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2010 DIGILAW 873 (JHR)

Bhim Bhaiya v. Kaushalya Devi

2010-09-07

N.N.TIWARI

body2010
ORDER N.N. Tiwari, J. 1. This seen appeal is against the judgment and decree passed by learned 1st Additional District Judge. Giridih whereby the said Appellate Court has concurred with the findings of learned Sub-Judge-III, Giridih and dismissed the appeal. 2. The Appellants were the Defendants in the suit. The Plaintiff had filed suit for declaration of right, title and interest over the suit land and for confirmation of possession or alternatively for recovery of possession. 3. The Plaintiffs case was that the suit land appertaining to khata No. 1 of village-Mahthadih, PS and District-Giridih measuring an area of 22.66 acres was recorded in the name of Nawab Rai in the last survey records. Nawab Rai died leaving behind his only son-Harkhu Rai, who had inherited the property of his father. Harkhu Rai had sold same portion of lands of khata No. 1 to different persons. Harkhu Rai died in the year 1955 leaving behind his widow-Hazo Kumari, who had come in possession of remaining lands of khata No. 1. Hazo Kumari had sold some land of khata No. 1 to meet the expenses of last rites of her husband. There was no male member in the family of Hazo Kumari. Sons of deceased Bhuso Devi @ Murti Devi used to come and live with Hazo Kumari. She had reposed faith in them. Sons of deceased-Bhuso Devi @ Murti Devi induced Hazo Kumari to execute a will in their favour and they brought Hazo Kumari to Giridih for that purpose but they fraudulently got a sale-deed executed without paying any consideration amount in respect of 9.50 acres of land of khata No. 1 on 18.1.1956. The contents of the sale-deed was not read over and explained to Hazo Kumari and she was kept in dark regarding execution of the sale-deed. Subsequently, in April, 1957, Hazo Kumari came to know that the Defendants had fraudulently got a sale-deed executed in their favour. When she raised the matter, there was much hue and cry. The Defendants threw the original sale-deed dated 18.1.1956 before Hazo Kumari and told her to get the same cancelled and continue to exercise her right, title over the land as absolute owner. Hazo Kumari accordingly registered a deed dated 13.4.1957 recording the said events and cancelling the sale-deed. Hazo Kumari thereafter registered several deeds in favour of different purchasers and also to her daughter Mungo Devi. Hazo Kumari accordingly registered a deed dated 13.4.1957 recording the said events and cancelling the sale-deed. Hazo Kumari thereafter registered several deeds in favour of different purchasers and also to her daughter Mungo Devi. Mungo Devi had become widow in 1931. She had been living with Hazo Kumari. Subsequently, the Defendants, who are the sons of Upendra Bhaiya, started claiming their right over the land on the basis of the sale-deed executed by Hazo Kumari in 1956. The dispute arose between the parties, which led to a proceeding under under Section 145 of the Code of Criminal Procedure and that was decided against the Plaintiff. Hence the suit was filed praying the aforesaid reliefs. 4. The Defendants appeared and contested the suit. In the written statement, it was stated that Harku Rai had no male issue and, therefore, he had kept her son-in-law-Hakim Bhaiya as his 'gharjamai'. He all along lived with his wife at village- Mahthadih, where she gave birth of all his children. After death of Hakim Rai, the Defendants have been managing the affairs. Hazo Kumari had not came in possession over the suit land. Hazo Kumari had executed the registered sale-deed dated 18.1.1956 on payment of cash consideration of Rs. 600/- in favour of Hakim Bhaiya and others with respect too the land measuring 9.50 acres. Shradh of deceased-Harkhu Rai was performed by Hakim Bhaiya. The Defendants being successors have been in continuous possession over the suit land. Mungo Devi never lived with her mother-Hazo Kumari, as alleged by the Plaintiffs. The Plaintiff's suit is not maintainable and the same is liable to be dismissed. 5. Learned trial Court on appraisal of facts and evidences on record decreed the suit declaring that the Plaintiff has valid right, title and interest over the suit land. She has been in possession over the same. The Defendants thereafter preferred appeal before the District Judge, Giridih being Title Appeal No. 33 of 1995. The said appeal was finally decided by the 1st Additional District Judge, Giridih. Learned lower Appellate Court also thoroughly considered and scrutinized the oral and documentary evidence on record and concurred with the judgment and decree of learned trial Court. Learned lower Appellate Court held that the Plaintiff has got valid right, title and possession over the suit land and that there was no infirmity in the judgment and decree of learned trial Court. Learned lower Appellate Court held that the Plaintiff has got valid right, title and possession over the suit land and that there was no infirmity in the judgment and decree of learned trial Court. Learned lower Appellate Court, thus, dismissed the appeal. 6. Mr. Amar Kumar Sinha, learned Counsel, appearing on behalf of the Appellants submitted that the impugned judgment and decree of learned Courts below are perverse and illegal. The same is based on consideration of the contents of the registered deed of cancellation executed by Hazo Kumari. Learned Counsel submitted that once a document is executed and registered, the same cannot be cancelled by executing any deed. The party assailing such deed and intending to cancel has to file a suit under the Specific Relief Act. Learned Courts below have also not duly considered the weight of evidences adduced by the respective parties. The judgments and decrees of learned Courts below are, thus, wholly illegal and unsustainable. 7. I have heard learned Counsel for the Appellants and considered the facts and materials on record. On close reading of the impugned judgment and decree, I find that learned lower Appellate Court has considered the relevant facts, evidences and materials on record and has came to the finding that the Plaintiff has got right, title over the suit land and she is in possession of the same and concurred with the findings of learned trial Court. Both the Courts have considered the evidences adduced by the parties, including the statement made in the registered deed on cancellation (Exhibit-2), which was executed by Hazo Kumari. In the said deed, it was clearly mentioned that the Defendants had thrown sale-deed before her for declaring before the punches that they will never challenge the right, title of Hazo kumari. The said statements of the Defendants are supported by the other evidence, including the evidence of the Defendants, particularly that of DW-4. I find no illegality in accepting the evidence of (Exhibit-2) and reading the same along with other evidence on record. After the death of Hazo Kumari, the said statement is the relevant fact and is admissible in view of provision of Section 32(7) read with Section 13 of the Indian Evidence Act. So far as weight of evidence is concerned, this Court sitting in Second Appeal cannot scrutinize the evidences of the parties, compare the weight thereof and draw its own conclusion. So far as weight of evidence is concerned, this Court sitting in Second Appeal cannot scrutinize the evidences of the parties, compare the weight thereof and draw its own conclusion. The two Courts of facts have appraised the evidences and come to the said finding of facts concurrently. The same is binding on the Second Appellate Court. 8. I, therefore, find no error in the impugned judgment and decree giving rise to any substantial question of law to be framed and decided by this Court. 9. This appeal is, accordingly, dismissed. Appeal dismissed.