Ramvijoy Singh And Another v. Saudagar Singh — 1976 DIGILAW 24 (PAT)

Judgment 1. This appeal by the defendants has been preferred against the judgment and decree of the Lower Appellate Court affirming those of the trial Court. 2. In order to appreciate the points involved in this appeal, it will be necessary to state some material facts. The plaintiffs-respondents case in the trial court in title suit No. 180 of 1965 in brief was that one Md. Rauf Khan was the 16 Annas proprietor of village Lautar (Tauzi No. 12730) and survey plot No. 1 measuring 42 bighas 1 kathas was recorded during the survey as gairmazrua malik land. The said 16 Annas proprietary interest of Md. Rauf Khan was in mokarrari of Md. Bibi by virtue of a registered deed executed by her husband Md. Rauf Khan. The name of Md. Bibi was recorded in the survey Khaitian as Mokarraridar. Subsequent to the survey, Md. Bibi brought the entire Survey Plot No. 1 into cultivation and converted the same into her Bakastha land. Thereafter, she sold the Bakastha land of Plot No. 1 to several persons including the defendants. Entire Tauzi No. 12730 was sold for arrears of Government revenue on the 28th March, 1947, and was purchased by one Sheo Narayan Lal. After purchase, Sheo Narayan Lal sold his entire 16 Annas share to the plaintiffs and a few others including Syed Ahmad Khan. Md. Bibi and other Mokarraridars whose mokarrari interest was annulled, resisted possession of the plaintiffs and Syed Ahmad Khan and so they brought Title Suit No. 22 of 1951 in the court of Munsif, 1st Court, Gaya, for declaration that the lands of Plot No. 1 of village Lautar were Bakastha lands of the plaintiffs and Syed Ahmad Khan and they also prayed for possession. The said suit was transferred to the Court of Munsif, 3rd Court, Gaya, where it was numbered as Title Suit No. 9 of 1954 and was decreed on the 10th of July, 1954. The judgment and decree was upheld in Title Appeal No. 53 of 1955. The plaintiffs and Syed Ahmad Khan obtained delivery of possession on the 19th of October, 1955, and since then they were continuing in possession. The judgment and decree was upheld in Title Appeal No. 53 of 1955. The plaintiffs and Syed Ahmad Khan obtained delivery of possession on the 19th of October, 1955, and since then they were continuing in possession. Subsequently, the plaintiffs and Syed Ahmad Khan under a registered sale deed, dated the 29th July, 1967, sold to the defendants out of the land comprised in Survey Plot No. 1 12 bighas equal to 8.20 acres of land by a lagga of 5 3/4 cubits prevalent in the locality, as fully described in Schedule I to the plaint. The 12 bighas sold to the defendants, which the defendants purchased in the name of defendant No. 2 was shown in yellow colour in a map attached to the plaint. Since the date of purchase, the defendants are in exclusive possession of the lands sold to them and the remaining lands of Survey Plot No. 1 were coming in cultivating possession of the plaintiffs as Syed Mohammad Khan had sold his interest to plaintiffs 1 and 2. The further case of the plaintiffs-respondents was that the outgoing Mokarraridars whose mokarrari interest was annulled and extinguished got a petition filed before the Anchal Adhikari, Imamganj, for settlement of land of Plot No. 1 on the allegation that it was gairmazrua malik land and had vested in the State under the Land Reforms Act. The Anchal Adhikari referred the matter to L. R. D. C. who by his order dated 10th April, 1957 decided that Plot No. 1 was gairmazrua malik land and had vested in the State of Bihar. The decision of the L. R. D. C., was upheld by the Additional District Magistrate, Gaya, by his order, dated the 23rd June, 1958. Thereafter, the plaintiffs and the defendants brought Title Suit No. 158 of 1959, in the Court of Munsif, 1st Court, Gaya, for a declaration that the Survey Plot No. 1 measuring 42 bighas 1 katha of village Lauter was bakastha land of the outgoing landlord and was the Kastha land of the plaintiffs and defendant No. 2, and that the order passed by the L. R. D. C. and the Additional Collector were illegal, ultra vires, void and without jurisdiction. The said title suit was decreed in their favour under judgement dated 21st of August, 1962, except with regard to 7 kathas 10 dhurs of land in the eastern portion of Plot No. 1 which was used as grave-yard. It was held by the Court that the entire Plot No. 1 was the Bakastha land of the outgoing landlords and was now the Kastha land of the plaintiffs and under the Land Reforms Act, the same had not vested in the State of Bihar. The further case of the plaintiffs in Title Suit No. 180 of 1965 was that the defendants were the members of a joint Hindu family and they bent upon vexing the plaintiffs without any rhyme and reason and were trying to take