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2006 DIGILAW 561 (JHR)

Charwa Pahan v. Jharia Pahan

2006-05-08

N.N.TIWARI

body2006
Order This second appeal is against the judgment and decree passed in Title Appeal No. 11 of 1995 by learned Additional District Judge, Fast Track Court-I, Gumla reversing the judgment and decree passed by learned Sub-Judge-III, Gumla, whereby the plaintiffs' suit praying partition of their half share was dismissed. 2. The plaintiffs' case was that the C.S. Khata No. 61 of village Asani, P.S. & District Gumla was recorded in the name of Madho Pahan and Loteya Oraon, having equal share. The said C.S. Khata No. 61 corresponded to R.S. Khata No. 112. It has been stated that after the death of Madho Pahan, his son Birwa Pahan had inherited the land jointly with Loteya Oraon. Birwa Pahan died before the Revisional Survey leaving behind three sons, who were minor at the time of Revisional Survey Operation. Taking undue advantage of the minority of the sons of Birwa Pahan, said Loteya Oraon got the land of corresponding R.S. Khata No. 112 recorded exclusively in his name. The said land was jointly inherited. by the descendant of the common ancestor of the parties and there has been unity of title and possession between them. The plaintiffs had half share in the property demanded partition, but the same was refused by the defendants, which gave rise to the cause of action for the suit 3. The defendants contested the suit denying unity of title and possession between the parties. It was stated that the land of C.S. Khata No. 61 did not correspond to R.S. Khata No. 112 and the genealogy and relationship shown in the plaint were not correct The plaintiffs have got no concern with the family and the properties of the defendants including the suit land of R.S. Khata No. 112. 4. On the basis of the pleadings of the 'parties, several issues were framed by learned trial court. The main issues framed in the suit was: "whether the land of Khata No. 61 of village Asni of the Cadestral Survey are the same lands, which were recorded under Khata No. 112 of the Revisional Survey and if so, are the plaintiffs alongwith proforma-defendant nos. 5 and 6 have got half share in the land of R.S. Khata No. 112 as claimed." 5. Both the parties led their evidencesoral and documentary. The plaintiffs besides other evidences, produced copies of the Survey maps-Exts. 5 and 6 have got half share in the land of R.S. Khata No. 112 as claimed." 5. Both the parties led their evidencesoral and documentary. The plaintiffs besides other evidences, produced copies of the Survey maps-Exts. 5 & 5/A and the report of the Survey Knowing Amin prepared on comparison of the two Survey maps-Ext 4. Learned trial court discarded the said evidence on the ground that at the relevant time the Amin Commissioner failed to produce his licence in the Gourt and he did not remember his licence number. Learned trial court relying on contradictory oral evidences, held that the plaintiffs could not be able to prove the case and dismissed the suit. The plaintiffs-respondents thereafter preferred appeal in the court of the learned District Judge, Gumla, which was registered as Title Appeal No. 11 of 1995. The said appeal was finally heard and disposed of by the Additional District Judge, Fast Track Court-I, Gumla by the impugned judgment and decree. Learned lower appellate court, in view of the grounds taken in appeal, thoroughly scrutinized and discussed the facts and evidences on record in detail and framed point for consideration in the appeal. On due appraisal of the evidences and materials on record, the lower appellate court came to the finding that the plaintiffs were able to prove that the land of C.S. Khata No. 61 corresponds to R.S. Khata No. 112. Learned lower appellate court has also come to the finding that the parties are descendants of common ancestor and there was unity of title and possession between them and the plaintiffs are entitled to the decree for partition of their half share in the suit land and that the trial court committed serious error in dismissing the partition suit. Learned lower appellate court set aside the judgment and decree of the trial court and allowed the appeal. 6. Learned counsel for the appellants assailed the judgment and decree of learned lower appellate court on the ground that the said judgment was passed placing heavy reliance on the report of the Amin Commissioner, which was rightly rejected by learned trial court, as the said witness failed to produce his licence. The report prepared by such expert cannot be considered and relied upon. Learned counsel submitted that the lower appellate court has arrived at the conclusion without adverting to and meeting the reasons recorded by learned trial court. The report prepared by such expert cannot be considered and relied upon. Learned counsel submitted that the lower appellate court has arrived at the conclusion without adverting to and meeting the reasons recorded by learned trial court. 7. After hearing the learned counsel for the parties and perusing the judgments and decrees of the learned courts below, I find that learned lower appellate court has meticulously scrutinized the evidences and has himself compared the plots of the two Survey records and found almost same boundary and description of the land of C.S. Khata No. 61 and that of R.S. Khata No. 112. Learned lower appellate court has discussed the documentary and oral evidences in detail and came to the finding that C.S. Khata No. 61 corresponds to R.S. Khata No. 112 and the plaintiffs alongwith proforma respondents nos. 5 and 6 are entitled for partition of their half share. The said findings of the lower appellate court are based on thorough discussion and due consideration of the evidences and materials on record. This Court cannot interfere with the judgment and decree of learned lower appellate court on the ground that the lower appellate court failed to advert to the reasons ascribed by the trial court. Reference may be made to the decision of the Apex Court in Arumugham (dead) by Lrs. & Ors. Vs. Sundarambal and Anr. reported in (1999)4 SCC 350 . 8. In view of the above discussion, I do not find any infirmity or illegality in the judgment and decree of learned lower appellate court giving rise to any substantial question of law to be framed and decided by this court in exercise of its second appellate jurisdiction. This appeal is, accordingly, dismissed.