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2002 DIGILAW 854 (PAT)

Sarju Sah v. Ram Pati Mallah

2002-08-07

ASHOK KUMAR VERMA

body2002
Judgment A.K.Verma, J. 1. The plaintiffs appellants have filed this appeal against the judgment and decree, dated 19.7.1988, passed by Subordinate Judge, I, Bhabhua, in Title Appeal No. 8 of 1984, whereby the learned Subordinate Judge had dismissed the title appeal filed by the plaintiffs appellants. The plaintiffs had filed Title Appeal No. 8 of 1984 against the judgment and decree passed in Title Suit No. 10 of 1983 by the Munsif, Bhabhua, whereby the learned Munsif had dismissed the Title Suit of the plaintiffs which was for eviction of the defendants from the premises in suit and for recovery of possession of the house. 2. According to the appellants the judgment and decree passed by the Court below are bad in law and facts and the Court below did not consider Exhibit "3" the registered sale deed on the basis of which the plaintiffs have derived right, title and interest over the suit premises. 3. In short, the case of the plaintiffs appellants is that Sahdeo Mallah father of defendant no. 1 Rampati Mallah had sold some lands including the suit land to the plaintiff Saryu Sah, Doma Sah father of plaintiff nos. 2 and 3 and Ramsunder Sah father of plaintiff no. 4 by a registered sale deed, dated 2.4.1932. At the time of sale deed the plot was agriculture land and after 8 to 10 years of the purchase the purchasers constructed a Khapraposh house on 18 decimals of land and started business in grains. The economic condition of Sahdeo Mallah deteriorated and he approached the plaintiff no. 1 for some job in his grain business and plaintiff no. 1 made him night guard and constructed a khapraposh house in about 1 katha of land and gave it to Sahdeo Mallah to reside in it. Thereafter, Sahdeo Mallah along with his children started living in that house. Jagannath Mallah was also working in the business of the plaintiff and the plaintiff also provided him a khapraposh house for his residence. The plaintiffs sold 1 katha 3 dhurs of land to Jitan Mallah by a registered sale deed, dated 6.7.1962. In the revisional survey C.S. plot no. 585 was divided in five plots and R.S. plot no. 769 measuring an area of 18 decimals was entered in the name of plaintiff and R.S. plot no. The plaintiffs sold 1 katha 3 dhurs of land to Jitan Mallah by a registered sale deed, dated 6.7.1962. In the revisional survey C.S. plot no. 585 was divided in five plots and R.S. plot no. 769 measuring an area of 18 decimals was entered in the name of plaintiff and R.S. plot no. 770 measuring 4 decimals was entered in the name of Jitan Mallah and plot no. 771 with an area of 3 decimals was entered in the name of Sahdeo Mallah and plot no. 772 also with an area of 3 decimals was entered in the name of plaintiff as kayami and Sikmi in possession of Jagannath Mallah and plot no. 773 with an area of 3 decimals was entered in the name of Jakku Mallah. After the revisional survey Jagannath Mallah left the work of the plaintiff and gave the possession of plot no. 772 to the plaintiffs. Thereafter, the business of the plaintiff was closed and their house over plot no. 769 also fell down. The plaintiffs constructed two khapraposh rooms over that land for keeping husk (Bhusa) etc. 4. Sahdeo Mallah died leaving behind three sons Rampati Mallah, who is defendant no. 1, and Sukalu Mallah and Suresh Mallah and the three sons of Sahdeo Mallah separated among themselves. The three sons of Sahdeo Mallah are living in the house of R.S. plot no. 771. In the year 1981 defendants requested the plaintiffs to let out the house in suit and the plaintiffs agreed to let it out on rental of Rs. 50/- per month and they started living in that house. The defendant Rampati Mallah did not pay the rental in spite of repeated demands and the plaintiffs sent a legal notice to them for payment of the rent and to vacate the premises in suit. The defendant no. 1 sent reply through advocate asserting his title and possession over 32 decimals of C.S. plot no. 585 and denying the relationship of land lord and tenant. 