HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.369 of 2010 ====================================================== Shiv Parsan Singh son of Bhuwali Singh, resident of village-Baghini Kala, P.O.-Barhupur, P.S. Mohania, District-Kaimur (Bhabua). .... .... Appellant/s Versus 1. Shyam Narain Singh. 2. Kamla Singh, 1 and 2 son of late Churahu Singh, 3. Nirbhay Kumar Singh. 4. Pramod Kumar Singh, 3 to 4 sons of Kamla Singh. 5. Upendra Singh (minor) 6. Shikanda Singh (Minor) 5 and 6 sons of Shyam Narain Singh (under the Guardianship of Shyam Narain Singh, father) 1 to 6 residents of village-Baghini Kala, P.S. Mohania, P.O. Barhupur, District-Kamur. 7. Pramod Kumar Tiwary. 8. Rakesh Kumar Tiwary. 9. Shashi Kant Tiwary. 10. Rajani Kant Tiwary 7 to 10 son of lallan Tiwary 7 to 10 residents of village-Baghini Kala, P.O. Barhupur, P.S. Mohania, District-Kaimur. .... .... Respondent/s ====================================================== with Second Appeal No.396 of 2010 ====================================================== Shiv Parsan Singh son of Bhuwali Singh, resident of village-Baghini Kala, P.O.-Barhupur, P.S. Mohania, District-Kaimur (Bhabua) .... .... Appellant/s Versus 1. Shyam Narain Singh. 2. Kamla Singh, 1 and 2 son of late Churahu Singh, 3. Nirbhay Kumar Singh. 4. Pramod Kumar Singh, 3 to 4 sons of Kamla Singh. 5. Upendra Singh (minor) 6. Shikanda Singh (Minor) 5 and 6 sons of Shyam Narain Singh (under the Guardianship of Shyam Narain Singh, father) 1 to 6 residents of village-Baghini Kala, P.S. Mohania, P.O. Barhupur, District-Kamur. 7. Pramod Kumar Tiwary. 8. Rakesh Kumar Tiwary. Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 2 9. Shashi Kant Tiwary. 10. Rajani Kant Tiwary 7 to 10 son of Lallan Tiwary 7 to 10 residents of village-Baghini Kala, P.O. Barhupur, P.S. Mohania, District-Kaimur.... .... Respondent/s
Legal Reasoning
====================================================== Appearance : (In SA No.369 of 2010) For the Appellant/s : Mr. Ambuj Naryan Chaubey For the Respondent/s : Mr. (In SA No.396 of 2010) For the Appellant/s : Mr. Ambuj Naryan Chaubey For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 12 01-02-2013 Heard Mr. K.N. Choubey, the learned senior counsel for the appellant in support of this appeal. The learned counsel for the respondents is also present. The defendant is the appellant in this appeal against the judgment of affirmance by the appellate court whereby the decree passed by the learned court below in favour of the plaintiffs has been upheld. The suit was filed by the plaintiffs-respondents for declaration of title over the properties described in schedules-‘D’, ‘E’ and ‘F’ of the plaint and also for declaration of the two gift deeds dated 22.12.1976 and the two sale deeds dated 27.06.2002 as illegal null and void and not binding upon the plaintiffs. The case of the plaintiffs, in short, is that their predecessor Ghurhu Koeri acquired title and possession over the property mentioned in Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 3 schedule ‘A ‘of the plaint by way of gift deed dated 04.06.1938 executed in his favour by the admitted owner Ram Lakhan Koeri. Ghurhu Koeri also acquired the land described in schedule ‘B’ of the plaint through Rashidi Bandobasti (settlement by grant of receipt) from the ex landlord and came in possession over the settled land. Ghurhu Koeri further acquired the land described in schedule-‘C’ of the plaint by the registered Patta Mokarri dated 03.07.1947. Ghurhu Koeri was thus the title holder in possession over the land described in the three schedules i.e. schedule A, B and C in the plaint. It is further case of the plaintiffs that Bhuwali Koeri fraudulently taking benefit of the confidence of Ghurhu Koeri in him got the recent survey khatiyan with regard to the portions of the aforesaid properties prepared in his name and also in the name of Fulari Kuer. The details of the land exclusively belonging to Ghurhu Koeri but wrongly entered in the recent survey khatiyan in the names of Fulari Kuer and Bhuwali Koeri have been given in schedules-‘D’, ‘E’ and ‘F’ of the plaint. It has been further averred by the plaintiffs that Fulari Kuer had gifted the land recorded in her name in the survey khatiyan in favour of the defendant 1st set by gift deed dated 22.12.1976 and the defendant 1st set thereafter transferred part of that land by two registered sale deeds dated 27.06.2002 in favour of the defendant Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 4 2nd set. The suit was thus filed for the above mentioned reliefs. The defendants contested the claim of the plaintiffs on the ground that Fulari Kuer was the daughter-in-law of Ram Lakhan Koeri and thus had title over his property by inheritance. The