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2013 DIGILAW 1130 (PAT)

Prakash Yadav v. Ram Khelawan Yadav

2013-09-17

JYOTI SARAN

body2013
C.A.V. ORDER This appeal is directed against the judgment and decree dated 23.11.2011/14.12.2011 passed by the 3rd Additional District Judge, Naugachhia, District-Bhagalpur in Title Appeal No. 129 of 2007, whereby the appellate court below has been pleased to set aside the judgment and decree dated 23.11.2007/07.12.2007 whereby the learned Sub Judge-II, Naugachhia, District-Bhagalpur had been pleased to decree Title Suit No. 26 of 1999 in favour of the plaintiff. 2. I shall be referring to the party position as it existed before the trial court for the sake of convenience. 3. The suit in question had been filed by the plaintiff who happens to be a purchaser from defendant no. 8, Prabhakar Mishra son of Late Govind Lal Mishra seeking, inter alia, to declare survey entries relatable to the property mentioned at schedule-A not binding on the plaintiff or his vendor and to declare the plaintiff having absolute right, title and interest over schedule-B property which is a part of schedule-A property as also to declare the sale deed executed by the daughters of Jaideo Mishra in favour of defendant no. 1 Ram Khelawan Yadav as not being binding upon the plaintiff. 4. The relief prayed by the plaintiff in the suit is being reproduced here-in-below for the sake of ready reference: “a) The court may be pleased to declare that survey entry made in the name of sons of Nawa Lal Mishra, sons of Basudeo Mishra, sons of Lakhi Mishra, Jaideo Mishra and Nageshwari Devi in respect of suit land schedule-A of the plaint is incorrect and the aforesaid survey entry is not binding upon the plaintiff nor on vendors of plaintiff in respect of the suit land. b) The court may be pleased to hold and declare that the plaintiff have absolute right, title, interest over the schedule “B” suit property part of schedule “A” suit property. c) The court may be pleased to declare that sale deed executed by daughters of Jaideo Mishra in favour of Ramkhelawan Yadav in respect of 1 acre 31 decimals part of schedule-A suit land is not binding upon the plaintiff. d) The court may be pleased to award cost of the suit in favour of the plaintiff. e) Such relief or reliefs which the court deems just and proper be passed in favour of the plaintiff. d) The court may be pleased to award cost of the suit in favour of the plaintiff. e) Such relief or reliefs which the court deems just and proper be passed in favour of the plaintiff. f) The defendant 1st party be restrained from dismissing the peaceful enjoyment of suit land, the details of which is mentioned in schedule-B land by passing injunction order against him.” 5. It is the case of the plaintiff that the land admeasuring 10 bigha 1 katha 12 dhurs which is equivalent to 8 acres 80 decimals bearing old khesra no. 574, old khata no. 167 in Mauja Nagar Para, Anchal-Bihpur, District-Bhagalpur was khatiyani land recorded in the name of one Dukha Mishra in the record of rights and by virtue of non-payment of rent, the ex-landlord Barari Estate came into the khas possession of the land after its auction purchase on 10.12.1928 through Sale Certificate Case No. 872 of 1927. It is the case of the plaintiff that the said Dukha Mishra had six sons, namely, Govind Lal Mishra, Nava Lal Mishra, Basudeo Mishra, Lakhi Prasad Mishra, Yamuna Mishra and Jaideo Mishra who had separated by metes and bounds in the year 1930. It is further the case of the plaintiff that Govind Lal Mishra the eldest son of Dukha Mishra had taken settlement of the entire land measuring 10 bigha 1 katha and 12 dhurs as detailed hereinabove from the ex-landlord Babu Naresh Mohan Thakur of Barari Estate in the year 1935 in his own name and on the basis of the settlement, his name was recorded in the Jamabandi Sherista. It is stated that after vesting the Zamindari into the state of Bihar the ex-landlord submitted the returns and on the basis whereof the name of Govind Lal Mishra stood recorded in the Sherista of State of Bihar bearing Holding No. 49. It is stated that Govind Lal Mishra used to pay rent for the said land to the State of Bihar. It is stated that Govind Lal Mishra used to pay rent for the said land to the State of Bihar. It is the case of the plaintiff that Govind Lal Mishra left behind five sons, namely, Kedar Mishra, Divakar Mishra, Prabhakar Mishra, Chakradhar Mishra and Medni Mishra who separated by metes and bounds in the year 1958 and the entire land was divided amongst the five sons of Govind Lal Mishra with each getting one bigha 10 katha of land approximately in their share with additional 1 katha as “Jethansh” to sons of Govind Lal Mishra. It is stated that Jagdamba Devi, wife of Medni Mishra had executed a deed of gift in favour of the sons of Prabhakar Mishra who got right, title and interest over the share of his brother Medni Mishra in addition to his own share. The plaintiff contended that following the revisional survey the two plots were renumbered as khata no. 49, khesra no. 1218 