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2010 DIGILAW 827 (JHR)

Most. Lodhia Devi v. Jagdish Manjhi

2010-08-25

N.N.TIWARI

body2010
JUDGMENT N.N. Tiwari, J.-The plaintiffs are the appellants in this appeal. By the impugned judgment and decree, learned lower appellate court has dismissed the Title Appeal No.11 of 2000 affirming and upholding the judgment and decree passed by learned Sub-Judge-IV, Dumka in Title Suit No.6 of 1992. The said title suit. filed by the plaintiffs was dismissed by learned trial court. 2. The plaintiffs had filed the said suit seeking declaration that the plaintiffs are heirs of Manki Kumarain and that Paini Manjhaian was not the daughter of Manki Kumarain and further that the registered deed of partition being No. 6369 of 1975 was void and inoperative. 3. The plaintiffs' case, in brief, was that the parties are Hindus governed by Mitakshara School of Hindu Law. The plaintiffs and the defendants are not related to each other. Manki Kumarain was the recorded tenant in respect of the suit land. She was the grandmother of plaintiff nos. 1 to 3 and great grandmother of plaintiff nos. 4 to 8. About 55 years ago, Manki Kumarain died leaving behind her son Kaleshwar Kumar as her sole heir. Kaleshwar Kumar also died about 17 years ago leaving behind the plaintiffs. They have been in cultivating possession of the land. Late Dharmu Manjhi used to deal money lending business. The plaintiff nos. 1 to 3 approached Jatu Manjhi for loan of Rs.140/- and five bullocks for ploughing the lands. They agreed to transfer a partition of reclaimed Dhani lands measuring an area of 0.6 bighas out of Plot No. 829 by virtue of Bhugutbandha deed for six years. Accordingly, plaintiff nos. 1 to 3 and defendant nos. 1 and 5 and late Antu Manjhi had come to the Registry Office. There, the defendants got prepared and executed the deed without reading over and explaining the contents thereof to the plaintiffs. The defendant no. 6 had paid Rs.140/- and given five bullocks to the plaintiffs. The defendants thereafter came in possession of the land and started cultivation and continued in possession over 0.6 bighas till 1981. The plaintiffs resumed possession of the land in 1982 and started cultivating the same since then. In 1991, also they grew crops over the said land but the defendants forcibly tried to harvest the crops. The dispute led to a proceeding under Section 144 Cr.P.C. In that proceeding, the defendants claimed that 2.93 acres of plot no. The plaintiffs resumed possession of the land in 1982 and started cultivating the same since then. In 1991, also they grew crops over the said land but the defendants forcibly tried to harvest the crops. The dispute led to a proceeding under Section 144 Cr.P.C. In that proceeding, the defendants claimed that 2.93 acres of plot no. 829 had been allotted to them on the basis of registered partition deed executed by both the parties in 1975. The plaintiffs thereafter enquired about the deed in the Sub-Registry Office and obtained certified copy of the deed no. 6369 of 1975 on 3.12.1991 and then came to know that the defendants had fraudulently got the said deed executed. which also bear L.T.ls. of the plaintiff nos. 1 to 3. In the said deed of partition, 2.93 acres of Sari land of first and second class are shown to be allotted to the share of the defendants. It is not true that Kaleshwar Kumar and Paini Manjhaian were brother and sister as described in the partition deed. Paini Manjhaian had no concern with the family of the plaintiffs. She comes from different branch and she had no right of inheritance or any concern or right, title in the suit land. There was no partition as such and the story of partition in the deed was concocted. The partition deed was obtained by fraud. 4. Defendants contested the suit and questioned the maintainability of the suit on several grounds, including the same being barred by limitation and barred by estoppel, acquiescence and waiver. According to the defendants, the suit lands were unproductive and they had reclaimed and converted 1.57 acres out of 2.93 acres to a productive Bari land. The defendants have been in exclusive possession over the same since 1975. Paini Kumarain was the full sister of Kuleshwar Kumar, who died in 1975. After death of Kuleshwar Kumar, the suit land came in joint possession of Dharma Manjhi, the plaintiffs and the defendants. The said property was 'stridhan' of Manki Kumarain and after her death, the property devolved on Paini Kumarain. Kuleshwar Kumar was also allowed to possess jointly as there was good relationship. Dharma Manjhi was never in money lending business. The story of lending of money and giving land in 'Bhugutbandha' is all fabricated for the purpose of the suit. The deed of partition was executed by both the parties. Kuleshwar Kumar was also allowed to possess jointly as there was good relationship. Dharma Manjhi was never in money lending business. The story of lending of money and giving land in 'Bhugutbandha' is all fabricated for the purpose of the suit. The deed of partition was executed by both the parties. It was read over and explained to them. Thereafter, the same was duly registered. The parties had signed/put their L.T.ls. voluntarily after understanding the contents. The allegation of fraud is wholly false and baseless. According to the defendants, the plaintiffs had no cause of action and the suit was frivolous and liable to be dismissed. 