transfer of any land in favour of Ghurhu Koeri by gift deed by Ram Lakhan Koeri was denied. The acquisition of land by Ghurhu Koeri through the Rashidi Bandobasti and the Patta Mokarri had also been denied and it was asserted that the lands mentioned in schedule-‘A’, ‘B’ and ‘C’ of the plaint were the property of Most. Fulari Kuer. The defendants also asserted that the preparation of survey record of rights in the name of Most. Fulari Kuer had been correctly done but the entry of the name of Ghurhu Koeri along with Bhuwali Singh, the son-in-law of the Fulari Kuer, had been said to have been wrongly done. The trial court after considering the pleadings and evidence of the parties found the plaintiffs to be entitled to decree with regard to the property mentioned in schedule ‘F’ of the plaint but further held that the plaintiffs have no title and possession with regard to the lands mentioned in schedule ‘D’ and ‘E’. It was further held that out of the two gift deeds dated 22.12.1976 executed by Most Fulari Kuer in favour of the defendant Shiv Parsan Singh, the gift deed (Ext. B/1) with regard to 2.52 acres of Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 5 land of RS plot no. 116 of RS khata no. 15 of village Narsinghpur was null and void as it was executed without title. With regard to another gift deed (Ext. B) for the land of village Baghi Kala it has been held that no relief has been prayed by the plaintiffs for the said land. However, in view of the findings with regard to schedule ‘D’ and Schedule ‘E’ land, the trial court did not grant the relief to the plaintiffs with regard to the two sale deeds which related to the lands of those sale deeds. The plaintiffs filed T.A. No. 30 of 2009/ 141 of 2009 against the part of the judgment and decree with regard to schedule ‘D’ and ‘E’ land and the defendant no. 1 filed T.A. No. 27 of 2009/96 of 2009 against the part of the judgment and decree with regard to schedule ‘F’ land. The two appeals were heard analogously by the appellate court below and have been disposed by the common judgment and decree whereby the appeal filed by the defendant no. 1 has been dismissed and the appeal filed by the plaintiffs has been allowed resulting in the decree of the suit filed by the plaintiffs in entirety. The defendant no.1 has thus preferred two appeals i.e. S.A. No. 369 of 2010 and S.A. No. 396 of 2010 against the judgment and decree of the appellate court. These, two appeals in these facts and circumstances have been heard together and are Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 6 being disposed of by this judgment as common questions of law and fact are involved. By the impugned judgment the appellate court, on reappraisal of evidence, has come to the finding that Ghurhu Koeri acquired exclusive title and possession over the lands mentioned in schedule-‘A’, ‘B’ and ‘C’ of the plaint through gift deed, Rashidi Bandobasti and Patta Mokarri and the defendants have failed to substantiate their right, title and interest over the properties mentioned in schedule-‘D’, ‘E’ and ‘F’ of the plaint. The appellate court has affirmed the findings of the trial court with regard to the property mentioned in schedule-‘F’ of the plaint and reversed the findings with regard to the property mentioned in schedule-‘D’ and ‘E’ of the plaint. The appellate court has further affirmed the finding with regard to the gift deed (Ext. B and B/1) and has refrained from giving any finding with regard to the two sale deeds dated 27.06.2002 on the ground that those sale deeds have not been exhibited to enable the court to find the details of the land transferred by them. The learned senior counsel on behalf of the appellant has firstly submitted that the plaintiffs have not brought on record the original gift deed dated 04.06.1938 said to have been executed by Ram Lakhan Koeri in favour of Ghurhu Koeri and the certified Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 7 copy of the said gift deed filed by them was not admissible as no foundation for adducing secondary evidence as envisaged under Section 65 of the Evidence Act had been made out. Thus, it has been urged that the title of the plaintiffs could not have been declared on the basis of the certified copy of the gift deed. It has been further submitted that the suit was also barred under Section 34 of the Specific Relief Act as no relief for setting aside the recent survey khatiyan prepared in the names of Fulari Kuer and Bhuwali Singh has been sought. It has also been submitted by the learned senior counsel that the oral evidence of the defendant has not been considered by the appellate court below which has caused prejudice to the defendants. Criticizing the impugned judgment further, it has been also canvassed that the order passed by the consolidation authorities could not have been ignored by the civil court and the civil court was bound to pass the verdict in accordance with the orders of the consolidation authorities. As the factual matrix would unveil, the plaintiffs have claimed their title and possession over the suit land on the basis of the gift deed, settlement by grant of receipt and by permanent lease in favour of their predecessor Ghurhu Koeri. The lands in dispute as mentioned in schedule-‘D’, ‘E’ and ‘F’ are undisputedly the parts of the lands in schedule ‘A’, ‘B’ and ‘C’ of the plaint. Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 8 The plaintiffs have adduced documentary evidence in support of their case of acquisition of title and possession over the lands in schedule-‘A’, ‘B’ and ‘C’ of the plaint. The defendants however, have not produced any document of title and has mainly based their case on the basis of the entries in the records of rights and the rent receipts. The appellate court below has recorded the specific finding that the inclusion of the name of Fulari Kuer in the rent receipts relied upon by the defendant is suspicious as the same has been entered in a different ink and writing. The defendants have also failed to explain as to how the name of Ghurhu Koeri was entered along with Fulari Kuer when Ghurhu Koeri, according to the defendants, was totally stranger to the family of Ram Lakhan Koeri. The defendants have also pleaded that Fulari Kuer was the daughter-in-law of Ram Lakhan Koeri and inherited the property mentioned in schedule ‘A’ of the plaint after the death of Ram Lakhan Koeri. In view of the registered gift deed (Ext-6), having remained unchallenged by Most. Fulari Kuer, the property mentioned in schedule ‘A’ of the plaint was not available for Most. Fulari Kuer to inherit after the death of Ram Lakhan Koeri. The submission on behalf of the appellant on the basis of Section 65 of the Evidence Act has also no substance in view of the fact that the original records were called for from the registry office Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 9 and thereafter, the certified copy of the gift deed dated 04.06.1938 was taken in evidence. It is not the case of the defendant-appellant that any objection was raised by them at the stage when the certified copy of the gift deed was accepted in evidence by the court. Before the appellate court also no objection was raised in this regard by the appellant. Thus, the objection with regard to the manner of proof of said document shall be deemed to have been waived and cannot be allowed to be raised as a substantial question of law at this second appellate stage. It is well settled that an entry in the revenue or survey record of rights does not create or extinguish title as such records of rights are not documents of title. Therefore it was not necessary for the plaintiffs to seek a further declaration or to seek a relief with regard to the entries in the survey records of rights. The submission on behalf of the appellant that the suit would be barred under Section 34 of the Specific Relief Act on this score is clearly misconceived. The another submission that the orders passed by the consolidation authorities could not have been ignored by the civil court has also got no force in view of the law laid down by a Full Bench of this Court in the decision reported in 2000 (2) P.L.J.R. 338 where it has been held that the right to property is not creature of the consolidation Act or for that matter any Act rather Patna High Court SA No.369 of 2010 (12) dt.01-02-2013 10 it is the common law right which is enforceable under the ordinary or general law of the land. It has been further held that the consolidation Act merely provides a machinery for consolidation of land and determination of rights for limited purpose. The appellate court below has meticulously scrutinized the pleadings and evidence of the parties and the findings of facts are based upon correct appreciation of evidence. The submission that the oral evidence of the defendants has not been considered is also not correct in view of the discussion of oral evidence in paragraph 15 of the impugned judgment of the appellate court while considering the issue of the relationship of Fulari Kuer with Ram Lakhan Koeri. Moreover nothing could be shown on behalf of the appellant to establish that the consideration of oral evidence in presence of documentary evidence, in the facts and circumstances of the case, could have turned the table in his favour. For the aforesaid premised reasons, I do not find any substantial question of law arising for consideration in these two appeals, which are, accordingly, dismissed. Devendra/- (V. Nath, J)