Ram Chandra Mishra v. Ram Chandra Mishra — 1994 DIGILAW 324 (PAT)

JUDGMENT R. N. Prasad, J. - The defendants have filed this second appeal against the judgment and decree dated 9.2.1993 passed in Title Appeal No. 21 of 1991 reversing the judgment and decree dated 30.3.1991 passed in Title Suit No. 234 of 1986. 2. The plaintiff-respondent nos. 1 and 2 filed the aforesaid title suit for declaration of title, confirmation of possession, in the alternative for recovery of possession over the suit land and for permanent injunction restraining the defendants from interferring with the possession. 3. The case of' the plaintiffs was that plot no. 668 Khata no. 104 having an area of 4 Kathas 11 Dhurs was recorded in the revisional survey khatian in the name of Ram Lagan Mishra, Saral Mishra and Bujhawan Mishra The son of Ram Lagan Mishra, namely, Bishundeo Mishra, after the death of his father executed a deed of gift with regard to 1/3rd share in favour of Saharan Mishra, the father of the plaintiffs and put him in possession over the gifted property. Saral Mishra had two sons, namely, Ramagya Mishra and Raghubir Mishra. Ramagya Mishra had five sons. They sold their share with regard to the suit properties in favour of the plaintiffs through a registered sale deed. 4. The further case of the plaintiffs was that after the death of Raguhbir Mishra, his wife Talok Raj Devi executed a sale deed in favour of the plaintiffs in respect of her share in the suit properties. It was also asserted that Bujhawan Mishra was their grandfather and hence they inherited 1/3rd share in the suit land. Accordingly, their stand was that they were in possession of the suit land as owners and they are entitled to the relief sought for in the plaint. 5. The case of defendant nos. 1 and 2 was that the suit land was recorded in the revisional survey khatian in the name of Ram Lagan, Saral and Bujhawan. The plaintiffs are the heirs of Bujhawan. Kishundeo and Bishundeo were sons of Ram Lagan, who died much ago issueless. Ram Lagan, Saral and Bujhawan sold the disputed land along with other lands after the revisional survery to one Banshidhar Mishra, who was ancestor of the defendants, on 15.5.1930 for a consideration of Rs. 95/- only. The plaintiffs are the heirs of Bujhawan. Kishundeo and Bishundeo were sons of Ram Lagan, who died much ago issueless. Ram Lagan, Saral and Bujhawan sold the disputed land along with other lands after the revisional survery to one Banshidhar Mishra, who was ancestor of the defendants, on 15.5.1930 for a consideration of Rs. 95/- only. Evidencing the sale, a sada sale deed was executed in favour of Banshidhar Mishra and they put him in possession over the vended property mentioned in the sada sale deed. After the death of Bansidhar Mishra, his sons, namely, Damri Mishra and brothers of Damri Mishra came in possession over the vended property and after the death of Damri Mishra, his son sukhdeo Mishra and Suchit Mishra continued to be in possession over the land. After the death of Sukhdeo Mishra and Suchit Mishra, their heirs, namely, defendant nos. 1 and 2 are coming in possession over the suit land. They amalgamated the suit land with their own land bearing plot nos. 667, 669 and 670 and continued to be in cultivating possession of the suit land. There i8 no identity of the suit land at the spot. The father of the defendants, namely, Suchit Mishra applied for creating Jamabandi in respect of the disputed land and after enquiry Jamabandi was created in the name of Suchit Mishra. The suit lands are coming in possession of their ancestor as well as these defendants for more than 70 years. Since the ancestors of the plaintiffs sold the suit land, they have no concern, title or interest in the same. They are coming in possession continuously and without any interruption for several years and they have perfected their title over the suit land and accordingly the plaintiffs are not entitled for any relief. 6. The trial court dismissed the suit and held that the plaintiffs have miserably failed to establish their title over the suit land. On appeal against the aforesaid judgment and decree by the plaintiffs, the appellate Ccu.t set aside the aforementioned judgment and decree. 7. Learned counsel for the appellants submitted that the appellate court while reversing the findings of the trial court has not considered the evidence available on the record. The trial court rejected the evidence of the plaintiffs giving reason for rejection and held that the plaintiffs have miserably failed to establish their title over the suit land. 7. Learned counsel for the appellants submitted that the appellate court while reversing the findings of the trial court has not considered the evidence available on the record. The trial court rejected the evidence of the plaintiffs giving reason for rejection and held that the plaintiffs have miserably failed to establish their title over the suit land. The appellate court accepted the evidence of the plaintiffs without meeting the reasonings assigned by the trial court for holding that the plaintiffs have failed to establish their title over the suit land. The trial court for instance has taken into consideration that neither the original deed of gift nor the certified copy of it had been produced in the court. The year of the execution of the gift has not been disclosed in the plaint. For the first time PW 7, the plaintiff, disclosed during his examination that the deed of gift executed on 21.3.1949 has been lost. He has also stated in his evidence that he filed a petition for obtaining a certified copy of the deed of gift, but the same could not be obtained as it had been destroyed by white ants. There is nothing on the record to show that it had been destroyed by white ants. No certificate by the competent authority of the registration office has been brought on the record to show that the alleged deed of gift has been destroyed by white ants. Similarly, Ext. 2' is the alleged sale deed executed by Talokraj Devi for a consideration of Rs. 4,000/- on 9.12.1985 with respect to 14 Kathas and 4 dhurs of land, but the plaintiff (P.W.7) has stated in his evidence that Talokraj Devi executed the sale deed in respect of 15 dhurs of land of plot no. 668. Ext. 2A, 2B and 2C are also sale deeds dated 5.11.1985, 20.11.1981 and 29.11.1985 respectively said to have been executed in favour of the plaintiffs for a consideration of Rs. 5,000/-, 3,000/- and 4,000/- respectively. From the aforesaid deeds it appears that the consideration money had been paid before the Registrar, but P.W. 7. has stated contrary to it in his evidence. 