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2001 DIGILAW 251 (PAT)

Mohan Sao v. Chhotelal Sao

2001-03-20

P.K.DEB

body2001
Judgment 1. This appeal has been preferred against the judgment of reversal dismissing the plaintiffs suit recorded by the 3rd Additional Sessions Judge, Madhepura in Title Appeal No. 14 of 1981. Originally Title Suit No. 46 of 1977 was decreed by the Munsif, Madhepura. The present appellants had filed the suit for declaration of right title and interest in respect of 11 Kathas 18 dhur of land situated at village Madhepura under plot no. 3702 of Khata No. 334. According to the plaintiffs one Bhyalal Tanti was the recorded owner as per Cadestral survey. He left behind his son Bichkun Tanti who by two sale deeds dated 16.11.1925 being Exhibits 2/E and 2/F had sold away the lands to defendant nos. 6 and 7 and Ishwar Tanti the predecessor-in-interest of the other defendants third party but due to mistake of the scribe the land was mentioned as Khata no. 333 Khesra no. 1130 in those two sale deeds. The said land had been purchased by the plaintiffs from the defendant no.6 and the daughter of defendant no.7 and also from the heirs in interest of Ishwar Tanti vide two sale deeds dated 11.7.1974 and 11.7.1977 but then there- was a proceeding under Section 144 Cr.P.C. which was transformed to a proceeding under Section 145 Cr.P.C. in which possession of the contesting defendants first party was declared. Hence the present suit. The contesting defendant first party case is that the defendant no.1 Chhotelal Sao purchased the suit land in the name of his two sons vide documents dated 20.4.1974 and 11.10.1974 from the sons of Bichkun Tanti who were arrayed as defendant second party to the suit and they remained inpossession over the suit land and neither the plaintiffs nor his vendors had ever any possession or title over the suit property. In the R.S. Khatiyan the name of the sons of Bichkun Tanti i.e. defendant second party had been recorded and no objection were ever raised from the side of the plaintiffs. It was mentioned that in the title deeds of 1925 one Bichkun Tanti son of Kalicharan Tanti had sold to the defendant third party but Bichkun Tanti is the son of Bhyalal Tanti and that Bhyalal Tanti was never known aliasly as Kalicharan Tanti. Both parties adduced both oral and documentary evidence. It was mentioned that in the title deeds of 1925 one Bichkun Tanti son of Kalicharan Tanti had sold to the defendant third party but Bichkun Tanti is the son of Bhyalal Tanti and that Bhyalal Tanti was never known aliasly as Kalicharan Tanti. Both parties adduced both oral and documentary evidence. From the plaintiffs side some rent receipts, certified copy of Register II and rent receipts paid to the State Government had been produced. From the side of the defendants their purchased deeds and during the course of appellate stage some more documents had been produced to show that Bhyalal Tanti had never been known as Kalicharan Tanti as back in 1917 and thereafter two other sale deeds were executed by Bichkun Tanti in favour of different purchasers and therein his fathers name was recorded as Bhyalal Tanti and no-where it was Kalicharan Tanti. Such evidence was adduced in the form of additional evidence during the course of appellate stage. Defendant second party had supported the case of the defendant first party while defendant third party had supported obviously the plaintiffs case. 2. The hurdle of the plaintiffs were two folds:namely their original title deeds by which they claim the devolution of title on them suffered from two defects, namely, the vendors name was recorded as Bichkun Tanti son of Kalicharan Tanti and it has been pleaded during the course of trial of the suit that Bhyalal Tanti was aliasly known as Kalicharan Tanti. Some oral evidence has been adduced including that of P.W. 3 who happened to be the old man of the village. The second hurdle was that the original title deeds did not relate to the suit land rather they denoted separate Khata numbers and separate kesera numbers and it was the case of the plaintiffs that due to mistake of scribe such defect arose but practically Bichkun Tanti had sold the suit land and the plaintiffs remained in possession. According to the plaintiffs they were in possession of the suit land and only after the decision in the 145 Cr.P.C. proceeding they had been dispossessed by the defendant. According to the plaintiffs they were in possession of the suit land and only after the decision in the 145 Cr.P.C. proceeding they had been dispossessed by the defendant. On the other hand defence plea is that neither the plaintiffs nor their vendors had ever got possession over the suit land and it was all along in possession of Bichkun Tanti and after his death his two sons i.e. vendor of the defendants and they had sold the land to the defendants and the same has been supported by the defendant second party who happened to be the vendors of the defendants. By scrutinising the evidence on record the learned trial court held mainly basing on the evidence of P.W.3 that Bhyalal Tanti had another name as Kalicharan Tanti and, as such, the original title deeds had been executed by Bichkun Tanti son of Bhyalla Tanti, who was the recorded proprietor. Regarding wrong description in the sale deed it was also held by the original court that those were oniy the wrong committed by the Scribe as it appeared that the vendors of the defendants had paid rent to the Darbhanga Raj Sherista and after abolition of Zamindari to the State Government. The appellate court reversed the findings on both points. It was held by the appellate court that except the oral evidence from the side of the plaintiffs through P.W.3 that Bhyalal Tanti was also having another name as Kalicharan Tanti, there is no other evidence on record to prove that fact rather the plaintiffs case shows that it was never their case earlier while they fought 145 Cr.P.C. proceeding that Bhyalal Tanti was having alias name as Kalicharan Tanti rather the plea before the 145 Cr.P.C. proceeding was that Bhyalal Tanti had a son Kalicharan Tanti and Bichkun Tanti happened to be the son of Kalicharan Tanti. It was never their case in the 145 Cr.P.C. proceeding that Bhyalal Tanti has an alias name as Kalicharan Tanti. In view of the plaintiffs own case till the suit was filed the learned appellate court held that the documentary evidence produced from the side of the defendants rather proved that Bhyalal Tanti was never named as Kalicharan Tanti. It was never their case in the 145 Cr.P.C. proceeding that Bhyalal Tanti has an alias name as Kalicharan Tanti. In view of the plaintiffs own case till the suit was filed the learned appellate court held that the documentary evidence produced from the side of the defendants rather proved that Bhyalal Tanti was never named as Kalicharan Tanti. When the plaintiffs themselves were having vascilating cases at different time so the reliance put on the so called evidence of P.W.3 was said to be not justified and hence the first hurdle on the side of the plaintiffs could not be overcome and it could not be proved that sale deeds of 1925 were executed by Bichkun Tanti who happened to be the son of recorded proprietor Bhyalal Tanti. 