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2013 DIGILAW 379 (PAT)

Ram Lakhan Mishra v. Shanti Devi

2013-03-18

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned counsel for the appellants. 2. The plaintiffs are the appellants herein and are aggrieved by the judgement and decree dated 22-09-2008 and 27-09-2008 respectively, passed by learned Additional District Judge, Fast Track Court-I, Aurangabad in Title Appeal No. 18/1995 84/2007 whereby while confirming the judgement and decree dated 31-03-1995 and 26-04-1995 respectively, passed by learned Sub- Judge, III, Aurangabad in Title Suit No. 179/1986 76/1989 he dismissed the appeal. 3. The original plaintiff No.1 Rukmini Devi and plaintiff No.2 Vindhabasani Devi are the wives of Sri Ram Lakhan Mishra and Radha Govind Mishra respectively; sons of Raghunandan Mishra. Saligram Mishra happened to be the common ancestor who had three sons, namely, Parshuram Mishra, Nem Narayan Mishra and Yadav Mishra. Parshuram Mishra had one son Raghunandan Mishra and daughter Godavari. The said Radha Goving Mishra and Ram Lakhan Mishra whose wives were the plaintiffs are sons of Raghunandan Mishra. The other son of common ancestor, Saligram Mishra, namely, Nem Narayan Mishra had no issue. Yadav Mishra had two sons, Basudeo Mishra and Srikant Mishra. Srikant Mishra had one son, Puranchand Mishra. 4. The other two plaintiffs namely, namely, Satyendra Narain Mishra and Basant Kumar Mishra had been impleaded as plaintiffs for the purpose of facilitating the plaintiffs No.1 and 2 who are Pardanashin ladies to pursue the suit. The plaintiffs sought for a declaration that defendant No.1, Puranchand Mishra was not the adopted son of Late Pandit Nem Narayan Mishra and that the transactions dated 02-09-1986 of the defendants were void under the provisions of Bihar Tenants Holding ( Maintenance of Records) Amendment Act, 1982 read with Section 23 of the Registration Act and for a declaration that plaintiffs No.1 and 2 have got title and possession over the suit property and also for an order of permanent injunction against defendants from interfering with the possession of the plaintiffs over the suit property. 5. The plaintiffs claimed that the suit property was acquired in the name of plaintiffs No.1 and 2 from Nem Narayan Mishra through unregistered deeds of sale. It was further claimed that the plaintiffs had been living jointly and had been paying rent with respect to the suit land and during the recent revisional survey operation also Raiyati Parchas had been granted to them after spot verification of their title and possession upon the suit land. It was further claimed that the plaintiffs had been living jointly and had been paying rent with respect to the suit land and during the recent revisional survey operation also Raiyati Parchas had been granted to them after spot verification of their title and possession upon the suit land. It was further claimed that out of their personal money, the suit land were purchased from Parshuram Mishra, grand father of their husband and his other brothers including Nem Narayan Mishra. The plaintiffs claimed that defendant No.1 was not the adopted son of Nem Narayan Mishra and he wrongly claimed his title over the suit property left by Nem Narayan Mishra. The plaintiffs further claimed that the said defendant No.1 had never been in any cultivating arrangement in the village and due to his long and continuous ouster he waived his right, title and interest upon the suit land and accordingly the claim of right, title and possession over the suit land was barred by adverse possession. The plaintiffs claimed that defendant No.1 had executed some illegal and fabricated documents in favour of other defendants which necessitated the filing of the suit. 6. The suit was contested by the defendants. The said Puranchand Mishra, defendant No.1, filed his written statement. The Defendants vendees, who had purchased the suit property from defendant No.1 also filed their written statements. 7. On the basis of rival pleadings, the trial court framed altogether eight issues including issue Nos. iii, iv, v and vi which are being quoted herein below:- “(iii) Is the defendant No.1 (Puranchand Mishra) the adopted son of Late Pandit Nem Narayan Mishra and whether title and possession of Puranchand Mishra has been extinguished from the suit land? (iv) Whether the plaintiffs Nos. 1 and 2 have got title and possession upon the suit and whether the suit land is their self acquired Stridhan property acquired by them from the Ornaments and Money given to them by their parents in their marriage gift? (v) Whether the defendant No.1 (Puranchand Mishra) has acquired his title and possession upon the share of land of Nem Narayan Mishra? (vi) Whether the sale deeds executed by the defendant No.1 (Puranchand Mishra) is favour of the defendant Nos. 2 to 6 dated 02-09-1986 are illegal, void, and inoperative documents without consideration?” 