5,000/-, 3,000/- and 4,000/- respectively. From the aforesaid deeds it appears that the consideration money had been paid before the Registrar, but P.W. 7. has stated contrary to it in his evidence. The trial court has also pointed out other defects with regard to the gift and the sale deeds on consideration of evidence on record and after giving reasons for the same, rejected the claim of the plaintiffs, but the appellate court without meeting the reasoning assigned by the trial court has assumed that the plaintiffs have title over the suit land. 8. In the case of J. B. Sharma vrs. The State of Madhya Pradesh and others (A.I.R. 1988 S.C. 703) it has been held that the lower appellate court decreeing the suit on assumption without considering the entire evidence on record is bad in law. In the case of Suresh Chandra Singh vs. Madan Mohan Tiwary and others ( 1990 (1) PLJR 787 ) it has been held that it is obligatory on the part of the first appellate court to analyse the evidence on the record and meet the reasonings assigned by the trial court while reversing the judgment and decree of the trial court. 9. However, learned counsel for the respondents contended that non-consideration of every reasoning by the first appellate court is not enough for interference in the second appeal. In support of his submission he relied upon a decision in the case of Sri Narain Singh and others vrs. Kamta Singh @ Kamla Singh and others (1985 B.L.J. 367), wherein it has been held that non-consideration of every reasonings by the first appellate court is not sufficient for interference in the second appeal unless the appellate court has failed to consider the relevant material evidence on the record. 10. On consideration of the submissions made by the parties and after going through the judgment of the appellate court, it is obvious that the appellate court has assumed the title of the plaintiffs without considering the evidence on record and without meeting the reasonings assigned by the trial court and reversed the findings of the trial court. It is also obvious that the appellate court has not considered the material evidence on record and simply accepted the evidence of the witnesses of the plaintiffs without assigning any reason and without meeting the reasonings assigned by the trial court for its rejection. It is also obvious that the appellate court has not considered the material evidence on record and simply accepted the evidence of the witnesses of the plaintiffs without assigning any reason and without meeting the reasonings assigned by the trial court for its rejection. Thus I am of the view that the decision in Sri Narain Singh's case (Supra) relied upon by the counsel for the respondents does not come to their rescue and hence the judgment and decree of the lower appellate court cannot be sustained. 11. It was next contended by the counsel for the appellants that the appellate court has committed error in shifting the burden on defendants to establish the title over the suit properties. The suit was Wed for declaration of title, confirmation of possession, recovery of possession over the suit land and also for permanent injunction. On the other hand the defendants have denied possession of the plaintiffs over the suit land and claimed title over the suit land and, thus the plaintiffs have to establish their title over the suit land. 12. It is obvious from the judgment of the appellate court that the court has assumed title of the plaintiffs. The appellate court has observed that the plaintiffs have title by virtue of their inheritance and transfer. In Bhabnagar Municipality and others vrs. The Union of India and others (A.I.R. 1990 S. C. 717) it has been held that since the suit is for possession based on the title over the suit property and the defendant has denied title of the plaintiff, it is necessary for the court to give a finding on title of the plaintiff even if the defendant had not pleaded title by adverse possession. It is also well established principle of law that the parties are required to establish their case. 13. The plaintiffs in this case have prayed for declaration of title and for recovery of possession. Thus, I am of view that the appellate court is required to give specific finding after considering the evidence on record with regard to the title of the plaintiffs. The appellate court is not justified in shifting the burden on the defendants to establish their title. 14. On consideration of the entire facts and circumstances, as discussed above, I find merit in the appeal. Accordingly, this appeal is allowed. The appellate court is not justified in shifting the burden on the defendants to establish their title. 14. On consideration of the entire facts and circumstances, as discussed above, I find merit in the appeal. Accordingly, this appeal is allowed. The judgment and decree of the lower appellate court is set aside and the case is remitted to the lower appellate court for disposal in accordance with law as indicated above after hearing the parties afresh. However, in the facts and circumstances of the case, there shall be no order as to costs.