Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.662 of 2011 ====================================================== Sachidanand Kumar & Ors. Versus .... .... Appellant/s Ram Ranjan Kumar & Ors. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sunil Kumar Alias Sharma For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 5 19-08-2013 1. Heard the learned counsel, Mr. Kamal Nayan Chaubey appearing on behalf of the appellant under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiffs appellants appellants have filed this Second Appeal against the Judgment and Decree dated 19.10.2011 passed by the learned 3rd Addl. District Judge, Naugachia in title appeal No.60 of 2008 whereby the learned lower appellate Court
Legal Reasoning
dismissed the appeal and thereby confirmed the Judgment and Decree dated 20.6.2008 passed by the learned Munsif, Naugachia in title suit No.221 of 1990. 3. The plaintiffs appellants filed the aforesaid suit for declaration that the plaintiff have got title over Moiety share of the land and the defendants have got no manner of right, title and interest and further for declaration that the deeds of gift executed by defendant No.2 in favour of defendant No.1 dated 13.8.1989 and 2.9.1990 are void abe initio and illegal document. The plaintiffs claimed the aforesaid relief on facts inter alia that the suit 2 Patna High Court SA No.662 of 2011 (5) dt.19-08-2013 2 / 6 property including others belonged to one Nasib Kumar. Said Nasib Kumar had 5 sons, namely, Sachhidanand Kumar, Maheswar Kumar, Rajendra Kumar, Abhinandan Kumar and Ram Ranjan Kumar. There was family arrangement between the father and 5 sons and each sons were allotted their respective shares and the father was allotted 5 acre 90 decimal. However, by the two registered deed of gift in question, the mother of the plaintiff, namely, Mostt. Kumbhkaran Devi gifted the land of the father measuring 5 acre 90 decimal in favour of the defendant No.1. Because of the said gift deeds, the land of the plaintiff and other brothers who have got share in the property of father were also gifted by the doner in favour of donee. 4. The defendants filed contesting written statement alleging that in fact in partition, the property measuring 5 acre 90 decimal was allotted to Mostt. Kumbhkarn Devi and the father Nasib Kumar did not take any land in his share. Mostt. Kumbhkarn Devi originally gifted the property by executing registered gift deed dated 13th August, 1989 in favour of defendant. Because the mother was not knowing the full description of the lands allotted to her, there were many mistakes in the description of the land so second time again she executed registered deed of gift dated 2.9.1990 by way of correction. 5. The trial Court on the basis of the pleadings of the parties and evidence adduced in support of their respective pleadings recorded the finding that in fact in family arrangement the property measuring 5 acre 90 decimal was allotted to Mostt. 3 Patna High Court SA No.662 of 2011 (5) dt.19-08-2013 3 / 6 Kumbhkarn Devi and she had rightly executed the gift deed in favour of the defendant No.1 and because there were some mistakes, subsequently, she executed another gift deed by way of correction. The defendants came in possession on the basis of the said gift deed and accordingly the plaintiff’s suit was dismissed. 6. On appeal, the lower appellate Court also recorded the finding that the gift deeds executed by Kumbhkarn Devi in favour of defendant No.1 are valid, genuine document and the defendant came in possession of the property. The lower appellate Court also held that in family arrangement, the property was allotted to Mostt. Kumbhkaran Devi. The lower appellate Court then dismissed the appeal. 7.
Legal Reasoning
The learned senior counsel, Mr. Kamal Nayan Chaubey appearing on behalf of the appellant firstly submitted that the dispute was with regard to 5 acre 90 decimal but the subsequent gift deed dated 2.9.1990 executed by Mostt. Kumbhkarn Devi is with respect to 6 acre 36 decimal. Therefore, the Judgment of the lower appellate Court is vitiated because of the fact that Mostt. Kumbhkarn Devi could not have gifted more than 5 acre 90 decimal. According to the learned counsel, it is unbelievable that in the family arrangement the father would not have been allotted any lands and instead the mother was only allotted 5 acre 90 decimal. Secondly, the learned counsel submitted that there is no mention in the subsequent gift deed that it is correction deed and in fact by the second gift deed, the first gift deed was substituted. The learned counsel further submitted that the defendant have not 4 Patna High Court SA No.662 of 2011 (5) dt.19-08-2013 4 / 6 produced the scribe of the deed and attesting witness for examination. 8. From perusal of the Judgments of both the Courts below, it appears that it is the specific case of the plaintiff that 5 acre 90 decimal was allotted to the father in the family arrangement whereas according to the defendant, the 5 acre 90 decimal was allotted in favour of mother Mostt. Kumbhkaran Devi in the family arrangement and the father did not take any property. The father died in the year 1981. So far this question, i.e., as to whether in family arrangement the property was allotted to father or mother is concerned, both the Courts below held that the property was
Decision
allotted in favor of Mostt. Kumbhkaran Devi. In view of the above finding of both the Courts below, it become a concurrent finding of fact. The submission of the learned counsel for the appellant is that the dispute was with regard to the 5 acre 90 decimal but by the gift deed, 6 acre 36 decimal has been gifted by Kumbhkaran Devi to the defenatnNo.1. So far this submission is concerned, it appears that there is neither pleading in the plaint nor there is any evidence, nor this point was raised before the trial Court nor before the lower appellate Court and, therefore, at this stage, this pure question of fact cannot be allowed to be raised in second appellate jurisdiction. Moreover from the pleadings of the parties and the Judgment of both the Courts below, the Courts below both have decided regarding controversies between the parties regarding as to whether 5 acre 90 decimal was allotted to father or it was allotted to mother. The specific case of the plaintiff is that since it 5 Patna High Court SA No.662 of 2011 (5) dt.19-08-2013 5 / 6 was allotted to father on the death of father in the year 1981, the father also got share in the said property. No other case has been made out either regarding the area of the gifted land or that which portion of the plaintiff’s land was included in the said gift deed. 9. So far the submission of the learned counsel that the scribe or the attesting witness has not been examined is concerned, the plaintiff challenged the gift deed only on the question that Mostt. Kumbhkaran Devi had no right to execute the gift deed in favour of the defendant No.1 because the property was allotted in favour of father, Nasib Kumar. In view of the above finding the said objection of the plaintiff has already been overruled by both the Courts below and both the Courts below recording the finding that the gift deeds are valid and genuine documents and Mostt. Kumbhkaran Devi had right, title to execute the said deeds. So far this finding is concerned, it may be mentioned here that it is pure finding of fact, therefore, it cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 10. Regarding the submission of the learned counsel that both the gift deeds cannot stand simultaneously is concerned, it may be mentioned here that the dispute is with regard to the 5 acre 90 decimal and according to the defendant, the area was corrected by subsequent registered gift deed. The submission that there is no mention in the subsequent gift deed that it is correction deed is concerned, it cannot be said that mention is not condition precedent. It is not the case of the plaintiff that by the subsequent 6 Patna High Court SA No.662 of 2011 (5) dt.19-08-2013 6 / 6 gift deed, any particular land of the plaintiff has been included or that any particular land of other person of the family had been included in the gift deed. In general, it is submitted the other lands have been included. Therefore, this is nothing but a vague terms. On this ground, it cannot be said that subsequent gift deed is invalid or for non-consideration of these facts, the Judgment of the lower appellate Court is vitiated. 11. In view of the above facts and circumstances of the case, in my opinion, none of the points raised by learned counsel for the appellant are substantial question of law. Thus, no substantial question of law is involved in this Second Appeal. Accordingly, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Sanjeev/-