5. On the basis of the pleadings, the following issues were framed by learned trial court: (a) Is the suit as framed maintainable? (b) Is the suit barred by law of limitation? . (c) Is the suit hit by the principles of estoppel, acquiescence and waiver on the part of the plaintiffs? (d) Is the story of possession and dispossession alleged by the plaintiffs correct? (e) Is the partition deed no. 6369 of 1975 vitiated by fraud? (f) Is plaintiff entitled for declaration that this registered partition deed no.6369 of 1975 void and inoperative and for its cancellation? (g) Is the plaintiff entitled for a decree declaring plaintiffs are heir and successor-in-interest of the recorded tenant Manki Kumarain who had only son Kuleshwar Kumar? (h) Is Paini Manjhaian daughter of Manki Kumarain? (i) Are the plaintiffs entitled to any relief if so what? 6. Learned trial court thoroughly appraised the evidences adduced by the parties and recorded its finding. Though learned trial court decided Issue No.8 in favour of plaintiffs, holding that the defendants failed to prove that Paini Manjhaian was the daughter of Manki Kumarain and that there were evidences to support the plaintiffs' claim that they are the heirs and successors-in-interest of Manki Kumarain, it decided other issues against the plaintiffs. While deciding Issue No.4, learned trial court held that the defendants were all along in possession and they did not give up possession in 1982 as alleged by the plaintiffs. It further held that the plaintiff nos: 1 to 3 had themselves gone to execute the deed of partition to Dumka and there was no basis for the claim that they came to know about the deed in 1991. It further held that the plaintiff nos: 1 to 3 had themselves gone to execute the deed of partition to Dumka and there was no basis for the claim that they came to know about the deed in 1991. The suit has been filed after the expiry of period of limitation, as prescribed under Article 59 of the Limitation Act. The registered deed dated 24.11.1975 was challenged in the suit filed in 1992 and the same is barred by law of limitation. 7. Learned trial court dismissed the plaintiffs' suit. 8. The finding of the trial court is based on elaborate discussion of the facts, evidences and materials on record. 9. The plaintiffs-appellants then filed appeal in the Court of District Judge, Dumka being Title Appeal No. 11 of 2000. 10. The said appeal was finally heard and decided by First Additional District Judge, Dumka. 11. Learned lower appellate court after hearing the parties thoroughly dealt with the facts and evidences on record. It tested the findings of fact of learned trial court on the available evidences and material on record and concurred with the findings of the trial court, holding that the same are well considered, sound and legal and required no interference. Learned lower appellate court, thus, upheld the judgment and decree of learned trial court and dismissed the appeal. 12. Mr. Manjul Prasad, learned Senior Counsel, appearing on behalf of the appellants, sought to assail the impugned judgment on the ground that the findings of learned courts below are lopsided and recorded on wrong appreciation of the facts and evidence. He submitted that learned courts below though rightly decided Issue Nos. 7 & 8 in favour of plaintiffs, the other findings particularly the finding holding the suit barred under Article 59 is not based on correct appreciation of facts and law. Learned courts below have wrongly attached the knowledge of execution of partition deed in 1975 ignoring the plaintiffs' claim that they came to know about the partition deed in the year 1991. Learned counsel submitted that the proper reading of the evidences on record supports the plaintiffs' claim and the contrary conclusion given by learned courts below is erroneous and unsustainable. 13. Learned counsel submitted that the proper reading of the evidences on record supports the plaintiffs' claim and the contrary conclusion given by learned courts below is erroneous and unsustainable. 13. Though learned counsel for the appellants argued at length complaining that the findings of facts have been wrongly arrived by learned courts below, he has not disputed that the said findings are based on appreciation of facts and evidences on record. 14. It is well settled that the findings of facts arrived at by two courts of fact are binding on the Second Appellate Court. It is also well established that the Second Appellate Court cannot delve into the scrutiny of fact and appraisal of evidence in order to test as to whether any other conclusion than what has been recorded by the courts below is possible. The grounds urged by learned counsel for the appellants even if accepted do not make out any substantial question of law to be framed and decided in this second appeal. 15. However, on going through the judgment of learned courts below, however, I find that the findings are well founded and supported by sound reasons. There is no infirmity and illegality giving rise to any ground for entertaining this Second Appeal. 16. This appeal is, accordingly, dismissed.