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Jharkhand High Court · body

2007 DIGILAW 368 (JHR)

Sudha Devi v. Harihar Ojha

2007-04-26

M.Y.EQBAL

body2007
Judgment This second appeal by the defendants-appellant is against the judgment of affirmance. The plaintiff-respondent filed Title Suit No. 41 of 1976 for declaration of title and confirmation of possession over a piece of the land. The trial Court in terms of judgment and decree dated 12.2.1979 decreed the suit. Aggrieved by the said judgment and decree, the defendant-appellant preferred appeal being Title Appeal No. 23 of 1979 which was dismissed by Additional District Judge, Hazaribagh in terms of judgment and decree dated 6th December, 1989. 2. The second appeal was admitted on 24.8.1992 for hearing on the following substantial question of law:- "Whether the deed of exchange dated 24.5.1963 Ext. F was admissible for collateral purpose for the purpose of showing the extent of the area and the nature and/or as to whether the parties came in possession terms thereof?" 3. All the parties are the heirs of common ancestor Gokul Ojha who had two sons-Chhedi and Baijnath. Most. Kunjo was the wife of Chhedi, whereas Most. Phulo Kueri was the wife of Baijnath. Plaintiff's case is that partition took place about 17 years ago between the plaintiff and other co-sharers, according to which, he was allotted 0.55 1/2 acres of land in Plot No. 553 alongwith other lands. The plaintiff allegedly constructed a house in Plot No. 553 and also constructed a pucca well to the east of his house and planted trees. The lands allotted to the share of the plaintiff has been in his possession. Defendant Nos.4 and 8 alongwith others tried to create disturbance in peaceful possession of the plaintiff in respect of the suit land which resulted in proceeding under Section 144 CrPC which was ultimately dropped. Hence, the suit. 4 The contesting defendants have admitted the partition, but they have stated that partition took place twice. Their case is that in the first partition in the year, 1958, 8 annas share was allotted to Chhedi and 8 annas to Baijnath. The second partition took place in 1962 whereby 8 annas of Chhedi was partitioned between the four sons of Chhedi. In the second partition, 3 annas share of Chhedi and 2 annas share purchased by Kunjo (wife of Chhedi) from Phulo (wife of Baijnath) were partitioned between the father of defendant nos. 3, 4 and 5 and the plaintiff and each of them got 2 annas 6 pies share out of 10 annas. In the second partition, 3 annas share of Chhedi and 2 annas share purchased by Kunjo (wife of Chhedi) from Phulo (wife of Baijnath) were partitioned between the father of defendant nos. 3, 4 and 5 and the plaintiff and each of them got 2 annas 6 pies share out of 10 annas. The contesting defendants have also admitted the sale of land after partition by the different co-sharers. The further case of the contesting defendants is that plot no. 553 was divided in four equal parts and each part was divided into 6 parts. The plaintiff did not get share in the extreme north as claimed by him. In the first block from north the share of the plaintiff was 6th part and in second block his share was in the north. Thus, the plaintiff got two portions in about middle of plot no. 553 and one part in the extreme south in plot no. 675. It has been admitted that the plaintiff has got his house on the northern side of plot no. 553 but the case of contesting defendants is that the plaintiff constructed his house after exchanging the land from Sita Kueri, defendant No.6, through a deed of exchange dated 24.5.63. In the northem most part of plot no. 553, Sita Kueri had been allotted land on partition. It has also been admitted that the plaintiff constructed pucca well and planted 13 bamboo clumps. However, they have asserted that 3 bamboo clumps belonged to the defendant Nos. 7 and 8 which they had gifted to their Bhagina by registered deed of gift dated 16.10.1975 and donee is continuing in possession since then. Therefore, the donee Sri Ravindra Kumar Ojha is also a necessary party to the suit. The plantation of guava and plantain trees by the plaintiff over the land is not disputed. It has been denied that the plaintiff is in possession of the entire Schedules D and E lands. The lands allotted to the plaintiff have been shown in the sketch map. The initiation of the proceeding u/s 144 CrPC has also been admitted. But it has been asserted that Schedule E land was in possession of defendant Nos. 7 and 8 which had been gifted by them to Ravindra Kumar Ojha. The plaintiff has got no title over schedule E land. The initiation of the proceeding u/s 144 CrPC has also been admitted. But it has been asserted that Schedule E land was in possession of defendant Nos. 7 and 8 which had been gifted by them to Ravindra Kumar Ojha. The plaintiff has got no title over schedule E land. It has also been denied that the defendants had threatened to dispossess the plaintiff. 5. The trial Court, after appreciation of entire evidence, has recorded the conclusive finding about partition and held that plaintiff is entitled to declaration as sought for in the suit. The appellate Court reconsidered the entire facts of the case and reappreciated the entire evidence and affirmed the findings recorded by the trial Court. In order to demolish the case of the plaintiff, an unregistered deed of exchange was brought on record by the defendants-appellants. The trial Court came to the conclusion that the defendants have failed to prove the manner of the partition alleged by them and also they have failed to prove the story of exchange. 6. Mr. V.K. Prasad, learned counsel appearing for the appellants, assailed the impugned judgment and decree on the sale ground that deed of exchange executed by and between the plaintiff and the defendants was not considered by both the Courts below. According to the learned counsel, this documents ought to have been looked into for collateral purposes as provided under Section 49 of the Registration Act. 7. I do not find any substance in the submission of made by the learned counsel. Admittedly the deed of exchange is an unregistered document which is inadmissible into evidence because of non-registration. 1he plaintiff specifically denied and disputed the execution of deed of exchange. He has denied the alleged signature in the deed of exchange. The defendants-appellants did not take any step for getting his signature appearing in the deed of exchange examined by the Expert. When the deed of exchange itself was rot admitted by the plaintiff, the question of considering the said document for collateral purposes does not arise at all. The substantial question of law framed in this appeal is answered accordingly. 8. As noticed above, both the Courts have recorded a concurrent finding of fact on other issues which needs no interference by this Court. 9. For the aforesaid reasons, I do not find any merit in this second appeal which is, accordingly, dismissed.