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2012 DIGILAW 873 (PAT)

Anuj Kumar v. Ram Prakash Kumar

2012-06-26

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned counsel, Mr. Hari Krishna Kumar appearing on behalf of the appellants. 2. This Second Appeal has been filed by the legal representatives of defendant no.37 against the judgment and decree dated 22.12.2008 passed by 3rd Additional District Judge, Naugachia in Title Appeal No.16 of 2008 allowing the appeal and thereby reversing the judgment and decree of the trial court dated 20.12.2007 passed by Sri Gajendra Prasad, Sub Judge II, Naugachia in Title Suit No.2 of 1996 dismissing the plaintiff-respondent’s suit. 3. The appellant has filed the suit for declaration of title and confirmation of possession over the suit property on the ground that the suit properties are their ancestral land. They claimed possession since their ancestors. The further case of the plaintiffs is that in the revisional survey, plot no.932 area 0.12 decimal has wrongly been recorded in the name of Bishwanath Kumar. Likewise, the other suit plots mentioned in detail in the plaint have been recorded wrongly in the names of Bhubneshwar Kumar, Umanath Kumar, Bishwanath Kumar, Badrinath Kumar and others. About the lands of village Garaiya C.S. Plot No.37 area 2.10 acres corresponding to R.S. Plot No.800 has wrongly been recorded in the name of Urmila Devi, the original defendant no.37. 4. The other defendants filed their contesting written statement. The defendant no.37, Urmila Devi filed written statement alleging that the said land measuring 2.10 acres was found in possession of ex-landlord, Hiyalal Kumar, Bakast Malik in the year 1935. Said Hiyalal Kumar was uncle of late Thakur Prasad Kumar. The original defendant no.37 took settlement by receipt from ex-landlord 50 years ago and obtained rent receipt from ex-landlord. The ex-landlord submitted return in favour of defendant no.37 when zamindari vested. The defendant is in possession of the property and, therefore, it is recorded in her name in the revisional survey record of right. 5. The trial court dismissed the plaintiff’s suit. So far the case of defendant no.37 is concerned, the trial court found that the property has been recorded in the name of defendant no.37 and rent receipts, Exhibit ‘Q’ series have been filed by her to show her possession. The trial court also recorded a finding that the suit is barred by law of limitation. 6. The plaintiff filed appeal and the Lower Appellate Court allowed the appeal and set aside the trial court’s judgment. The trial court also recorded a finding that the suit is barred by law of limitation. 6. The plaintiff filed appeal and the Lower Appellate Court allowed the appeal and set aside the trial court’s judgment. The legal representatives of the original defendant no.37 have filed the present Second Appeal. 7. The learned counsel for the appellants submitted that while discussing the evidence of the defendant no.37, the Lower Appellate Court has not considered properly the documentary and oral evidences produced by the defendant no.37, the appellant. Secondly, the learned counsel submitted that the learned court below has also not decided the question of limitation properly as the record of right was finally published in the year 1978 and the present suit has been filed in the year 1996. Therefore, it is barred by law of limitation. The trial court has given categorical finding regarding limitation but the appellate court did not consider the same. The learned counsel for the appellants next submitted that the plaintiff had only filed fixed court fee instead of filing ad valorem court fee and the suit was also undervalued. The Appellate Court also did not consider this aspect of the matter. No other point has been raised by the appellants. 8. So far the submission of the learned counsel regarding non-consideration of the documentary as well as oral evidences properly is concerned, from perusal of the Lower Appellate Court judgment at paragraph 13, it appears that the Lower Appellate Court found that no rent receipt issued by the ex-landlord has been filed by the defendant no.37. No return was filed. The rent receipt i.e., Exhibit ‘Q’ to ‘Q/5’ filed by the defendant no.37 do not correspond to revisional survey plot no.800 as no plot has been mentioned in the said rent receipt and this revisional survey plot no.800 corresponds to the cadastral survey plot no.37. It is not the case of the appellant that except these documentary evidences other evidences were produced by the defendant no.37 in support of her claim regarding settlement. Therefore, the appellate court has considered the documentary evidences. 9. The learned counsel for the appellants submitted that the order passed under Section 145 Cr.P.C. has not been considered by the court below. Therefore, the appellate court has considered the documentary evidences. 9. The learned counsel for the appellants submitted that the order passed under Section 145 Cr.P.C. has not been considered by the court below. In my opinion, on the basis of the possession only, it cannot be said that the defendant no.37 has acquired any title as it is not her case that she is in adverse possession. Moreover, the finding recorded by the Revenue Court in a proceeding under Section 145 Cr.P.C. is not binding on the Civil Court. Here the dispute of title is between the plaintiff and defendant no.37 with regard to revisional survey plot no.800. The learned counsel next submitted that the survey entry has not been considered i.e., Exhibit E. So far this submission is concerned, admittedly it is the case of the plaintiff that the suit plot has been recorded in the name of the defendant no.37 wrongly. In such circumstances, the point raised by the learned counsel for the appellant relate to the appreciation of the evidence. The trial court relied upon these evidences whereas the Lower Appellate Court did not rely the same. The question will be whether in Second Appeal this court has the jurisdiction to reappreciate the evidence. In my opinion, under Section 100 C.P.C., the High Court has no jurisdiction to reappreciate the evidence and substitute its own finding. As far back as in the year 1963, the Apex Court in the case of Madan Manchi Ramappa and Anr. Vs. Muthaluru Bojappa, AIR 1963 Supreme Court 1633 has held that sufficiency or otherwise of the evidence cannot be a substantial question of law. So far this question raised by the appellant is concerned, in my opinion, it is not a substantial question of law at all. 10. The next question regarding limitation is concerned also has got no force because it is well settled that to be substantial, a question of law must be debatable one which has not been settled by any statute or by any binding precedent. So far this question raised by the learned counsel is concerned, admittedly only the entry is made in the revisional survey record of 1978. 11. In the case of Daya Singh and Anr. Vs. Gurdev Singh(dead) L.Rs. So far this question raised by the learned counsel is concerned, admittedly only the entry is made in the revisional survey record of 1978. 11. In the case of Daya Singh and Anr. Vs. Gurdev Singh(dead) L.Rs. and others, (2010)2 SCC 194 , the Apex Court has held that mere adverse entry in survey record of right will not give cause of action for filing a suit. In the present case, according to the plaintiff, the suit itself has been filed for declaration of title and confirmation of possession. In such circumstances, it cannot be said that the plaintiff’s suit is barred by law of limitation. Therefore, the question raised by the learned counsel for the appellants has already been settled by binding precedent. In my opinion, therefore, it is not a substantial question of law. 12. The learned counsel next submitted that the plaintiff has not filed sufficient or adequate court fee with regard to the valuation of the suit. So far this fact is concerned, on the basis of this question, the judgment and decree passed by the Lower Appellate Court cannot be said to be vitiated. At best even if this question is decided against the plaintiff, the plaintiff will be liable to pay ad valorem court fee after proper valuation of the suit. In my opinion, therefore, it is not a substantial question of law. 13. In view of the above facts and circumstances of the case, I find no merit in this Second Appeal as no substantial question of law is involved for decision. Accordingly, it is dismissed.