admeasuring 4.45 acres and khesra no. 1219 admeasuring 4.2 acres but the same was wrongly recorded in the name of Kedar Mishra, Divakar Mishra, Prabhakar Mishra and Chakradhar Mishra sons of Govind Lal Mishra to the extent of four annas; Mostt. Jagdama Devi wife of Medni Mishra to the extent of one anna; Keshav Lal Mishra, Dharnidhar Mishra and Pran Mohan Mishra, son of Neva Lal Mishra to the extent of three annas; Mukund Mishra, Umesh Mishra, Jagdish Mishra and Maheshwar Mishra all sons of Basudeo Mishra to the extent of three annas; Shashidhar Mishra, son of Lakhi Prasad Mishra to the extent of three annas; Jaideo Mishra to the extent of three annas and Nageshwari Devi, wife of Chakradhar Thakur to the extent of three annas, although the only owner of the entire land measuring 10 bigha 1 katha 10 dhurs, was Govind Lal Mishra. It is thus the case of the plaintiffs that the entry made in the R.S. Khatiyan was wrong, illegal and not binding on the sons of Govind Lal Mishra who had exclusive right, title and interest as well as possession over the suit land. It is the case of the plaintiff that he purchased the land described in schedule-B of the plaint vide sale deed no. It is the case of the plaintiff that he purchased the land described in schedule-B of the plaint vide sale deed no. 2034 dated 28.8.1998 admeasuring 1.31 acres after payment of valuable consideration to Prabhakar Mishra, son of Govind Lal Mishra and since then has been in the cultivating possession thereof. It is stated that the name of the plaintiff has been mutated and he is paying rent under Jamabandi no. 527. It is contended that the sale deed executed by the daughters of Jaideo Mishra who are defendant second set in favour of Ram KhelawanYadav defendant no. 1 on 6.4.1999 is a fraudulent act and an illegal document. It is stated that as the survey entry and the sale deed executed by the defendant second set in favour of the defendant no. 1 resulted in threat being issued to the plaintiff hence the suit was filed. 6. Defendant no. 1 is the purchaser from defendant second set. Defendant second set are daughters of Jaideo Mishra, son of Dukha Mishra and brother of Govind Lal Mishra. Defendant third set are sons and grandsons of Govind Lal Mishra who have supported the case of the plaintiff and defendant fourth set are the remaining brothers of Govind Lal Mishra i.e. the other sons of Dukha Mishra. The defendant second set and fourth set did not choose to appear and contest the suit. Defendant third set i.e. defendant no. 8 to 16 who are sons and grandsons of Govind Lal Mishra appeared and filed a joint written statement supporting the case of the plaintiff. Defendant no. 1 filed a separate written statement contesting the claim of the plaintiff as not being maintainable and the suit being a collusive suit instituted at the behest of the defendant no. 8 Prabhakar Mishra. It was also contended that the suit was also hit by the law of limitation and the provisions of section 34 of the Specific Relief Act, 1963. 7. It is the case of the defendant no. 1 that Dukha Mishra, the ancestors of defendant second set, third set and fourth set had land measuring 10 bigha 1 katha and 12 dhurs in old khesra no. 574 and after his death, his six sons inherited the property and remained in jointness through their life. 7. It is the case of the defendant no. 1 that Dukha Mishra, the ancestors of defendant second set, third set and fourth set had land measuring 10 bigha 1 katha and 12 dhurs in old khesra no. 574 and after his death, his six sons inherited the property and remained in jointness through their life. The defendant contended that on 28.2.1934 all the sons of Dukha Mishra declared themselves as members of joint Hindu family under the guardianship of Govind Lal Mishra and Neva Lal Mishra through registered deed no. 546 of 1934. It is stated that in Title Suit No. 24 of 1944 also, the sons of Dukha Mishra were referred to as members of joint Hindu family. It is stated that in the year 1962 an oral settlement took place and whereunder the sons of Govind Lal Mishra were allotted two bigha ten katha of land including one bigha as “Jethansh” and the other brothers got one bigha 10 katha each. It is stated that in the revisional survey khata no. 49, R.S. plot no. 1218 measuring 4.28 acres and R.S. plot no. 1219 measuring 4.2 acres has been jointly recorded but the share of each branch had been completely distinct according to the oral settlement of 1962 and thus there was a partition amongst the brothers of Govind Lal Mishra in the year 1962 following which the heirs of Govind Lal Mishra were allotted two bigha 10 khatas towards extreme west. Adjacent east of Govind Lal Mishra was the share of Basudeo Mishra. Towards the east of Basudeo Mishra was the share of daughter of Yamuna Mishra, namely, Nageshwari Devi and to her east was the share of sons of Lakhi Mishra and on the extreme east of plot was the share of Jaideo Mishra and his daughter. It is the case of the defendant that on 24.8.1996 Nageshwari Devi, daughter of Yamuna Mishra sold her share to Mani Mala