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2003 DIGILAW 929 (PAT)

Pravin Kumar Singh v. Lal Bahadur Ram

2003-09-01

P.K.DEB

body2003
Judgment 1. This appeal has been preferred against the Judgment and Decree dated 1.6.1988 passed by Sub-Judge-I, Bhabhua, district Rohtas, in Title Appeal No.9/1984 whereby and whereunder the Judgment and Decree dated 31.5.1984 passed by Munsif, Bhabhua in Title Suit No. 93/1981 has been reversed. 2. The suit was contested by the defendant and the original court dismissed the suit of the plaintiff. Then an appeal was preferred by the plaintiff-appellant and the Appellate court reversed the Judgment and Decree of the trial court and decreed the suit of the plaintiff, but such Appellate Judgment was passed ex-parte without hearing the defendant-respondent who is now appellant before this Court. 3. It appears that after the ex-parte Judgment and Decree was passed, a petition was filed by the present appellant i.e. the defendant-respondent of the Title Appeal No. 9/1984 for review of the Judgment. Such review petition was filed under Order-47, Rule-1 C.P.C. Although, the claim was that the decree ought not to have been passed ex-parte as sufficient reasons were there which debarred the defendantrespondent from proceeding with the appeal, but practically the grounds taken in the review petition is the same as taken in the petition to be construed as petition under Order-41, Rule 19 C.P.C. However, on merit after hearing both the parties the review petition under Order-47, Rule 1 C.P.C. or if be construed as petition under Order-41, Rule-19 C.P.C. have been dismissed. Against that order of dismissal Misc. Appeal No. 108/1989 was filed by the present appellant and the same was admitted. In the meantime, for safeguarding his position the appellant has also preferred this Second Appeal against the Judgment and Decree passed by the Appellate Court. 4. Very peculiarly when the Misc. Appeal was called on for hearing the said Misc. Appeal was withdrawn and dismissal order was passed. The order of the Appellate Court i.e. High Court passed on 22.11.1996 in Misc. Appeal No. 108/1989 is in the following manner : "After some argument, learned counsel for the appellant seeks permission to withdraw this appeal in order to enable the appellant to raise all the questions involved in this Miscellaneous Appeal, in the Second Appeal, which is said to be pending before this Court. The prayer is allowed. This Miscellaneous Appeal is, accordingly, permitted to be withdrawn." So, the Misc. The prayer is allowed. This Miscellaneous Appeal is, accordingly, permitted to be withdrawn." So, the Misc. Appeal was allowed to be withdrawn and dismissal order was passed without giving any liberty to the appellant, although, his prayer was so before the Appellate Court. 5 The present Second Appeal has also been admitted by order dated 28.4.1993 on the following substantial question of law: "whether the court of appeal below was correct in hearing and allowing the appeal behind the back of the appellant ?" In my considered view, in the changed circumstances, when the Misc. Appeal was allowed to be withdrawn, practically the substantial question of law framed does not exist in the eye of law. The points on challenging the ex-parte decree as to how the appellant had been debarred from proceeding with the appeal has got its finality in Misc. Appeal when the same had been dismissed. That point can not be raised before this Court, that too, in the form of substantial question of law in Second Appeal as contemplated under Section 100 of the Code of Civil Procedure. But while framing so on compassionate ground, practically a Bench of this Court has asked that the present appeal shall be heard alongwith the Misc. Appeal. But then the Misc. Appeal had been withdrawn at the own risk of the appellant without getting any liberty from the Court. Thus, we are left with only to consider the present appeal on merit. 6 The short facts in the case are as follows. The plaintiff respondent had purchased the suit land of six decimals by a sale-deed dated 24.4.1979 from Defendant No.1. The whole area of the Plot is 47 decimals and as per the sale-deed of the plaintiff dated 24.4.1979 he purchased six decimals of land from the extreme Northern side of the plot. But then a Correction deed was made by Defendant No.1 only after four months after the execution of the sale-deed on 22.8.1979 correcting the deed unilaterally to be six decimals of land sold on the Northern side by changing to Southem side. Then again Defendant No.1 had sold to the Defendant-appellant six decimals of land on the Northern side of the plot by a sale-deed dated 23.10.1979. Then again Defendant No.1 had sold to the Defendant-appellant six decimals of land on the Northern side of the plot by a sale-deed dated 23.10.1979. Thus, the Defendant-appellant started interfering with the possession of the plaintiff-respondent and as such the suit was filed for declaration of right, title and interest over the suit land on the Northern side of the plot and also for confirmation of possession and alternatively for recovery of possession, if dis-possessed, during the pendency of the suit. 7. The defendants have contested the suit. Their plea was that the Correction deed was made with the oral consent of the plaintiff and as such he can not deny the Correction deed now. The trial court held on the basis of evidence adduced by the parties that the Defendant No.1 must have corrected the document of sale dated 24.4.1979 on oral consent of the plaintiff and as such the Correction deed dated 22.8.1979 can not be said to be invalid and if that Correction deed remains, then the plaintiffs title comes to the Southern side of plot and not on the Northern side as the subsequent sale had been made by Defendant No.1 to the appellant-defendant on the Northern corner on 23.10.1979. When the suit was dismissed as a whole then definitely it was illegal on the face of it. Even if the plaintiff could have been held not entitled to a decree towards the Northern side but atleast his title in respect of six decimals of land ought to have been decreed on the basis of the corrected document. But the suit was dismissed as a whole. 8. Then an appeal was preferred and the Appellate Court has rightly held that after the sale-deed, an instrument is being executed in respect of the immovable property by a person he can not get it corrected rectifying the same unilaterally without coming to court as contemplated under Section 26 of the Specific Relief Act. Section 26 of the Specific Relief Act does not recognize any oral concept. In that way, when the Rectification deed dated 22.8.1979 is hit by Section 26 of the Specific Relief Act then definitely the purchase deed of the plaintiff dated 24.4.1979 shall survive and the defendant-appellant would not get title over the Northern side of the plot by his subsequent purchase by sale-deed dated 23.10.1979. In that way, when the Rectification deed dated 22.8.1979 is hit by Section 26 of the Specific Relief Act then definitely the purchase deed of the plaintiff dated 24.4.1979 shall survive and the defendant-appellant would not get title over the Northern side of the plot by his subsequent purchase by sale-deed dated 23.10.1979. In that way, the Appellate court has rightly corrected the mistake committed by the trial court. Against such point of law on which Title Appeal No.9/1984 had been allowed, the learned counsel for the defendant-appellant could not show anything contrary. The learned counsel for the respondent has also fully supported the view expressed by the first Appellate court on the point of law. In that way, the impugned Judgment of the Appellate court cannot be interfered by this Court. 9. Now, coming the position regarding the ex-parte Judgment passed by the Appellate court, even if it is held that the defendant-appellant had not been given proper opportunity of hearing before the first Appellate court but then he had been given full opportunity before this Court. But he could not substantiate any point contrary to the law on which Judgment has been arrived at by the first Appellate court. 10. Thus, I do not find any force in this appeal and the same is dismissed. But in the facts and circumstances there will be no order as to costs.