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2013 DIGILAW 1482 (PAT)

Raish Khan v. Afazal Hussain

2013-12-23

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER 1. This is an appeal under Section 100 of the Code of Civil Procedure as the defendant-appellant is aggrieved by the judgment and decree dated 10.09.2008 passed in Title Appeal No. 38/2004 by learned Additional District Judge, F.T.C.-III, Buxar, affirming the judgment and decree dated 23.08.2004 passed by learned Additional Munsif, 1st, Buxar, in Title Suit No. 104/98/07/2001. 2. The respondents filed Title Suit No. 104/98 seeking their declaration of title and recovery of possession over the suit land as also for permanent injunction alleging that they had purchased the suit land admeasuring 16 decimals on 02.05.1973. They also claimed that prior to the said purchase, after obtaining due permission from the Consolidation Officer, registered Mahadnama dated 17.03.1973 was executed with the consent of all co-sharers of the vendor who had made their signatures on the deed in presence of the concerned Mukhiya and Sarpanch. A boundary-wall was thereafter constructed after mutation and towards north on the flank of the road, a main gate was constructed. The plaintiff had to file the suit; when the defendants-appellants started interfering with the peaceful possession of the suit property on the plea that they had purchased 3 decimals of land on 11.12.1973 appertaining to the same plot from the same vendor. 3. The defendants, who are appellants herein, while contesting the suit took the plea that the total area of the concerned plot i.e. Plot No. 593 is 74 decimals and four co-sharers were entitled for 18 ½ decimals each including the vendor Fazal Rahman. It was the case of the appellants / defendants before the trial court that Fazal Rahman got his share of 18 ½ decimals of said land towards the western side. They further claimed that the defendants purchased 3 decimals out of that and contradicted the claim of the plaintiffs that only 16 ½ decimals land fell in the share of the vendor Fazal Rahman. Claiming that the plaintiff had no right and title over the said 3 decimals of land purchased by defendants, they resisted the suit. 4. On the basis of the rival pleadings, learned trial Court framed issues including issues No. 4 and 5 which read thus:- “(iv) Whether the northern boundary given in plaintiff’s reregistered Sale Deed dated 02.05.1973 is correct or not? 4. On the basis of the rival pleadings, learned trial Court framed issues including issues No. 4 and 5 which read thus:- “(iv) Whether the northern boundary given in plaintiff’s reregistered Sale Deed dated 02.05.1973 is correct or not? (v) Whether the purchased land of the defendant No. 2 by means of registered Sale Deed dated 14.12.1974 is part and parcel of the suit land purchased by plaintiffs vide registered Sale Deed dated 02.05.1973 or not?” 5. From the judgment of the trial court, it appears that after scrutinizing the oral and documentary evidence brought on record in course of trial, the trial court decided both the issues as quoted above in favour of the respondents / plaintiffs and decreed the suit accordingly in their favour. The trial court came to a categorical finding of fact, after analyzing the evidence on record that the appellants / defendants did not get any title over the suit land on the basis of the said sale deed dated 14.12.1974. 6. An appeal was preferred against the judgment and decree passed by learned trial Court by the appellants which came to be dismissed by the impugned judgment and decree which passed by learned Additional District and Sessions Judge, F.T.C.-III, Buxar hence this second appeal. 7. From the judgment of the First Appellate Court, it appears that after discussing the evidence available on record, it came to a finding that the said vendor Fazal Rahman had sold his entire share i.e. 16 ¼ decimals land in favour of the plaintiff through registered sale deed dated 02.05.1973. The said sale deed executed in favour of the plaintiff is apparently earlier in time than the one executed in favour of the defendant which is said to be executed on 11.12.1974. The First Appellate Court analyzing the evidence on record also came to a finding that as a matter of fact, the defendant in collusion with the vendor got registered a sale deed executed in his favour with respect to 3 decimals of land, on the premise that the total area of the plot being 74 decimals and the vendor’s share came to be 18 ½ decimals and he purchased land from the said vendor over and above 16 decimals transferred in favour of the plaintiffs. It came to a categorical finding on the basis of oral and documentary evidence that the vendor had got only 16 ¼ decimals of land in his share and he had sold his own shares to the plaintiffs through registered sale deed dated 02.05.1973. 8. The appellants, questioning the legality of the impugned judgment and decree passed by learned First Appellate Court has raised following questions of law which according to him are the substantial questions of law:- “(I) Whether the vendor of plaintiffs respondents took permission for selling 16 decimals of land to the plaintiffs respondents or more? (II) Whether the 16 decimals of land purchased by the plaintiffs respondents extends to the pucca road in the north or not? (III) Whether the suit filed by the plaintiffs respondents is correct or not with regard to the area of land. (IV) Whether the learned courts below considered about the area of land mentioned in the permission application bearing no. 731/1972-73. (V) Whether the claim of plaintiffs respondents for more than 16 decimals is void or not…because more claim will be against Section 5 of the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956. (VI) Whether the learned courts below examined that there has been a notification under section 3 of the Bihar Consolidation of Holding Act and the occasion for taking permission arose due to notification under Section 3 Sub-section 1 of the Bihar Consolidation of Holdings Act.” 9. From bare reading of the substantial questions of law raised on behalf of the appellant which have been quoted above, it will appear that questions No. 1 to 5 cannot be treated to be questions of law muchless the substantial questions of law. As regards sixth substantial questions of law raised by the appellant, I am of the opinion, the answer goes against him. The appellant claims to have purchased 3 decimals of suit property admittedly during the period a notification under Section 3 of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Hereinafter referred to as the ‘Act’) was in operation. It is never his case that he ever sought any permission for transfer of the land from the competent authority under the Act. 10. At this stage, Mr. It is never his case that he ever sought any permission for transfer of the land from the competent authority under the Act. 10. At this stage, Mr. Dwivedy Surendra, Learned counsel appearing on behalf of the respondents has rightly placed reliance upon a Full Bench judgment of this Court reported in 2010 (2) P.L.J.R. 1066 (Panna Devi V. State of Bihar) that a transaction made during the operation of notification under Section 3 of the Act without prior sanction of the competent authority is void in view of Section 39 of the said Act. This is to be kept in mind that it was specific case of the plaintiff on the other hand that he had purchased the land from the vendor by the registered sale deed dated 02.05.1973 with prior permission from the Consolidation Officer in a proceeding bearing case No. 731 of 1972-73. 11. I do not find any perversity in the impugned judgment, it cannot be the case of the appellant that the concurrent finding of fact arrived at by the learned First Appellate Court is based on no evidence. The finding, in my opinion, cannot be said to be contrary to the material on record. It is well settled that concurrent finding of fact by the First Appellate Court should not be interfered with by this Court in exercise of power under Section 100 of the Code of Civil Procedure, unless it is held that the findings are perverse. I am of the opinion that the present appeal does not involve any substantial question of law and is accordingly dismissed but without costs.