Devi and Pratibha Devi, daughter of late Basudeo Mihra. It is stated that the sale made by Nageshwari Devi was never questioned by the plaintiff though It was within the knowledge of Prabhakar Mishra. It is further stated that in a similar manner the defendant no. 1 purchased the share of the daughter of Jaideo Mishra after payment of consideration money and has acquired title over the said land. 8. It is further stated that in a similar manner the defendant no. 1 purchased the share of the daughter of Jaideo Mishra after payment of consideration money and has acquired title over the said land. 8. The trial court framed five issues and upon consideration of the rival contentions, the oral and documentary evidence on record, was pleased to decree the suit in favour of the plaintiff and declared the sale deed executed in favour of the defendant no. 1 as illegal. Being aggrieved the defendant no. 1 preferred appeal giving rise to Title Appeal No. 129 of 2007. The judgment and decree of the trial court was questioned by the defendant no. 1 on the following grounds: (a) That the trial court has wrongly believed that both sale deeds were in respect of the same lands even when the vendors of the two sale deeds came from different branch though from a common ancestor; (b) That even when the plaintiff has failed to give boundary details of the plot he has purchased and has stated that he had not filed the case nor made signature or L.T.I. on the paper of attendance nor had instructed to make the brothers of Prabhakar Mishra as party except the daughter of Jaideo Mishra, thus indicating that the suit was not filed at his behest, yet the trial court has decreed the suit. (c) That although the entire foundation of the plaintiff was based upon a settlement made by the ex-landlord in favour of Govind Lal Mishra but no document of settlement was filed by the plaintiff; (d) That even when there were documents demonstrating jointness amongst the family member of Govind Lal Mishra but it has not been appreciated; (e) That the plaintiff as a purchaser was certainly not entitled to claim relief brought at paragraph 21(a) for declaring the survey entry incorrect and which is also time barred; (f) That in absence of any boundary details in schedule-B, no relief could be granted to the plaintiff; (g) That the plaintiff has been set up by Prabhakar Mishra. 9. The plaintiff as respondent in appeal contested the stand of the defendant to submit that the judgment and decree of the trial court did not require any interference. 9. The plaintiff as respondent in appeal contested the stand of the defendant to submit that the judgment and decree of the trial court did not require any interference. On the basis of the arguments advanced on behalf of the contesting parties in the backdrop of the evidence on record, the appellate court formulated the following points for determination: (a) Whether ex-landlord Naresh Mohan Thakur auction purchased the entire land of old plot no. 574 and later on the same land was settled to Govind Lal Mishra by ex-landlord in the year 1935. In other words whether Govind Lal Mishra had got exclusive title and possession over the entire land of old plot no. 574 by way of settlement; (b) Whether the plaintiff/respondent no. 1 has got title over suit land as mentioned in Schedule-B of the plaint; and (c) Whether the impugned judgment passed by the learned court below is sustainable? 10. The appellate court upon consideration of the arguments and the evidence on record allowed the appeal holding the plaintiff not entitled to relief no. (a) on grounds that he had no concern with the entire plot no. 574 as also on grounds of being time barred as the khatiyan was published in the year 1978 and the suit was filed in the year 1999. The appellate court also held the plaintiff not entitled to relief (b) regarding declaration of title over Schedule (B) property on grounds of vagueness in the description of the suit property and in absence of any boundary description or location of the suit land. The plaintiff was also not found entitled to relief no. “C” praying to declare the sale deed executed by the daughter of Jaideo Mishra as illegal on grounds of failure on his part to establish that Govind Lal Mishra had title over the entire property on the basis of settlement. Having held as such the appeal was allowed and the judgment and decree of the trial court was set aside. The plaintiff being aggrieved by the judgment and decree passed by the appellate court is in appeal before this Court. 11. Mr. Abbas Haider has appeared on behalf of the plaintiff as appellant before this Court to question the judgment and decree passed by the appellate court below. The plaintiff being aggrieved by the judgment and decree passed by the appellate court is in appeal before this Court. 