3. On the second point it could be found that not only in the original title deeds but also in the subsequent deed executed by Ishwar Tanti the same defects remained regarding the description of the land and only in the plaintiffs title deed the change has been made regarding the Khata number and kesera number and when such deeds have been executed the R.S. Khatiyan were existing in the name of sons of Bichkun Tanti. No where it could be shown that the plaintiffs or their vendors who allegedly purchased from Bichkun Tanti son of Bhyalal Tanti had ever raised objection regarding preparation of revenue records which continued for several years as per the evidence recorded during the trial court. The appellate court further found that the intention to sell the suit land could also not be established because the boundaries in the sale-deeds of 1925 and subsequent sale-deed did not conform to the boundaries as per the C. S. Khatiyan. It was further found that the original plaint did not contain the boundaries and sub-sequently such boundaries had been manipulated and the copies of the plaint served on the defendant were produced and marked exhibit in the case. Thus, it was held by the appellate court that the reasonings given for decreeing the plaintiffs suit on the basis of the documentary and oral evidence were not proper and justified and on independent scrutiny of the evidence on record the learned appellate court came to the finding that the plaintiffs had miserably failed to prove their title over the suit land. The rent receipts on which reliance was put by the original court had also been reconsidered by the appellate court and it could be found that two rent receipts produced to have been given by the Darbhanga Raj did not relate to any description of land and the other rent receipts were of recent periods as per allegation of opening of Register II in the name of the plaintiffs or their vendor. It was further found by the appellate court that since 1925 no rent receipts couid be produced except that of 1952 that too having no description of land and the so called rent receipts to the State Government cannot have any bearing unless it could be shown that the title has been devolved on the plaintiffs or their vendors which they had miserably failed while considering the points raised regarding the original title deeds having not the description of the suit land and that the original vendor Bichkun Tanti of the plaintiffs was really the son of Bhyalal Tanti the recorded proprietor. Learned counsel appearing for and on behalf of the appellants has strenuously argued that reliance put by the original court on the old and aged witness P.W.3 ought not have been discarded by the learned appellate court. On going through the two judgments it is found that the learned appellate court has given cogent reason as to why he has discarded oral evidence with respect to the alias name of Bichkun Tanti as Kalicharan Tanti. There was inonsistent pleas by the plaintiffs in respect of this factum and different stands in the proceeding under Section 145 Cr.P.C. and the total different stand in the present suit. Moreover the documentary evidence is in favour of the defendants. When both parties coming with oral evidence in support of their respective cases then definitely documentary evidence must prevail. The reasonings have been properly given by the iearned appellate court. Moreover the documentary evidence is in favour of the defendants. When both parties coming with oral evidence in support of their respective cases then definitely documentary evidence must prevail. The reasonings have been properly given by the iearned appellate court. The next point raised by the teamed counsel for the appellants is that the intention of the vendor can be gathered if the boundaries were found to be intact and description of the suit land may be incorrect in respect of Khata number and kesera number but the intention becomes very much clear if the boundaries remained in tact and in that respect he has referred to 1995 S.C. 1357 (P. Udayni Devi vs. V.V.Rajeshwar Prasad) and 1963 S.C. 1879 (Sheodhyan Singh and ors. vs. Mst. Sanichara Kuer and ors). It is true that the description of land may be by mention of revenue records or by boundaries and when both are there and if the boundary is proper then there may be a presumption that intention of the vendor was to sell the land with boundaries and because of some inadvertence or error the description with respect to the revenue records had been wrongly mentioned. But here in the present case it appears from the appellate courts judgment also by consulting the original records that the boundaries were also not properly mentioned in the original title deeds if compared with the C.S. Khatiyan and when there remains anomely both in the boundary and also error in mentioning of the pafa number and plot numbers and Khesra number then the plaintiffs case must fall through which has rightly been done by the learned appellate court. Learned counsel for the respondents by referring to the various findings in the judgment of the appellate court and also of the original court has submitted that the appellate Courts judgment is proper and justified and the reasonings given by the original court has rightly been reversed by the learned appellate court. On going through the impugned judgments I find that the learned appellate court has properly deciphered both documentary and oral evidence and came to a proper finding regarding the inferences arrived at. The reasonings given by the trial Court has rightly been reversed by the learned appellate Court. The whole case is based on factual aspects and the said factual aspect has rightly been decided by the appellate court. The reasonings given by the trial Court has rightly been reversed by the learned appellate Court. The whole case is based on factual aspects and the said factual aspect has rightly been decided by the appellate court. The original courts judgment suffers from inherent defects on the face of it. In that way I do not find any question of law involved not to speak of substantial question of law and hence the appeal is rejected under Order 41 Rule 11 of the Code of Civil Procedure.