forcible possession of 1 acre of land of the plaintiffs towards north which was shown in green colour in the said map attached to the plaint. On 1st of September, 1965, the defendants went to cultivate the said 1 acre of land shown in green colour in the map, but the plaintiffs did not allow them to do so. Thereupon, the defendants engaged lathials in order to cultivate the same by force. The plaintiffs, however, resisted, but the defendants were bent upon cultivating the same by force. On these allegations, the plaintiffs, therefore, prayed for permanently restraining the defendants from taking forcible possession of the said 1 acre of land, which was situate contiguous north of the 12 bighas of land sold by the plaintiffs to the defendants. They also prayed for recovery of possession together with mesne profits in case they were found to have been dispossessed from their land. They also prayed for demarcation of their land and the land of defendant No. 2 by appointing a pleader commissioner and for fixing pillars demarcating the lands. 3. Whereas, the case of the defendants in brief was that the suit as framed was not maintainable and the plaintiffs had no cause of action. The suit was barred by estoppel, wavier, acquiescence and limitation. Their further case was that the plaintiffs and Syed Ahmad Khan had sold 12 bighas of land equivalent to 8.28 acres under sale-deed dated the 29th of July, 1957 (Ext. 1) in Survey Plot No. 1 to defendant No. 2 over which defendant No. 2 was in possession. The suit was barred by estoppel, wavier, acquiescence and limitation. Their further case was that the plaintiffs and Syed Ahmad Khan had sold 12 bighas of land equivalent to 8.28 acres under sale-deed dated the 29th of July, 1957 (Ext. 1) in Survey Plot No. 1 to defendant No. 2 over which defendant No. 2 was in possession. The boundary and description of the said 12 bighas of land as given in the plaint was wrong and the sketch map forming part of the plaint and showing the said 12 bighas in yellow colour was also wrong. The defendants have also attached a map to their written statement wherein the said purchase land measuring 12 bighas in survey Plot No. 1 has been shown in red colour. According to the defendants, the location of the 12 bighas as given by the plaintiffs was wrong. In fact, the location of 12 bighas which was sold to defendant No. 2 was at the place shown in red colour, in the map which the defendants had attached to their written statement. Their further case was that the land towards south of the area purchased by defendant No. 2 in Plot No. 1 was of Kuldip Singh as Mokarraidar and the said area was always remembered in the name of Kuldip Singh though the mokarrari was annulled and extinguished. Apart from that Kuldip Singhs land was actually towards south of the portion of land purchased by defendant No. 2 in Plot No. 1. Plots Nos. 3, 5 and 6 which were to the further south of Plot No. 1 were not of Kuldip Singh. The eastern portion of Plot No. 3 was of Sheo Narayan Singh alias Shiv Singh and the western portion of defendant No. 1. Plot No. 5 was of Akash Kuer and others at the relevant time, namely, in the year of the purchase. Plot No. 6 was of Rajpati Singh whereas Plot No. 4 was of Karu Mahto. Therefore, according to the defendants, Plots Nos. 3 to 6 have been wrongly shown in the map attached to the plaint by the plaintiffs towards south of 12 bighas of land which was purchased by defendant No. 2. According to the defendants to the south of the land purchased by defendant No. 2 was a portion of the Plot No. 1 itself. 3 to 6 have been wrongly shown in the map attached to the plaint by the plaintiffs towards south of 12 bighas of land which was purchased by defendant No. 2. According to the defendants to the south of the land purchased by defendant No. 2 was a portion of the Plot No. 1 itself. In order to fix the location, defendants further case was that the land purchased by defendant No. 2 was in the western side of Plots Nos. 43, 44, 46 and 52 and a major portion of Plot No. 53 which were Jagir and were also called Mafidar-lands. According to them, the land purchased under Ext. 1 began from the south-west corner of Plot No. 44 and extended upto the major portion of Plot No. 53. To the west of the land purchased by the defendants, were the lands known as Takhta Kapildeo Singh and the lands comprised under Plot No. 1/144. According to them, since after the purchase (vide Ext. 1), defendant No. 1 was in possession of the 12 bighas of the land shown in red colour in the map attached to the written statement. Prior to the annulment of Mokarrari, defendant No. 1 was in possession of this very area as Mokarraridar. According to them, the area of the land shown in green colour in the map attached to the plaint was, therefore, in possession of defendant No. 2 from the time of the purchase of the land under Ext. 1. In other words land shown in green colour in the map attached to the plaint, was part and parcel of the land contained in Ext. 1. Therefore, according to the defendants, there was no question of their taking possession of the said land by force. The plaintiffs, according to them, were not entitled to the same being demarcated through the court and the plaintiffs had no cause of action and, therefore, the suit be dismissed. 