8. After the issues were framed, the parties led their evidence both oral and documentary. (vi) Whether the sale deeds executed by the defendant No.1 (Puranchand Mishra) is favour of the defendant Nos. 2 to 6 dated 02-09-1986 are illegal, void, and inoperative documents without consideration?” 8. After the issues were framed, the parties led their evidence both oral and documentary. Learned trial court, on the basis of the evidence and other materials on record, came to a conclusive finding, dealing with issue No. iii that Puranchand Mishra, defendant No.1, was adopted son of Nem Narayan Mishra. For reaching to this conclusion, the trial court relied upon the documentary evidence including exhibit-H/1 being the judgement of Additional District Judge, Singhbhom (Chaibasa) dated 30-09-1967 whereby said Puranchand Mishra, defendant No.1, was said to be the adopted son of Nem Narayan Mishra. 9. Dealing with issue No. iv learned trial court, after considering the evidence both oral and documentary on record, came to a finding that the plaintiffs did not have any title and possession upon the suit property and further that the alleged unregistered deed was not a genuine document. 10. Learned first appellate court, after re-appreciating the evidence on record, concurred with the findings of fact arrived at by the trial court and observed that the documents like the rent receipts, revisional survey parchas and copy of register-II cannot create title of the plaintiffs upon the suit land in view of forged and fabricated nature of the sale deed marked as exhibit-3 created in favour of the plaintiffs which is the basis of creation of other documents in their favour. Agreeing with the findings of learned trial court, learned first appellate court too held that plaintiffs No.1 and 2 did not have title and possession over the suit land and the same was not their self acquired property from Stridhan and dismissed the first appeal against which the present second appeal has been preferred and has been placed before me for hearing under Order 41 Rule 11 of the Code of Civil Procedure. 11. Learned counsel for the appellants, assailing the judgments of both the courts below, submits that the courts below failed to take into account the material on record in their correct perspective and committed gross error while relying upon the finding recorded by another court on the question of adoption of Puranchand Mishra by Nem Narayan Mishra. 11. Learned counsel for the appellants, assailing the judgments of both the courts below, submits that the courts below failed to take into account the material on record in their correct perspective and committed gross error while relying upon the finding recorded by another court on the question of adoption of Puranchand Mishra by Nem Narayan Mishra. He submits that the courts below were swayed away by the previous judgment accepting the adoption of Puranchand Mishra by Nem Narayan Mishra as delivered by Chaibasa court and submits that for this reason the findings of the courts below are vitiated and not sustainable. He further submits that the present second appeal involves a substantial question of law inasmuch as the courts below failed to consider the effect of Section 14 (1) of Hindu Succession Act, 1956 which provides enjoyment of full fledged right of a female Hindu with respect to property held by her as Stridhan immediately before commencement of the Act. 12. As has been noticed above, there is concurrent finding of fact by the courts below to the effect that unregistered sale deed marked as exhibit-3 through which the plaintiffs claimed to have purchased the suit property from Nem Narayan Mishra and Parshuram Mishra was forged and fabricated. There being concurrent findings of fact to this effect, in my opinion, no substantial question of law as raised by learned counsel for the appellants would arise in this case as such sale deeds are the foundation of the case of the plaintiffs/ appellants. No ground has been made out on behalf of the appellants to contend that the findings of fact arrived at by the courts below on the point that unregistered sale deeds was forged and fabricated, are perverse. In such circumstances, in my opinion, the judgment of the first appellate court would need no interference in exercise of power under section 100 of the Code of Civil Procedure. 13. The proposition needs no reiteration that power of the High Court under section 100 of the Code of Civil Procedure is confined only when the matter involves a substantial question of law which has been wrongly decided by the courts below and that such decision has materially, substantially and adversely affected the rights of the parties or when the judgment is perverse being contrary to facts on record or without any evidence. In view of above, the appeal does not merit admission and is, accordingly, dismissed.