Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.220 of 2008 ====================================================== Ram Jinish Rai, S/o late Ram Daresh Rai, resident of village-Bhau Prasad, P.S. Dumra, District-Sitamarhi .... .... Appellant/s Versus 1. Rang Lal Rai, S/o late Bishundeo Rai, resident of Bhau Prasad, P.S. Dumra, District-Sitamarhi 2. Smt. Jaso Devi 3. Smt. Urmila Devi No. 2 and 3 daughters of late Ram Daresh Rai, residents of village- Bhau Pd. P.S. Dumra, District-Sitamarhi 4. Ram Sikil Rai 5. Ram Padarth Rai, both sons of Thakur Rai .... .... Respondent/s ====================================================== Appearance: For the Appellant/s : Mr. S.K.Tiwary For the Respondent/s : Mr. Dhananjay Kumar Tiwary ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 07. 27-06-2013 Learned counsel for the appellant is permitted to add the names of plaintiff nos. 2 and 3 as respondents to the memo of appeal during the course of the day. Heard Mr. S.K. Tiwary, learned counsel for the appellant and Mr. Dhananjay Kumar Tiwary for the respondent no. 1. This appeal is directed against the judgment and decree dated 24.4.2008 passed in Title Appeal No. 24 of 1996 / 16 of 2007 whereby the Additional District and Sessions Judge, F.T.C.- V, Sitamarhi while affirming the judgment and decree dated 09.07.1996 /25.7.1996 passed by Munsif, Sadar, Sitamarhi in Title Suit No. 184 of 1994 has dismissed the suit on contest as against
Legal Reasoning
the appellant-plaintiff and has disposed of the suit on compromise Patna High Court SA No.220 of 2008 (7) dt.27-06-2013 2 against the other plaintiffs. The suit in question was filed by the father of the appellant no. 1 and the respondent nos. 2 and 3 alongwith his brothers i.e. respondent nos. 4 and 5 herein seeking a declaration to hold that the survey entry in relation to R.S.P. Khata No. 509, R.S.P. Plot No. 2608 admeasuring 6 decimals situated in village Bhabprasad, Thana No. 324, P.S. Dumra, District-Sitamarhi, was wrongly recorded in the name of Bihar Sarkar. The plaintiffs also prayed for declaration to hold that the order dated 04.05.1993 passed by the consolidation officer, Dumra in Case No. 20 of 1992 in favour of the sole defendant in relation to two decimals land is vague, incorrect and not binding on the plaintiff. It is the case of the plaintiff that the disputed plot was a gair majarua land which belonged to one Parmeshwar Raut ancestor of the plaintiff over which one Hirba Dhobi resided. After the death of Hirba Dhobi the land returned to the ex-landlord and thereafter
Legal Reasoning
was orally settled with one Gulab Misrian referred as Mishrain, who came in peaceful possession over the property. It is further the case of the plaintiff that the said Mishrian had two grandsons, namely, Ishwar Kant and Kuer Kant who obtained title and possession over the said property after the death of Misrain and later disposed of the property to one Thakur Rai, resident of Patna High Court SA No.220 of 2008 (7) dt.27-06-2013 3 village Baburban by a registered sale deed dated 16.5.1949 and the said Thakur Rai of village Baburban who sold the disputed plot in favour of the father of the plaintiff also by the name of Thakur Rai for Rs. 500/- vide sale deed dated 5.10.1994 and gave him possession over the same. It is the case of the plaintiff that the plot was wrongly recorded in the name of Bihar Sarkar as also the area was wrongly mentioned as two decimals when in fact the area was six decimals. It is further the case of the plaintiff that the name of one Jai Rai, son of Nanki Rai was incorrectly mentioned in Kaifiyat Khana of khatiyan but the plaintiff had no knowledge about the same. It is stated that plaintiff subsequently learnt that the defendant had acquired right over the suit property. After examination of the records and upon gathering knowledge about the same, the suit in question was filed. The defendant appeared and filed his written statement on 12.7.1995 contesting the claim of the plaintiff on merits as well as on legal grounds. It was contested that Hirba Dhobi did not die issueless rather was survived by a daughter, namely, Jiria Devi who came over the possession of the property after his death and disposed of the property in favour of Gulab Mishrain. The statement of the plaintiff regarding Gulab Mishrain being survived by two grandsons was also contested and they also contested that Patna High Court SA No.220 of 2008 (7) dt.27-06-2013 4 any execution of deed took place in favour of Thakur Rai, father of the plaintiff. On the contrary it was argued that Gulab Mishrain was in need of money and thus had executed a Khesta Kebala in favour of Jai Rai, son of Jhingur Rai and accordingly the entry was made but inadvertently the area of the suit property was recorded as two decimals and the name of Bihar Sarkar was entered therein showing the grandfather of the defendant Jai Rai in the Kaifyat Khana. It is stated that upon gathering knowledge of the wrong survey entry, a case was filed by the defendant giving rise to Case No. 20 of 1992 for correction of the entry and which was allowed vide order dated 4.5.1993. On the basis of the pleadings and the evidence led by the parties both documentary and oral, issues were framed. The trial court upon consideration of the rival contentions and evaluating the evidence, concluded that neither the plaintiff nor the defendant were able to support their claim by cogent evidence rather their claim was based on conjectures and speculations. The issue was thus decided against the plaintiff. On the other issue concerning the validity of the order dated 4.5.1993 passed by the Consolidation officer, Dumra in Case No. 20 of 1992, the trial court considering the material on record was pleased to hold that the order was motivated and contrary to the legal position and held Patna High Court SA No.220 of 2008 (7) dt.27-06-2013 5 the same to be a bogus order. Having held as such the suit was dismissed. The plaintiff being aggrieved filed an appeal giving rise to Title Appeal No. 24 of 1996 / 16 of 2007. During the pendency of the appeal the plaintiff no. 1. Ram Daresh Rai died and was substituted by his legal heirs i.e. the appellant and respondent nos. 2 and 3 before this Court. During the course of hearing, the appellant nos. 2 and 3 who are the own brother of the deceased