4. The trial court after considering the evidence on the record decreed the suit in part and held that the defendant No. 2 under Ext. The plaintiffs, according to them, were not entitled to the same being demarcated through the court and the plaintiffs had no cause of action and, therefore, the suit be dismissed. 4. The trial court after considering the evidence on the record decreed the suit in part and held that the defendant No. 2 under Ext. 1 had purchased 12 bighas of land at the place shown in yellow colour in the map attached to the plaint and further found as follows:- "Futhermore, from the sale deed itself and the other documentary evidence as discussed above, it is clearly proved that actually the plaintiffs and Syed Ahmad Khan sold 12 bighas of land which is shown in yellow colour in the sketch map prepared by the plaintiffs. xxxxxx A survey knowing pleader commissioner will be appointed on depositing necessary fee by the plaintiffs and he will demarcate the lands of both the parties as per sketch map appended at the foot of the plaint. The portion showing in yellow ink should be demarcated as the land of the defendant No. 2 whereas the remaining portion of the land of Plot No. 1 should be demarcated as the land of the plaintiffs and pucca pillars may be put showing the necessary demarcation." 5. Being aggrieved by the said judgment and decree, the defendants filed an appeal. The Appellate Court also confirmed the judgment and decree of the trial Court, holding that:- "In view of this, I accept the plaintiffs case that the twelve bighas of land shown in yellow colour in the map attached with the plaint had been sold to the defendants and not those lands which were shown in red colour in the map (Ext. A) attached with the written statement of the defendants and it is held accordingly." Hence, this appeal. 6 Learned Counsel appearing on behalf of the appellants has raised the following points for consideration by this Court: (i) The Court below erred in placing the burden of proof on the defendants. (ii) When the lands were sold under Ext. 1 Kuldip Singh was not the owner of Plots Nos. 3, 5 and 6. If the southern boundary meant Takhta of Kuldip Singh, the sale deed (Ext. 1) would have also said so, as it was mentioned in the case of western boundary. (ii) When the lands were sold under Ext. 1 Kuldip Singh was not the owner of Plots Nos. 3, 5 and 6. If the southern boundary meant Takhta of Kuldip Singh, the sale deed (Ext. 1) would have also said so, as it was mentioned in the case of western boundary. According to the appellants, the court below had erred in making surmises as to the lands on the southern boundary that where Kuldip Singh was mentioned in Ext. 1, it meant the Takhata of Kuldip Singh. (iii) The court below had erred in misreading the pleadings of the defendants on the basis of which the court below further erred in rejecting the oral evidence of the defendants. (iv) The court below wrongly thought that Jagir Lautar was merely a description of Plot No. 44. The Court below itself has found that Plot No. 53 is also Jagir Lautar. Plot No. 53 was situate at extreme north of Plot No. 44. Therefore, according to the appellants, Plot No. 53 also was on the eastern boundary of the land sold under Ext. 1. (v) Obviously, the finding of the court below regarding location was bad as according to the appellants, if the land under Ext. 1 was situate at the place shown in yellow colour in the map attached to the plaint, the eastern boundary of the land sold must not have been only Plot No. 44, but also 43 as well as the land of niz. (vi) The maps attached to the plaint as well as to the written statement were not according to the sketch. Therefore, the lands sold under Ext. 1 shown in yellow colour in the map attached to the plaint might not have consisted of the entire land sold measuring 12 bighas, as the court below itself has directed the commissioner that he might extend and demarcate the land even beyond the yellow portion towards the niz lands. According to the appellants, the court below has erred in substituting a new contract for the purpose, and (vii) if the contention of the defendants were true, in that case, the finding of possession of the court below that the land marked green colour was in possession of the plaintiffs cannot be upheld. 