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2013 DIGILAW 101 (PAT)

Bishundeo Sah v. Gauri Devi

2013-01-22

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER Heard learned counsel for the appellants. This case has been placed for hearing under Order 41 Rule 11 of the C.P.C. 2. The appeal under Section 100 of the Code has been preferred against the judgment and decree dated 11.03.2008 and 19.03.2008 respectively passed by learned Additional District and Sessions Judge, F.T.C. No. IV, Bhagalpur in Title Appeal No. 27 of 1996 whereby he has reversed the judgment and decree dated 23.12.1995 and 22.01.1996 respectively passed by learned 1st Additional Munsif, Bhagalpur in Title Suit No. 88 of 1983. 3. The appellants were plaintiffs in the Title Suit No. 88 of 1983. They field a suit for declaration of title over the suit land and also for recovery of possession. They also sought for a declaration that the sale deed dated 28.07.1979 executed in favour of the Ganesh Sah, respondent second party. Shri Ganesh Sah was void illegal and was not binding on the plaintiffs. 4. Briefly stated, the case of the plaintiffs before the Trial Court was that the land described in Schedule ‘A’ (i) of the plaint was jointly recorded in the name of Baijnath Sah, Darshan Sah and Gazo Sah in Cadestral Survey Khatiyan as Belagan. The suit land described in Schedule ‘A’ (ii) of the plaint is said to have been taken through residee bandowasti from ex-landlord by the plaintiffs. It was asserted that there was a partition immediately after the final publication of the said Khatiyan. These three persons were brothers. Darshan Sah said to have died in the year 1912-13. His wife pre-deceased him. Gazo Sah left the village for Calcutta for business between the year 1913 to 14. Baijnath Sah died between the year 1917 to 1920 who, before his death had exclusive possession over the property of Dashan Sah and Gazo Sah. The plaintiff Sakhi Chand Sah was the son of Siptee Devi daughter of Baijnath Sah who was married to Ghako Sah. The plea of the plaintiff was that after death of Baijnath Sah, Siptee Devi and her son Sakhi Chand Sah, the plaintiff, came in exclusive possession over the property. Ghako Sah is also said to have died when the plaintiff was only two years of age. 5. The plea of the plaintiff was that after death of Baijnath Sah, Siptee Devi and her son Sakhi Chand Sah, the plaintiff, came in exclusive possession over the property. Ghako Sah is also said to have died when the plaintiff was only two years of age. 5. Thus, on the plea that Darshan Sah died issueless and Gazo Sah left for Calcutta for business purpose, the plaintiff remained in exclusive possession openly and adversely to the knowledge of the said Gazo Sah and acquired perfect right, title and interest in the said land. The further plea is that in the year 1955, the defendant 1st Party came to the plaintiff and requested him for temporary accommodation by giving him a portion of plaintiff’s house situated at a portion of Schedule ‘A’ land till he arranged his permanent accommodation elsewhere in the village, whereupon Sakhi Chand Sah, the plaintiff permitted him to live in a separate house constructed by Sakhi Chand Sah and accordingly he has been living there. The plea is that during the revisional survey from Scheulde ‘A’ land, Schedule ‘B’ and ‘C’ land was carved out and half of it was recorded in the name of the plaintiff and the half of the same was wrongly recorded in the name of defendant 1st Party. There is no dispute that the defendant 1st set is defendant No. 1, Ganesh Sah, the grandson of Gazu Sah. Further case of the plaintiff before the Trial Court was that the defendant No. 1 who is respondent No. 2 in the present appeal executed a sale deed in favour of the respondent No. 1 (defendant No. 2) with respect to land described in Schedule ‘D’ of the plaint. He, accordingly, challenged the validity of the sale deed also before the Trial Court. 6. The assertions made in the plaint were denied by the defendant No. 2. The plea of partition in the family immediately after cadestral survey was denied. It was pleaded that in fact Baiju Sah and Darshan Sah were full brothers and were sons of Bhouju Sah. Gazu Sah was son of Aiju Sah, who died in 1940. The respondent no. 2 (defendant No.2) happened to be the grandson of Gaju Sah. The plea of partition in the family immediately after cadestral survey was denied. It was pleaded that in fact Baiju Sah and Darshan Sah were full brothers and were sons of Bhouju Sah. Gazu Sah was son of Aiju Sah, who died in 1940. The respondent no. 2 (defendant No.2) happened to be the grandson of Gaju Sah. It was pleaded that in the old survey Khatiyan, the land of Muaza Jahangira, Khatiyan No. 44 had been recorded in the name of Baiju and Darshan