daughters of Ganesh Chandra Jha sold 9 decimals land to the plaintiff on 19.12.1995. In the sale deed, again by mistake, in place of 3 feet wide road, name of Ram Janki was mentioned in the western boundary. The defendants purchased the rest portion of the land just adjacent to the eastern side but instead of 1 kattha 18 dhurs, it is mentioned 9 decimals. When the defendants started interfering with the possession of the plaintiff, in the year 2003, proceeding under Section 144 Cr.P.C. was initiated and thereafter the suit was filed. The defendants filed the written statement denying the Patna High Court SA No.332 of 2010 (6) dt.18-07-2013 3 allegation of the plaintiff. According to the defendants, both the sale deeds in favour of the daughters of Indu Jha and Indu Jha was executed on the same day and both the sale deeds were with respect to 9 decimals. The plaintiff’s sale deed was with respect to 9 decimals including 3 feet wide road. In the sale deed executed in favour of the daughters of Ganesh Chandra Jha, there is specific boundary mentioned and in the western boundary, the road has not been shown. The sale deed of the defendant is with respect to remaining 9 decimals of the land which is east to the land purchased by the daughters of Ganesh Chandra Jha. There is no ambiguity in the sale deeds and both the parties are in possession of the respective purchased property. The trial court on the basis of the evidences recorded the finding that the plaintiff has purchased 9 decimals land excluding the Rasta but by mistake, in the western boundary, Ram Janki has been shown. Accordingly, the trial court decreed the plaintiff’s suit. The defendant filed the appeal before the Lower Appellate Court. The Lower Appellate Court after considering the evidences recorded the finding that there is no ambiguity in the identity of the lands mentioned in the registered sale deeds of the vendor of plaintiff and vendor of defendants. In both the sale Patna High Court SA No.332 of 2010 (6) dt.18-07-2013 4 deeds, 9 decimals land has been sold in favour of the plaintiff and 9 decimals land has been sold in favour of the defendant. The Lower Appellate Court also recorded the finding that so far terms and conditions of the registered sale deed is concerned, the oral evidence is not admissible in view of Section 92 of the Evidence Act but the trial court on the basis of oral evidence varied the terms and conditions of the sale deed. Accordingly, the Lower Appellate Court allowed the appeal and reversed the judgment and decree of the trial court. The learned counsel, Mr. Anish Akhtar appearing on behalf of the appellant raised two grounds. Firstly, that the defendant witness admitted in the evidence that there was 3 feet wide road existing prior to the sale deed in favour of the vendors of the parties. D.W.1 at paragraph 43 and 44 who was manager of the vendor of the parties has stated that the intention of the vendor was to sell the property measuring 9 decimals in favour of the plaintiff excluding 3 feet wide road in the western side. The trial court relying on this evidence accepted the case of the plaintiff whereas the Lower Appellate Court wrongly did not rely on this. Secondly, the learned counsel submitted that no reason has been assigned by the Lower Appellate Court as to why the finding of the trial court is reversed. Patna High Court SA No.332 of 2010 (6) dt.18-07-2013 5 From perusal of the Lower Appellate Court judgment, it appears that the Lower Appellate Court considered the reasons assigned by the trial court and recorded the finding that while recording the finding by the trial court, the trial court has varied the terms and conditions of the registered sale deed of the year 1984 only on the basis of oral evidence. According to the learned Lower Appellate Court, the oral evidence is excluded under Section 92 of the Evidence Act. Section 92 of the Evidence Act provides that when the terms of any such contract, grant or other dispossession of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or settlement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contracting, varying, adding to or subtracting from the terms. Admittedly, the sale deeds are of the year 1984. In both the sale deeds, one in favour of the daughters of Ganesh Chandra Jha and the other in favour of the wife of Ganesh Chandra Jha, 9 decimals land have been sold and in none of the sale deeds, 3 feet wide road has been mentioned. The other aspect of the matter is that the sale deeds are of the year 1984. If there was any mistake in the sale deed, the same could have been corrected by execution of another correction Patna High Court SA No.332 of 2010 (6) dt.18-07-2013 6 deed. After such a long period i.e. more than about 19 years, the present suit has been filed by the plaintiff and the oral evidences have been adduced in support of the case that by mistake, in the western boundary, 3 feet wide road has not been mentioned. In my opinion, therefore, the Lower Appellate Court has rightly held that the trial court without considering the provision as contained in Section 92 of the Evidence Act has varied the terms and conditions of the sale deeds. So far the submission that no reason has been assigned for setting aside the finding is concerned, it may be mentioned that the finding recorded by the trial court is based on oral evidence. As stated above, therefore, the Lower Appellate Court has rightly held so and the judgment of the Lower Appellate Court cannot be said to be vitiated. Accordingly, I find that no substantial question of law is involved in this Second Appeal. Thus, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Saurabh/-