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2013 DIGILAW 126 (PAT)

Chhatri Devi v. Lalwati Devi

2013-01-28

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned senior counsel appearing on behalf of the appellants. 2. The present appeal under section 100 of Code of Civil Procedure has been preferred against the judgement and decree dated 21.6.2010 and 30.6.2010 respectively passed by the learned 1st Additional District Judge, Nalanda at Biharsharif in Title Appeal No. 10/2004 whereby he has affirmed the judgement and decree dated 12.8.2004 and 21.8.2004 respectively passed by learned Sub Judge-I, Biharsharif, Nalanda in Title Suit No. 124/2002. The appeal has been placed for hearing under Order 41 Rule 11 of the Code of Civil Procedure. 3. The appellants herein were the defendants before the trial court. The respondents had filed Title Suit No. 124/2002 for declaration of their title over the suit land as described in scheduled-1 of the plaint and also for restraining the defendants from making any construction to change the present position of the land. As per the plaintiff, Manger Mahto was the ancestor of the plaintiffs’ family and the land bearing Khata No. 116, Plot No. 154 measuring area 16 decimals was endorsed in his name and during his lifetime he was owner of the land. Manger Mahto had two sons namely, Kunwar Mahto and Ramdayal Mahto. Kunwar Mahto had two sons, namely, Doman Mahto and Churaman Mahto. Doman Mahto had two sons, namely, Tek Narain Prasad and Nawal Kishore Prasad. Tek Narain Prasad was the original plaintiff. Sanjay Kumar, respondent No.7, is the son of original plaintiff, Late Tek Narain Prasad whereas respondent No.1 is the wife and respondent Nos. 2 to 6 are the daughters of Tek Narain Prasad. 4. After the death of Manger Mahto his two sons came in possession over the suit land. For plot No. 154 and for other properties of Manger Mahto partition took place between Kunwar Mahto and Ramdayal Mahto in which 8 decimals of land of plot No. 154 towards north was allotted to Kunwar Mahto and rest 8 decimals in southern part was allotted to Ramdayal Mahto. In course of time sons of Kunwar Mahto, namely, Doman Mahto and Churaman Mahto partitioned their properties nearly 40 years ago in which 8 decimals of plot No. 154 on northern side was allotted to Doman Mahto and lieu of that land Churaman Mahto was allotted the land of plot No. 153. In course of time sons of Kunwar Mahto, namely, Doman Mahto and Churaman Mahto partitioned their properties nearly 40 years ago in which 8 decimals of plot No. 154 on northern side was allotted to Doman Mahto and lieu of that land Churaman Mahto was allotted the land of plot No. 153. As per the plaintiffs’ case, in this way, 8 decimals of northern side of land of plot No. 154 came in possession of Doman Mahto. After the death of Doman Mahto his property was partitioned among his two sons namely, Tek Narain Prasad (original plaintiff) and Nawal Kishore Prasad and in that partition 6 decimals of land towards eastern side out of 8 decimals of plot No. 154 was allotted to Tek Narain Prasad and 2 decimals of land towards western side was allotted to Nawal Kishore Prasad along with land of plot No. 179. This is the position as regards the plaintiffs. 5. So far as the defendants in the Title Suit are concerned, the defendants No.1 and 2 are the daughters of Bhattu Mahto, son of Khub Lal Mahto resident of village Habibpura. Bhattu Mahto had four daughters namely, Pitani, Dukhani, Chhatari (appellant No.1) and Bhukhia (appellant No.2). Defendant Nos. 4 and 5 are the sons of Bhukhia Devi. Pitani had only one daughter. Dukhani was married to Niru Mahto. Dularchand Mahto (appellant No.3) is husband of Chhatari Devi. The plea of the plaintiffs before the trial court was that the defendants had collected bricks and sand to fence the land which belonged to them leading to initial dispute and initiation of proceeding under section 144 of Code of Criminal Procedure which was the cause of action for filing the Title Suit. 6. The defendants filed their written statement. The defendants developed the story that Bhattu Mahto at the time of constructing house on eastern portion of plot No. 179 had requested Doman Mahto to sell 1 decimal land in northern-eastern side of plot No. 154 after receiving consideration money and as there was good relation in between them, Doman orally sold 1 decimal land of Khata No. 154 on 15-03-1957 over which the said Bhattu Mahto came in possession and constructed a mud house. According to defendants the said piece of land was purchased by paying consideration amount of Rs. 95/- only and accordingly registration for such transaction was not required. 7. According to defendants the said piece of land was purchased by paying consideration amount of Rs. 95/- only and accordingly registration for such transaction was not required. 7. On the basis of the pleadings, the learned trial court framed altogether five issues including the issue as to whether the plaintiffs got any right, title, interest and possession over the suit property. In course of trial the witnesses were examined and evidence, both oral and documentary, was adduced. On the basis of said oral and documentary evidence, learned trial court came to the specific finding in paragraph 13 that the plaintiffs were in possession over the disputed land. Learned trial court also held that the disputed land was admittedly ancestral land of the plaintiffs and held that the defendants failed to prove the alleged story of oral purchase. Learned trial court specifically came to the finding that the defendants were not in possession over the suit land. 8. An appeal was preferred by the defendants- respondents to the file of learned 1st Additional District Judge, Nalanda, Biharsharif. Learned 1st Additional District Judge, Nalanda, Biharsharif affirmed the findings of fact arrived at by the learned trial court referring to various materials available on record. There is, thus, concurrent findings of facts in favour of respondents-plaintiffs and against the appellants- defendants. 9. Learned senior counsel appearing on behalf of the appellants has vehemently argued that the names of ancestors of the appellants find place in Chakbandi Khatiyan which fact, prima facie, assures title on the appellants and their possession over the suit land. It has been submitted, referring to paragraph 13 of the judgement of trial court, that the learned trial court did not discuss the evidence of PWs which was obligatory upon the trial court to do. Reference has been made also to a judgement reported in AIR 2004 (Karnataka) 450 (U.G. Srinivasa Rao vs. Vinay Kumar S. Rao) to contend that the allegation of oral purchase of the suit land from Doman Mahto could not have been rejected on the ground that the property being a joint family property, the same could not have been alienated by one co-sharer without the consent of other co-sharers. He contended that the said transaction could not be void as against the alienating co-sharer and such transaction binds his undivided interest. 10. He contended that the said transaction could not be void as against the alienating co-sharer and such transaction binds his undivided interest. 10. In my opinion, in the present case, the said proposition will be of no help as the defendants failed to prove before both the courts the factum of alleged oral purchase from Doman Mahto. So far as the plea that the trial court failed to consider the evidence of PWs, as mentioned in paragraph 13 of the judgement of the trial court is concerned, I am of the view that the trial court has referred to such evidence of PWs on the point whether the suit land was ancestral or not. The learned trial court, on the basis of evidence, held that the suit land was admittedly ancestral land and, in such view, he did not think it proper to discuss the evidence of PWs on this aspect. 11. It need not be reiterated that mere revenue entries cannot establish title over the property though such entries may raise a presumption to some extent as regards possession. 12. In view of the above, after going through the judgments of the learned trial court and the 1st appellate court, I find that no substantial question of law is involved in the present case. I also do not find that the concurrent findings of fact by the court below are perverse or can be said to be based on no material or contrary to the material available on record. In such view of the matter, I do not find any ground for admission of the appeal. The appeal is, accordingly, dismissed.