appellant no. 1 produced a registered deed of sale dated 29.7.1967 whereunder they claimed that the suit property had been transferred in their favour by the appellant no. 1. A petition was also filed by the appellant-respondent nos. 4 and 5 herein mentioning therein that they did not wish to contest the matter and that they have waived their claim in favour of the defendant Rang Lal Rai. The appellate court, taking note of the two documents which was placed on record, granted opportunity to the appellant to rebut the position as regarding the transfer of the property under the sale deed dated 29.7.1967 but he failed to adduce any evidence to contest or question the validity of the sale deed. Thus since the other appellants i.e. the respondent nos. 4 and 5 herein had waived their claim in favour of the sole defendant, the appellate court while affirming the judgment and decree passed by the trial court dismissed the suit on contest as against the Patna High Court SA No.220 of 2008 (7) dt.27-06-2013 6
Decision
substituted heirs of appellant no. 1, and the suit was disposed of on compromise as against the other plaintiff i.e. the appellant- respondent nos. 4 and 5 herein. It is in the aforementioned circumstance that the present appeal has been filed. Mr. S.K. Tiwary, learned counsel appearing for the appellant has raised the following substantial questions of law to contest the judgment and decree of the appellate court, namely; (a) Whether the appellate court was within its jurisdiction to consider the evidence at the appellate stage in the form of the sale deed dated 29.7.1967? (b) Whether having entertained the evidence, the appellate court ought to have framed an issue and remitted the case back to the trial court for adjudication on the issue and; (c) Whether the appellate court could have accepted the compromise in absence of consent of all the parties? I have heard learned counsel for the appellant and learned counsel for the respondent no. 1 and I have perused the materials on record including the judgment and decree passed by the two courts below. Even while the appellant has contested the jurisdiction of the first appellate court to entertain any evidence at the appellate stage and for allowing the other appellants i.e. Patna High Court SA No.220 of 2008 (7) dt.27-06-2013 7 respondent nos. 4 and 5 to waive of their claim by way of compromise, no issue has either been raised nor contested as regarding the judgment and decree passed by the trial court dismissing the suit on the merits. The fact remains that the judgment and decree of the trial court dismissing the suit of the plaintiff praying for declaration of right, title and interest over the suit property remain unquestioned and unchallenged. Even the conclusion drawn by the trial court as regarding the order dated 4.5.1993 passed by the consolidation officer in Case No. 20 of 1992 as being contrary to law, motivated and bogus has not been questioned by any party and thus the finding of the trial court as affirmed by the appellate court are unquestioned and unchallenged. The uncontested position is that the trial court did not find the evidences led by the plaintiff or the defendant over the suit land supportive enough for declaration of title in their favour. The trial court also held the order dated 4.5.1993 passed in Case No. 20 of 1992 whereby the survey entry had been corrected in favour of the defendant, as a motivated and a bogus order. Surprisingly, despite such finding, the defendant has not chosen to question the same. Before the appellate court while the matter was pending adjudication, a registered sale deed was put to service said to have been executed Patna High Court SA No.220 of 2008 (7) dt.27-06-2013 8 by deceased plaintiff no. 1 Ram Daresh Rai who is the father of present appellant and respondent nos. 2 and 3, in favour of the plaintiff nos. 2 and 3 who are respondent nos. 4 and 5 herein. As the plaintiff no. 1 Ram Daresh Rai had deceased, the appellate court afforded opportunity to the substituted heirs of Ram Daresh Rai to rebut the position emanating from the registered sale deed. However, as observed by the appellate court, no evidence was led by the substituted heirs of Ram Daresh Rai to demonstrate that the sale deed was a forged and fabricated document. Though the sale deed was introduced only at the appellate stage but the jurisdiction of the appellate court to entertain any evidence at the appellate stage for final adjudication of the contest cannot be questioned upon. It is perhaps in these circumstances that the opportunity was given to the substituted heirs of the executent of the deed Ram Daresh Rai to rebut the sale deed but they failed to do so. Though Mr. Tiwary submits that the appellant had questioned the validity of the sale deed by raising objection but a mere objection to a document is not sufficient enough to declare the same as forged document rather a party questioning a document on grounds of forgery has to prove the same and which onus has admittedly not been discharged by the appellant. The consequence would be that the suit property in view of the sale Patna High Court SA No.220 of 2008 (7) dt.27-06-2013 9 deed stood transferred in favour of appellant nos. 2 and 3 (respondent no. 4 and 5) who in turn did not choose to contest the claim rather waived of their claim in favour of the sole defendant by filing a compromise and in such circumstance where the property stood transferred in favour of the appellant nos. 2 and 3, no infirmity can be attached to the acceptance of the petition filed by the appellant no. 2 and 3-respondent no. 4 and 5 waiving their claim in favour of the sole defendant even if the petition did not have the consent of the appellant more particularly when he was given opportunity to contest the sale deed dated 29.7.1967. It is in the aforesaid circumstances that the appellate court while affirming the judgment and decree of the trial court has dismissed the suit as against the substituted heirs of plaintiff no. 1 on contest while disposing of the same on compromise as against plaintiff nos. 2 and 3. No error can be found in the judgment and decree passed by the appellate court below. The substantial question of law raised by learned counsel for the appellant is answered accordingly. This appeal is dismissed. S.Sb/- (Jyoti Saran, J)