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2002 DIGILAW 790 (PAT)

Nag Narain Singh v. Mohd. Adalat Hussain

2002-07-24

RADHA MOHAN PRASAD

body2002
Judgment 1. This appeal is against the judgment of affirmance passed in Title Appeal No. 141 of 1989/5 of 1995 by 2nd Additional District Judge, East Champaran, Motihari affirming the judgment passed by Additional Munsif, Sikrahna at Motihari in Title Suit No. 5 of 1986/47 of 1988. 2. Briefly stated the case of the plaintiff-respondent no. 1 is that plot nos. 344 and 790 having an area of 14 Katha 9 dhurs and 1 Bigha 5 Katha 6 dhurs respectively belonged to the family of plaintiffs vendor Mir Tauhid (defendant no. 7) whose father Mir Farhat died leaving behind three sons, namely, Mir Abdul Rahim, Mir Halim and Mir Tauhid. The eldest Mir Abdul Rahim died leaving behind his wife Ainulissa and four daughters, namely, Mehrunnissa (defendant no. 4), Sehrunnissa (defendant no. 5), Hasmunnissa (died unmarried) and Anwari Begum (defendant no. 6). In 1938 there was oral partition in the family and the entire lands of plot nos. 344 and 790 besides other plots were allotted to Mir Tauhid (defendant no. 7). Defendant no. 7 on 23.5.1973 sold the entire land of plot no. 344 vide registered sale deed (Exhibit-2) in favour of mother of the plaintiff and on 10.2.1976 in favour of father of the plaintiff the entire land of plot no. 790 vide registered sale deed (Exhibit-2/A), who came in possession thereof. According to the plaintiff, plot number was wrongly entered in both the sale deeds (Exhibits-2 & 2/A) and to rectify the same deed of rectification (Exhibits-3 & 3/A) was executed by defendant no. 7 on 5.1.1981 and 26.11.1980 respectively. Plaintiffs further case is that defendant 1st set started creating trouble and for which a proceeding under Section 144 and later 145 Cr.P.C. was initiated and defendant dispossessed the plaintiff in the year 1985. From the show cause filed by the defendant 1st set in the proceeding under Section 145 Cr.P.C., plaintiff learnt that defendant no. 1 had purchased the suit land vide registered sale deed dated 1.10.1980 from Anwari Begum (defendant no. 6), who claimed it as her property, and defendant 2nd set also claimed to have purchased the suit land from her vide registered sale deed dated 12.2.1981. Hence, the plaintiff filed suit for declaration that the sale deeds dated 1.10.1980 and 12.2.1981 executed by Anwari Begum (defendant no. 6), who claimed it as her property, and defendant 2nd set also claimed to have purchased the suit land from her vide registered sale deed dated 12.2.1981. Hence, the plaintiff filed suit for declaration that the sale deeds dated 1.10.1980 and 12.2.1981 executed by Anwari Begum (defendant no. 6) in favour of defendant 1st and 2nd set are void, and, further for declaration of plaintiffs title and possession over the property mentioned in schedule I and for restraining defendant no. 1 from interfering with the suit property. 3. Defendant no. 1-appellant in his written statement denied the story of oral partition in the year 1938. According to him, partition took place on 16.7.1936 vide Exhibit-B and the suit property was allotted in the share of Mir Abdul Rahim and subsequently it came to the share of Anwari Begum (defendant no. 6), who vide registered sale deed dated 1.10.1980 (Exhibit- A) sold the same in favour of defendant no. 1 and since then he is coming in possession over the same. Defendant no. 6 had brought Title Suit No. 268 of 1979 for partition against her sisters and uncle in which the suit plots were also included and during the pendency of that suit the aforesaid sale deed to defendant no. 1 was executed. 4. The trial court on consideration of the pleadings as well as evidence both oral and documentary adduced on behalf of the parties came to the conclusion that the plaintiff has been able to prove his title over the suit land described in schedule 1 of the plaint and the sale deeds dated 1.10.1980 and 12.2.1981 executed by defendant no. 6 in favour of defendant 1st and 2nd set respectively are illegal and void and are not binding upon the plaintiff and, thus, decreed the suit. The lower appellate court on appeal affirmed the findings of the trial court disbelieving the case of defendant no. 1-appellant, that there was partition on 16.7.1936 vide Exhibit-B and the suit property came to the share of defendant no. 6. Lower appellate court found Exhibit-B as forged document. 5. Learned counsel appearing for the appellant has submitted that the present suit by the plaintiff is barred by the principles of res judicata as the question regarding partition was decided in the earlier suit filed by defendant no. 6 being T.S. No. 268 of 1979, which binds the parties. 6. 6. Lower appellate court found Exhibit-B as forged document. 5. Learned counsel appearing for the appellant has submitted that the present suit by the plaintiff is barred by the principles of res judicata as the question regarding partition was decided in the earlier suit filed by defendant no. 6 being T.S. No. 268 of 1979, which binds the parties. 6. After going through the entire judgment of the trial court as well as lower appellate court, I find that this plea of res judicata was never raised nor any issue was framed before the courts below to this effect. It has also not been pleaded by the defendant no. 1-appellant that as to how the judgment passed in T.S. No. 268 of 1979 is of any help to him. On the contrary the said judgment was brought on record by the plaintiff as Exhibit-5 to show that during the pendency of that title suit defendant no. 6 sold the suit land vide Exhibit-A, and in the said suit defendant no. 6 admitted that the suit property are joint. Lower appellate court found Exhibit-B, which was the basis of the defendants case as forged and fabricated document and in paragraph 13 of the judgment it has been categorically held that Exhibit-4 and Exhibit-B are contrary to each other. Learned counsel for the appellant has failed to show any infirmity in the findings recorded by the courts-below. Thus, in my opinion, the judgment of both the courts-below are well considered and does not warrant any interference in Second Appeal. 7. As the matter stands concluded by the concurrent findings of facts by the two courts-below, this Court does not find any reason to interfere with the impugned judgments, moreso, when no substantial question of law has been argued. The appeal is, thus, dismissed summarily.