7. Learned counsel for the appellants has placed before me the judgment of the lower appellate Court. 7. Learned counsel for the appellants has placed before me the judgment of the lower appellate Court. In my opinion, from the findings of the lower appellate Court, it cannot be said that he has committed any error of law or procedure justifying interference in the second appeal under Sec.100 of the Code of Civil Procedure. As mentioned earlier, in the instant case, the main question before the court below was with regard to location of the lands sold under Ext. 1. The appellate Court after reference to the boundary given in the sale deed as well as the Khatian and also the evidence of the witnesses came to the conclusion that the location of the lands sold was at the place marked yellow in the map attached to the plaint. Therefore, it would be a case of finding of facts. 8. Reference may be made to the case of Anup Mahato V/s. Mita Dusadh, (AIR 1934 PC 5) wherein it was held that inferences drawn from statements in the Khatian are inferences of fact with which a High Court cannot interfere in a second appeal. In Secy. of State V/s. Rameswaram Devasthanam in the same volume (AIR 1934 PC 112) at Page 113 it was held that under Sec.100 the High Court has no jurisdiction to reverse the findings of fact arrived at by lower appellate Court however erroneous, unless they are vitiated by some error of law. The rule is equally applicable to cases in which the findings of the lower appellate Court are based on inferences drawn from documents exhibited in evidence. I have already mentioned that in this case, the appellants have filed the second appeal against the judgment of affirmation. Reference may be made to the case of H.A. Morine V/s. London Loan Assets, Ltd., of the same volume (AIR 1934 PC 127) where it was observed that a litigant who sought before a second appellate Tribunal to reverse findings of fact which had been arrived at by the trial Judge and had, after consideration, been confirmed on appeal, came always with a very heavy burden upon his shoulders. But when he was the principal witness in regard to the crucial facts, and has been crushingly discredited by the trial Judge the weight of his burden was so great that few, if any, could survive under it. But when he was the principal witness in regard to the crucial facts, and has been crushingly discredited by the trial Judge the weight of his burden was so great that few, if any, could survive under it. It may be noticed that in the instant case, the appellant had examined himself as D.W. 9. He along with other witnesses examined on his behalf was disbelieved by the trial court as well as the appellate court. It will also be relevant to refer to the case of Deity Pattathiramswamy V/s. S. Hanymayya ( AIR 1959 SC 57 ) where their Lordships in paragraph 13 at page 59 observed: Nor does the fact that the finding of the first appellate court was based upon some documentary evidence made it any the less a finding of fact (Vide ILR 11 Lah 199 : AIR 1930 PC 91). But, notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Sec.100, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. That introduced, apart from the fact that the High Court assumed and exercised a jurisdiction which it did not possess, a gambling element in the litigation and confusion in the mind of the litigant public. Their Lordships, therefore, set aside the decree of the High Court on the simple ground that the learned Judges of the High Court had no jurisdiction to interfere in the second appeal with the finding given by the first appellate court based upon an appreciation of the relevant evidence. In V. Ramachandra Ayyar V/s. Ramalingam Chettiar, ( AIR 1963 SC 302 ), it was observed that even if the appreciation of evidence made by lower appellate Court was patently erroneous and the finding of fact recorded in consequence was grossly erroneous, that could not be said to introduce a substantial error or defect in the procedure. In the same volume in the case of Ramappa V/s. Bojjappa, ( AIR 1963 SC 1633 ), it was observed at page 1634 that it had always been recognised that the sufficiency or adequacy of evidence to support a finding of fact was a matter for decision of the court of facts and could not be agitated in a second appeal. 9. 9. In view of these observations, in my view, none of the points raised on behalf of the appellants justifies interference with the finding of facts arrived at by the court below in second appeal nor is there any question of law or procedure involved justifying interference under Sec.100 of the Code of Civil Procedure. 10. In the result, the appeal is dismissed and the judgment and the decree of the court below are affirmed. There will be no order as to costs.