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2010 DIGILAW 929 (JHR)

Mahadev Mandal v. Anil Mandai

2010-09-23

N.N.TIWARI

body2010
Order This second appeal is against the judgment and decree of 1st Additional District Judge, Jamtara, whereby learned Appellate Court has affirmed the judgment and decree of learned Additional Subordinate Judge, Jamtara passed in Title Suit Nos. 186 of 1966/93 of 1982. The appellant was the defendant in the said Title Suit No. 186/1966. 2. The plaintiffs had filed the said suit praying for declaration of their right, title and interest over the suit land with further declaration that the decree passed in Title Suit No. 114 of 1964 by the Deputy Collector, Jamtara is void and not binding on the plaintiffs. They had also prayed for recovery of possession and decree of permanent injunction restraining the defendant from going over the suit land. 3. The case of the plaintiffs, in brief, was that the suit land described in Schedule of the plaint was exclusively recorded in possession of Fakir Mandal in the last survey. The said Fakir Mandal was the original plaintiff. He died during pendency of the suit and his sons and daughters were substituted in his place. It has been stated that the defendant forcibly dispossessed the plaintiffs in 1966 saying that he had got the land through the court. When the plaintiffs inquired about the same they found that the said defendant had set up a fictitious person in the name of Fakir Chand Mandal and got the Title Suit No. 114 of 1964 filed in the Court of Deputy Collector, Jamtara. Subsequently, a compromise petition was filed and a compromise decree was obtained. The same was done behind the back of Fakir Chand Mandal. The original plaintiff of the suit obtained decree playing fraud on the court. The decree, according to the defendant, was, thus, wholly illegal and void. 4. The defendant contested the suit. One of the grounds, inter alia, was that the suit was• barred by principle of res judicata as there was already a compromise decree. It was further stated that recorded tenant-Fakir Mandal had no male issue, he had only two daughters. The defendant had got a grocery shop in the village and said Fakir Mandal used to purchase articles on credit. When the dues accumulated, Fakir Mandal was unable to pay the same. It was further stated that recorded tenant-Fakir Mandal had no male issue, he had only two daughters. The defendant had got a grocery shop in the village and said Fakir Mandal used to purchase articles on credit. When the dues accumulated, Fakir Mandal was unable to pay the same. He, therefore, transferred the suit land in favour of the defendant in the year 1935 B.S. The name of the defendant was also mutated in the office of Circle Officer, Narayanpur in Mutation Case No. 38 of 1966. The defendant has been in peaceful possession of the suit land continuously and has also acquired title by adverse possession. 5. Both the parties led their evidences. Learned trial court framed several issues. On conclusion of the trial, learned court held that the defendant got the Title Suit No. 114/1964 filed through a fictitious person and that the defendant had not acquired any right title. He failed to prove his claim by adverse possession. It was further held that the decision in Title Suit No. 114/1964 was vitiated on the ground of fraud played by the defendant in obtaining the said decree. Learned trial court, thus, decreed the suit. 6. The defendant, thereafter, filed appeal in the Court of District Judge, Jamtara challenging the findings, judgment and decree of learned trial court. 7. Learned lower appellate court thoroughly appraised the evidences and considered all aspects, factually and legally, and held that the judgment and decree of learned court below is sound and legal and warrants no interference. Learned lower appellate court upheld the findings of learned trial court and dismissed the appeal. 8. Mr. J.P. Jha, learned Senior Counsel appearing on behalf of the appellant submitted that the judgment and decree of learnr1 courts below are unsustainable, as he same have not been passed in correct legal perspective. Learned counsel submitted that though the question of overvaluing the subject matter of the suit in the plaint was raised in the trial court, learned trial court ignored the same and no specific issue was framed and decided. Learned courts below have not properly considered the defendant's claim of adverse possession and have recorded lopsided findings. 9. I have heard learned counsel for the appellant and perused the impugned judgment and decree. Learned courts below have not properly considered the defendant's claim of adverse possession and have recorded lopsided findings. 9. I have heard learned counsel for the appellant and perused the impugned judgment and decree. So far as the absence of issue of overvaluation is concerned, it is evident from the record that the same was not seriously raised at the stage of suit and/or at the first appellate stage. The defendant-appellant addressed the court on the issues framed by learned trial court without raising any objection against the framing of issues. Further, the valuation of the subject matter of the suit is related to pure facts and question of fact cannot be raised and decided at the second appellate stage. The next contention that the learned courts below have not considered the defendant's claim of adverse possession is also without substance. Learned courts below have thoroughly considered the claims and decided the issues on detailed discussion and appreciation of the evidences adduced by the parties. The findings of learned courts below in rejecting the defendant's claim, inter alia, of adverse possession is supported by reasons and based on appraisal of evidences. 10. I find no error in the impugned judgment giving rise to any substantial question of law to be framed and decided in the second appeal. 11. This second appeal is, accordingly, dismissed.