5. In brief, the case of the defendants is that the father of the defendants had not sold the land in question to the plaintiff no. 1 and his brothers. The defendants and his brothers are coming in possession over plot no. 585. The plaintiffs had never made any construction over it and they had not done any business in grains. The father of defendant no. 1 and his brothers. The defendants and his brothers are coming in possession over plot no. 585. The plaintiffs had never made any construction over it and they had not done any business in grains. The father of defendant no. 1 had never made any request to the plaintiffs to provide him service. The plaintiffs had never constructed house over an area of 1 katha and they had not kept father of defendant no. in the said house. In fact, plot no. 585 is the ancestral land of the defendants and it is continuing in their possession. The plaintiffs have no title or possession over R.S. plots no. 769 and 772. The plaintiffs had never constructed any room on plot no. 769. The rental of the house in suit was never fixed as Rs. 50/- per month. The house which is standing over plot no. 769 belongs to the defendants and the plaintiffs have no concern with it. The defendants were never tenants in the house in suit and there was no relationship of land lord and tenant between the parties. Further according to the defendants, the plaintiff has filed the suit to grab the house of the defendant, on the basis of wrong survey entry. No rental is due with the defendant and there is no relationship of land lord and tenant between the parties. 6. The substantial question of law which had been formulated in this second appeal is that whether the judgment under appeal is vitiated on account of non-consideration of the sale deed (Exhibit "3") and other documents as the relationship between the land lord and the tenant was very much disputed by the respondent defendant. 7. It was submitted by the learned lawyer for the appellants that the land over which the house stands was purchased by the plaintiff by registered sale deed, dated 2.4.1932, which is Exhibit "3" in this case but the learned lower appellate Court has not considered any document including Exhibit "3" in his judgment and confirmed the judgment passed by the learned Munsif in the Title Suit without giving his own reasons for affirming the judgment passed by the learned Munsif. It was also submitted by him that High Court can interfere when first appellate Court has failed to consider material evidence in shape of documents. It was also submitted by him that High Court can interfere when first appellate Court has failed to consider material evidence in shape of documents. In support of his contention he placed his reliance on a decision of the Supreme Court in the case of Radha Nath Seal (dead) by his legal representatives versus Haripada Jana and others, reported in A.i.R. 1971 Supreme Court, 1049. It was further submitted by him that the first appellate Court is final Court of fact and it must consider and discuss the evidence and should state the reasons for confirming the judgment and decree of the trial Court. It has been held by Patna High Court in the case of Narain Singh and others versus Kanta Singh and others, reported in A.I.R. 1985, Patna, 214, that first appellate Court must consider evidence and reasonings of trial Court specially in case of reversal. 8. The contention of the learned lawyer for the respondents was that the lower appellate court has considered the oral evidence adduced on behalf of the parties and confirmed the judgment and decree of the trial Court. It appears from the record that the learned Subordinate Judge has not considered the documents including the sale deed which is Exhibit "3" in his judgment passed in Title Appeal No. 8 of 1984. The plaintiff has claimed the title over the suit land on the basis of sale deed. It is also relevant to mention here that Exhibit "3" is the copy of the said sale deed and its original has not been brought on the record. Without considering the document produced in the case the learned Subordinate Judge has confirmed the judgment and decree of the trial Court and dismissed the Title Appeal. 9. In the facts and circumstances of the case, the judgment and decree passed by the learned Subordinate Judge in Title Appeal No. 8 of 1984 is not tenable in law. Therefore this Second Appeal is allowed and the judgment and decree passed by the learned Subordinate Judge in Title Appeal No. 8 of 1984 is set aside. 10. The case is remanded to the lower appellate Court to dispose of the Title Appeal No. 8 of 1984 in accordance with law after giving opportunity of hearing to both the parties. Both the parties are directed to appear before the Court below within three months from today.