sons of Bhouju Sah. It was denied that Gazu Sah left the village in 1913-14 and settled in Calcutta and has been pleaded that the entire property was succeeded by Sukdeo Sah, father of Ganesh Sah, according to law of survivorship, after the death of Baijnath Sah and denied that after the death of Baijnath Sah properties came in the hands of Siptee Devi. 7. On the basis of rival pleadings, the learned Trial Court framed the issues including the issue Nos. (vi), (vii) and (viii) read as follows:- “(vi) Has the defendant no. 1 Ganesh Sah any right title and interest in the suit land and is the sale deed dated 24.7.79 executed by the defendant no. 1 Ganesh Sah in favour of defendant no. 2 with respect to the suit land, genuine, valid and legal? . (vii) Did the defendant 2nd Party acquire any right and title in the suit land through the said sale deed dt. 24.7.79. (viii) Is survey entry with respect to said land in the name of defendant Ganesh Sah correct and valid? 8. The Trial Court came to the findings on appreciation of the evidence on record that defendant no. 2 had no right, title and interest over the suit land and the sale deed dated 24.07.1979 executed was not a valid document. Accordingly, it held that defendant No. 2 did not have any title, interest and right over the suit land. 9. From the pleadings of the appellant and the evidence led by him before the Trial Court it will appear that the entire case of the appellant is based on two premises, firstly, that Gazu Sah left the village and settled in Calcutta in the year 1912-13 itself and thus the branch of Baijnath Sah right from the date when Gazu Sah left the village acquired possession over his share of property to the defendant no. 2 came in permissive possession in 1995 over the portion of the house as he was in dire need of some accommodation in the village, with the consent of the plaintiff Sakhichand Sah. This is also not in dispute that in the revisional survey Khatiyan there is entry of name of defendant No. 1 having half share of the joint family property. The only plea which the plaintiff could advance even on the basis of his own case that he had adverse possession over the property in question. Learned 1st Appellate Court rejected the claim of adverse possession on the ground of lack of specific pleadings as regards the date when the plaintiff came into possession. On scrutinizing the material on record and re-appreciating the evidence available, learned First Appellate Court held that the plaintiff failed to prove partition in the family in the year 1912-13. From the order of the First Appellate Court it appears that he considered all the materials available on record and rejected the plea of partition having taken place, on the ground that there was no documentary evidence available. The learned First Appellate Court accordingly reversed the findings of learned Trial Court and set aside the decree passed by the learned Munsif 1st. He accordingly held the sale deed dated 24.07.1979 in favour of the respondent No. 1 as valid. 10. Learned counsel appearing on behalf of the appellants has contended that the First Appellate Court failed to appreciate the evidence of P.W.-5 that after publication of cadestral survey Khatiyan in the year 1907, the recorded tenants, namely, Darshan Sah, Gazo Sah and Baijnath Sah were separated in all respects. On perusal of the impugned judgment and decree in appeal, I find that the First Appellate Court considered the evidence of P.W.-5 and held that he did not have knowledge about the brothers of the Baiju Sah @ Bajnath Sah, on the basis of other materials available on records. 11. Learned counsel for the appellants has submitted that appeal involves substantial questions of law as to whether wrong entry of suit land in the name of Ganesh Sah in the record of rights could create right, title and interest over the suit land. 12. I do not consider this question to be a substantial question of law worth being framed in the present appeal. 12. I do not consider this question to be a substantial question of law worth being framed in the present appeal. Firstly, for the reason that mere entry in the revisional survey khatiyan is not the only basis for holding right, title and interest over the property in favour of respondent No. 2. The learned First Appellate Court came to such conclusion on the basis of other cogent materials available on record. Secondly, this Court in exercise of power under Section 100 of the Code of Civil Procedure cannot go into the correctness of finding of fact unless such finding is perverse, contrary to the materials available on record which would shock the conscience of a reasonable person thinking reasonably. 13. In view of the above, I find no merit in the appeal. The appeal is, accordingly, dismissed.