11. Mr. Abbas Haider has appeared on behalf of the plaintiff as appellant before this Court to question the judgment and decree passed by the appellate court below. With reference to Exhibit-A which is a khatiyan in the name of Jaideo Mishra and Exhibit-6 which is a sale deed in favour of Jaideo Mishra it was contended that these were evidence of partition amongst the sons of Dukha Mishra and thus the plea of jointness made by the defendant is not correct. Again with reference to Exhibit-8 which is a certified copy of the khatiyan and the rent receipts led as Exhibit- 1 and 2 series it was submitted that these were evidence that the entire property present at Schedule-A was settled with Govind Lal Mishra. Mr. Haider contended that relevant exhibits which supported the case of the plaintiff were not correctly appreciated by the appellate court and that the judgment and decree of the appellate court does not satisfy the provisions of Order 41 Rule 31 of the Code of Civil Procedure. Mr. Haider thus sought to question the judgment and decree of the appellate court on the following substantial questions of law: (a) Whether the relevant documents supporting the case of the plaintiff have not been considered by the appellate court while recording a judgment and decree of reversal; and (b) Whether the findings of the trial court on the claim set up by the plaintiff has not been reversed as per the provision of Order 41 Rule 31 (d) of the Code of Civil Procedure? 12. I have heard Mr. Haider at length who has strenuously tried to draw support from the judgment and decree passed by the trial court while canvassing the case of the plaintiff. I have also perused the judgment and decree passed by the courts below. One startlingly feature of this litigation is that the relief prayed by the plaintiff is absolutely vague. While seeking to declare the survey entry illegal and not binding on the plaintiff at relief (a) of paragraph 21, the details relatable to the entry is absolutely silent giving an indication of deliberate suppression. Notably the survey entry is of the year 1978 and the suit was filed more than 20 years thereafter. While seeking to declare the survey entry illegal and not binding on the plaintiff at relief (a) of paragraph 21, the details relatable to the entry is absolutely silent giving an indication of deliberate suppression. Notably the survey entry is of the year 1978 and the suit was filed more than 20 years thereafter. The plaintiff seemingly conscious of the provisions of Article 58 of the Limitation Act prescribing a limitation of three years for seeking such declaration has avoided to mention the date. Apart therefrom, the appellate court has very correctly observed that the survey entry being relatable to the total area of the plot admeasuring 10 bigha one katha and 12 dhurs, the plaintiff apparently had no concern with any property other than the land claimed to have been purchased by him through sale deed bearing no. 2034 dated 28.8.1998 to the extent of 1.31 acres. Similarly relief (b) relatable to declaration of title, is again vague for it does not mention the basis for seeking such declaration nor Schedule-B to which it relates gives any details of the plot which is a part of old khesra no. 574, old khata no. 167 which was renumbered as khata no. 49, khesra no. 1218 having an area of 4.49 acres and khesra no. 1219 having an area of 4.28 acres. In fact there is no mention of the sale deed dated 28.8.1998 in the relief portion. The relief prayed being utterly vague, the deposition of the plaintiff as P.W. 1 is a death blow for this appeal as is manifest from paragraph-17 of the appellate court judgment. A perusal thereof reflects that the plaintiff in paragraph-1 of his deposition has admitted that he does not know the khata no. or the khesra no. of the purchased plot. In paragraph-3 he has admitted to be an illiterate knowing only to make signature. In paragraph-4 of deposition he has stated that he has not been able to ensure the appearance of Prabhakar Mishra, his vendor, since he has not filed the case. He has further deposed in paragraph-4 and 5 that he has instituted the case against the daughter of Jaideo Mishra and does not know the name of other parties. In paragraph-4 of deposition he has stated that he has not been able to ensure the appearance of Prabhakar Mishra, his vendor, since he has not filed the case. He has further deposed in paragraph-4 and 5 that he has instituted the case against the daughter of Jaideo Mishra and does not know the name of other parties. In paragraph-9 of his deposition he has deposed that he has not made the brothers of Prabhakar Mishra as party nor he knows the name of grand father of Prabhakar Mishra. In paragraph-11 of his deposition he has said that he instructed his counsel to only array the daughter of Jaideo Mishra as party. The depositions of the plaintiff thus runs counter to his statement made in the plaint and it is in this background that the appellate court has correctly observed that the litigation was a proxy litigation at the instance of Prabhakar Mishra. 