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2012 DIGILAW 1101 (PAT)

Ramu Yadav v. Mahadeo Raut

2012-08-08

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned counsel, Mr. Sri Prakash Srivastava appearing on behalf of the appellant and the learned counsel, Sri Suraj Narayan Yadav appearing on behalf of the plaintiff-respondent No.1 under Order 41 Rule 11 C.P.C. 2. The defendant-respondent appellant Ramu Yadav has filed this second appeal against the Judgment and Decree of the lower appellate Court dated 22.1.2011 passed by Addl. District Judge, Fast Track Court No.3, Madhubani in title appeal No.35 of 2009 allowing the appeal and thereby reversing the Judgment and Decree of the trial Court dated 28.5.2009 passed by Sub Judge III, Jhanjarpur in title suit No.6 of 2003 dismissing the plaintiff’s suit. 3. The plaintiff-respondent No.1, Mahadeo Raut filed the aforesaid title suit for declaration of title and confirmation of possession with respect to the suit property measuring only 2 kattha alleging that Shobha Devi widow of late Nirdhan Deo had purchased the same from Vishwambhar Jha on 23rd February, 1959. Her husband, Nirdhan Deo died in the year 1993. Shobha Devi herself died in the year 1997 and the property devolved on her husband brother Laxmi Narain Deo because Satyanarain Deo the another brother had already died in the year 1979. The plaintiff purchased the suit property from Laxmi Narain Deo on 10.11.1998. The defendant-appellant has purchased 1 kattha out of same land sold to the plaintiff, by terms of sale deed dated 15.1.2003. Therefore, the plaintiffs filed the suit for declaration of title and confirmation of possession. 4. The defendants-appellant’s case is that after death of Nirdhan Deo, Shobha Devi reunited with Satyanarain Deo and she relinquished the property in favour of the son of Satya Narain Deo. The son of Satya Narain Deo came in possession of the property of Shobha Devi and they executed 6 sale deeds in favour of different persons and they also sold one kattha of the land in favour of the defendant by the said registered sale deed dated 15.1.2003. 5. The trial Court dismissed the plaintiff suit relying on the case of the defendant that Shobha Devi had relinquished the property in favour of her nephew i.e., son of Satya Narain Deo. On appeal filed by the plaintiff, the lower appellate Court recorded a finding that there is no reliable evidence regarding re-union and that by oral relinquishment, title will not pass to the nephews i.e., son of Satya Narain Deo. On appeal filed by the plaintiff, the lower appellate Court recorded a finding that there is no reliable evidence regarding re-union and that by oral relinquishment, title will not pass to the nephews i.e., son of Satya Narain Deo. The lower appellate Court also recorded a finding that on the death of Shobha Devi, the property devolved on Laxmi Narain Deo, brother of Nirdhan Deo. 6. The learned counsel appearing on behalf of the appellant submitted that the sons of Satya Narayan Deo had already executed 6 sale deeds in favour of different persons wherein Laxmi Narain Deo is one of the attesting witness and, therefore, he admitted the title of the two sons of Satya Narayan Deo. This fact was not considered in its right perspective by the lower appellate court. Although the appellant has filed the certified copies of all the 6 sale deeds which was relied by the trial Court. The learned counsel further submitted that the plaintiff filed the suit for declaration of title and conformation of possession and the said relief would not have been granted by the lower appellate Court without setting aside the sale deed of the appellant without payment of Court fee by the plaintiff. The learned counsel further submitted that because after the death of Nirdhan Deo, Shobha Devi re-united with Satya Narain Deo, therefore, on her death, the property will devolve on the son of Satya Narain Deo but the lower appellate Court has not relied upon these facts without considering the settled principle of law as has been mentioned in Article 342, 343 and 345 of the Mullas Hindu Law. 7. On the other hand, the learned counsel appearing on behalf of the respondent submitted that none of the question raised by the appellant is substantial question of law. The lower appellate Court has rightly held that by relinquishment, no title will pass and because there is no evidence of re-union and as such the property never devolved on the son of Satya Narain Deo. The learned counsel further submitted that the appellant merely asserted in the written statement that Shobha Devi re-united with sons of Satya Narain Deo but no reliable evidence was placed on record. The learned counsel further submitted that the appellant merely asserted in the written statement that Shobha Devi re-united with sons of Satya Narain Deo but no reliable evidence was placed on record. The learned counsel further submitted that because the plaintiff has simply prayed for declaration of title and confirmation of possession, it was not necessary for the plaintiff to pray for cancellation of the sale deed executed by the two sons of Satya Narain Deo in favour of the defendant because the sale deed has been executed by the said persons without authority or tile to execute the sale deed. 8. Admittedly, the defendant’s case is based on re-union and relinquishment of the property by Shobha Devi. The appellate Court clearly recorded a finding that there is no evidence on record to show that Shobha Devi re-united. So far this finding is concerned, it is pure finding of fact. The mere making a pleading in the written statement is not reliable. The appellant is required to prove the said fact by adducing cogent evidence. Moreover, re-union principle pre-supposes that there was division between the brothers, i.e., the husband of Shobha Devi and his brothers. 9. In the case of Bhagwati Prasad Sah Vs. Dulhin Rameshwari A.I.R. 1952 SC 72, the Apex Court has held that after separation unless it is proved positively that there was re-union between the parties mere residing together will not amount to revival of copercenary family. The same view has been taken subsequently by the Apex Court in the case of Bhagwan Dayal and another Vs. Most. Reoti Devi .A.I.R. 1962 SC 287. So far this finding is concerned, it is pure question of fact. In such circumstances, the said finding cannot be interfered with in second appellate jurisdiction. 10. So far relinquishment is concerned, it is well settled that if law requires that title will pass only after execution and registration of document then by mere admission title will not pass on any person. Admittedly, in the present case, no registered document has been produced showing transfer of title on the defendant. In my opinion, therefore, title never passed to the sons of Satya Narain Deo. Admittedly, in the present case, no registered document has been produced showing transfer of title on the defendant. In my opinion, therefore, title never passed to the sons of Satya Narain Deo. The further fact is that on the death of Shobha Devi in the year 1997, her property devolved on the heirs of the husband and Laxmi Narain Deo being the second class heir in entry No.3, the property will go to him exclusively as on the date of her death, Satya Narain Deo had already died. So far signing of 6 sale deeds is concerned it is stated by the defendant that Laxmi Narayan had given his nephew the half land but it does not mean that Laxmi Narayan had no title. 11. So far the point raised by the appellant that no Court fee is paid is concerned, in my opinion, since the plaintiff have not prayed for cancellation of sale deed they are not required to pay advelorum Court fee. 12. In view of the above facts and circumstances of the case, I find that no substantial question of law is involved in this second appeal and all the points raised by the appellant is not at all substantial question of law. Thus, this second appeal is dismissed at the admission stage itself.