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2013 DIGILAW 78 (PAT)

Paras Nath Dubey v. Kishun Dubey

2013-01-18

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER Heard learned counsel for the appellant. 2. The appeal which has been filed under section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) has been placed for hearing under Order 41 Rule 11 of the Code. 3. The appellant is aggrieved by the judgement and decree dated 07-12-2009 passed in Title Appeal No. 24/2002 by learned 1st Additional District Judge, Siwan whereby he has affirmed the judgement and decree dated 17-04-2002 and 01-05-2002 passed by learned 1st Munsif, Siwan in Title Suit No. 198/1985 whereby the appellant’s suit was dismissed. 4. The case of the plaintiff-appellant in brief is that father of the respondents 1st set namely, Thakur Dubey had entered into an agreement for sale dated 07-11-1984 of the suit land being plot No. 1595 Khata No. 443 Thana No. 153 admeasuring 5 Dhurs in village Jamapur PS Jiradei, with the appellant. The further case of plaintiff-appellant is that as per agreement the appellant had to pay a sum of Rs. 3,000/- against the consideration amount of Rs. 5,000/- to Thakur Dubey with the understanding that the rest amount of Rs. 2,000/- will be paid within six months whereupon he would execute a sale deed in favour of appellant. The said Thakur Dubey inspite of such agreement for sale through a registered sale deed, transferred the suit land in favour of Ram Sundari Devi wife of respondent No.5. The case of the plaintiff- appellant is that respondents 2nd set, the purchaser, had full knowledge regarding the agreement for sale dated 07-11-1984 between the appellant and said Thakur Dubey. 5. The defendants- respondents took a plea before the trial court that no such agreement for sale was ever executed in favour of the appellant nor any amount, being part of the consideration amount, as alleged, was ever paid to the defendants. Similar plea was taken by the respondents 2nd set before the trial court as regards the genuineness of the agreement for sale. It was pleaded on their behalf that the said agreement was forged and fabricated. The trial court on the basis of rival contentions framed altogether seven issues including issue No.3 which reads as follows:- “Whether Thakur Dubey (defendant No.1) executed a Mahadanama on 07-11-1984 in favour of the plaintiff with respect to the disputed land?” 6. It was pleaded on their behalf that the said agreement was forged and fabricated. The trial court on the basis of rival contentions framed altogether seven issues including issue No.3 which reads as follows:- “Whether Thakur Dubey (defendant No.1) executed a Mahadanama on 07-11-1984 in favour of the plaintiff with respect to the disputed land?” 6. From the perusal of the judgement of the trial court it appears that after considering the evidence and material on record the trial court came to specific finding in paragraph 8 of the judgement that the plaintiff failed to establish that there was any agreement for sale between he plaintiff and defendant No.1 said to have been signed on 07-11-1984. 7. The plaintiff thereafter preferred appeal vide Title Appeal No. 24/2002 which too was dismissed by the 1st Additional District Judge, Siwan vide his order dated 07-12-2009. Learned 1st appellate court in his judgement under appeal on scrutinizing the evidence and material available on record came to the finding that agreement for sale (Mahadanama) said to have been executed in favour of plaintiff-appellant was not genuine and on such basis the plaintiff-appellant did not come in possession over the suit land 8. Learned counsel appearing on behalf of the appellant has vehemently submitted that the finding of the trial court as well as that of the 1st appellate court is not based on proper appraisal of the evidence and the material available on record. He has submitted that the said Thakur Dubey had put his thumb impression on the document being agreement for sale which was examined by the expert also and on comparison of the thumb impression it was found to be that of Thakur Dubey. 9. Learned counsel for the appellant, however, apart from this submission has not been able to point out as to whether any other substantial question of law is involved in the present case. As per his own submission, the plea is that the finding is based on wrong appraisal of evidence. Learned counsel for the appellant has not been able to make out a case for interference by this court in exercise of power under section 100 of the Code. 10. As per his own submission, the plea is that the finding is based on wrong appraisal of evidence. Learned counsel for the appellant has not been able to make out a case for interference by this court in exercise of power under section 100 of the Code. 10. The scope of interference by this court in exercise of power under section 100 of the Code is limited as would appear from the provision itself and several pronouncements on Section on the jurisdiction of this court to interfere as 2nd appellate court. It has been repeatedly held that High Court has no jurisdiction to interfere with finding of fact arrived at by the 1st appellate court. Interference with findings of fact by the High Court is not warranted in exercise of power under section 100 of the Code if it invokes reappraisal of evidence, as has been held by the Apex Court. The Supreme Court in the case of Gurdev Kaur v. Kaki, (2007) 1 SCC 546 referred to, with approval, the report of judicial committee of the Privy Council to the effect that the High Court had no jurisdiction to entertain a 2nd appeal on the ground of an erroneous finding of fact, however, gross or inexcusable errors may seem to be adding further that no court has power to add to, or enlarge the grounds specified in Section 100. 11. In such view of the matter and in view of the submissions advanced on behalf of the appellant, I do not find that the appeal involves any substantial question of law. I have perused the judgement of learned trial court and that of 1st Additional District Judge, Siwan, the 1st appellate court. From perusal of the judgement under appeal, it cannot be said that the findings by the two courts are based on no evidence or the same are contrary to material on record. The appeal is, accordingly, dismissed.