13. Adverting to the merits of the case, the entire foundation of the plaintiff is based upon a settlement made by the ex landlord Naresh Mohan Thakur in favour of Govind Lal Mishra, in respect of the entire suit property admeasuring 10 bigha 1 katha and 12 dhurs in the year 1935 and relying whereupon, it is contended that the suit property was exclusive property of Govind Lal Mishra and that the defendant second set who are daughters of Jaideo Mishra brother of Govind Lal Mishra, had no right, title or interest over the suit property to make any sale in favour of the defendant no. 1. It has been specifically held by the appellate court in paragraph-8 that except rent receipt no document of settlement by the ex-landlord in the year 1935 was led by way of evidence and even the document of auction purchase was in the name of one Rohan Thakur and not Naresh Mohan Thakur. The appellate court in paragraph-15 has also observed that no evidence was adduced by the plaintiff to demonstrate any connection of Rohan Thakur the auction purchaser with Naresh Mohan Thakur who is stated to have settled the land in favour of Govind Lal Mishra. The circumstances taken note of are eloquent of the fact that there was absolute lack of evidence to establish that the auction purchaser Rohan Thakur had settled the land in favour of Govind Lal Mishra. The circumstances taken note of are eloquent of the fact that there was absolute lack of evidence to establish that the auction purchaser Rohan Thakur had settled the land in favour of Govind Lal Mishra. Since the very foundation of the case of the plaintiff based on the settlement made by the ex-landlord in favour of Govind Lal Mishra in the year 1935, in absence of any evidence to support the fact, stands removed, the story of partition built thereon automatically falls on the ground. 14. The appellate court has also noted the written statement filed by defendant no. 1 in which the plot no. 1218 and 1219 were stated to be divided in six parts demarcating the share of each of the son of Dukha Mishra. The appellate court while taking note of the boundary details of the sale deed executed by the daughters of Jaideo Mishra in favour of the defendant no. 1 (Ext. B and B/1) and the sale deed executed by Nageshwari Devi daughter of Yamuna Mishra in favour of Manimala Devi (Ext. B/2) has opined that the boundary details mentioned in the deeds establishes the possession of each branch of Dukha Mishra over the land allotted to them as also detailed in Schedule 1 of the written statement. It has been observed that whereas the sale made by the daughter of Jaideo Mishra was being questioned in the suit but no such question was raised on the sale deed executed by Nageshwari Devi, daughter of Yamuna Mishra in favour of Manimala Devi on 24.12.1996 in respect of one and half bighas of her share of land in disputed plot no. 1218/1219 and which was led as Exhibit-B/2. The appellate court taking note of Exhibit-A which is a registered deed of relinquishment dated 28.3.1934 and Exhibit-D which is a plaint filed in Title Suit No. 28 of 1944 held that at least up to 1934 Govind Lal Mishra were joint and in which view the plaintiff’s case of exclusive right of the branch of Govind Lal Mishra over the entire property did not withstand the test. The most interesting part of this contest is that although the reliefs prayed in the suit, if allowed, would directly benefit the branch of Govind Lal Mishra but none of the legal heirs, not even the vendor son, has chosen to come forward and give evidence in support of the claim set forth by the plaintiff. 15. The conclusion drawn by the appellate court below are findings of fact based upon evidence adduced by the parties. The arguments advanced by Mr. Haider in criticism thereof, does not pinpoint any perversity in the findings. 16. The circumstances taken note of hereinabove are sufficient for this Court to hold that the suit in question is in the nature of a proxy litigation by the plaintiff who does not seem aware of the scope of his suit or the relief prayed. Even otherwise the construction of relief (b) is of such character that no decree can be passed on such vague description of land. Since the plaintiff has not been able to establish settlement made in favour of Govind Lal Mishra in the year 1935, hence he cannot question the right of the daughters of Jaideo Mishra to execute the sale deed on grounds of illegality more particularly where the plaintiff has not sought to question the sale deeds on grounds being in excess of the share of Jaideo Mishra. 17. Adverting to the questions of law raised by Mr. Haider to assail the judgment and decree, it is manifest from the judgment impugned that the documents led by the parties relevant for adjudication of the matter in issue, has been considered by the appellate court to record its opinion and thus the judgment and the decree passed by the appellate court is in accordance with the provision of Order 41 Rule 31 of the Code, not warranting any interference. In absence of any evidence supporting the foundation of the suit, there could not be any other conclusion. 18. For the reasons aforesaid, I am satisfied that no substantial question of law exists in the present appeal warranting interference in the judgment and decree under challenge. This appeal is accordingly dismissed.